Calendar No. 607

103D CONGRESS

2D SESSION H. R. 3508

AN ACT

To provide for tribal self-governance, and for other

purposes.

SEPTEMBER 13 (legislative day, SEPTEMBER 12), 1994

Read twice and placed on the calendar
II

Calendar No. 607

103D CONGRESS

2D SESSION H. R. 3508

IN THE SENATE OF THE UNITED STATES

AUGUST 17 (legislative day, AUGUST 11), 1994

Received

SEPTEMBER 13 (legislative day, SEPTEMBER 12), 1994

Read twice and placed on the calendar

AN ACT

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 1994’’.

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;
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1 (2) the United States recognizes a special gov2 ernment-to-government relationship with Indian

3 tribes, including the right of the tribes to self-gov4 ernance, as reflected in the Constitution, treaties,

5 Federal statutes, and the course of dealings of the

6 United States with Indian tribes;

7 (3) although progress has been made, the Fed8 eral bureaucracy, with its centralized rules and regu9 lations, has eroded tribal self-governance and domi10 nates tribal affairs;

11 (4) the Tribal Self-Governance Demonstration

12 Project was designed to improve and perpetuate the

13 government-to-government relationship between In14 dian tribes and the United States and to strengthen

15 tribal control over Federal funding and program

16 management; and

17 (5) Congress has reviewed the results of the

18 Tribal Self-Governance Demonstration Project and

19 finds that—

20 (A) transferring control to tribal govern21 ments, upon tribal request, over funding and

22 decisionmaking for Federal programs, services,

23 functions, and activities intended to benefit In24 dians is an effective way to implement the Fed-
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1 eral policy of government-to-government rela2 tions with Indian tribes; and

3 (B) transferring control to tribal govern4 ments, upon tribal request, over funding and

5 decisionmaking for Federal programs, services,

6 functions, and activities strengthens the Fed7 eral policy of Indian self-determination.

8 SEC. 3. DECLARATION OF POLICY.

9 It is the policy of this Act to permanently establish

10 and implement tribal self-governance—

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

12 improve its unique and continuing relationship with,

13 and responsibility to, Indian tribes;

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

15 extent of the participation of such tribe in self16 governance;

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

18 Self-Determination Act relating to the provision of

19 Indian services by designated Federal agencies;

20 (4) to ensure the continuation of the trust re21 sponsibility of the United States to Indian tribes and

22 Indian individuals;

23 (5) to permit an orderly transition from Federal

24 domination of programs and services to provide In25 dian tribes with meaningful authority to plan, con-
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1 duct, redesign, and administer programs, services,

2 functions, and activities that meet the needs of the

3 individual tribal communities; and

4 (6) to provide for an orderly transition through

5 a planned and measurable parallel reduction in the

6 Federal bureaucracy.

7 SEC. 4. TRIBAL SELF-GOVERNANCE.

8 The Indian Self-Determination and Education Assist9 ance Act is amended by adding at the end the following

10 new title:

11 ‘‘TITLE IV—TRIBAL SELF12 GOVERNANCE

13 ‘‘SEC. 401. ESTABLISHMENT.

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

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

16 carry out a program within the Department of the Interior

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

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

19 this title.

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

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

22 tribe that is participating in the Tribal Self-Governance

23 Demonstration Project at the Department of the Interior

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

25 thereafter participate in Self-Governance under this title
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1 and cease participation in the Tribal Self-Governance

2 Demonstration Project under title III with respect to the

3 Department of the Interior.

4 ‘‘(b) ADDITIONAL PARTICIPANTS.—(1) In addition to

5 those Indian tribes participating in Self-Governance under

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

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

8 tribes per year from the applicant pool described in sub9 section (c) to participate in Self-Governance.

10 ‘‘(2) If each tribe requests, two or more otherwise eli11 gible Indian tribes may be treated as a single Indian tribe

12 for the purpose of participating in Self-Governance as a

13 consortium.

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

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

16 ‘‘(1) successfully completes the planning phase

17 described in subsection (d);

18 ‘‘(2) has requested participation in Self-Govern19 ance by resolution or other official action by the

20 tribal governing body; and

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

22 fiscal years, financial stability and financial manage23 ment capability as evidenced by the tribe having no

24 material audit exceptions in the required annual

25 audit of the self-determination contracts of the tribe.
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1 ‘‘(d) PLANNING PHASE.—Each Indian tribe seeking

2 to begin participation in Self-Governance shall complete

3 a planning phase in accordance with this subsection. The

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

5 participation in Self-Governance. The planning phase shall

6 include—

7 ‘‘(1) legal and budgetary research; and

8 ‘‘(2) internal tribal government planning and

9 organizational preparation.

10 ‘‘SEC. 403. FUNDING AGREEMENTS.

11 ‘‘(a) AUTHORIZATION.—The Secretary shall nego12 tiate and enter into an annual written funding agreement

13 with the governing body of each participating tribal gov14 ernment.

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

16 ‘‘(1) authorize the tribe to plan, conduct, con17 solidate, and administer programs, services, func18 tions, and activities, or portions thereof, adminis19 tered by the Department of the Interior that are

20 otherwise available to Indian tribes or Indians, with21 out regard to the agency or office of the Department

22 of the Interior within which it is performed, includ23 ing (but not limited to) those administered under

24 the authority of—
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1 ‘‘(A) the Act of April 16, 1934 (25 U.S.C.

2 452 et seq.);

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

4 U.S.C. 13); and

5 ‘‘(C) programs, services, functions, and ac6 tivities or portions thereof administered by the

7 Secretary of the Interior that are otherwise

8 available to Indian tribes or Indians for which

9 appropriations are made to agencies other than

10 the Department of the Interior;

11 ‘‘(2) subject to the terms of the agreement, au12 thorize the tribe to redesign or consolidate pro13 grams, services, functions, and activities, or portions

14 thereof, and to reallocate funds for such programs,

15 services, functions, or activities, or portions thereof;

16 ‘‘(3) prohibit the inclusion of funds provided—

17 ‘‘(A) pursuant to the Tribally Controlled

18 Community College Assistance Act of 1978 (25

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

20 ‘‘(B) for elementary and secondary schools

21 under the formula developed pursuant to sec22 tion 1128 of the Education Amendments of

23 1978 (25 U.S.C. 2008); and

24 ‘‘(C) the Flathead Agency Irrigation Divi25 sion or the Flathead Agency Power Division,
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1 except that nothing in this section shall affect

2 the contract authority of such divisions under

3 section 102;

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

5 functions to be performed, and the responsibilities of

6 the tribe and the Secretary pursuant to the agree7 ment;

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

9 reallocate funds or modify budget allocations within

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

11 ‘‘(6) allow for retrocession of programs or por12 tions of programs pursuant to section 105(e);

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

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

15 under this section, the tribe—

16 ‘‘(A) shall not be entitled to contract with

17 the Secretary for such funds under section 102,

18 except that such tribe shall be eligible for new

19 programs on the same basis as other tribes; and

20 ‘‘(B) shall be responsible for the adminis21 tration of programs, services, functions, and ac22 tivities pursuant to agreements entered into

23 under this section; and

24 ‘‘(8) prohibit the Secretary from waiving, modi25 fying, or diminishing in any way the trust respon-
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1 sibility of the United States with respect to Indian

2 tribes and individual Indians that exists under trea3 ties, Executive orders, and other laws.

4 ‘‘(c) ADDITIONAL ACTIVITIES.—Each funding agree5 ment negotiated pursuant to subsections (a) and (b) may,

6 in accordance to such additional terms as the parties deem

7 appropriate, also include other programs, services, func8 tions, and activities, or portions thereof, administered by

9 the Secretary of the Interior which are of special geo10 graphic, historical, or cultural significance to the partici11 pating Indian tribe requesting a compact.

12 ‘‘(d) PROVISIONS RELATING TO THE SECRETARY.—

13 Funding agreements negotiated between the Secretary

14 and an Indian tribe shall include provisions—

15 ‘‘(1) to monitor the performance of trust func16 tions by the tribe through the annual trust evalua17 tion, and

18 ‘‘(2) for the Secretary to reassume a program,

19 service, function, or activity, or portions thereof, if

20 there is a finding of imminent jeopardy to a physical

21 trust asset.

22 ‘‘(e) CONSTRUCTION PROJECTS.—(1) Regarding con23 struction programs or projects, the Secretary and Indian

24 tribes may negotiate for the inclusion of specific provisions

25 of the Office of Federal Procurement and Policy Act and
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1 Federal acquisition regulations in any funding agreement

2 entered into under this Act. Absent a negotiated agree3 ment, such provisions and regulatory requirements shall

4 not apply.

5 ‘‘(2) In all construction projects performed pursuant

6 to this title, the Secretary shall ensure that proper health

7 and safety standards are provided for in the funding

8 agreements.

9 ‘‘(f) SUBMISSION FOR REVIEW.—Not later than 90

10 days before the proposed effective date of an agreement

11 entered into under this section, the Secretary shall submit

12 a copy of such agreement to—

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

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

15 the funding agreement;

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

17 Senate; and

18 ‘‘(3) the Subcommittee on Native American Af19 fairs of the Committee on Natural Resources of the

20 House of Representatives.

21 ‘‘(g) PAYMENT.—(1) At the request of the governing

22 body of the tribe and under the terms of an agreement

23 entered into under this section, the Secretary shall provide

24 funding to the tribe to carry out the agreement.
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1 ‘‘(2) The funding agreements authorized by this title

2 and title III of this Act shall provide for advance payments

3 to the tribes in the form of annual or semi-annual install4 ments at the discretion of the tribes.

5 ‘‘(3) Subject to paragraph (3) of this subsection and

6 paragraphs (1) and (3) of subsection (b), the Secretary

7 shall provide funds to the tribe under an agreement under

8 this title for programs, services, functions, and activities,

9 or portions thereof, in an amount equal to the amount

10 that the tribe would have been eligible to receive under

11 contracts and grants under this Act, including amounts

12 for direct program and contract support costs and, in ad13 dition, any funds that are specifically or functionally relat14 ed to the provision by the Secretary of services and bene15 fits to the tribe or its members, without regard to the or16 ganization level within the Department where such func17 tions are carried out.

18 ‘‘(4) Funds for trust services to individual Indians

19 shall be available under an agreement entered into under

20 this section only to the extent that the same services that

21 would have been provided by the Secretary are provided

22 to individual Indians by the tribe.

23 ‘‘(h) CIVIL ACTIONS.—(1) Except as provided in

24 paragraph (2), for the purposes of section 110, the term
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1 ‘contract’ shall include agreements entered into under this

2 title.

3 ‘‘(2) For the period that an agreement entered into

4 under this title is in effect, the provisions of section 2103

5 of the Revised Statutes of the United States (25 U.S.C.

6 81), and section 16 of the Act of June 18, 1934 (25

7 U.S.C. 476), shall not apply to attorney and other profes8 sional contracts by Indian tribal governments participat9 ing in Self-Governance under this title.

10 ‘‘(i) FACILITATION.—(1) Except as otherwise pro11 vided by law, the Secretary shall interpret each Federal

12 law and regulation in a manner that will facilitate—

13 ‘‘(A) the inclusion of programs, services, func14 tions, and activities in the agreements entered into

15 under this section; and

16 ‘‘(B) the implementation of agreements entered

17 into under this section.

18 ‘‘(2)(A) A tribe may submit a written request for a

19 waiver to the Secretary identifying the regulation sought

20 to be waived and the basis for the request.

21 ‘‘(B) Not later than 60 days after receipt by the Sec22 retary of a written request by a tribe to waive application

23 of a Federal regulation for an agreement entered into

24 under this section, the Secretary shall either approve or

25 deny the requested waiver in writing to the tribe. A denial
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1 may be made only upon a specific finding by the Secretary

2 that identified language in the regulation may not be

3 waived because that regulation is expressly required by

4 Federal law. The Secretary’s decision shall be final for the

5 Department.

6 ‘‘(j) FUNDS.—All funds provided under funding

7 agreements entered into pursuant to this Act, and all

8 funds provided under contracts or grants made pursuant

9 to this Act, shall be treated as non-Federal funds for pur10 poses of meeting matching requirements under any other

11 Federal law.

12 ‘‘SEC. 404. BUDGET REQUEST.

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

14 request of the President to the Congress under section

15 1105 of title 31, United States Code, any funds proposed

16 to be included in agreements authorized under this title.

17 ‘‘SEC. 405. REPORTS.

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

19 Congress a written report on January 1 of each year fol20 lowing the date of enactment of this title regarding the

21 administration of this title.

22 ‘‘(b) CONTENTS.—The report shall—

23 ‘‘(1) identify the relative costs and benefits of

24 Self-Governance;
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1 ‘‘(2) identify, with particularity, all funds that

2 are specifically or functionally related to the provi3 sion by the Secretary of services and benefits to

4 Self-Governance tribes and their members;

5 ‘‘(3) identify the funds transferred to each Self6 Governance tribe and the corresponding reduction in

7 the Federal bureaucracy;

8 ‘‘(4) include the separate views of the tribes;

9 and

10 ‘‘(5) include the funding formula for individual

11 tribal shares of Central Office funds, together with

12 the comments of affected Indian tribes, developed

13 under subsection (d).

14 ‘‘(c) REPORT ON NON-BIA PROGRAMS.—

15 ‘‘(1) In order to optimize opportunities for in16 cluding non-Bureau of Indian Affairs programs for

17 compacts under section 403(b)(1) and special pro18 grams under section 403(c) in agreements tribes

19 participating in Self-Governance under this title, the

20 Secretary—

21 ‘‘(A) shall review all programs, services,

22 and functions administered by the Department

23 of the Interior, other than the Bureau of Indian

24 Affairs, without regard to the agency or office

25 concerned, and
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1 ‘‘(B) within 90 days after the enactment of

2 this title, provide to the appropriate committees

3 of the Congress a listing of all such programs,

4 services, functions, and activities, or portions

5 thereof, which the Secretary determines are eli6 gible for inclusion in such agreements at the re7 quest of a participating Indian tribe.

8 ‘‘(2) The Secretary shall establish pro9 grammatic targets, after consultation with tribes

10 participating in Self-Governance under this title, to

11 encourage bureaus of the Department to assure that

12 a significant portion of such programs, services,

13 functions, and activities are actually included in the

14 agreements negotiated under section 403.

15 ‘‘(3) The listing and targets under paragraphs

16 (1) and (2) shall be published in the Federal Reg17 ister and be made available to any Indian tribe par18 ticipating in Self-Governance under this title. The

19 list shall be published before January 1, 1995, and

20 annually thereafter by January 1 preceding the fis21 cal year in which the targets are to be met.

22 ‘‘(4) Thereafter, the Secretary shall annually

23 review and publish in the Federal Register, after

24 consultation with tribes participating in Self-Govern-
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1 ance under this title, a revised listing and pro2 grammatic targets.

3 ‘‘(d) REPORT ON CENTRAL OFFICE FUNDS.—Within

4 90 days after the date of the enactment of this title, the

5 Secretary shall, in consultation with Indian tribes, develop

6 a funding formula to determine the individual tribal share

7 of funds controlled by the Central Office of the Bureau

8 of Indian Affairs for inclusion in the Self-Governance com9 pacts. The Secretary shall include such formula in the an10 nual report submitted to the Congress under subsection

11 (b), together with the views of the affected Indian tribes.

12 ‘‘SEC. 406. DISCLAIMERS.

13 ‘‘(a) OTHER SERVICES, CONTRACTS, AND FUNDS.—

14 Nothing in this title shall be construed to limit or reduce

15 in any way the services, contracts, or funds that any other

16 Indian tribe or tribal organization is eligible to receive

17 under section 102 or any other applicable Federal law.

18 ‘‘(b) FEDERAL TRUST RESPONSIBILITIES.—Nothing

19 in this Act shall be construed to diminish the Federal trust

20 responsibility to Indian tribes, individual Indians, or Indi21 ans with trust allotments.

22 ‘‘(c) APPLICATION OF OTHER SECTIONS OF ACT.—

23 All provisions of sections 6, 102(c), 104, 105(f), 110, and

24 111 of this Act shall apply to agreements provided under

25 this title.
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1 ‘‘SEC. 407. REGULATIONS.

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

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

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

5 the Secretary shall initiate procedures under subchapter

6 III of chapter 5 of title 5, United States Code, to negotiate

7 and promulgate such regulations as are necessary to carry

8 out this title.

9 ‘‘(b) COMMITTEE.—A negotiated rulemaking commit10 tee established pursuant to section 565 of title 5, United

11 States Code, to carry out this section shall have as its

12 members only Federal and tribal government representa13 tives, a majority of whom shall be representatives of In14 dian tribes with agreements under this title.

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

16 shall adapt the negotiated rulemaking procedures to the

17 unique context of Self-Governance and the government-to18 government relationship between the United States and

19 the Indian tribes.

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

21 shall not limit the effect of this title.
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1 ‘‘SEC. 408. AUTHORIZATION OF APPROPRIATIONS.

2 ‘‘There are authorized to be appropriated such sums

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

Passed the House of Representatives August 16,

1994.

Attest: DONNALD K. ANDERSON,

Clerk.