[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 1618 Reported in Senate (RS)]

                                                       Calendar No. 332

103d CONGRESS

  1st Session

                                S. 1618

                          [Report No. 103-205]

_______________________________________________________________________

                                 A BILL

      To establish Tribal Self-Governance, and for other purposes.

_______________________________________________________________________

                           November 22, 1993

                       Reported with an amendment





                                                       Calendar No. 332
103d CONGRESS
  1st Session
                                S. 1618

                          [Report No. 103-205]

      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, Mr. 
Simon, Mr. Wellstone, Mr. Durenberger, and Mr. Campbell) introduced the 
 following bill; which was read twice and referred to the Committee on 
                             Indian Affairs

                           November 22, 1993

               Reported by Mr. Inouye, with an amendment
                     [Omit the part struck through]

_______________________________________________________________________

                                 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 -e-x-p-r-e-s-s-l-y 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.''.