Calendar No. 332

103D CONGRESS

1ST SESSION S. 1618

[Report No. 103–205]

A BILL

To establish Tribal Self-Governance, and for other

purposes.

NOVEMBER 22, 1993

Reported with an amendment
II

Calendar No. 332

103D CONGRESS

1ST SESSION S. 1618

[Report No. 103–205]

To establish Tribal Self-Governance, and for other purposes.

IN THE SENATE OF THE UNITED STATES

NOVEMBER 4 (legislative day, NOVEMBER 2), 1993

Mr. MCCAIN (for himself, Mr. INOUYE, Mr. MURKOWSKI,, Mr. GORTON, Mr.

SIMON, Mr. WELLSTONE, Mr. DURENBERGER, and Mr. CAMPBELL) introduced the following bill; which was read twice and referred to the Committee on Indian Affairs

NOVEMBER 22, 1993

Reported by Mr. INOUYE, with an amendment

[Omit the part struck through]

A BILL

To establish 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’’.
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1 SEC. 2. FINDINGS.

2 Congress finds that—

3 (1) the tribal right of self-governance flows

4 from the inherent sovereignty of Indian tribes and

5 nations;

6 (2) the United States recognizes a special gov7 ernment-to-government relationship with Indian

8 tribes, including the right of the tribes to self-gov9 ernance, as reflected in the Constitution, treaties,

10 Federal statutes, and the course of dealings of the

11 United States Government with Indian tribes;

12 (3) although progress has been made, the Fed13 eral bureaucracy, with its centralized rules and regu14 lations, has eroded tribal self-governance and domi15 nates tribal affairs;

16 (4) the Tribal Self-Governance Demonstration

17 Project was designed to improve and perpetuate the

18 government-to-government relationship between In19 dian tribes and the United States, and to strengthen

20 tribal control over Federal funding and program

21 management; and

22 (5) Congress has reviewed the results of the

23 Tribal Self-Governance Demonstration Project and

24 finds that—

25 (A) transferring control to tribal govern26 ments, upon tribal request, over funding and
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1 decisionmaking for Federal programs, services,

2 functions, and activities intended to benefit In3 dians, is an effective way to implement the Fed4 eral policy of government-to-government rela5 tions with Indian tribes; and

6 (B) transferring control to tribal govern7 ments, upon tribal request, over funding and

8 decisionmaking for Federal programs, services,

9 functions, and activities strengthens the Fed10 eral policy of Indian self-determination.

11 SEC. 3. DECLARATION OF POLICY.

12 It is the policy of this Act to permanently establish

13 and implement Self-Governance—

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

15 improve its unique and continuing relationship with,

16 and responsibility to, Indian tribes;

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

18 extent of the participation of such tribe in Self-Gov19 ernance;

20 (3) to co-exist with the provisions of the Indian

21 Self-Determination Act relating to provision of In22 dian services by designated Federal agencies;

23 (4) to ensure the continuation of the trust re24 sponsibility of the United States to Indian tribes and

25 Indian individuals;
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1 (5) to permit an orderly transition from Federal

2 domination of programs and services to provide In3 dian tribes with meaningful authority to plan, con4 duct, redesign, and administer programs, services,

5 functions, and activities that meet the needs of the

6 individual tribal communities; and

7 (6) to provide for an orderly transition through

8 a planned and measurable parallel reduction in the

9 Federal bureaucracy.

10 SEC. 4. TRIBAL SELF-GOVERNANCE.

11 The Indian Self-Determination and Education Assist12 ance Act (25 U.S.C. 450 et seq.) is amended by adding

13 at the end the following new title:

14 ‘‘TITLE IV—TRIBAL SELF15 GOVERNANCE

16 ‘‘SEC. 401. ESTABLISHMENT.

17 ‘‘The Secretary of the Interior (referred to in this

18 title as the ‘Secretary’) shall establish and carry out a pro19 gram within the Department of the Interior to be known

20 as Tribal Self-Governance (referred to in this title as ‘Self21 Governance’) in accordance with this title.

22 ‘‘SEC. 402. SELECTION OF TRIBES.

23 ‘‘(a) CONTINUING PARTICIPATION.—Each tribe that

24 is participating in the Tribal Self-Governance Demonstra25 tion Project at the Department of the Interior under title
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1 III on the date of enactment of this title shall thereafter

2 participate in Self-Governance under this title and cease

3 participation in the Tribal Self-Governance Demonstration

4 Project under title III with respect to the Department of

5 the Interior.

6 ‘‘(b) ADDITIONAL TRIBES.—In addition to those

7 tribes participating in Self-Governance under subsection

8 (a), the Secretary, acting through the Director of the Of9 fice of Self-Governance, may select up to 20 new tribes

10 per year, from the applicant pool described in subsection

11 (c), to participate in Self-Governance.

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

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

14 ‘‘(1) successfully completes the planning phase

15 described in subsection (d);

16 ‘‘(2) has requested participation in Self-Govern17 ance; and

18 ‘‘(3) has demonstrated, for the previous 3 fiscal

19 years, financial stability and financial management

20 capability as evidenced by the tribe having no mate21 rial audit exceptions in the required annual audit of

22 the self-determination contracts of the tribe.

23 ‘‘(d) PLANNING PHASE.—Each tribe seeking to begin

24 participation in Self-Governance shall complete a planning

25 phase in accordance with this subsection. The tribe shall
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1 be eligible for a grant to plan and negotiate participation

2 in Self-Governance. The planning phase shall include—

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

4 ‘‘(2) internal tribal government planning and

5 organizational preparation.

6 ‘‘SEC. 403. FUNDING AGREEMENTS.

7 ‘‘(a) AUTHORIZATION.—The Secretary shall nego8 tiate and enter into an annual written funding agreement

9 with the governing body of each participating tribal gov10 ernment.

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

12 ‘‘(1) authorize the tribe to plan, conduct, con13 solidate, and administer programs, services, func14 tions, and activities administered by the Department

15 of the Interior that are otherwise available to Indian

16 tribes or Indians, including—

17 ‘‘(A) the Act of April 16, 1934 (popularly

18 known as the ‘Johnson-O’Malley Act’) (48 Stat.

19 596, chapter 147; 25 U.S.C. 452 et seq.); and

20 ‘‘(B) the Act of November 2, 1921 (popu21 larly known as the ‘Snyder Act’) (42 Stat. 208,

22 chapter 115; 25 U.S.C. 13);

23 ‘‘(2) subject to the terms of the agreement, au24 thorize the tribe to redesign programs, services,
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1 functions, or activities, and to reallocate funds for

2 such programs, services, functions, or activities;

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

4 ‘‘(A) pursuant to the Tribally Controlled

5 Community College Assistance Act of 1978 (25

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

7 ‘‘(B) for elementary and secondary schools

8 under the formula developed pursuant to sec9 tion 1128 of the Education Amendments of

10 1978 (25 U.S.C. 2008); and

11 ‘‘(C) to the Flathead Agency Irrigation Di12 vision or the Flathead Agency Power Division,

13 except that nothing in this section shall affect

14 the contract authority of such divisions under

15 section 102;

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

17 functions to be performed, and the responsibilities of

18 the tribe and the Secretary pursuant to the agree19 ment;

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

21 reallocate funds or modify budget allocations within

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

23 ‘‘(6) provide for retrocession of programs or

24 portions of programs pursuant to section 105(e);
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1 ‘‘(7) provide that, for the year for which, and

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

3 under this section, the tribe—

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

5 the Secretary for such funds under section 102,

6 except that such tribe shall be eligible for new

7 programs on the same basis as other tribes; and

8 ‘‘(B) shall be responsible for the adminis9 tration of programs, services, functions, and ac10 tivities pursuant to agreements entered into

11 under this section; and

12 ‘‘(8) prohibit the Secretary from waiving, modi13 fying, or diminishing in any way the trust respon14 sibility of the United States with respect to Indian

15 tribes and individual Indians that exists under trea16 ties, Executive orders, and other laws.

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

18 days before the proposed effective date of an agreement

19 entered into under this section, the Secretary shall submit

20 a copy of such agreement to—

21 ‘‘(1) each tribe that is served by the Agency

22 that is serving the tribe that is a party to the fund23 ing agreement;

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

25 Senate; and
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1 ‘‘(3) the Committee on Natural Resources of

2 the House of Representatives.

3 ‘‘(d) PAYMENT.—

4 ‘‘(1) IN GENERAL.—At the request of the gov5 erning body of the tribe and under the terms of an

6 agreement entered into under this section, the Sec7 retary shall provide funding to the tribe to carry out

8 the agreement.

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

10 this subsection and paragraphs (1) and (3) of sub11 section (b), the Secretary shall provide funds to the

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

13 or activities in an amount equal to the amount that

14 the tribe would have been eligible to receive under

15 contracts and grants under this Act, including direct

16 program costs and indirect costs, and for any funds

17 that are specifically or functionally related to the

18 provision by the Secretary of services and benefits to

19 the tribe and its members.

20 ‘‘(3) TRUST SERVICES.—Funds for trust serv21 ices to individual Indians shall be available under an

22 agreement entered into under this section only to the

23 extent that the same services that would have been

24 provided by the Secretary are provided to individual

25 Indians by the tribe.
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1 ‘‘(e) CIVIL ACTIONS.—

2 ‘‘(1) DEFINITION OF ‘CONTRACT’.—Except as

3 provided in paragraph (2), for the purposes of sec4 tion 110, the term ‘contract’ shall include agree5 ments entered into under this title.

6 ‘‘(2) PROFESSIONAL CONTRACTS.—For the pe7 riod that an agreement entered into under this title

8 is in effect, the provisions of section 2103 of the Re9 vised Statutes of the United States (25 U.S.C. 81),

10 and section 16 of the Act of June 18, 1934 (48

11 Stat. 987, chapter 576; 25 U.S.C. 476), shall not

12 apply to attorney and other professional contracts by

13 Indian tribal governments participating in Self-Gov14 ernance under this title.

15 ‘‘(f) FACILITATION.—

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

17 provided by law, the Secretary shall interpret each

18 Federal law and regulation in a manner that will fa19 cilitate—

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

21 functions, and activities in the agreements en22 tered into under this section; and

23 ‘‘(B) the implementation of agreements en24 tered into under this section.

25 ‘‘(2) WAIVER.—
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1 ‘‘(A) REQUEST.—A tribe may submit a

2 written request for a waiver to the Secretary

3 identifying the regulation sought to be waived

4 and the basis for the request.

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

6 after receipt by the Secretary of a written re7 quest by a tribe to waive application of a Fed8 eral regulation for an agreement entered into

9 under this section, the Secretary shall either ap10 prove or deny the requested waiver in writing to

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

12 specific finding by the Secretary that identified

13 language in the regulation may not be waived

14 because such waiver is expressly prohibited by

15 Federal law.

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

17 after denial of a waiver request, the Secretary

18 shall, at the request of a tribe, provide the tribe

19 with a hearing on the record and opportunity

20 for an appeal.

21 ‘‘SEC. 404. BUDGET REQUEST.

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

23 request of the President to the Congress, any funds pro24 posed to be included in Self-Governance.
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1 ‘‘SEC. 405. REPORTS.

2 ‘‘(a) REQUIREMENT.—Not later than January 1 of

3 each year after the date of enactment of this title, the Sec4 retary shall submit to Congress a report regarding the ad5 ministration of this title.

6 ‘‘(b) CONTENTS.—The report shall—

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

8 Self-Governance;

9 ‘‘(2) identify, with particularity, all funds that

10 are specifically or functionally related to the provi11 sion by the Secretary of services and benefits to

12 Self-Governance tribes and their members, and the

13 corresponding reductions in the Federal bureauc14 racy; and

15 ‘‘(3) include the separate views of the tribes.

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

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

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

19 any other Indian tribe or tribal organization is eligible to

20 receive under section 102 or any other applicable Federal

21 law.

22 ‘‘SEC. 407. NEGOTIATED RULEMAKING.

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

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

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

26 Secretary shall initiate procedures under subchapter III
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1 of chapter 5 of title 5, United States Code, to negotiate

2 and promulgate such regulations as are necessary to carry

3 out this title.

4 ‘‘(b) COMMITTEE.—A negotiated rulemaking commit5 tee established pursuant to section 565 of title 5, United

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

7 members only Federal and tribal government representa8 tives, a majority of whom shall be representatives of In9 dian tribes with agreements under this title.

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

11 shall adapt the negotiated rulemaking procedures to the

12 unique context of Self-Governance and the government-to13 government relationship between the United States and

14 the Indian tribes.

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

16 shall not limit the effect of this title.

17 ‘‘SEC. 408. AUTHORIZATION OF APPROPRIATIONS.

18 ‘‘There are authorized to be appropriated such sums

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