[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 1618 Introduced in Senate (IS)]
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.
Be it enacted by the Senate and House of Representatives 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
1993''.
SEC. 2. FINDINGS.
Congress finds that--
(1) the tribal right of self-governance flows from the
inherent 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
Constitution, treaties, Federal statutes, and the course of
dealings of the United States Government with Indian tribes;
(3) although progress has been made, the Federal
bureaucracy, 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-government
relationship between Indian 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 governments,
upon tribal request, over funding and decisionmaking
for Federal programs, services, functions, and
activities intended to benefit Indians, 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. 3. DECLARATION OF POLICY.
It is the policy of this Act to permanently establish and implement
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 co-exist with the provisions of the Indian Self-
Determination Act relating to 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
meaningful authority to plan, conduct, 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 Assistance Act (25
U.S.C. 450 et seq.) is amended by adding at the end the following new
title:
``TITLE IV--TRIBAL SELF-GOVERNANCE
``SEC. 401. ESTABLISHMENT.
``The Secretary of the Interior (referred to in this title as the
`Secretary') shall establish and carry out a program within the
Department of the Interior to be known as Tribal Self-Governance
(referred to in this title as `Self-Governance') in accordance with
this title.
``SEC. 402. SELECTION OF TRIBES.
``(a) Continuing Participation.--Each 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 Tribes.--In addition to those 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 subsection (c),
to participate in Self-Governance.
``(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; and
``(3) has demonstrated, for the previous 3 fiscal years,
financial stability and financial management 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 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.
``(b) Contents.--Each funding agreement shall--
``(1) authorize the tribe to plan, conduct, consolidate,
and administer programs, services, functions, and activities
administered by the Department of the Interior that are
otherwise available to Indian tribes or Indians, including--
``(A) the Act of April 16, 1934 (popularly known as
the `Johnson-O'Malley Act') (48 Stat. 596, chapter 147;
25 U.S.C. 452 et seq.); and
``(B) the Act of November 2, 1921 (popularly known
as the `Snyder Act') (42 Stat. 208, chapter 115; 25
U.S.C. 13);
``(2) subject to the terms of the agreement, authorize the
tribe to redesign programs, services, functions, or activities,
and to reallocate funds for such programs, 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) to the Flathead Agency Irrigation Division 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 agreement;
``(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) provide for retrocession of programs or portions 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 administration
of programs, services, functions, and activities
pursuant to agreements entered into under this section;
and
``(8) 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) 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 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 Committee on Natural Resources of the House of
Representatives.
``(d) Payment.--
``(1) In general.--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) Amount.--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,
services, 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 direct program
costs and indirect costs, and for any funds that are
specifically or functionally related to the provision by the
Secretary of services and benefits to the tribe and its
members.
``(3) Trust services.--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.
``(e) Civil Actions.--
``(1) Definition of `contract'.--Except as provided in
paragraph (2), for the purposes of section 110, the term
`contract' shall include agreements entered into under this
title.
``(2) Professional contracts.--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 (48 Stat. 987, chapter 576; 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.
``(f) Facilitation.--
``(1) Interpretation.--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) Waiver.--
``(A) Request.--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) Decision.--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 expressly prohibited by Federal
law.
``(C) Appeal.--Not later than 60 days after denial
of a waiver request, the Secretary shall, at the
request of a tribe, provide the tribe with a hearing on
the record and opportunity for an appeal.
``SEC. 404. BUDGET REQUEST.
``The Secretary shall identify, in the annual budget request of the
President to the Congress, any funds proposed to be included in Self-
Governance.
``SEC. 405. REPORTS.
``(a) Requirement.--Not later than January 1 of each year after the
date of enactment of this title, the Secretary shall submit to Congress
a report 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 provision by the
Secretary of services and benefits to Self-Governance tribes
and their members, and the corresponding reductions in the
Federal bureaucracy; and
``(3) include the separate views of the tribes.
``SEC. 406. EFFECT ON OTHER AGREEMENTS AND LAWS.
``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.
``SEC. 407. NEGOTIATED RULEMAKING.
``(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 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 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.
``SEC. 408. AUTHORIZATION OF APPROPRIATIONS.
``There are authorized to be appropriated such sums as are
necessary to carry out this title.''.
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