103D CONGRESS

1ST SESSION S. 1618

AN ACT

To establish Tribal Self-Governance, and for other

purposes.
103D CONGRESS

1ST SESSION S. 1618

AN ACT

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,
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1 SECTION 1. SHORT TITLE.

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

3 Act of 1993’’.

4 SEC. 2. FINDINGS.

5 Congress finds that—

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

7 from the inherent sovereignty of Indian tribes and

8 nations;

9 (2) the United States recognizes a special gov10 ernment-to-government relationship with Indian

11 tribes, including the right of the tribes to self-gov12 ernance, as reflected in the Constitution, treaties,

13 Federal statutes, and the course of dealings of the

14 United States Government with Indian tribes;

15 (3) although progress has been made, the Fed16 eral bureaucracy, with its centralized rules and regu17 lations, has eroded tribal self-governance and domi18 nates tribal affairs;

19 (4) the Tribal Self-Governance Demonstration

20 Project was designed to improve and perpetuate the

21 government-to-government relationship between In22 dian tribes and the United States, and to strengthen

23 tribal control over Federal funding and program

24 management; and
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1 (5) Congress has reviewed the results of the

2 Tribal Self-Governance Demonstration Project and

3 finds that—

4 (A) transferring control to tribal govern5 ments, upon tribal request, over funding and

6 decisionmaking for Federal programs, services,

7 functions, and activities intended to benefit In8 dians, is an effective way to implement the Fed9 eral policy of government-to-government rela10 tions with Indian tribes; and

11 (B) transferring control to tribal govern12 ments, upon tribal request, over funding and

13 decisionmaking for Federal programs, services,

14 functions, and activities strengthens the Fed15 eral policy of Indian self-determination.

16 SEC. 3. DECLARATION OF POLICY.

17 It is the policy of this Act to permanently establish

18 and implement Self-Governance—

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

20 improve its unique and continuing relationship with,

21 and responsibility to, Indian tribes;

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

23 extent of the participation of such tribe in Self-Gov24 ernance;
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1 (3) to co-exist with the provisions of the Indian

2 Self-Determination Act relating to provision of In3 dian services by designated Federal agencies;

4 (4) to ensure the continuation of the trust re5 sponsibility of the United States to Indian tribes and

6 Indian individuals;

7 (5) to permit an orderly transition from Federal

8 domination of programs and services to provide In9 dian tribes with meaningful authority to plan, con10 duct, redesign, and administer programs, services,

11 functions, and activities that meet the needs of the

12 individual tribal communities; and

13 (6) to provide for an orderly transition through

14 a planned and measurable parallel reduction in the

15 Federal bureaucracy.

16 SEC. 4. TRIBAL SELF-GOVERNANCE.

17 The Indian Self-Determination and Education Assist18 ance Act (25 U.S.C. 450 et seq.) is amended by adding

19 at the end the following new title:

20 ‘‘TITLE IV—TRIBAL SELF21 GOVERNANCE

22 ‘‘SEC. 401. ESTABLISHMENT.

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

24 title as the ‘Secretary’) shall establish and carry out a pro25 gram within the Department of the Interior to be known
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1 as Tribal Self-Governance (referred to in this title as ‘Self2 Governance’) in accordance with this title.

3 ‘‘SEC. 402. SELECTION OF TRIBES.

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

5 is participating in the Tribal Self-Governance Demonstra6 tion Project at the Department of the Interior under title

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

8 participate in Self-Governance under this title and cease

9 participation in the Tribal Self-Governance Demonstration

10 Project under title III with respect to the Department of

11 the Interior.

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

13 tribes participating in Self-Governance under subsection

14 (a), the Secretary, acting through the Director of the Of15 fice of Self-Governance, may select up to 20 new tribes

16 per year, from the applicant pool described in subsection

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

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

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

20 ‘‘(1) successfully completes the planning phase

21 described in subsection (d);

22 ‘‘(2) has requested participation in Self-Govern23 ance; and

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

25 years, financial stability and financial management
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1 capability as evidenced by the tribe having no mate2 rial audit exceptions in the required annual audit of

3 the self-determination contracts of the tribe.

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

5 participation in Self-Governance shall complete a planning

6 phase in accordance with this subsection. The tribe shall

7 be eligible for a grant to plan and negotiate participation

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

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

10 ‘‘(2) internal tribal government planning and

11 organizational preparation.

12 ‘‘SEC. 403. FUNDING AGREEMENTS.

13 ‘‘(a) AUTHORIZATION.—The Secretary shall nego14 tiate and enter into an annual written funding agreement

15 with the governing body of each participating tribal gov16 ernment.

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

18 ‘‘(1) authorize the tribe to plan, conduct, con19 solidate, and administer programs, services, func20 tions, and activities administered by the Department

21 of the Interior that are otherwise available to Indian

22 tribes or Indians, including—

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

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

25 596, chapter 147; 25 U.S.C. 452 et seq.); and
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1 ‘‘(B) the Act of November 2, 1921 (popu2 larly known as the ‘Snyder Act’) (42 Stat. 208,

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

4 ‘‘(2) subject to the terms of the agreement, au5 thorize the tribe to redesign programs, services,

6 functions, or activities, and to reallocate funds for

7 such programs, services, functions, or activities;

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

9 ‘‘(A) pursuant to the Tribally Controlled

10 Community College Assistance Act of 1978 (25

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

12 ‘‘(B) for elementary and secondary schools

13 under the formula developed pursuant to sec14 tion 1128 of the Education Amendments of

15 1978 (25 U.S.C. 2008); and

16 ‘‘(C) to the Flathead Agency Irrigation Di17 vision or the Flathead Agency Power Division,

18 except that nothing in this section shall affect

19 the contract authority of such divisions under

20 section 102;

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

22 functions to be performed, and the responsibilities of

23 the tribe and the Secretary pursuant to the agree24 ment;
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1 ‘‘(5) authorize the tribe and the Secretary to

2 reallocate funds or modify budget allocations within

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

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

5 portions of programs pursuant to section 105(e);

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

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

8 under this section, the tribe—

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

10 the Secretary for such funds under section 102,

11 except that such tribe shall be eligible for new

12 programs on the same basis as other tribes; and

13 ‘‘(B) shall be responsible for the adminis14 tration of programs, services, functions, and ac15 tivities pursuant to agreements entered into

16 under this section; and

17 ‘‘(8) prohibit the Secretary from waiving, modi18 fying, or diminishing in any way the trust respon19 sibility of the United States with respect to Indian

20 tribes and individual Indians that exists under trea21 ties, Executive orders, and other laws.

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

23 days before the proposed effective date of an agreement

24 entered into under this section, the Secretary shall submit

25 a copy of such agreement to—
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1 ‘‘(1) each tribe that is served by the Agency

2 that is serving the tribe that is a party to the fund3 ing agreement;

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

5 Senate; and

6 ‘‘(3) the Committee on Natural Resources of

7 the House of Representatives.

8 ‘‘(d) PAYMENT.—

9 ‘‘(1) IN GENERAL.—At the request of the gov10 erning body of the tribe and under the terms of an

11 agreement entered into under this section, the Sec12 retary shall provide funding to the tribe to carry out

13 the agreement.

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

15 this subsection and paragraphs (1) and (3) of sub16 section (b), the Secretary shall provide funds to the

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

18 or activities in an amount equal to the amount that

19 the tribe would have been eligible to receive under

20 contracts and grants under this Act, including direct

21 program costs and indirect costs, and for any funds

22 that are specifically or functionally related to the

23 provision by the Secretary of services and benefits to

24 the tribe and its members.
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1 ‘‘(3) TRUST SERVICES.—Funds for trust serv2 ices to individual Indians shall be available under an

3 agreement entered into under this section only to the

4 extent that the same services that would have been

5 provided by the Secretary are provided to individual

6 Indians by the tribe.

7 ‘‘(e) CIVIL ACTIONS.—

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

9 provided in paragraph (2), for the purposes of sec10 tion 110, the term ‘contract’ shall include agree11 ments entered into under this title.

12 ‘‘(2) PROFESSIONAL CONTRACTS.—For the pe13 riod that an agreement entered into under this title

14 is in effect, the provisions of section 2103 of the Re15 vised Statutes of the United States (25 U.S.C. 81),

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

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

18 apply to attorney and other professional contracts by

19 Indian tribal governments participating in Self-Gov20 ernance under this title.

21 ‘‘(f) FACILITATION.—

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

23 provided by law, the Secretary shall interpret each

24 Federal law and regulation in a manner that will fa25 cilitate—
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1 ‘‘(A) the inclusion of programs, services,

2 functions, and activities in the agreements en3 tered into under this section; and

4 ‘‘(B) the implementation of agreements en5 tered into under this section.

6 ‘‘(2) WAIVER.—

7 ‘‘(A) REQUEST.—A tribe may submit a

8 written request for a waiver to the Secretary

9 identifying the regulation sought to be waived

10 and the basis for the request.

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

12 after receipt by the Secretary of a written re13 quest by a tribe to waive application of a Fed14 eral regulation for an agreement entered into

15 under this section, the Secretary shall either ap16 prove or deny the requested waiver in writing to

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

18 specific finding by the Secretary that identified

19 language in the regulation may not be waived

20 because such waiver is prohibited by Federal

21 law.

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

23 after denial of a waiver request, the Secretary

24 shall, at the request of a tribe, provide the tribe
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1 with a hearing on the record and opportunity

2 for an appeal.

3 ‘‘SEC. 404. BUDGET REQUEST.

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

5 request of the President to the Congress, any funds pro6 posed to be included in Self-Governance.

7 ‘‘SEC. 405. REPORTS.

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

9 each year after the date of enactment of this title, the Sec10 retary shall submit to Congress a report regarding the ad11 ministration of this title.

12 ‘‘(b) CONTENTS.—The report shall—

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

14 Self-Governance;

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

16 are specifically or functionally related to the provi17 sion by the Secretary of services and benefits to

18 Self-Governance tribes and their members, and the

19 corresponding reductions in the Federal bureauc20 racy; and

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

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

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

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

25 any other Indian tribe or tribal organization is eligible to
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1 receive under section 102 or any other applicable Federal

2 law.

3 ‘‘SEC. 407. NEGOTIATED RULEMAKING.

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

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

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

7 Secretary shall initiate procedures under subchapter III

8 of chapter 5 of title 5, United States Code, to negotiate

9 and promulgate such regulations as are necessary to carry

10 out this title.

11 ‘‘(b) COMMITTEE.—A negotiated rulemaking commit12 tee established pursuant to section 565 of title 5, United

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

14 members only Federal and tribal government representa15 tives, a majority of whom shall be representatives of In16 dian tribes with agreements under this title.

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

18 shall adapt the negotiated rulemaking procedures to the

19 unique context of Self-Governance and the government-to20 government relationship between the United States and

21 the Indian tribes.

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

23 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 are necessary to carry out this title.’’.

Passed the Senate November 24 (legislative day, November 23), 1993.

Attest:

Secretary.
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