I
106TH CONGRESS
1ST SESSION
H. R. 1167
To amend the Indian Self-Determination and Education Assistance Act to
provide for further self-governance by Indian tribes, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
MARCH 17, 1999
Mr. GEORGE MILLER of California (for himself, Mr. YOUNG of Alaska, Mr.
KILDEE, Mr. DEFAZIO, Mr. FALEOMAVAEGA, Mr. ABERCROMBIE, Mr.
ROMERO-BARCELO´, Mr. UNDERWOOD, Mr. KENNEDY of Rhode Island,
Mr. INSLEE, Mr. HAYWORTH, Mr. MCDERMOTT, Ms. PELOSI, Mr.
BROWN of California, Mr. OBERSTAR, Mr. FILNER, Mr. PASTOR, Mr.
FRANK of Massachusetts, Mr. MARTINEZ, Ms. STABENOW, Mr. TOWNS,
Mrs. MINK of Hawaii, Mr. PICKERING, Mr. ALLEN, Mr. STUPAK, and
Mr. FROST) introduced the following bill; which was referred to the Com-
mittee on Resources
A BILL
To amend the Indian Self-Determination and Education As-
sistance Act to provide for further self-governance by
Indian tribes, 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
Amendments of 1999’’.
‘‘TITLE V—TRIBAL SELF-
GOVERNANCE
‘‘SEC. 501. ESTABLISHMENT.
‘‘The Secretary of Health and Human Services shall
establish and carry out a program within the Indian
Health Service of the Department of Health and Human
Services to be known as the ‘Tribal Self-Governance Pro-
gram’ in accordance with this title.
‘‘SEC. 502. DEFINITIONS.
‘‘(a) IN GENERAL.—For purposes of this title—
‘‘(1) the term ‘construction project’ means an
organized noncontinuous undertaking to complete a
specific set of predetermined objectives for the plan-
ning, environmental determination, design, construc-
tion, repair, improvement, or expansion of buildings
or facilities, as described in a construction project
agreement. The term ‘construction project’ does not
mean construction program administration and ac-
tivities described in paragraphs (1) through (3) of
section 4(m), which may otherwise be included in a
funding agreement under this title;
‘‘(2) the term ‘construction project agreement’
means a negotiated agreement between the Secretary
and an Indian tribe which at a minimum—
‘‘(A) establishes project phase start and
completion dates;
‘‘(B) defines a specific scope of work and
standards by which it will be accomplished;
‘‘(C) identifies the responsibilities of the
Indian tribe and the Secretary;
‘‘(D) addresses environmental consider-
ations;
‘‘(E) identifies the owner and operations/
maintenance entity of the proposed work;
‘‘(F) provides a budget;
‘‘(G) provides a payment process; and
‘‘(H) establishes the duration of the agree-
ment based on the time necessary to complete
the specified scope of work, which may be 1 or
more years;
‘‘(3) the term ‘inherent Federal functions’
means those Federal functions which cannot legally
be delegated to Indian tribes;
‘‘(4) the term ‘inter-tribal consortium’ means a
coalition of two or more separate Indian tribes that
join together for the purpose of participating in self-
governance, including, but not limited to, a tribal or-
ganization;
‘‘(5) the term ‘gross mismanagement’ means a
significant, clear, and convincing violation of com-
pact, funding agreement, or regulatory, or statutory
requirements applicable to Federal funds transferred
to a tribe by a compact or funding agreement that
results in a significant reduction of funds available
for the programs, services, functions, or activities (or
portions thereof) assumed by an Indian tribe;
‘‘(6) the term ‘tribal shares’ means an Indian
tribe’s portion of all funds and resources that sup-
port secretarial programs, services, functions, and
activities (or portions thereof) that are not required
by the Secretary for performance of inherent Fed-
eral functions;
‘‘(7) the term ‘Secretary’ means the Secretary
of Health and Human Services; and
‘‘(8) the term ‘self-governance’ means the pro-
gram established pursuant to section 501.
‘‘(b) INDIAN TRIBE.—Where an Indian tribe has au-
thorized another Indian tribe, an inter-tribal consortium,
or a tribal organization to plan for or carry out programs,
services, functions, or activities (or portions thereof) on
its behalf under this title, the authorized Indian tribe,
inter-tribal consortium, or tribal organization shall have
the rights and responsibilities of the authorizing Indian
tribe (except as otherwise provided in the authorizing reso-
lution or in this title). In such event, the term ‘Indian
tribe’ as used in this title shall include such other author-
ized Indian tribe, inter-tribal consortium, or tribal organi-
zation.
‘‘SEC. 503. SELECTION OF PARTICIPATING INDIAN TRIBES.
‘‘(a) CONTINUING
PARTICIPATION.—Each Indian
tribe that is participating in the Tribal Self-Governance
Demonstration Project under title III on the date of enact-
ment of this title may elect to participate in self-govern-
ance under this title under existing authority as reflected
in tribal resolutions.
‘‘(b) ADDITIONAL PARTICIPANTS.—
‘‘(1) In addition to those Indian tribes partici-
pating in self-governance under subsection (a), each
year an additional 50 Indian tribes that meet the eli-
gibility criteria specified in subsection (c) shall be
entitled to participate in self-governance.
‘‘(2)(A) An Indian tribe that has withdrawn
from participation in an inter-tribal consortium or
tribal organization, in whole or in part, shall be enti-
tled to participate in self-governance provided the
Indian tribe meets the eligibility criteria specified in
subsection (c).
‘‘(B) If an Indian tribe has withdrawn from
participation in an inter-tribal consortium or tribal
organization, it shall be entitled to its tribal share
of funds supporting those programs, services, func-
tions, and activities (or portions thereof) that it will
be carrying out under its compact and funding
agreement.
‘‘(C) In no event shall the withdrawal of an In-
dian tribe from an inter-tribal consortium or tribal
organization affect the eligibility of the inter-tribal
consortium or tribal organization to participate in
self-governance.
‘‘(c) APPLICANT POOL.—The qualified applicant pool
for self-governance shall consist of each Indian 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 gov-
erning body (or bodies) of the Indian tribe or tribes
to be served; and
‘‘(3) has demonstrated, for the previous 3 fiscal
years, financial stability and financial management
capability.
Evidence that during such years the Indian tribe had no
uncorrected significant and material audit exceptions in
the required annual audit of the Indian tribe’s self-deter-
mination contracts or self-governance funding agreements
shall be conclusive evidence of the required stability and
capability for the purposes of this subsection.
‘‘(d) PLANNING PHASE.—Each Indian tribe seeking
participation in self-governance shall complete a planning
phase. The planning phase shall be conducted to the satis-
faction of the Indian tribe and shall include—
‘‘(1) legal and budgetary research; and
‘‘(2) internal tribal government planning and
organizational preparation relating to the adminis-
tration of health care programs.
‘‘(e) GRANTS.—Subject to the availability of appro-
priations, any Indian tribe meeting the requirements of
paragraphs (2) and (3) of subsection (c) shall be eligible
for grants—
‘‘(1) to plan for participation in self-governance;
and
‘‘(2) to negotiate the terms of participation by
the Indian tribe or tribal organization in self-govern-
ance, as set forth in a compact and a funding agree-
ment.
‘‘(f) RECEIPT OF GRANT NOT REQUIRED.—Receipt
of a grant under subsection (e) shall not be a requirement
of participation in self-governance.
‘‘SEC. 504. COMPACTS.
‘‘(a) COMPACT REQUIRED.—The Secretary shall ne-
gotiate and enter into a written compact with each Indian
tribe participating in self-governance in a manner con-
sistent with the Federal Government’s trust responsibility,
treaty obligations, and the government-to-government re-
lationship between Indian tribes and the United States.
‘‘(b) CONTENTS.—Each compact required under sub-
section (a) shall set forth the general terms of the govern-
ment-to-government relationship between the Indian tribe
and the Secretary, including such terms as the parties in-
tend shall control year after year. Such compacts may only
be amended by mutual agreement of the parties.
‘‘(c) EXISTING COMPACTS.—An Indian tribe partici-
pating in the Tribal Self-Governance Demonstration
Project under title III on the date of enactment of this
title shall have the option at any time thereafter to—
‘‘(1) retain its Tribal Self-Governance Dem-
onstration Project compact (in whole or in part) to
the extent the provisions of such compact are not di-
rectly contrary to any express provision of this title,
or
‘‘(2) negotiate in lieu thereof (in whole or in
part) a new compact in conformity with this title.
‘‘(d) TERM AND EFFECTIVE DATE.—The effective
date of a compact shall be the date of the approval and
execution by the Indian tribe or another date agreed upon
by the parties, and shall remain in effect for so long as
permitted by Federal law or until terminated by mutual
written agreement, retrocession, or reassumption.
‘‘SEC. 505. FUNDING AGREEMENTS.
‘‘(a) FUNDING AGREEMENT REQUIRED.—The Sec-
retary shall negotiate and enter into a written funding
agreement with each Indian tribe participating in self-gov-
ernance in a manner consistent with the Federal Govern-
ment’s trust responsibility, treaty obligations, and the gov-
ernment-to-government relationship between Indian tribes
and the United States.
‘‘(b) CONTENTS.—Each funding agreement required
under subsection (a) shall, as determined by the Indian
tribe, authorize the Indian tribe to plan, conduct, consoli-
date, administer, and receive full tribal share funding, in-
cluding tribal shares of Indian Health Service competitive
grants (excluding congressionally earmarked competitive
grants), for all programs, services, functions, and activi-
ties (or portions thereof), that are carried out for the ben-
efit of Indians because of their status as Indians without
regard to the agency or office of the Indian Health Service
within which the program, service, function, or activity (or
portion thereof) is performed. Such programs, services,
functions, or activities (or portions thereof) include all
programs, services, functions, activities (or portions there-
of) where Indian tribes or Indians are primary or signifi-
cant beneficiaries, administered by the Department of
Health and Human Services through the Indian Health
Service and grants (which may be added to a funding
agreement after award of such grants) and all local, field,
service unit, area, regional, and central headquarters or
national office functions administered under the authority
of—
‘‘(1) the Act of November 2, 1921 (25 U.S.C.
13);
‘‘(2) the Act of April 16, 1934 (25 U.S.C. 452
et seq.);
‘‘(3) the Act of August 5, 1954 (68 Stat. 674);
‘‘(4) the Indian Health Care Improvement Act
(25 U.S.C. 1601 et seq.);
‘‘(5) the Indian Alcohol and Substance Abuse
Prevention and Treatment Act of 1986 (25 U.S.C.
2401 et seq.);
‘‘(6) any other Act of Congress authorizing
agencies of the Department of Health and Human
Services to administer, carry out, or provide finan-
cial assistance to such programs, functions, or activi-
ties (or portions thereof) described in this section; or
‘‘(7) any other Act of Congress authorizing
such programs, functions, or activities (or portions
thereof) under which appropriations are made to
agencies other than agencies within the Department
of Health and Human services when the Secretary
administers such programs, functions, or activities
(or portions thereof).
‘‘(c) INCLUSION IN COMPACT OR FUNDING AGREE-
MENT.—Indian tribes or Indians need not be identified in
the authorizing statute for a program or element of a pro-
gram to be eligible for inclusion in a compact or funding
agreement under this title.
‘‘(d) FUNDING AGREEMENT TERMS.—Each funding
agreement shall set forth terms that generally identify the
programs, services, functions, and activities (or portions
thereof) to be performed or administered, the general
budget category assigned, the funds to be provided, includ-
ing those to be provided on a recurring basis, the time
and method of transfer of the funds, the responsibilities
of the Secretary, and any other provisions to which the
Indian tribe and the Secretary agree.
‘‘(e) SUBSEQUENT FUNDING AGREEMENTS.—Absent
notification from an Indian tribe that is withdrawing or
retroceding the operation of one or more programs, serv-
ices, functions, or activities (or portions thereof) identified
in a funding agreement, or unless otherwise agreed to by
the parties, each funding agreement shall remain in full
force and effect until a subsequent funding agreement is
executed, and the terms of the subsequent funding agree-
ment shall be retroactive to the end of the term of the
preceding funding agreement.
‘‘(f) EXISTING FUNDING AGREEMENTS.—Each In-
dian tribe participating in the Tribal Self-Governance
Demonstration Project established under title III on the
date of enactment of this title shall have the option at
any time thereafter to—
‘‘(1) retain its Tribal Self-Governance Dem-
onstration Project funding agreement (in whole or in
part) to the extent the provisions of such funding
agreement are not directly contrary to any express
provision of this title; or
‘‘(2) adopt in lieu thereof (in whole or in part)
a new funding agreement in conformity with this
title.
‘‘(g) STABLE BASE FUNDING.—At the option of an
Indian tribe, a funding agreement may provide for a stable
base budget specifying the recurring funds (including, for
purposes of this provision, funds available under section
106(a) of the Act) to be transferred to such Indian tribe,
for such period as may be specified in the funding agree-
ment, subject to annual adjustment only to reflect changes
in congressional appropriations by sub-sub activity exclud-
ing earmarks.
‘‘SEC. 506. GENERAL PROVISIONS.
‘‘(a) APPLICABILITY.—The provisions of this section
shall apply to compacts and funding agreements nego-
tiated under this title and an Indian tribe may, at its op-
tion, include provisions that reflect such requirements in
a compact or funding agreement.
‘‘(b) CONFLICTS OF INTEREST.—Indian tribes par-
ticipating in self-governance under this title shall ensure
that internal measures are in place to address conflicts
of interest in the administration of self-governance pro-
grams, services, functions, or activities (or portions there-
of).
‘‘(c) AUDITS.—
‘‘(1) SINGLE AGENCY AUDIT ACT.—The provi-
sions of chapter 75 of title 31, United States Code,
requiring a single agency audit report shall apply to
funding agreements under this title.
‘‘(2) COST PRINCIPLES.—An Indian tribe shall
apply cost principles under the applicable Office of
Management and Budget Circular, except as modi-
fied by section 106 or other provisions of law, or by
any exemptions to applicable Office of Management
and Budget Circulars subsequently granted by Of-
fice of Management and Budget. No other audit or
accounting standards shall be required by the Sec-
retary. Any claim by the Federal Government
against the Indian tribe relating to funds received
under a funding agreement based on any audit
under this subsection shall be subject to the provi-
sions of section 106(f).
‘‘(d) RECORDS.—
‘‘(1) IN
GENERAL.—Unless an Indian tribe
specifies otherwise in the compact or funding agree-
ment, records of the Indian tribe shall not be consid-
ered Federal records for purposes of chapter 5 of
title 5, United States Code.
‘‘(2) RECORDKEEPING
SYSTEM.—The Indian
tribe shall maintain a recordkeeping system, and,
after 30 days advance notice, provide the Secretary
with reasonable access to such records to enable the
Department of Health and Human Services to meet
its minimum legal recordkeeping system require-