II
103D CONGRESS
2D SESSION
H. R. 3508
IN THE SENATE OF THE UNITED STATES
AUGUST 17 (legislative day, AUGUST 11), 1994
Received
AN ACT
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 gov-
ernment-to-government relationship with Indian
tribes, including the right of the tribes to self-gov-
ernance, 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 Fed-
eral bureaucracy, with its centralized rules and regu-
lations, has eroded tribal self-governance and domi-
nates 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
Tribal Self-Governance Demonstration Project and
finds that—
(A) transferring control to tribal govern-
ments, upon tribal request, over funding and
decisionmaking for Federal programs, services,
functions, and activities intended to benefit In-
dians is an effective way to implement the Fed-
eral policy of government-to-government rela-
tions with Indian tribes; and
(B) transferring control to tribal govern-
ments, upon tribal request, over funding and
decisionmaking for Federal programs, services,
functions, and activities strengthens the Fed-
eral 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
extent 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
individual 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
Demonstration 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) If each tribe requests, two or more otherwise eli-
gible 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-Govern-
ance by resolution or other official action by the
tribal governing body; and
‘‘(3) has demonstrated, for the previous three
fiscal 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
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 nego-
tiate and enter into an annual written funding agreement
with the governing body of each participating tribal gov-
ernment.
‘‘(b) CONTENTS.—Each funding agreement shall—
‘‘(1) authorize the tribe to plan, conduct, con-
solidate, and administer programs, services, func-
tions, and activities, or portions thereof, adminis-
tered by the Department of the Interior that are
otherwise available to Indian tribes or Indians, with-
out regard to the agency or office of the Department
of the Interior within which it is performed, includ-
ing (but not limited to) those 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 ac-
tivities 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 the terms of the agreement, au-
thorize the tribe to redesign or consolidate pro-
grams, services, functions, and activities, or portions
thereof, and to reallocate funds for such programs,
services, functions, or activities, or portions thereof;
‘‘(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 sec-
tion 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,
except that nothing in this section shall affect
the contract authority of such divisions under
section 102;
‘‘(4) specify the services to be provided, the
functions to be performed, and the responsibilities of
the tribe and the Secretary pursuant to the agree-
ment;
‘‘(5) authorize the tribe and the Secretary to
reallocate 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 adminis-
tration of programs, services, functions, and ac-
tivities 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,
in accordance to such additional terms as the parties deem
appropriate, also include other programs, services, func-
tions, and activities, or portions thereof, administered by
the Secretary of the Interior which are of special geo-
graphic, historical, or cultural significance to the partici-
pating Indian tribe requesting a compact.
‘‘(d) PROVISIONS RELATING TO THE SECRETARY.—
Funding agreements negotiated between the Secretary
and an Indian tribe shall include provisions—
‘‘(1) to monitor the performance of trust func-
tions by the tribe through the annual trust evalua-
tion, and
‘‘(2) for the Secretary to reassume a program,
service, function, or activity, or portions thereof, if
there is a finding of imminent jeopardy to a physical
trust asset.
‘‘(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. Absent a negotiated agree-
ment, such provisions and regulatory requirements 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 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
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 install-
ments at the discretion of the tribes.
‘‘(3) Subject to paragraph (3) of this subsection and
paragraphs (1) and (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 amounts
for direct program and contract support costs and, in ad-
dition, any funds that are specifically or functionally relat-
ed to the provision by the Secretary of services and bene-
fits to the tribe or its members, without regard to the or-
ganization level within the Department where such func-
tions 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 profes-
sional contracts by Indian tribal governments participat-
ing in Self-Governance under this title.
‘‘(i) FACILITATION.—(1) Except as otherwise pro-
vided 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
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 pur-
poses of meeting matching requirements under any other
Federal law.
‘‘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, United States Code, any funds proposed
to be included in agreements authorized under this title.
‘‘SEC. 405. REPORTS.
‘‘(a) REQUIREMENT.—The Secretary shall submit to
Congress a written report on January 1 of each year fol-
lowing 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-Governance;
‘‘(2) identify, with particularity, all funds that
are specifically or functionally related to the provi-
sion 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 bureaucracy;
‘‘(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 in-
cluding non-Bureau of Indian Affairs programs for
compacts under section 403(b)(1) and special pro-
grams under section 403(c) in agreements tribes
participating in Self-Governance under this title, the
Secretary—
‘‘(A) shall review all programs, services,
and functions administered by the Department
of the Interior, other than the Bureau of Indian
Affairs, without regard to the agency or office
concerned, and
‘‘(B) within 90 days after the enactment of
this title, provide to the appropriate committees
of the Congress a listing of all such programs,
services, functions, and activities, or portions
thereof, which the Secretary determines are eli-
gible for inclusion in such agreements at the re-
quest of a participating Indian tribe.
‘‘(2) 
The 
Secretary 
shall 
establish 
pro-
grammatic 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 activities are actually included in the
agreements negotiated under section 403.
‘‘(3) The listing and targets under paragraphs
(1) and (2) shall be published in the Federal Reg-
ister and be made available to any Indian tribe par-
ticipating in Self-Governance under this title. The
list shall be published before January 1, 1995, and
annually thereafter by January 1 preceding the fis-
cal 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-Govern-
ance 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 determine the individual tribal share
of funds controlled by the Central Office of the Bureau
of Indian Affairs for inclusion in the Self-Governance com-
pacts. The Secretary shall include such formula in the an-
nual 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 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 90 days after the
date of enactment of this title, at the request of a majority
of the Indian tribes with agreements under of 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 commit-
tee established 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 representa-
tives, a majority of whom shall be representatives of In-
dian 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.