Union Calendar No. 353

103D CONGRESS

2D SESSION H. R. 3508

[Report No. 103–653]

A BILL

To provide for tribal self-governance, and for other

purposes.

AUGUST 3, 1994

Reported with an amendment, committed to the Commitordered to be printed tee of the Whole House on the State of the Union, and
IB

Union Calendar No. 353

103D CONGRESS

2D SESSION H. R. 3508

[Report No. 103–653]

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

AUGUST 3, 1994

Additional sponsors: Mr. STUPAK, Mr. OBERSTAR, Mr. SABO, Mr.

FALEOMAVAEGA, and Mr. VENTO

AUGUST 3, 1994

Reported with an amendment, committed to the Committee of the Whole

House on the State of the Union, and ordered to be printed

[Strike out all after the enacting clause and insert the part printed in italic]

[For text of introduced bill, see copy of bill as introduced on November 15, 1993]

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,
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1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the ‘‘Tribal Self-Governance

3 Act of 1994’’.

4 SEC. 2. FINDINGS.

5 Congress finds that—

6 (1) the tribal right of self-government flows from

7 the inherent sovereignty of Indian tribes and nations;

8 (2) the United States recognizes a special govern9 ment-to-government relationship with Indian tribes,

10 including the right of the tribes to self-governance, as

11 reflected in the Constitution, treaties, Federal statutes,

12 and the course of dealings of the United States with

13 Indian tribes;

14 (3) although progress has been made, the Federal

15 bureaucracy, with its centralized rules and regula16 tions, has eroded tribal self-governance and dominates

17 tribal affairs;

18 (4) the Tribal Self-Governance Demonstration

19 Project was designed to improve and perpetuate the

20 government-to-government relationship between In21 dian tribes and the United States and to strengthen

22 tribal control over Federal funding and program

23 management; and

24 (5) Congress has reviewed the results of the Trib25 al Self-Governance Demonstration Project and finds

26 that—
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1 (A) transferring control to tribal govern2 ments, upon tribal request, over funding and de3 cisionmaking for Federal programs, services,

4 functions, and activities intended to benefit Indi5 ans is an effective way to implement the Federal

6 policy of government-to-government relations

7 with Indian tribes; and

8 (B) transferring control to tribal govern9 ments, upon tribal request, over funding and de10 cisionmaking for Federal programs, services,

11 functions, and activities strengthens the Federal

12 policy of Indian self-determination.

13 SEC. 3. DECLARATION OF POLICY.

14 It is the policy of this Act to permanently establish

15 and implement tribal self-governance—

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

17 improve its unique and continuing relationship with,

18 and responsibility to, Indian tribes;

19 (2) to permit each Indian tribe to choose the ex20 tent of the participation of such tribe in self21 governance;

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

23 Self-Determination Act relating to the provision of

24 Indian services by designated Federal agencies;
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1 (4) to ensure the continuation of the trust re2 sponsibility of the United States to Indian tribes and

3 Indian individuals;

4 (5) to permit an orderly transition from Federal

5 domination of programs and services to provide In6 dian tribes with meaningful authority to plan, con7 duct, redesign, and administer programs, services,

8 functions, and activities that meet the needs of the in9 dividual tribal communities; and

10 (6) to provide for an orderly transition through

11 a planned and measurable parallel reduction in the

12 Federal bureaucracy.

13 SEC. 4. TRIBAL SELF-GOVERNANCE.

14 The Indian Self-Determination and Education Assist15 ance Act is amended by adding at the end the following

16 new title:

17 ‘‘TITLE IV—TRIBAL SELF18 GOVERNANCE

19 ‘‘SEC. 401. ESTABLISHMENT.

20 ‘‘The Secretary of the Interior (hereinafter in this title

21 referred to as the ‘Secretary’) shall establish and carry out

22 a program within the Department of the Interior to be

23 known as Tribal Self-Governance (hereinafter in this title

24 referred to as ‘Self-Governance’) in accordance with this

25 title.
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1 ‘‘SEC. 402. SELECTION OF PARTICIPATING INDIAN TRIBES.

2 ‘‘(a) CONTINUING PARTICIPATION.—Each Indian tribe

3 that is participating in the Tribal Self-Governance Dem4 onstration Project at the Department of the Interior under

5 title III on the date of enactment of this title shall thereafter

6 participate in Self-Governance under this title and cease

7 participation in the Tribal Self-Governance Demonstration

8 Project under title III with respect to the Department of

9 the Interior.

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

11 those Indian tribes participating in Self-Governance under

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

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

14 tribes per year from the applicant pool described in sub15 section (c) to participate in Self-Governance.

16 ‘‘(2)(A) Any consortium of Indian tribes may be treat17 ed as a single Indian tribe for the purpose of participating

18 in Self-Governance if each member tribe of the consortium

19 first authorizes participation in the consortium.

20 ‘‘(B) An Indian tribe participating in Self-Governance

21 as part of a consortium is not eligible to participate inde22 pendently in the identical programs, services, functions, or

23 activities in which the consortium is participating under

24 this title.

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

26 for Self-Governance shall consist of each tribe that—
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1 ‘‘(1) successfully completes the planning phase

2 described in subsection (d);

3 ‘‘(2) has requested participation in Self-Govern4 ance by resolution or other official action by the trib5 al governing body; and

6 ‘‘(3) has demonstrated, for the previous three fis7 cal years, financial stability and financial manage8 ment capability as evidenced by the tribe having no

9 material audit exceptions in the required annual

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

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

12 begin participation in Self-Governance shall complete a

13 planning phase in accordance with this subsection. The

14 tribe shall be eligible for a grant to plan and negotiate par15 ticipation in Self-Governance. The planning phase shall in16 clude—

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

18 ‘‘(2) internal tribal government planning and

19 organizational preparation.

20 ‘‘SEC. 403. FUNDING AGREEMENTS.

21 ‘‘(a) AUTHORIZATION.—The Secretary shall negotiate

22 and enter into an annual written funding agreement with

23 the governing body of each participating tribal government.

24 ‘‘(b) CONTENTS.—Each funding agreement shall—
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1 ‘‘(1) authorize the tribe to plan, conduct, consoli2 date, and administer programs or portions of pro3 grams, services, functions, and activities administered

4 by the Department of the Interior for the benefit of

5 Indian tribes or Indians because of their status as In6 dians without regard to the agency or office of the De7 partment of the Interior within which it is performed,

8 including (but not limited to)—

9 ‘‘(A) under the Act of April 16, 1934 (25

10 U.S.C. 452 et seq.);

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

12 U.S.C. 13); and

13 ‘‘(C) programs or portions of programs,

14 services, functions, and activities administered

15 by the Secretary of the Interior for the benefit of

16 Indians for which appropriations are made to

17 agencies other than the Department of the Inte18 rior;

19 ‘‘(2) subject to such terms within the agreement

20 as the Secretary shall require, authorize the tribe to

21 redesign or consolidate programs, services, functions,

22 or activities and to reallocate funds for such pro23 grams, services, functions, or activities;

24 ‘‘(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 section

6 1128 of the Education Amendments of 1978 (25

7 U.S.C. 2008); and

8 ‘‘(C) the Flathead Agency Irrigation Divi9 sion or the Flathead Agency Power Division, ex10 cept that nothing in this section shall affect the

11 contract authority of such divisions under sec12 tion 102;

13 ‘‘(4) specify the services to be provided, the func14 tions to be performed, and the responsibilities of the

15 tribe and the Secretary pursuant to the agreement;

16 ‘‘(5) authorize the tribe and the Secretary to re17 allocate funds or modify budget allocations within

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

19 ‘‘(6) allow for retrocession of programs or por20 tions of programs pursuant to section 105(e);

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

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

23 under this section, the tribe—

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

25 the Secretary for such funds under section 102,
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1 except that such tribe shall be eligible for new

2 programs on the same basis as other tribes; and

3 ‘‘(B) shall be responsible for the administra4 tion of programs, services, functions, and activi5 ties pursuant to agreements entered into under

6 this section; and

7 ‘‘(8) prohibit the Secretary from waiving, modi8 fying, or diminishing in any way the trust respon9 sibility of the United States with respect to Indian

10 tribes and individual Indians that exists under trea11 ties, Executive orders, and other laws.

12 ‘‘(c) ADDITIONAL ACTIVITIES.—Each funding agree13 ment negotiated pursuant to subsections (a) and (b) may

14 also include other programs or portions of programs, serv15 ices, functions, and activities administered by the Secretary

16 of the Interior which are of special geographic, historical,

17 or cultural significance to the Indian tribe requesting a

18 compact according to such additional terms as the parties

19 deem appropriate.

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

21 Funding agreements negotiated between the Secretary and

22 an Indian tribe shall include—

23 ‘‘(1) provisions which detail the terms and con24 ditions under which the Secretary can reassume a

25 program or portion of a program, service, function, or
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1 activity based on a finding of imminent jeopardy to

2 a physical trust asset;

3 ‘‘(2) provisions which detail the authority of the

4 Secretary to prescribe corrective actions to rectify

5 gross mismanagement of a trust asset by an Indian

6 tribe;

7 ‘‘(3) a negotiated amount of residual funds to be

8 retained by the Secretary which are necessary to the

9 discharge of his trust responsibility to Indian tribes

10 and individual Indians not covered under this fund11 ing agreement; and

12 ‘‘(4) provisions which detail the authority of the

13 Secretary to prescribe corrective actions to remedy

14 problems of gross mismanagement of programmatic or

15 administrative responsibilities of the Secretary which

16 are required under his trust responsibility to Indian

17 tribes and individual Indians.

18 ‘‘(e) CONSTRUCTION PROJECTS.—(1) Regarding con19 struction programs or projects, the Secretary and Indian

20 tribes may negotiate for the inclusion of specific provisions

21 of the Office of Federal Procurement and Policy Act and

22 Federal acquisition regulations in any funding agreement

23 entered into under this Act.

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

25 to this title, the Secretary shall ensure that proper health
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1 and safety standards are provided for in the funding agree2 ments.

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

4 days before the proposed effective date of an agreement en5 tered into under this section, the Secretary shall submit a

6 copy of such agreement to—

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

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

9 funding agreement;

10 ‘‘(2) the Committee on Indian Affairs of the Sen11 ate; and

12 ‘‘(3) the Subcommittee on Native American Af13 fairs of the Committee on Natural Resources of the

14 House of Representatives.

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

16 body of the tribe and under the terms of an agreement en17 tered into under this section, the Secretary shall provide

18 funding to the tribe to carry out the agreement.

19 ‘‘(2) The funding agreements authorized by this title

20 and title III of this Act may provide for advance payments

21 to the tribes in the form of annual or semi-annual install22 ments.

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

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

25 provide funds to the tribe for one or more programs, serv-
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1 ices, functions, or activities in an amount equal to the

2 amount that the tribe would have been eligible to receive

3 under contracts and grants under this Act, including

4 amounts for direct program and contract support costs and

5 amounts for those activities that are specifically or func6 tionally related, but not part of, the service delivery pro7 gram, without regard to the organization level within the

8 Department where such functions are carried out.

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

10 shall be available under an agreement entered into under

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

12 would have been provided by the Secretary are provided to

13 individual Indians by the tribe.

14 ‘‘(h) CIVIL ACTIONS.—(1) Except as provided in para15 graph (2), for the purposes of section 110, the term ‘con16 tract’ shall include agreements entered into under this title.

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

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

19 of the Revised Statutes of the United States (25 U.S.C. 81),

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

21 shall not apply to attorney and other professional contracts

22 by Indian tribal governments participating in Self-Govern23 ance under this title.
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1 ‘‘(i) FACILITATION.—(1) Except as otherwise provided

2 by law, the Secretary shall interpret each Federal law and

3 regulation in a manner that will facilitate—

4 ‘‘(A) the inclusion of programs, services, func5 tions, and activities in the agreements entered into

6 under this section; and

7 ‘‘(B) the implementation of agreements entered

8 into under this section.

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

10 waiver to the Secretary identifying the regulation sought

11 to be waived and the basis for the request.

12 ‘‘(B) Not later than 60 days after receipt by the Sec13 retary of a written request by a tribe to waive application

14 of a Federal regulation for an agreement entered into under

15 this section, the Secretary shall either approve or deny the

16 requested waiver in writing to the tribe. A denial may be

17 made only upon a specific finding by the Secretary that

18 identified language in the regulation may not be waived

19 because that regulation is expressly required by Federal

20 law. The Secretary’s decision shall be final for the Depart21 ment.

22 ‘‘(j) FUNDS.—All funds provided under funding agree23 ments entered into pursuant to this Act, and all funds pro24 vided under contracts or grants made pursuant to this Act,
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1 shall be treated as non-Federal funds for purposes of meet2 ing matching requirements under any other Federal law.

3 ‘‘SEC. 404. BUDGET REQUEST.

4 ‘‘The Secretary shall identify, in the annual budget re5 quest of the President to the Congress under section 1105

6 of title 31, United States Code, any funds proposed to be

7 included in Self-Governance.

8 ‘‘SEC. 405. REPORTS.

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

10 Congress a written report on January 1 of each year follow11 ing the date of enactment of this title regarding the admin12 istration of this title.

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

14 ‘‘(1) the relative costs and benefit of Self-Govern15 ance;

16 ‘‘(2) identification of all funds that are specifi17 cally and functionally related to the provision of serv18 ices and benefits to the tribe and its members and the

19 corresponding reduction in the Federal bureaucracy;

20 and

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

22 ‘‘SEC. 406. DISCLAIMERS.

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

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

25 in any way the services, contracts, or funds that any other
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1 Indian tribe or tribal organization is eligible to receive

2 under section 102 or any other applicable Federal law.

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

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

5 responsibility to Indian tribes, individual Indians, or Indi6 ans with trust allotments.

7 ‘‘(c) APPLICATION OF OTHER SECTIONS OF ACT.—All

8 provisions of sections 6, 102(c), 104, 105(f), 110, and 111

9 of this Act shall apply to agreements provided under this

10 title.

11 ‘‘SEC. 407. REGULATIONS.

12 ‘‘(a) IN GENERAL.—Not later than 12 months after the

13 date of enactment of this title, the Secretary shall promul14 gate final regulations for the implementation of this title.

15 All regulations promulgated pursuant to this title shall be

16 developed by the Secretary with the full and active partici17 pation of the Indian tribes with agreements under this title

18 and other affected Indian tribes.

19 ‘‘(b) EFFECT.—The lack of promulgated regulations

20 shall not limit the effect of this title.

21 ‘‘SEC. 408. AUTHORIZATION OF APPROPRIATIONS.

22 ‘‘There are authorized to be appropriated such sums

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

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