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.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Tribal Self-Governance
Act of 1994’’.
SEC. 2. FINDINGS.
Congress finds that—
(1) the tribal right of self-government flows from
the inherent sovereignty of Indian tribes and nations;
(2) the United States recognizes a special govern-
ment-to-government relationship with Indian tribes,
including the right of the tribes to self-governance, as
reflected in the Constitution, treaties, Federal statutes,
and the course of dealings of the United States with
Indian tribes;
(3) although progress has been made, the Federal
bureaucracy, with its centralized rules and regula-
tions, has eroded tribal self-governance and dominates
tribal affairs;
(4) the Tribal Self-Governance Demonstration
Project was designed to improve and perpetuate the
government-to-government relationship between In-
dian tribes and the United States and to strengthen
tribal control over Federal funding and program
management; and
(5) Congress has reviewed the results of the Trib-
al Self-Governance Demonstration Project and finds
that—
(A) transferring control to tribal govern-
ments, upon tribal request, over funding and de-
cisionmaking for Federal programs, services,
functions, and activities intended to benefit Indi-
ans is an effective way to implement the Federal
policy of government-to-government relations
with Indian tribes; and
(B) transferring control to tribal govern-
ments, upon tribal request, over funding and de-
cisionmaking for Federal programs, services,
functions, and activities strengthens the Federal
policy of Indian self-determination.
SEC. 3. DECLARATION OF POLICY.
It is the policy of this Act to permanently establish
and implement tribal self-governance—
(1) to enable the United States to maintain and
improve its unique and continuing relationship with,
and responsibility to, Indian tribes;
(2) to permit each Indian tribe to choose the ex-
tent of the participation of such tribe in self-
governance;
(3) to coexist with the provisions of the Indian
Self-Determination Act relating to the provision of
Indian services by designated Federal agencies;
(4) to ensure the continuation of the trust re-
sponsibility of the United States to Indian tribes and
Indian individuals;
(5) to permit an orderly transition from Federal
domination of programs and services to provide In-
dian tribes with meaningful authority to plan, con-
duct, redesign, and administer programs, services,
functions, and activities that meet the needs of the in-
dividual tribal communities; and
(6) to provide for an orderly transition through
a planned and measurable parallel reduction in the
Federal bureaucracy.
SEC. 4. TRIBAL SELF-GOVERNANCE.
The Indian Self-Determination and Education Assist-
ance Act is amended by adding at the end the following
new title:
‘‘TITLE IV—TRIBAL SELF-
GOVERNANCE
‘‘SEC. 401. ESTABLISHMENT.
‘‘The Secretary of the Interior (hereinafter in this title
referred to as the ‘Secretary’) shall establish and carry out
a program within the Department of the Interior to be
known as Tribal Self-Governance (hereinafter in this title
referred to as ‘Self-Governance’) in accordance with this
title.
‘‘SEC. 402. SELECTION OF PARTICIPATING INDIAN TRIBES.
‘‘(a) CONTINUING PARTICIPATION.—Each Indian tribe
that is participating in the Tribal Self-Governance Dem-
onstration Project at the Department of the Interior under
title III on the date of enactment of this title shall thereafter
participate in Self-Governance under this title and cease
participation in the Tribal Self-Governance Demonstration
Project under title III with respect to the Department of
the Interior.
‘‘(b) ADDITIONAL PARTICIPANTS.—(1) In addition to
those Indian tribes participating in Self-Governance under
subsection (a), the Secretary, acting through the Director
of the Office of Self-Governance, may select up to 20 new
tribes per year from the applicant pool described in sub-
section (c) to participate in Self-Governance.
‘‘(2)(A) Any consortium of Indian tribes may be treat-
ed as a single Indian tribe for the purpose of participating
in Self-Governance if each member tribe of the consortium
first authorizes participation in the consortium.
‘‘(B) An Indian tribe participating in Self-Governance
as part of a consortium is not eligible to participate inde-
pendently in the identical programs, services, functions, or
activities in which the consortium is participating under
this title.
‘‘(c) APPLICANT POOL.—The qualified applicant pool
for Self-Governance shall consist of each tribe that—
‘‘(1) successfully completes the planning phase
described in subsection (d);
‘‘(2) has requested participation in Self-Govern-
ance by resolution or other official action by the trib-
al governing body; and
‘‘(3) has demonstrated, for the previous three fis-
cal years, financial stability and financial manage-
ment capability as evidenced by the tribe having no
material audit exceptions in the required annual
audit of the self-determination contracts of the tribe.
‘‘(d) PLANNING PHASE.—Each Indian tribe seeking to
begin participation in Self-Governance shall complete a
planning phase in accordance with this subsection. The
tribe shall be eligible for a grant to plan and negotiate par-
ticipation in Self-Governance. The planning phase shall in-
clude—
‘‘(1) legal and budgetary research; and
‘‘(2) internal tribal government planning and
organizational preparation.
‘‘SEC. 403. FUNDING AGREEMENTS.
‘‘(a) AUTHORIZATION.—The Secretary shall negotiate
and enter into an annual written funding agreement with
the governing body of each participating tribal government.
‘‘(b) CONTENTS.—Each funding agreement shall—
‘‘(1) authorize the tribe to plan, conduct, consoli-
date, and administer programs or portions of pro-
grams, services, functions, and activities administered
by the Department of the Interior for the benefit of
Indian tribes or Indians because of their status as In-
dians without regard to the agency or office of the De-
partment of the Interior within which it is performed,
including (but not limited to)—
‘‘(A) under the Act of April 16, 1934 (25
U.S.C. 452 et seq.);
‘‘(B) under the Act of November 2, 1921 (25
U.S.C. 13); and
‘‘(C) programs or portions of programs,
services, functions, and activities administered
by the Secretary of the Interior for the benefit of
Indians for which appropriations are made to
agencies other than the Department of the Inte-
rior;
‘‘(2) subject to such terms within the agreement
as the Secretary shall require, authorize the tribe to
redesign or consolidate programs, services, functions,
or activities and to reallocate funds for such pro-
grams, services, functions, or activities;
‘‘(3) prohibit the inclusion of funds provided—
‘‘(A) pursuant to the Tribally Controlled
Community College Assistance Act of 1978 (25
U.S.C. 1801 et seq.);
‘‘(B) for elementary and secondary schools
under the formula developed pursuant to section
1128 of the Education Amendments of 1978 (25
U.S.C. 2008); and
‘‘(C) the Flathead Agency Irrigation Divi-
sion or the Flathead Agency Power Division, ex-
cept that nothing in this section shall affect the
contract authority of such divisions under sec-
tion 102;
‘‘(4) specify the services to be provided, the func-
tions to be performed, and the responsibilities of the
tribe and the Secretary pursuant to the agreement;
‘‘(5) authorize the tribe and the Secretary to re-
allocate funds or modify budget allocations within
any year, and specify the procedures to be used;
‘‘(6) allow for retrocession of programs or por-
tions of programs pursuant to section 105(e);
‘‘(7) provide that, for the year for which, and to
the extent to which, funding is provided to a tribe
under this section, the tribe—
‘‘(A) shall not be entitled to contract with
the Secretary for such funds under section 102,
except that such tribe shall be eligible for new
programs on the same basis as other tribes; and
‘‘(B) shall be responsible for the administra-
tion of programs, services, functions, and activi-
ties pursuant to agreements entered into under
this section; and
‘‘(8) prohibit the Secretary from waiving, modi-
fying, or diminishing in any way the trust respon-
sibility of the United States with respect to Indian
tribes and individual Indians that exists under trea-
ties, Executive orders, and other laws.
‘‘(c) ADDITIONAL ACTIVITIES.—Each funding agree-
ment negotiated pursuant to subsections (a) and (b) may
also include other programs or portions of programs, serv-
ices, functions, and activities administered by the Secretary
of the Interior which are of special geographic, historical,
or cultural significance to the Indian tribe requesting a
compact according to such additional terms as the parties
deem appropriate.
‘‘(d) PROVISIONS RELATING TO THE SECRETARY.—
Funding agreements negotiated between the Secretary and
an Indian tribe shall include—
‘‘(1) provisions which detail the terms and con-
ditions under which the Secretary can reassume a
program or portion of a program, service, function, or
activity based on a finding of imminent jeopardy to
a physical trust asset;
‘‘(2) provisions which detail the authority of the
Secretary to prescribe corrective actions to rectify
gross mismanagement of a trust asset by an Indian
tribe;
‘‘(3) a negotiated amount of residual funds to be
retained by the Secretary which are necessary to the
discharge of his trust responsibility to Indian tribes
and individual Indians not covered under this fund-
ing agreement; and
‘‘(4) provisions which detail the authority of the
Secretary to prescribe corrective actions to remedy
problems of gross mismanagement of programmatic or
administrative responsibilities of the Secretary which
are required under his trust responsibility to Indian
tribes and individual Indians.
‘‘(e) CONSTRUCTION PROJECTS.—(1) Regarding con-
struction programs or projects, the Secretary and Indian
tribes may negotiate for the inclusion of specific provisions
of the Office of Federal Procurement and Policy Act and
Federal acquisition regulations in any funding agreement
entered into under this Act.
‘‘(2) In all construction projects performed pursuant
to this title, the Secretary shall ensure that proper health
and safety standards are provided for in the funding agree-
ments.
‘‘(f) SUBMISSION FOR REVIEW.—Not later than 90
days before the proposed effective date of an agreement en-
tered into under this section, the Secretary shall submit a
copy of such agreement to—
‘‘(1) each Indian tribe that is served by the
Agency that is serving the tribe that is a party to the
funding agreement;
‘‘(2) the Committee on Indian Affairs of the Sen-
ate; and
‘‘(3) the Subcommittee on Native American Af-
fairs of the Committee on Natural Resources of the
House of Representatives.
‘‘(g) PAYMENT.—(1) At the request of the governing
body of the tribe and under the terms of an agreement en-
tered into under this section, the Secretary shall provide
funding to the tribe to carry out the agreement.
‘‘(2) The funding agreements authorized by this title
and title III of this Act may provide for advance payments
to the tribes in the form of annual or semi-annual install-
ments.
‘‘(3) Subject to paragraph (3) of this subsection and
paragraphs (1) and (3) of subsection (b), the Secretary shall
provide funds to the tribe for one or more programs, serv-
ices, functions, or activities in an amount equal to the
amount that the tribe would have been eligible to receive
under contracts and grants under this Act, including
amounts for direct program and contract support costs and
amounts for those activities that are specifically or func-
tionally related, but not part of, the service delivery pro-
gram, without regard to the organization level within the
Department where such functions are carried out.
‘‘(4) Funds for trust services to individual Indians
shall be available under an agreement entered into under
this section only to the extent that the same services that
would have been provided by the Secretary are provided to
individual Indians by the tribe.
‘‘(h) CIVIL ACTIONS.—(1) Except as provided in para-
graph (2), for the purposes of section 110, the term ‘con-
tract’ shall include agreements entered into under this title.
‘‘(2) For the period that an agreement entered into
under this title is in effect, the provisions of section 2103
of the Revised Statutes of the United States (25 U.S.C. 81),
and section 16 of the Act of June 18, 1934 (25 U.S.C. 476),
shall not apply to attorney and other professional contracts
by Indian tribal governments participating in Self-Govern-
ance under this title.
‘‘(i) FACILITATION.—(1) Except as otherwise provided
by law, the Secretary shall interpret each Federal law and
regulation in a manner that will facilitate—
‘‘(A) the inclusion of programs, services, func-
tions, and activities in the agreements entered into
under this section; and
‘‘(B) the implementation of agreements entered
into under this section.
‘‘(2)(A) A tribe may submit a written request for a
waiver to the Secretary identifying the regulation sought
to be waived and the basis for the request.
‘‘(B) Not later than 60 days after receipt by the Sec-
retary of a written request by a tribe to waive application
of a Federal regulation for an agreement entered into under
this section, the Secretary shall either approve or deny the
requested waiver in writing to the tribe. A denial may be
made only upon a specific finding by the Secretary that
identified language in the regulation may not be waived
because that regulation is expressly required by Federal
law. The Secretary’s decision shall be final for the Depart-
ment.
‘‘(j) FUNDS.—All funds provided under funding agree-
ments entered into pursuant to this Act, and all funds pro-
vided under contracts or grants made pursuant to this Act,
shall be treated as non-Federal funds for purposes of meet-
ing matching requirements under any other Federal law.
‘‘SEC. 404. BUDGET REQUEST.
‘‘The Secretary shall identify, in the annual budget re-
quest of the President to the Congress under section 1105
of title 31, United States Code, any funds proposed to be
included in Self-Governance.
‘‘SEC. 405. REPORTS.
‘‘(a) REQUIREMENT.—The Secretary shall submit to
Congress a written report on January 1 of each year follow-
ing the date of enactment of this title regarding the admin-
istration of this title.
‘‘(b) CONTENTS.—The report shall contain—
‘‘(1) the relative costs and benefit of Self-Govern-
ance;
‘‘(2) identification of all funds that are specifi-
cally and functionally related to the provision of serv-
ices and benefits to the tribe and its members and the
corresponding reduction in the Federal bureaucracy;
and
‘‘(3) the separate views of the tribes.
‘‘SEC. 406. DISCLAIMERS.
‘‘(a) OTHER SERVICES, CONTRACTS, AND FUNDS.—
Nothing in this title shall be construed to limit or reduce
in any way the services, contracts, or funds that any other
Indian tribe or tribal organization is eligible to receive
under section 102 or any other applicable Federal law.
‘‘(b) FEDERAL TRUST RESPONSIBILITIES.—Nothing
in this Act shall be construed to diminish the Federal trust
responsibility to Indian tribes, individual Indians, or Indi-
ans with trust allotments.
‘‘(c) APPLICATION OF OTHER SECTIONS OF ACT.—All
provisions of sections 6, 102(c), 104, 105(f), 110, and 111
of this Act shall apply to agreements provided under this
title.
‘‘SEC. 407. REGULATIONS.
‘‘(a) IN GENERAL.—Not later than 12 months after the
date of enactment of this title, the Secretary shall promul-
gate final regulations for the implementation of this title.
All regulations promulgated pursuant to this title shall be
developed by the Secretary with the full and active partici-
pation of the Indian tribes with agreements under this title
and other affected Indian tribes.
‘‘(b) EFFECT.—The lack of promulgated regulations
shall not limit the effect of this title.
‘‘SEC. 408. AUTHORIZATION OF APPROPRIATIONS.
‘‘There are authorized to be appropriated such sums
as may be necessary to carry out this title.’’.
HR 3508 RH——2