H. R. 4842—21
‘‘(i) subchapter III of chapter 5 of title 5, United States
Code, commonly known as the ‘Negotiated Rulemaking Act
of 1990’; and
‘‘(ii) the recommendations of the Administrative Conference
of the United States numbered 82–4 and 85–5 entitled ‘Proce-
dures for Negotiating Proposed Regulations’ under sections
305.82–4 and 305.85–5 of title 1, Code of Federal Regulations,
and any successor recommendation or law (including any
successor regulation).
‘‘(B) The tribal participants in the negotiation process referred
to in subparagraph (A) shall be nominated by and shall represent
the groups described in this paragraph and shall include tribal
representatives from all geographic regions.
‘‘(C) The negotiations referred to in subparagraph (B) shall
be conducted in a timely manner. Proposed regulations to imple-
ment the amendments made by the Indian Self-Determination Con-
tract Reform Act of 1994 shall be published in the Federal Register
by the Secretary of the Interior and the Secretary of Health and
Human Services not later than 180 days after the date of enactment
of such Act.
‘‘(D) Notwithstanding any other provision of law (including
any regulation), the Secretary of the Interior and the Secretary
of Health and Human Services are authorized to jointly establish
and fund such interagency committees or other interagency bodies,
including advisory bodies comprised of tribal representatives, as
may be necessary or appropriate to carry out the provisions of
this Act.
‘‘(E) If the Secretary determines that an extension of the dead-
lines under subsection (a)(2)(B) and subparagraph (C) of this para-
graph is appropriate, the Secretary may submit proposed legislation
to Congress for the extension of such deadlines.
‘‘(e) The Secretary may, with respect to a contract entered
into under this Act, make exceptions in the regulations promulgated
to carry out this Act, or waive such regulations, if the Secretary
finds that such exception or waiver is in the best interest of the
Indians served by the contract or is consistent with the policies
of this Act, and is not contrary to statutory law. In reviewing
each request, the Secretary shall follow the timeline, findings,
assistance, hearing, and appeal procedures set forth in section
102.’’.
SEC. 106. CONFORMING AMENDMENTS.
Section 105(h) of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450j(h)) is amended by striking ‘‘and
the rules and regulations adopted by the Secretaries of the Interior
and Health and Human Services pursuant to section 107 of this
Act’’.
TITLE II—SELF-GOVERNANCE
SEC. 201. SHORT TITLE.
This title may be cited as the ‘‘Tribal Self-Governance Act
of 1994’’.
SEC. 202. FINDINGS.
Congress finds that—
H. R. 4842—22
(1) the tribal right of self-government flows from the inher-
ent sovereignty of Indian tribes and nations;
(2) the United States recognizes a special government-
to-government relationship with Indian tribes, including the
right of the tribes to self-governance, as reflected in the Con-
stitution, treaties, Federal statutes, and the course of dealings
of the United States with Indian tribes;
(3) although progress has been made, the Federal bureauc-
racy, with its centralized rules and regulations, 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-govern-
ment relationship between Indian tribes and the United States
and to strengthen tribal control over Federal funding and pro-
gram management; and
(5) Congress has reviewed the results of the Tribal Self-
Governance Demonstration Project and finds that—
(A) transferring control to tribal governments, upon
tribal request, over funding and decisionmaking for Federal
programs, services, functions, and activities, or portions
thereof, is an effective way to implement the Federal policy
of government-to-government relations with Indian tribes;
and
(B) transferring control to tribal governments, upon
tribal request, over funding and decisionmaking for Federal
programs, services, functions, and activities strengthens
the Federal policy of Indian self-determination.
SEC. 203. DECLARATION OF POLICY.
It is the policy of this title to permanently establish and imple-
ment 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 extent of
the participation of such tribe in self-governance;
(3) to coexist with the provisions of the Indian Self-Deter-
mination Act relating to the provision of Indian services by
designated Federal agencies;
(4) to ensure the continuation of the trust responsibility
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 Indian tribes with meaning-
ful authority to plan, conduct, redesign, and administer pro-
grams, services, functions, and activities that meet the needs
of the individual tribal communities; and
(6) to provide for an orderly transition through a planned
and measurable parallel reduction in the Federal bureaucracy.
SEC. 204. TRIBAL SELF-GOVERNANCE.
The Indian Self-Determination and Education Assistance Act
is amended by adding at the end the following new title:
H. R. 4842—23
‘‘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-Govern-
ance (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 Demonstration Project
at the Department of the Interior under title III on the date of
enactment of this title shall thereafter participate in Self-Govern-
ance 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-Govern-
ance, may select up to 20 new tribes per year from the applicant
pool described in subsection (c) to participate in Self-Governance.
‘‘(2) If each tribe requests, two or more otherwise eligible Indian
tribes may be treated as a single Indian tribe for the purpose
of participating in Self-Governance as a consortium.
‘‘(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-Governance by reso-
lution or other official action by the tribal governing body;
and
‘‘(3) has demonstrated, for the previous three fiscal years,
financial stability and financial management capability as evi-
denced 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 participation in Self-Governance.
The planning phase shall include—
‘‘(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 in a manner consistent
with the Federal Government’s laws and trust relationship to and
responsibility for the Indian people.
‘‘(b) CONTENTS.—Each funding agreement shall—
‘‘(1) authorize the tribe to plan, conduct, consolidate, and
administer programs, services, functions, and activities, or por-
tions thereof, administered by the Department of the Interior
through the Bureau of Indian Affairs, without regard to the
H. R. 4842—24
agency or office of the Bureau of Indian Affairs within which
the program, service, function, and activity, or portion thereof,
is performed, including funding for agency, area, and central
office functions in accordance with subsection (g)(3), and includ-
ing any program, service, function, and activity, or portion
thereof, administered under the authority of—
‘‘(A) the Act of April 16, 1934 (25 U.S.C. 452 et seq.);
‘‘(B) the Act of November 2, 1921 (25 U.S.C. 13); and
‘‘(C) programs, services, functions, and activities or
portions thereof administered by the Secretary of the
Interior that are otherwise available to Indian tribes or
Indians for which appropriations are made to agencies
other than the Department of the Interior;
‘‘(2) subject to such terms as may be negotiated, authorize
the tribe to plan, conduct, consolidate, and administer pro-
grams, services, functions, and activities, or portions thereof,
administered by the Department of the Interior, other than
through the Bureau of Indian Affairs, that are otherwise avail-
able to Indian tribes or Indians, as identified in section 405(c),
except that nothing in this subsection may be construed to
provide any tribe with a preference with respect to the oppor-
tunity of the tribe to administer programs, services, functions,
and activities, or portions thereof, unless such preference is
otherwise provided for by law;
‘‘(3) subject to the terms of the agreement, authorize the
tribe to redesign or consolidate programs, services, functions,
and activities, or portions thereof, and reallocate funds for
such programs, services, functions, and activities, or portions
thereof, except that, with respect to the reallocation, consolida-
tion, and redesign of programs described in paragraph (2),
a joint agreement between the Secretary and the tribe shall
be required;
‘‘(4) 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 Edu-
cation Amendments of 1978 (25 U.S.C. 2008); and
‘‘(C) the Flathead Agency Irrigation Division or the
Flathead Agency Power Division, except that nothing in
this section shall affect the contract authority of such divi-
sions under section 102;
‘‘(5) specify the services to be provided, the functions to
be performed, and the responsibilities of the tribe and the
Secretary pursuant to the agreement;
‘‘(6) authorize the tribe and the Secretary to reallocate
funds or modify budget allocations within any year, and specify
the procedures to be used;
‘‘(7) allow for retrocession of programs or portions of pro-
grams pursuant to section 105(e);
‘‘(8) 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
H. R. 4842—25
‘‘(B) shall be responsible for the administration of pro-
grams, services, functions, and activities pursuant to agree-
ments entered into under this section; and
‘‘(9) prohibit the Secretary from waiving, modifying, or
diminishing in any way the trust responsibility of the United
States with respect to Indian tribes and individual Indians
that exists under treaties, Executive orders, and other laws.
‘‘(c) ADDITIONAL ACTIVITIES.—Each funding agreement nego-
tiated pursuant to subsections (a) and (b) may, in accordance to
such additional terms as the parties deem appropriate, also include
other programs, services, functions, and activities, or portions
thereof, administered by the Secretary of the Interior which are
of special geographic, historical, or cultural significance to the
participating Indian tribe requesting a compact.
‘‘(d) PROVISIONS RELATING TO THE SECRETARY.—Funding agree-
ments negotiated between the Secretary and an Indian tribe shall
include provisions—
‘‘(1) to monitor the performance of trust functions by the
tribe through the annual trust evaluation, and
‘‘(2) for the Secretary to reassume a program, service, func-
tion, or activity, or portions thereof, if there is a finding of
imminent jeopardy to a physical trust asset, natural resources,
or public health and safety.
‘‘(e) CONSTRUCTION PROJECTS.—(1) Regarding construction pro-
grams 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. Absent
a negotiated agreement, such provisions and regulatory require-
ments shall not apply.
‘‘(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 agreements.
‘‘(f) SUBMISSION FOR REVIEW.—Not later than 90 days before
the proposed effective date of an agreement entered 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 Senate; and
‘‘(3) the Subcommittee on Native American Affairs of the
Committee on Natural Resources of the House of Representa-
tives.
‘‘(g) PAYMENT.—(1) At the request of the governing body of
the tribe and under the terms of an agreement entered 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 shall provide for advance payments to the tribes
in the form of annual or semi-annual installments at the discretion
of the tribes.
‘‘(3) Subject to paragraph (4) of this subsection and paragraphs
(1) through (3) of subsection (b), the Secretary shall provide funds
to the tribe under an agreement under this title for programs,
services, functions, and activities, or portions thereof, in an amount
equal to the amount that the tribe would have been eligible to
receive under contracts and grants under this Act, including
H. R. 4842—26
amounts for direct program and contract support costs and, in
addition, any funds that are specifically or functionally related
to the provision by the Secretary of services and benefits to the
tribe or its members, 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 paragraph (2),
for the purposes of section 110, the term ‘contract’ 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-Governance 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, functions, 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 Secretary
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 such waiver is prohibited by Federal
law. The Secretary’s decision shall be final for the Department.
‘‘(j) FUNDS.—All funds provided under funding agreements
entered into pursuant to this Act, and all funds provided under
contracts or grants made pursuant to this Act, shall be treated
as non-Federal funds for purposes of meeting matching require-
ments under any other Federal law.
‘‘(k) DISCLAIMER.—Nothing in this section is intended or shall
be construed to expand or alter existing statutory authorities in
the Secretary so as to authorize the Secretary to enter into any
agreement under sections 403(b)(2) and 405(c)(1) with respect to
functions that are inherently Federal or where the statute establish-
ing the existing program does not authorize the type of participation
sought by the tribe: Provided, however an Indian tribe or tribes
need not be identified in the authorizing statute in order for a
program or element of a program to be included in a compact
under section 403(b)(2).
‘‘SEC. 404. BUDGET REQUEST.
‘‘The Secretary shall identify, in the annual budget request
of the President to the Congress under section 1105 of title 31,
H. R. 4842—27
United States Code, any funds proposed to be included in agree-
ments authorized under this title.
‘‘SEC. 405. REPORTS.
‘‘(a) REQUIREMENT.—The Secretary shall submit to Congress
a written report on January 1 of each year following the date
of enactment of this title regarding the administration of this title.
‘‘(b) CONTENTS.—The report shall—
‘‘(1) identify the relative costs and benefits of Self-Govern-
ance;
‘‘(2) identify, with particularity, all funds that are specifi-
cally or functionally related to the provision by the Secretary
of services and benefits to Self-Governance tribes and their
members;
‘‘(3) identify the funds transferred to each Self-Governance
tribe and the corresponding reduction in the Federal bureauc-
racy;
‘‘(4) include the separate views of the tribes; and
‘‘(5) include the funding formula for individual tribal shares
of Central Office funds, together with the comments of affected
Indian tribes, developed under subsection (d).
‘‘(c) REPORT ON NON-BIA PROGRAMS.—(1) In order to optimize
opportunities for including non-Bureau of Indian Affairs programs,
services, functions, and activities, or portions thereof, in agreements
with tribes participating in Self-Governance under this title, the
Secretary shall—
‘‘(A) review all programs, services, functions, and activities,
or portions thereof, administered by the Department of the
Interior, other than through the Bureau of Indian Affairs, with-
out regard to the agency or office concerned; and
‘‘(B) not later than 90 days after the date of enactment
of this title, provide to the appropriate committees of Congress
a listing of all such programs, services, functions, and activities,
or portions thereof, that the Secretary determines, with the
concurrence of tribes participating in Self-Governance under
this title, are eligible for inclusion in such agreements at the
request of a participating Indian tribe.
‘‘(2) The Secretary shall establish programmatic targets, after
consultation with tribes participating in Self-Governance under this
title, to encourage bureaus of the Department to assure that a
significant portion of such programs, services, functions, and activi-
ties are actually included in the agreements negotiated under sec-
tion 403.
‘‘(3) The listing and targets under paragraphs (1) and (2) shall
be published in the Federal Register and be made available to
any Indian tribe participating in Self-Governance under this title.
The list shall be published before January 1, 1995, and annually
thereafter by January 1 preceding the fiscal year in which the
targets are to be met.
‘‘(4) Thereafter, the Secretary shall annually review and publish
in the Federal Register, after consultation with tribes participating
in Self-Governance under this title, a revised listing and pro-
grammatic targets.
‘‘(d) REPORT ON CENTRAL OFFICE FUNDS.—Within 90 days after
the date of the enactment of this title, the Secretary shall, in
consultation with Indian tribes, develop a funding formula to deter-
mine the individual tribal share of funds controlled by the Central
H. R. 4842—28
Office of the Bureau of Indian Affairs for inclusion in the Self-
Governance compacts. The Secretary shall include such formula
in the annual report submitted to the Congress under subsection
(b), together with the views of the affected Indian 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 Indians 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 90 days after the date of
enactment of this title, at the request of a majority of the Indian
tribes with agreements under this title, the Secretary shall initiate
procedures under subchapter III of chapter 5 of title 5, United
States Code, to negotiate and promulgate such regulations as are
necessary to carry out this title.
‘‘(b) COMMITTEE.—A negotiated rulemaking committee estab-
lished pursuant to section 565 of title 5, United States Code, to
carry out this section shall have as its members only Federal
and tribal government representatives, a majority of whom shall
be representatives of Indian tribes with agreements under this
title.
‘‘(c) ADAPTATION OF PROCEDURES.—The Secretary shall adapt
the negotiated rulemaking procedures to the unique context of
Self-Governance and the government-to-government relationship
between the United States and the Indian tribes.
‘‘(d) EFFECT.—The lack of promulgated regulations shall not
limit the effect of this title.
H. R. 4842—29
‘‘SEC. 408. AUTHORIZATION OF APPROPRIATIONS.
‘‘There are authorized to be appropriated such sums as may
be necessary to carry out this title.’’.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.