II

103D CONGRESS

1ST SESSION S. 1618

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, and

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

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’’.

6 SEC. 2. FINDINGS.

7 Congress finds that—

8 (1) the tribal right of self-governance 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 Government 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 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 Self-Gov16 ernance;

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

18 Self-Determination Act relating to provision of In19 dian 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 (25 U.S.C. 450 et seq.) is amended by adding

10 at the end the following new title:

11 ‘‘TITLE IV—TRIBAL SELF12 GOVERNANCE

13 ‘‘SEC. 401. ESTABLISHMENT.

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

15 title as the ‘Secretary’) shall establish and carry out a pro16 gram within the Department of the Interior to be known

17 as Tribal Self-Governance (referred to in this title as ‘Self18 Governance’) in accordance with this title.

19 ‘‘SEC. 402. SELECTION OF TRIBES.

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

21 is participating in the Tribal Self-Governance Demonstra22 tion Project at the Department of the Interior under title

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

24 participate in Self-Governance under this title and cease

25 participation in the Tribal Self-Governance Demonstration
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1 Project under title III with respect to the Department of

2 the Interior.

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

4 tribes participating in Self-Governance under subsection

5 (a), the Secretary, acting through the Director of the Of6 fice of Self-Governance, may select up to 20 new tribes

7 per year, from the applicant pool described in subsection

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

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

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

11 ‘‘(1) successfully completes the planning phase

12 described in subsection (d);

13 ‘‘(2) has requested participation in Self-Govern14 ance; and

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

16 years, financial stability and financial management

17 capability as evidenced by the tribe having no mate18 rial audit exceptions in the required annual audit of

19 the self-determination contracts of the tribe.

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

21 participation in Self-Governance shall complete a planning

22 phase in accordance with this subsection. The tribe shall

23 be eligible for a grant to plan and negotiate participation

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

25 ‘‘(1) legal and budgetary research; and
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1 ‘‘(2) internal tribal government planning and

2 organizational preparation.

3 ‘‘SEC. 403. FUNDING AGREEMENTS.

4 ‘‘(a) AUTHORIZATION.—The Secretary shall nego5 tiate and enter into an annual written funding agreement

6 with the governing body of each participating tribal gov7 ernment.

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

9 ‘‘(1) authorize the tribe to plan, conduct, con10 solidate, and administer programs, services, func11 tions, and activities administered by the Department

12 of the Interior that are otherwise available to Indian

13 tribes or Indians, including—

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

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

16 596, chapter 147; 25 U.S.C. 452 et seq.); and

17 ‘‘(B) the Act of November 2, 1921 (popu18 larly known as the ‘Snyder Act’) (42 Stat. 208,

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

20 ‘‘(2) subject to the terms of the agreement, au21 thorize the tribe to redesign programs, services,

22 functions, or activities, and to reallocate funds for

23 such programs, 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 sec6 tion 1128 of the Education Amendments of

7 1978 (25 U.S.C. 2008); and

8 ‘‘(C) to the Flathead Agency Irrigation Di9 vision or the Flathead Agency Power Division,

10 except that nothing in this section shall affect

11 the contract authority of such divisions under

12 section 102;

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

14 functions to be performed, and the responsibilities of

15 the tribe and the Secretary pursuant to the agree16 ment;

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

18 reallocate funds or modify budget allocations within

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

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

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

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

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

24 under this section, the tribe—
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1 ‘‘(A) shall not be entitled to contract with

2 the Secretary for such funds under section 102,

3 except that such tribe shall be eligible for new

4 programs on the same basis as other tribes; and

5 ‘‘(B) shall be responsible for the adminis6 tration of programs, services, functions, and ac7 tivities pursuant to agreements entered into

8 under this section; and

9 ‘‘(8) prohibit the Secretary from waiving, modi10 fying, or diminishing in any way the trust respon11 sibility of the United States with respect to Indian

12 tribes and individual Indians that exists under trea13 ties, Executive orders, and other laws.

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

15 days before the proposed effective date of an agreement

16 entered into under this section, the Secretary shall submit

17 a copy of such agreement to—

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

19 that is serving the tribe that is a party to the fund20 ing agreement;

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

22 Senate; and

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

24 the House of Representatives.

25 ‘‘(d) PAYMENT.—
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1 ‘‘(1) IN GENERAL.—At the request of the gov2 erning body of the tribe and under the terms of an

3 agreement entered into under this section, the Sec4 retary shall provide funding to the tribe to carry out

5 the agreement.

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

7 this subsection and paragraphs (1) and (3) of sub8 section (b), the Secretary shall provide funds to the

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

10 or activities in an amount equal to the amount that

11 the tribe would have been eligible to receive under

12 contracts and grants under this Act, including direct

13 program costs and indirect costs, and for any funds

14 that are specifically or functionally related to the

15 provision by the Secretary of services and benefits to

16 the tribe and its members.

17 ‘‘(3) TRUST SERVICES.—Funds for trust serv18 ices to individual Indians shall be available under an

19 agreement entered into under this section only to the

20 extent that the same services that would have been

21 provided by the Secretary are provided to individual

22 Indians by the tribe.

23 ‘‘(e) CIVIL ACTIONS.—

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

25 provided in paragraph (2), for the purposes of sec-
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1 tion 110, the term ‘contract’ shall include agree2 ments entered into under this title.

3 ‘‘(2) PROFESSIONAL CONTRACTS.—For the pe4 riod that an agreement entered into under this title

5 is in effect, the provisions of section 2103 of the Re6 vised Statutes of the United States (25 U.S.C. 81),

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

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

9 apply to attorney and other professional contracts by

10 Indian tribal governments participating in Self-Gov11 ernance under this title.

12 ‘‘(f) FACILITATION.—

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

14 provided by law, the Secretary shall interpret each

15 Federal law and regulation in a manner that will fa16 cilitate—

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

18 functions, and activities in the agreements en19 tered into under this section; and

20 ‘‘(B) the implementation of agreements en21 tered into under this section.

22 ‘‘(2) WAIVER.—

23 ‘‘(A) REQUEST.—A tribe may submit a

24 written request for a waiver to the Secretary
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1 identifying the regulation sought to be waived

2 and the basis for the request.

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

4 after receipt by the Secretary of a written re5 quest by a tribe to waive application of a Fed6 eral regulation for an agreement entered into

7 under this section, the Secretary shall either ap8 prove or deny the requested waiver in writing to

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

10 specific finding by the Secretary that identified

11 language in the regulation may not be waived

12 because such waiver is expressly prohibited by

13 Federal law.

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

15 after denial of a waiver request, the Secretary

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

17 with a hearing on the record and opportunity

18 for an appeal.

19 ‘‘SEC. 404. BUDGET REQUEST.

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

21 request of the President to the Congress, any funds pro22 posed to be included in Self-Governance.

23 ‘‘SEC. 405. REPORTS.

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

25 each year after the date of enactment of this title, the Sec-
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1 retary shall submit to Congress a report regarding the ad2 ministration of this title.

3 ‘‘(b) CONTENTS.—The report shall—

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

5 Self-Governance;

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

7 are specifically or functionally related to the provi8 sion by the Secretary of services and benefits to

9 Self-Governance tribes and their members, and the

10 corresponding reductions in the Federal bureauc11 racy; and

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

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

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

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

16 any other Indian tribe or tribal organization is eligible to

17 receive under section 102 or any other applicable Federal

18 law.

19 ‘‘SEC. 407. NEGOTIATED RULEMAKING.

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

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

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

23 Secretary shall initiate procedures under subchapter III

24 of chapter 5 of title 5, United States Code, to negotiate
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1 and promulgate such regulations as are necessary to carry

2 out this title.

3 ‘‘(b) COMMITTEE.—A negotiated rulemaking commit4 tee established pursuant to section 565 of title 5, United

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

6 members only Federal and tribal government representa7 tives, a majority of whom shall be representatives of In8 dian tribes with agreements under this title.

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

10 shall adapt the negotiated rulemaking procedures to the

11 unique context of Self-Governance and the government-to12 government relationship between the United States and

13 the Indian tribes.

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

15 shall not limit the effect of this title.

16 ‘‘SEC. 408. AUTHORIZATION OF APPROPRIATIONS.

17 ‘‘There are authorized to be appropriated such sums

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

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