[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 2036 Introduced in Senate (IS)]

103d CONGRESS
  2d Session
                                S. 2036

To specify the terms of contracts entered into by the United States and 
  Indian tribal organizations under the Indian Self-Determination and 
           Education Assistance Act, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

               April 20 (legislative day, April 11), 1994

Mr. McCain (for himself and Mr. Inouye) introduced the following bill; 
  which was read twice and referred to the Committee on Indian Affairs

_______________________________________________________________________

                                 A BILL


 
To specify the terms of contracts entered into by the United States and 
  Indian tribal organizations under the Indian Self-Determination and 
           Education Assistance Act, 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 ``Indian Self-Determination Contract 
Reform Act of 1994''.

SEC. 2. CONTRACT SPECIFICATIONS.

    Section 105 of the Indian Self-Determination and Education 
Assistance Act (25 U.S.C. 450j) is amended to read as follows:

``SEC. 105. CONTRACT OR GRANT SPECIFICATIONS.

    ``Each contract or grant entered into under this Act, except an 
agreement entered into pursuant to title III (25 U.S.C. 450f note), 
shall contain, or incorporate by reference, the following provisions, 
with modifications where indicated and the blanks appropriately filled:
    ``(a) Authority and Purpose.--
            ``(1) Authority.--This agreement, denoted a Contract of 
        Self-Determination (hereinafter referred to as the `Contract'), 
        is entered into by the Secretary of the Interior (or the 
        Secretary of Health and Human Services) (hereinafter referred 
        to as the `Secretary'), for and on behalf of the United States 
        pursuant to the Indian Self-Determination and Education 
        Assistance Act and by the authority of the ______________ 
        tribal government. Unless otherwise provided in this agreement, 
        all of the provisions of the Indian Self-Determination and 
        Education Assistance Act are incorporated herein.
            ``(2) Purpose.--This Contract shall be liberally construed 
        to transfer the funding, functions, and activities for the 
        following programs from the Federal Government to the 
        ______________ tribal government: (List functions, activities, 
        and programs.)
            ``(3) Tribal law and forums.--The laws of the 
        ______________ tribal government shall be applied in the 
        execution of this Contract and the powers and decisions of the 
        Tribal Court shall be respected to the extent that Federal law, 
        construed in accordance with the applicable canons of 
        construction and the Indian Self-Determination and Education 
        Assistance Act, is not inconsistent.
    ``(b) Terms, Provisions and Conditions.--
            ``(1) Term.--The term of this Contract shall not exceed 3 
        years, unless the Secretary and the tribe agree on a longer 
        period pursuant to section 106 of the Indian Self-Determination 
        and Education Assistance Act. The calendar year is the basis 
        for contracts under this Act, unless the Secretary and the 
        tribe agree on a different period.
            ``(2) Effective date.--This Contract shall become effective 
        upon approval and execution by the tribe and the Secretary, 
        unless otherwise provided by law.
            ``(3) Funding amount.--Subject to the appropriation of 
        funds by Congress, the Secretary shall make available to the 
        tribe the total amount specified in the annual agreement 
        incorporated by reference in subsection (f)(2).
            ``(4) Payment.--
                    ``(A) In general.--Payments shall be made as 
                expeditiously as possible in compliance with applicable 
                Treasury Department regulations and shall include 
                financial arrangements to cover funding during periods 
                under continuing resolutions to the extent permitted by 
                such resolutions.
                    ``(B) Quarterly payments.--To the extent authorized 
                by law, for each fiscal year covered by this Contract, 
                the Secretary shall make available the funds specified 
                for the fiscal year under the annual agreement by 
                paying to the tribe on a quarterly basis one-quarter of 
                the total amount provided for in the annual agreement 
                for that fiscal year, or by using an instrument such as 
                a letter of credit, or other method authorized by law, 
                as may be specified in the annual agreement. To the 
                extent applicable, each quarterly payment shall be made 
                on the first day of each quarter of the fiscal year 
                except for the first quarter, for which the quarterly 
                payment shall be made not later than the date that is 
                10 calendar days after the date on which the Office of 
                Management and Budget apportions the appropriations for 
                the fiscal year for the programs, services, functions, 
                and activities subject to the Contract.
            ``(5) Records.--(A) Except for previously provided copies 
        of tribal records that the Secretary demonstrates are clearly 
        required to be maintained as part of the recordkeeping system 
        of the Department of the Interior, tribal records shall not be 
        considered Federal records for purposes of chapter 5 of title 
        5, United States Code.
            ``(B) The tribe shall maintain a recordkeeping system, and 
        provide reasonable access to records to the Secretary that 
        permits the Department of the Interior to meet its minimum 
        legal recordkeeping program requirements under chapter 31 of 
        title 44, United States Code.
            ``(6) Property.--(A) At the request of the tribe, the 
        Secretary shall make available to the tribe reasonably 
        divisible real property, facilities, equipment, and personal 
        property that the Department had previously utilized to provide 
        the programs, services, functions, and activities now 
        consolidated by the tribe pursuant to subsection (c)(1) of this 
        Contract. A mutually agreed upon list specifying the property, 
        facilities, and equipment so made available shall also be 
        prepared and periodically revised.
            ``(B) Subject to the agreement of the General Services 
        Administration, the Secretary shall delegate to the tribe the 
        authority to acquire such `excess' property as may be 
        appropriate in the judgment of the tribe to support the 
        programs, services, functions, and activities consolidated 
        under subsection (c)(1) of this Contract. The Secretary agrees 
        to make best efforts to assist the tribe in obtaining such 
        confiscated or excess property as may become available to 
        tribes or local governments. Subject to the agreement of the 
        General Services Administration, a screener identification card 
        (General Services Administration form 2946) shall be issued to 
        the tribe not later than the effective date of this Contract. 
        The designated official shall, upon request, assist the tribe 
        in securing the use of the card.
            ``(C) The tribe shall, upon acquisition of excess United 
        States Government property, provide adequate documentation to 
        the Secretary to facilitate recordation of the property in the 
        Bureau of Indian Affairs Property Inventory.
            ``(D) The tribe shall determine what capital equipment, 
        leases, rentals, property, or services it shall require to 
        perform its obligations under this subsection, and shall 
        acquire and maintain records of such capital equipment, 
        property rentals, leases, property, or services through tribal 
        procurement procedures.
            ``(7) Savings.--Notwithstanding any other provision of law, 
        any funds appropriated pursuant to the Act of November 2, 1921 
        (42 Stat. 208, chapter 115; 25 U.S.C. 13) shall remain 
        available until expended.
            ``(8) Transportation.--
                    ``(A) Use of motor vehicles.--Subject to the 
                agreement of the General Services Administration, the 
                Secretary hereby authorizes the tribe to obtain 
                interagency motor pool vehicles and related services, 
                if available, for performance of any activities under 
                this Contract.
                    ``(B) Use of other transportation services.--The 
                Secretary shall make best efforts to obtain the 
                concurrence of the General Services Administration to 
                provide the tribe and its employees with eligibility 
                for services and supplies pursuant to General Services 
                Administration programs and contracts with private 
                entities, including airlines and other transportation 
                carriers.
            ``(9) Regulatory authority.--The tribe is not required to 
        abide by Federal program guidelines, manuals, or policy 
        directives unless otherwise agreed to by the tribe and the 
        Secretary.
            ``(10) Disputes.--(A) Obligations of the United States 
        under this Contract shall be considered to be `duties' under 
        section 110 of the Indian Self-Determination and Education 
        Assistance Act.
            ``(B) Section 110 of the Indian Self-Determination and 
        Education Act shall apply to disputes under this Contract.
            ``(C) In addition or as an alternative to remedies and 
        procedures prescribed by section 110 of the Indian Self-
        Determination and Education Assistance Act the parties may 
        jointly--
                    ``(i) submit disputes under this Contract to third-
                party mediation, which for purposes of this section 
                means that the Secretary and the tribe nominate a third 
                party who together choose a third party mediator 
                (`third-party' means a person not employed by or 
                significantly involved with either the tribe, the 
                Secretary, or the Department of the Interior);
                    ``(ii) submit the dispute to the Court of the 
                tribe; or
                    ``(iii) submit the dispute to mediation processes 
                provided for under the law of the tribe.
            ``(D) The Secretary shall accept decisions reached by 
        mediation processes or the tribal court, but shall not be bound 
        by any decision that might be in conflict with the interests of 
        the Indians or the United States.
            ``(11) Tribal administrative procedures.--Tribal law and 
        tribal forums shall provide for administrative due process with 
        respect to programs, services, functions, and activities that 
        are provided by the tribe pursuant to this Contract and 
        pursuant to the Indian Civil Rights Act of 1968 (25 U.S.C. 1301 
        et seq.).
            ``(12) Successor annual agreement.--Negotiations for a 
        successor annual agreement, as provided for in subsection 
        (f)(2), shall begin not later than 120 days prior to the 
        conclusion of the preceding annual agreement. The tribe is 
        hereby assured that future funding of successor annual 
        agreements shall only be reduced pursuant to section 106(b) of 
        the Indian Self-Determination and Education Assistance Act. The 
        Secretary agrees to prepare and supply relevant information, 
        and to promptly comply with any request by the tribe for 
        information reasonably needed to determine the funds that may 
        be available for a successor annual agreement as provided for 
        in a subsection (f)(2) of this Contract.
            ``(13) Secretarial approval.--(A) Except as provided in 
        subparagraph (B), for the term of the Contract, section 2103 of 
        the Revised Statutes (25 U.S.C. 81) and section 16 of the Act 
        of June 18, 1934 (25 U.S.C. 476), shall not apply to any 
        contract entered into by the tribe in connection with this 
        Contract.
            ``(B) Each contract entered into by the tribe shall--
                    ``(i) be in writing;
                    ``(ii) identify the interested parties, their 
                authorities, and purposes;
                    ``(iii) state the work to be performed; and
                    ``(iv) state the basis for any claim, the payments 
                to be made, and the terms of the contract, which shall 
                be fixed.
    ``(c) Obligation of the Tribe.--
            ``(1) Consolidation.--Except as provided in subsection 
        (d)(2), the Tribally Controlled Community College Assistance 
        Act of 1978 (25 U.S.C. 1801 et seq.), and title XI of the 
        Education Amendments of 1978 (25 U.S.C. 2001 et seq.), the 
        tribe shall perform the programs, services, functions, and 
        activities as provided in the annual agreement under subsection 
        (f)(2) of this Contract.
            ``(2) Amount of funds.--The total amount of funds covered 
        by the Contract provided for in paragraph (1) that the 
        Secretary shall make available to the ______________ Indian 
        tribe shall be determined in an annual agreement between the 
        Secretary and the tribe, which shall be incorporated in its 
        entirety into this Contract and attached as provided in 
        subsection (f)(2).
            ``(3) Tribal programs.--The tribe agrees to provide the 
        programs, services, functions, and activities identified in the 
        annual agreement. The tribe pledges to practice good faith in 
        upholding its responsibility to provide such programs, 
        services, functions, and activities.
            ``(4) Trust services for individual indians.--To the extent 
        that the annual agreement endeavors to provide trust services 
        to individual Indians that were formerly provided by the 
        Secretary, the tribe shall maintain at least the same level of 
        service as was previously provided by the Secretary, subject to 
        the availability of appropriated funds for such services. The 
        tribe pledges to practice good faith in upholding its 
        responsibility to provide such service. Trust services for 
        individual Indians means only services that pertain to land or 
        financial management connected to individually held allotments.
    ``(d) Obligation of the United States.--
            ``(1) Trust responsibility.--The United States reaffirms 
        its trust responsibility to the ______________ Indian tribe of 
        the ______________ Indian Reservation to protect and conserve 
        the trust resources of the ______________ Indian tribe and of 
        individual Indians of the ______________ Indian Reservation. 
        Nothing in this Contract is intended to, nor shall be 
        construed, to terminate, waive, modify, or reduce the trust 
        responsibility of the United States to the tribe or individual 
        Indians. The Secretary pledges to practice good faith in 
        upholding said trust responsibility.
            ``(2) Programs retained.--As specified in the annual 
        agreement, the United States hereby retains the programs, 
        services, functions, and activities with respect to the tribe 
        that are not specially assumed by the tribe in the annual 
        agreement.
    ``(e) Other Provisions.--
            ``(1) Designated officials.--On or before the effective 
        date of this Contract, both the United States and the tribe 
        shall provide each other with a written designation of a senior 
        official as its representative for notices, proposed amendments 
        to the Contract and other purposes for this Contract.
            ``(2) Indian preference in employment, contracting, and 
        subcontracting.--Tribal law shall govern the provision of 
        Indian preference in employment, contracting, and 
        subcontracting pursuant to this Contract. Section 5 of the 
        Indian Self-Determination and Education Assistance Act shall 
        apply to individuals who leave Federal employment for tribal 
        employment pursuant to this contract.
            ``(3) Contract modifications or amendment.--To be effective 
        any modifications of this Contract shall be in the form of a 
        written amendment to the Contract, and shall require the 
        written consent of the tribe and the Secretary.
            ``(4) Officials not to benefit.--No Member of Congress, or 
        resident commissioner, shall be admitted to any share or part 
        of any contract executed pursuant to this Contract, or to any 
        benefit that may arise therefrom; but this provision shall not 
        be construed to extend to any contract under this Contract if 
        made with a corporation for its general benefit.
            ``(5) Covenant against contingent fees.--The parties 
        warrant that no person or selling agency has been employed or 
        retained to solicit or secure any contract executed pursuant to 
        this Contract upon an agreement or understanding for a 
        commission, percentage, brokerage, or contingent fee, excepting 
        bona fide employees or bona fide established commercial or 
        selling agencies maintained by the contractor for the purpose 
        of securing business. For breach or violation of this warranty 
        the Government shall have the right to annul any contract 
        without liability or, in its discretion, to deduct from the 
        Contract price or consideration, or otherwise recover, the full 
        amount of such commission, percentage, brokerage, or contingent 
        fee.
    ``(f) Attachments.--
            ``(1) Approval of contract.--The resolution of the 
        ______________ Indian tribe approving this Contract is attached 
        hereto as attachment 1.
            ``(2) Annual agreement.--The negotiated and duly approved 
        annual agreement with respect to the ______________ Indian 
        tribe which shall only contain terms that identify the 
        programs, services, functions, and activities to be performed, 
        the general budget category assigned, the funds to be provided, 
        the time and method of payment, and a requirement that all 
        modifications or amendments shall be written and signed by both 
        parties, is hereby incorporated in its entirety in this 
        Contract and attached hereto as attachment 2.''.

SEC. 3. REGULATIONS.

    ``(a) In General.--The Secretary of the Interior and the Secretary 
of Health and Human Services shall not promulgate any regulation 
relating to grants, contracts, or cooperative agreements entered into 
pursuant to the Indian Self-Determination and Education Assistance Act 
(25 U.S.C. 450 et seq.).
    ``(b) Existing Regulations.--The provisions of this Act shall 
supersede any conflicting provisions of law or regulation in existence 
on the date of enactment of this Act.

SEC. 4. REPEAL.

    ``(a) In General.--Section 107 of the Indian Self-Determination and 
Education Assistance Act (25 U.S.C. 450k) is repealed.
    ``(b) Conforming Amendments.--
            ``(1) Section 104(b) of the Indian Self-Determination and 
        Education Assistance Act (25 U.S.C. 450h(b)) is amending by 
        striking ``, in accordance with regulations adopted pursuant to 
        section 107,''.
            ``(2) Section 106(h) of such 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''.

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