II

103D CONGRESS

2D SESSION S. 2036

To specify the terms of contracts entered into by the United States and

Indian tribal organizations under the Indian Self-Determination and

Education Assistance Act, and for other purposes.

IN THE SENATE OF THE UNITED STATES

APRIL 20 (legislative day, APRIL 11), 1994

Mr. MCCAIN (for himself and Mr. INOUYE) introduced the following bill; which

was read twice and referred to the Committee on Indian Affairs

A BILL

To specify the terms of contracts entered into by the United

States and Indian tribal organizations under the Indian

Self-Determination and Education Assistance Act, 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 ‘‘Indian Self-Determina5 tion Contract Reform Act of 1994’’.
2

S 2036 IS

1 SEC. 2. CONTRACT SPECIFICATIONS.

2 Section 105 of the Indian Self-Determination and

3 Education Assistance Act (25 U.S.C. 450j) is amended to

4 read as follows:

5 ‘‘SEC. 105. CONTRACT OR GRANT SPECIFICATIONS.

6 ‘‘Each contract or grant entered into under this Act,

7 except an agreement entered into pursuant to title III (25

8 U.S.C. 450f note), shall contain, or incorporate by ref9 erence, the following provisions, with modifications where

10 indicated and the blanks appropriately filled:

11 ‘‘(a) AUTHORITY AND PURPOSE.—

12 ‘‘(1) AUTHORITY.—This agreement, denoted a

13 Contract of Self-Determination (hereinafter referred

14 to as the ‘Contract’), is entered into by the Sec15 retary of the Interior (or the Secretary of Health

16 and Human Services) (hereinafter referred to as the

17 ‘Secretary’), for and on behalf of the United States

18 pursuant to the Indian Self-Determination and Edu19 cation Assistance Act and by the authority of the

20 lllllll tribal government. Unless other21 wise provided in this agreement, all of the provisions

22 of the Indian Self-Determination and Education As23 sistance Act are incorporated herein.

24 ‘‘(2) PURPOSE.—This Contract shall be lib25 erally construed to transfer the funding, functions,

26 and activities for the following programs from the
3

S 2036 IS

1 Federal Government to the lllllll tribal

2 government: (List functions, activities, and pro3 grams.)

4 ‘‘(3) TRIBAL LAW AND FORUMS.—The laws of

5 the lllllll tribal government shall be ap6 plied in the execution of this Contract and the pow7 ers and decisions of the Tribal Court shall be re8 spected to the extent that Federal law, construed in

9 accordance with the applicable canons of construc10 tion and the Indian Self-Determination and Edu11 cation Assistance Act, is not inconsistent.

12 ‘‘(b) TERMS, PROVISIONS AND CONDITIONS.—

13 ‘‘(1) TERM.—The term of this Contract shall

14 not exceed 3 years, unless the Secretary and the

15 tribe agree on a longer period pursuant to section

16 106 of the Indian Self-Determination and Education

17 Assistance Act. The calendar year is the basis for

18 contracts under this Act, unless the Secretary and

19 the tribe agree on a different period.

20 ‘‘(2) EFFECTIVE DATE.—This Contract shall

21 become effective upon approval and execution by the

22 tribe and the Secretary, unless otherwise provided by

23 law.

24 ‘‘(3) FUNDING AMOUNT.—Subject to the appro25 priation of funds by Congress, the Secretary shall
4

S 2036 IS

1 make available to the tribe the total amount speci2 fied in the annual agreement incorporated by ref3 erence in subsection (f)(2).

4 ‘‘(4) PAYMENT.—

5 ‘‘(A) IN GENERAL.—Payments shall be

6 made as expeditiously as possible in compliance

7 with applicable Treasury Department regula8 tions and shall include financial arrangements

9 to cover funding during periods under continu10 ing resolutions to the extent permitted by such

11 resolutions.

12 ‘‘(B) QUARTERLY PAYMENTS.—To the ex13 tent authorized by law, for each fiscal year cov14 ered by this Contract, the Secretary shall make

15 available the funds specified for the fiscal year

16 under the annual agreement by paying to the

17 tribe on a quarterly basis one-quarter of the

18 total amount provided for in the annual agree19 ment for that fiscal year, or by using an instru20 ment such as a letter of credit, or other method

21 authorized by law, as may be specified in the

22 annual agreement. To the extent applicable,

23 each quarterly payment shall be made on the

24 first day of each quarter of the fiscal year ex25 cept for the first quarter, for which the quar-
5

S 2036 IS

1 terly payment shall be made not later than the

2 date that is 10 calendar days after the date on

3 which the Office of Management and Budget

4 apportions the appropriations for the fiscal year

5 for the programs, services, functions, and ac6 tivities subject to the Contract.

7 ‘‘(5) RECORDS.—(A) Except for previously pro8 vided copies of tribal records that the Secretary

9 demonstrates are clearly required to be maintained

10 as part of the recordkeeping system of the Depart11 ment of the Interior, tribal records shall not be con12 sidered Federal records for purposes of chapter 5 of

13 title 5, United States Code.

14 ‘‘(B) The tribe shall maintain a recordkeeping

15 system, and provide reasonable access to records to

16 the Secretary that permits the Department of the

17 Interior to meet its minimum legal recordkeeping

18 program requirements under chapter 31 of title 44,

19 United States Code.

20 ‘‘(6) PROPERTY.—(A) At the request of the

21 tribe, the Secretary shall make available to the tribe

22 reasonably divisible real property, facilities, equip23 ment, and personal property that the Department

24 had previously utilized to provide the programs,

25 services, functions, and activities now consolidated
6

S 2036 IS

1 by the tribe pursuant to subsection (c)(1) of this

2 Contract. A mutually agreed upon list specifying the

3 property, facilities, and equipment so made available

4 shall also be prepared and periodically revised.

5 ‘‘(B) Subject to the agreement of the General

6 Services Administration, the Secretary shall delegate

7 to the tribe the authority to acquire such ‘excess’

8 property as may be appropriate in the judgment of

9 the tribe to support the programs, services, func10 tions, and activities consolidated under subsection

11 (c)(1) of this Contract. The Secretary agrees to

12 make best efforts to assist the tribe in obtaining

13 such confiscated or excess property as may become

14 available to tribes or local governments. Subject to

15 the agreement of the General Services Administra16 tion, a screener identification card (General Services

17 Administration form 2946) shall be issued to the

18 tribe not later than the effective date of this Con19 tract. The designated official shall, upon request, as20 sist the tribe in securing the use of the card.

21 ‘‘(C) The tribe shall, upon acquisition of excess

22 United States Government property, provide ade23 quate documentation to the Secretary to facilitate

24 recordation of the property in the Bureau of Indian

25 Affairs Property Inventory.
7

S 2036 IS

1 ‘‘(D) The tribe shall determine what capital

2 equipment, leases, rentals, property, or services it

3 shall require to perform its obligations under this

4 subsection, and shall acquire and maintain records

5 of such capital equipment, property rentals, leases,

6 property, or services through tribal procurement pro7 cedures.

8 ‘‘(7) SAVINGS.—Notwithstanding any other pro9 vision of law, any funds appropriated pursuant to

10 the Act of November 2, 1921 (42 Stat. 208, chapter

11 115; 25 U.S.C. 13) shall remain available until ex12 pended.

13 ‘‘(8) TRANSPORTATION.—

14 ‘‘(A) USE OF MOTOR VEHICLES.—Subject

15 to the agreement of the General Services Ad16 ministration, the Secretary hereby authorizes

17 the tribe to obtain interagency motor pool vehi18 cles and related services, if available, for per19 formance of any activities under this Contract.

20 ‘‘(B) USE OF OTHER TRANSPORTATION

21 SERVICES.—The Secretary shall make best ef22 forts to obtain the concurrence of the General

23 Services Administration to provide the tribe and

24 its employees with eligibility for services and

25 supplies pursuant to General Services Adminis-
8

S 2036 IS

1 tration programs and contracts with private en2 tities, including airlines and other transpor3 tation carriers.

4 ‘‘(9) REGULATORY AUTHORITY.—The tribe is

5 not required to abide by Federal program guidelines,

6 manuals, or policy directives unless otherwise agreed

7 to by the tribe and the Secretary.

8 ‘‘(10) DISPUTES.—(A) Obligations of the Unit9 ed States under this Contract shall be considered to

10 be ‘duties’ under section 110 of the Indian Self-De11 termination and Education Assistance Act.

12 ‘‘(B) Section 110 of the Indian Self-Determina13 tion and Education Act shall apply to disputes under

14 this Contract.

15 ‘‘(C) In addition or as an alternative to rem16 edies and procedures prescribed by section 110 of

17 the Indian Self-Determination and Education Assist18 ance Act the parties may jointly—

19 ‘‘(i) submit disputes under this Contract to

20 third-party mediation, which for purposes of

21 this section means that the Secretary and the

22 tribe nominate a third party who together

23 choose a third party mediator (‘third-party’

24 means a person not employed by or significantly
9

S 2036 IS

1 involved with either the tribe, the Secretary, or

2 the Department of the Interior);

3 ‘‘(ii) submit the dispute to the Court of the

4 tribe; or

5 ‘‘(iii) submit the dispute to mediation proc6 esses provided for under the law of the tribe.

7 ‘‘(D) The Secretary shall accept decisions

8 reached by mediation processes or the tribal court,

9 but shall not be bound by any decision that might

10 be in conflict with the interests of the Indians or the

11 United States.

12 ‘‘(11) TRIBAL ADMINISTRATIVE PROCE13 DURES.—Tribal law and tribal forums shall provide

14 for administrative due process with respect to pro15 grams, services, functions, and activities that are

16 provided by the tribe pursuant to this Contract and

17 pursuant to the Indian Civil Rights Act of 1968 (25

18 U.S.C. 1301 et seq.).

19 ‘‘(12) SUCCESSOR ANNUAL AGREEMENT.—Ne20 gotiations for a successor annual agreement, as pro21 vided for in subsection (f)(2), shall begin not later

22 than 120 days prior to the conclusion of the preced23 ing annual agreement. The tribe is hereby assured

24 that future funding of successor annual agreements

25 shall only be reduced pursuant to section 106(b) of
10

S 2036 IS

1 the Indian Self-Determination and Education Assist2 ance Act. The Secretary agrees to prepare and sup3 ply relevant information, and to promptly comply

4 with any request by the tribe for information reason5 ably needed to determine the funds that may be

6 available for a successor annual agreement as pro7 vided for in a subsection (f)(2) of this Contract.

8 ‘‘(13) SECRETARIAL APPROVAL.—(A) Except as

9 provided in subparagraph (B), for the term of the

10 Contract, section 2103 of the Revised Statutes (25

11 U.S.C. 81) and section 16 of the Act of June 18,

12 1934 (25 U.S.C. 476), shall not apply to any con13 tract entered into by the tribe in connection with

14 this Contract.

15 ‘‘(B) Each contract entered into by the tribe

16 shall—

17 ‘‘(i) be in writing;

18 ‘‘(ii) identify the interested parties, their

19 authorities, and purposes;

20 ‘‘(iii) state the work to be performed; and

21 ‘‘(iv) state the basis for any claim, the pay22 ments to be made, and the terms of the con23 tract, which shall be fixed.

24 ‘‘(c) OBLIGATION OF THE TRIBE.—
11

S 2036 IS

1 ‘‘(1) CONSOLIDATION.—Except as provided in

2 subsection (d)(2), the Tribally Controlled Commu3 nity College Assistance Act of 1978 (25 U.S.C. 1801

4 et seq.), and title XI of the Education Amendments

5 of 1978 (25 U.S.C. 2001 et seq.), the tribe shall

6 perform the programs, services, functions, and ac7 tivities as provided in the annual agreement under

8 subsection (f)(2) of this Contract.

9 ‘‘(2) AMOUNT OF FUNDS.—The total amount of

10 funds covered by the Contract provided for in para11 graph (1) that the Secretary shall make available to

12 the lllllll Indian tribe shall be deter13 mined in an annual agreement between the Sec14 retary and the tribe, which shall be incorporated in

15 its entirety into this Contract and attached as pro16 vided in subsection (f)(2).

17 ‘‘(3) TRIBAL PROGRAMS.—The tribe agrees to

18 provide the programs, services, functions, and activi19 ties identified in the annual agreement. The tribe

20 pledges to practice good faith in upholding its re21 sponsibility to provide such programs, services, func22 tions, and activities.

23 ‘‘(4) TRUST SERVICES FOR INDIVIDUAL INDI24 ANS.—To the extent that the annual agreement en25 deavors to provide trust services to individual Indi-
12

S 2036 IS

1 ans that were formerly provided by the Secretary,

2 the tribe shall maintain at least the same level of

3 service as was previously provided by the Secretary,

4 subject to the availability of appropriated funds for

5 such services. The tribe pledges to practice good

6 faith in upholding its responsibility to provide such

7 service. Trust services for individual Indians means

8 only services that pertain to land or financial man9 agement connected to individually held allotments.

10 ‘‘(d) OBLIGATION OF THE UNITED STATES.—

11 ‘‘(1) TRUST RESPONSIBILITY.—The United

12 States reaffirms its trust responsibility to the

13 lllllll Indian tribe of the

14 lllllll Indian Reservation to protect and

15 conserve the trust resources of the lllllll

16 Indian tribe and of individual Indians of the

17 lllllll Indian Reservation. Nothing in

18 this Contract is intended to, nor shall be construed,

19 to terminate, waive, modify, or reduce the trust re20 sponsibility of the United States to the tribe or indi21 vidual Indians. The Secretary pledges to practice

22 good faith in upholding said trust responsibility.

23 ‘‘(2) PROGRAMS RETAINED.—As specified in

24 the annual agreement, the United States hereby re25 tains the programs, services, functions, and activities
13

S 2036 IS

1 with respect to the tribe that are not specially as2 sumed by the tribe in the annual agreement.

3 ‘‘(e) OTHER PROVISIONS.—

4 ‘‘(1) DESIGNATED OFFICIALS.—On or before

5 the effective date of this Contract, both the United

6 States and the tribe shall provide each other with a

7 written designation of a senior official as its rep8 resentative for notices, proposed amendments to the

9 Contract and other purposes for this Contract.

10 ‘‘(2) INDIAN PREFERENCE IN EMPLOYMENT,

11 CONTRACTING, AND SUBCONTRACTING.—Tribal law

12 shall govern the provision of Indian preference in

13 employment, contracting, and subcontracting pursu14 ant to this Contract. Section 5 of the Indian Self15 Determination and Education Assistance Act shall

16 apply to individuals who leave Federal employment

17 for tribal employment pursuant to this contract.

18 ‘‘(3) CONTRACT MODIFICATIONS OR AMEND19 MENT.—To be effective any modifications of this

20 Contract shall be in the form of a written amend21 ment to the Contract, and shall require the written

22 consent of the tribe and the Secretary.

23 ‘‘(4) OFFICIALS NOT TO BENEFIT.—No Mem24 ber of Congress, or resident commissioner, shall be

25 admitted to any share or part of any contract exe-
14

S 2036 IS

1 cuted pursuant to this Contract, or to any benefit

2 that may arise therefrom; but this provision shall

3 not be construed to extend to any contract under

4 this Contract if made with a corporation for its gen5 eral benefit.

6 ‘‘(5) COVENANT AGAINST CONTINGENT FEES.—

7 The parties warrant that no person or selling agency

8 has been employed or retained to solicit or secure

9 any contract executed pursuant to this Contract

10 upon an agreement or understanding for a commis11 sion, percentage, brokerage, or contingent fee, ex12 cepting bona fide employees or bona fide established

13 commercial or selling agencies maintained by the

14 contractor for the purpose of securing business. For

15 breach or violation of this warranty the Government

16 shall have the right to annul any contract without li17 ability or, in its discretion, to deduct from the Con18 tract price or consideration, or otherwise recover, the

19 full amount of such commission, percentage, broker20 age, or contingent fee.

21 ‘‘(f) ATTACHMENTS.—

22 ‘‘(1) APPROVAL OF CONTRACT.—The resolution

23 of the lllllll Indian tribe approving this

24 Contract is attached hereto as attachment 1.
15

S 2036 IS

1 ‘‘(2) ANNUAL AGREEMENT.—The negotiated

2 and duly approved annual agreement with respect to

3 the lllllll Indian tribe which shall only

4 contain terms that identify the programs, services,

5 functions, and activities to be performed, the general

6 budget category assigned, the funds to be provided,

7 the time and method of payment, and a requirement

8 that all modifications or amendments shall be writ9 ten and signed by both parties, is hereby incor10 porated in its entirety in this Contract and attached

11 hereto as attachment 2.’’.

12 SEC. 3. REGULATIONS.

13 ‘‘(a) IN GENERAL.—The Secretary of the Interior

14 and the Secretary of Health and Human Services shall

15 not promulgate any regulation relating to grants, con16 tracts, or cooperative agreements entered into pursuant to

17 the Indian Self-Determination and Education Assistance

18 Act (25 U.S.C. 450 et seq.).

19 ‘‘(b) EXISTING REGULATIONS.—The provisions of

20 this Act shall supersede any conflicting provisions of law

21 or regulation in existence on the date of enactment of this

22 Act.
16

S 2036 IS

1 SEC. 4. REPEAL.

2 ‘‘(a) IN GENERAL.—Section 107 of the Indian Self3 Determination and Education Assistance Act (25 U.S.C.

4 450k) is repealed.

5 ‘‘(b) CONFORMING AMENDMENTS.—

6 ‘‘(1) Section 104(b) of the Indian Self-Deter7 mination and Education Assistance Act (25 U.S.C.

8 450h(b)) is amending by striking ‘‘, in accordance

9 with regulations adopted pursuant to section 107,’’.

10 ‘‘(2) Section 106(h) of such Act (25 U.S.C.

11 450j(h)) is amended by striking ‘‘and the rules and

12 regulations adopted by the Secretaries of the Inte13 rior and Health and Human Services pursuant to

14 section 107’’.

Æ

S 2036 IS——2