[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 1696 Introduced in Senate (IS)]






108th CONGRESS
  1st Session
                                S. 1696

To amend the Indian Self-Determination and Education Assistance Act to 
           provide further self-governance by Indian tribes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            October 1, 2003

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

_______________________________________________________________________

                                 A BILL


 
To amend the Indian Self-Determination and Education Assistance Act to 
           provide further self-governance by Indian tribes.

    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 ``Department of Health and Human 
Services Tribal Self-Governance Amendments Act of 2003''.

SEC. 2. AMENDMENT.

    The Indian Self-Determination and Education Assistance Act is 
amended by striking title VI (25 U.S.C. 450f note; Public Law 93-638) 
and inserting the following:

   ``TITLE VI--TRIBAL SELF-GOVERNANCE DEMONSTRATION PROJECT FOR THE 
                DEPARTMENT OF HEALTH AND HUMAN SERVICES

``SEC. 601. DEFINITIONS.

    ``In this title:
            ``(1) Compact.--The term `compact' means a compact under 
        section 604.
            ``(2) Construction project.--The term `construction 
        project' has the meaning given the term in section 501.
            ``(3) Demonstration project.--The term `demonstration 
        project' means the demonstration project under this title.
            ``(4) Funding agreement.--The term `funding agreement' 
        means a funding agreement under section 604.
            ``(5) Included program.--The term `included program' means 
        a program that is eligible for inclusion under a funding 
        agreement under section 604(c) (including any portion of such a 
        program and any function, service, or activity performed under 
        such a program).
            ``(6) Indian tribe.--The term `Indian tribe', in a case in 
        which an Indian tribe authorizes another Indian tribe, an 
        inter-tribal consortium, or a tribal organization to plan for 
        or carry out an included program on its behalf in accordance 
        with section 603(a)(3), includes the other authorized Indian 
        tribe, inter-tribal consortium, or tribal organization.
            ``(7) Inter-tribal consortium.--The term `inter-tribal 
        consortium' has the meaning given the term in section 501.
            ``(8) Secretary.--The term `Secretary' means the Secretary 
        of Health and Human Services.
            ``(9) Self-governance.--The term `self-governance' has the 
        meaning given the term in section 501.
            ``(10) Tribal share.--The term `tribal share' has the 
        meaning given the term in section 501.

``SEC. 602. ESTABLISHMENT OF DEMONSTRATION -PROJECT.

    ``(a) Demonstration.--For a period of not more than 5 years after 
the date of enactment of the Department of Health and Human Services 
Tribal Self-Governance Amendments Act of 2003, the Secretary shall 
carry out a project to demonstrate the effectiveness of tribal 
operation of the included programs under self-governance principles and 
authorities.
    ``(b) Administration.--The management and administration of the 
demonstration project shall be in the Office of the Secretary.

``SEC. 603. SELECTION OF PARTICIPATING INDIAN TRIBES.

    ``(a) In General.--
            ``(1) Continuing participation.--Not more than 50 Indian 
        tribes that meet the eligibility criteria specified in 
        subsection (b) shall be entitled to participate in the 
        demonstration project.
            ``(2) Additional participants.--If more than 50 eligible 
        Indian tribes request participation, the Secretary may select 
        additional Indian tribes to participate in the demonstration 
        project.
            ``(3) Other authorized indian tribe, inter-tribal 
        consortium, or tribal government.--If an Indian tribe 
        authorizes another Indian tribe, an inter-tribal consortium, or 
        a tribal organization to plan for or carry out an included 
        program 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 
        resolution).
    ``(b) Eligibility.--An Indian tribe shall be eligible to 
participate in the demonstration project if the Indian tribe, as of the 
date of enactment of the Department of Health and Human Services Tribal 
Self-Governance Amendments Act of 2003, is a party to a compact or 
funding agreement under this Act.
    ``(c) Selection.--The Secretary shall select Indian tribes that 
request participation in the demonstration project by resolution or 
other official action by the governing body of each Indian tribe to be 
served.
    ``(d) Planning and Negotiation Grants.--
            ``(1) In general.--Subject to the availability of 
        appropriations, the Secretary shall establish a program to 
        allow Indian tribes that meet the eligibility requirements of 
        this title to be awarded a planning grant or negotiation grant, 
        or both.
            ``(2) Receipt of Grant Not Required.--Receipt of a grant 
        under paragraph (1) by an Indian tribe is not a requirement for 
        the Indian tribe to participate in the demonstration project.

``SEC. 604. COMPACTS AND FUNDING AGREEMENTS.

    ``(a) In General.--
            ``(1) New compact and funding agreement.--Not later than 60 
        days after the date of submission by an Indian tribe of a 
        request to participate in the demonstration project, the 
        Secretary shall negotiate and enter into a written compact 
and funding agreement with the Indian tribe in a manner that is 
consistent with the trust responsibility of the Federal Government, 
treaty and statutory obligations, and the government-to-government 
relationship between Indian tribes and the United States.
            ``(2) Existing compact.--Rather than enter into a new 
        compact under paragraph (1), an Indian tribe may use an 
        existing compact negotiated under title V for purposes of the 
        demonstration project.
    ``(b) Compacts.--
            ``(1) Contents.--A compact under subsection (a) shall 
        designate--
                    ``(A) congressional policies regarding tribal self-
                governance;
                    ``(B) the intent of the demonstration project;
                    ``(C) such terms as shall control from year to 
                year; and
                    ``(D) any provisions of this title that are 
                requested by the Indian tribe.
            ``(2) Effective date.--The effective date of a compact 
        shall be the date of execution by the Indian tribe and the 
        Secretary or another date agreed on by the parties.
            ``(3) Duration.--A compact shall remain in effect so long 
        as permitted by Federal law or until terminated by agreement of 
        the parties.
            ``(4) Amendment.--A compact may be amended only by 
        agreement of the parties.
    ``(c) Funding Agreements.--
            ``(1) Scope.--A funding agreement under subsection (a) 
        shall, at the option of the Indian tribe, authorize the Indian 
        tribe to plan, conduct, and administer included programs 
        administered by the Secretary through an agency of the 
        Department of Health and Human Services, set forth in 
        paragraphs (2) through (4).
            ``(2) Initial included programs.--The following programs 
        are eligible for inclusion in a funding agreement under this 
        title:
                    ``(A) Administration on aging.--Grants for Native 
                Americans under title VI of the Older Americans Act of 
                1965 (42 U.S.C. 3057 et seq.).
                    ``(B) Administration for children and families.--
                            ``(i) The tribal temporary assistance for 
                        needy families program under section 412(a)(1) 
                        of the Social Security Act (42 U.S.C. 612(a)(1) 
                        et seq.).
                            ``(ii) The Low-Income Home Energy 
                        Assistance Program under the Low-Income Home 
                        Energy Assistance Act of 1981 (42 U.S.C. 8621 
                        et seq.).
                            ``(iii) The Community Services Block Grant 
                        Program under the Community Services Block 
                        Grant Act (42 U.S.C. 9901 et seq.).
                            ``(iv) The Child Care and Development Fund 
                        under the Child Care and Development Block 
                        Grant Act (42 U.S.C. 9858 et seq.).
                            ``(v) The native employment works program 
                        under section 412(a)(2) of the Social Security 
                        Act (42 U.S.C. 612(a)(2)).
                            ``(vi) The Head Start Program under the 
                        Head Start Act (42 U.S.C. 9831 et seq.).
                            ``(vii) Child welfare services programs 
                        under part B of title IV of the Social Security 
                        Act (42 U.S.C. 620 et seq.).
                            ``(viii) The promoting safe and stable 
                        families program under part B of title IV of 
                        the Social Security Act (42 U.S.C. 620 et 
                        seq.).
                            ``(ix) Family violence prevention grants 
                        for battered women's shelters under the Family 
                        Violence Prevention and Services Act (42 U.S.C. 
                        10401 et seq.).
                    ``(C) Substance abuse and mental health services 
                administration.--Targeted capacity expansion program 
                under title V of the Public Health Service Act (42 
                U.S.C. 290aa et seq.).
                    ``(D) Block grants regarding mental health and 
                substance abuse.--Mental health and substance abuse 
                block grant programs under title XIX of the Public 
                Health Services Act (42 U.S.C. 300x et seq.).
                    ``(E) Health resources and services 
                administration.--Community health center grants under 
                section 330 of the Public Health Service Act (42 U.S.C. 
                254b).
            ``(3) Additional included programs.--The Secretary may 
        identify not more than 6 additional programs annually for 
        inclusion in the demonstration project, including--
                    ``(A) all other programs in which Indian tribes are 
                eligible to participate;
                    ``(B) all other programs for which Indians are 
                eligible beneficiaries; and
                    ``(C) competitive grants for which an Indian tribe 
                receives an individual or cooperative award, on the 
                condition that the Indian tribe agree in the funding 
                agreement to restrictions regarding program redesign 
                and budget reallocation for any competitive awards.
            ``(4) Contents.--A funding agreement--
                    ``(A) shall specify--
                            ``(i) the services to be provided;
                            ``(ii) the functions to be performed; and
                            ``(iii) the responsibilities of the Indian 
                        tribe and the Secretary;
                    ``(B) shall provide for payment by the Secretary to 
                the Indian tribe of funds in accordance with section 
                605;
                    ``(C) shall not allow the Secretary to waive, 
                modify, or diminish in any way the trust responsibility 
                of the United States with respect to Indian tribes and 
                individual Indians that exist under treaties, Executive 
orders, and Acts of Congress; and
                    ``(D) shall allow for retrocession of included 
                programs under section 105(e).

``SEC. 605. TRANSFER OF FUNDS.

    ``(a) Transfer.--
            ``(1) In general.--Under any compact or funding agreement 
        entered into under this title, the Secretary shall transfer to 
        the Indian tribe all funds provided for in the funding 
        agreement.
            ``(2) Timing.--Unless the funding agreement provides 
        otherwise, at the request of the Indian tribe--
                    ``(A) funding shall be paid in 1 annual lump sum 
                payment; and
                    ``(B) the transfer shall be made not later than 10 
                days after the apportionment of funds by the Office of 
                Management and Budget to the Department of Health and 
                Human Services.
    ``(b) Amount of Funding.--
            ``(1) Funding formulas.--
                    ``(A) In general.--Any statutory funding formula 
                for an included program--
                            ``(i) shall be waived for the demonstration 
                        project under this title; and
                            ``(ii) shall be used to determine the 
                        amount of funding provided to an Indian tribe.
                    ``(B) Adequacy.--Subject to the availability of 
                appropriations--
                            ``(i) the funding amount shall be adequate 
                        to permit the successful implementation of the 
                        demonstration project; and
                            ``(ii) the Secretary and the participating 
                        Indian tribe shall determine the funding amount 
                        through negotiation.
            ``(2) Matching requirement.--An Indian tribe may request a 
        waiver of any matching requirement applicable to an included 
        program, and the Secretary shall liberally grant such 
        reasonable waiver requests.
            ``(3) Contract support costs.--There shall be added to the 
        amount required by paragraph (1) contract support costs as 
        specified in paragraphs (2), (3), (5), and (6) of section 
        106(a).
            ``(4) Administrative fund shares.--
                    ``(A) In general.--An Indian tribe may negotiate 
                for a tribal share of administrative funds without 
                regard to the organizational level at which the 
                included programs are carried out.
                    ``(B) Inclusion.--A tribal share under subparagraph 
                (A) shall include a share for training and technical 
                assistance services performed by a contractor.

``SEC. 606. GENERAL PROVISIONS.

    ``(a) Redesign, Consolidation, and Reallocation.--
            ``(1) In general.--To the extent allowed under the 
        statutory provisions of the included programs included in the 
        funding agreement, and subject to the terms of the funding 
        agreement, an Indian tribe may--
                    ``(A) redesign or consolidate the included programs 
                under the funding agreement if the Indian tribe agrees 
                to abide by the statutory purposes of the program; and
                    ``(B) reallocate or redirect funds for the included 
                programs, among the included programs under the funding 
                agreement, so long as all demonstration project costs 
                using those funds meet allowable cost standards as 
                required by section 506(c).
            ``(2) Waivers.--
                    ``(A) In general.--At the request of an Indian 
                tribe, if the Secretary determines that a waiver would 
                further the purposes of this Act, the Secretary shall 
                grant a waiver of program requirements for the duration 
                of the demonstration project to facilitate the ability 
                of an Indian tribe to redesign included programs or 
                reallocate funds under paragraph (1).
                    ``(B) Documentation.--The Secretary shall document 
                all requests for a waiver under subparagraph (A), 
                including a description of--
                            ``(i) the reasons for each request;
                            ``(ii) the effect of the waiver on the 
                        Indian tribe making the request; and
                            ``(iii) the views of the Indian tribe 
                        regarding the requested waiver.
    ``(b) Inability To Agree on Compact or Funding Agreement.--
            ``(1) Final offer.--If the Secretary and an Indian tribe 
        are unable to agree, in whole or in part, on the terms of a 
        compact or funding agreement (including funding levels), the 
        Indian tribe may submit a final offer to the Secretary.
            ``(2) Determination.--Not later than 45 days after the date 
        of submission of a final offer, or as otherwise agreed to by 
        the Indian tribe, the Secretary shall review and make a 
        determination with respect to the final offer.
            ``(3) No timely determination.--If the Secretary fails to 
        make a determination with respect to a final offer within the 
        time specified in paragraph (2), the Secretary shall be deemed 
        to have agreed to the final offer.
            ``(4) Rejection of final offer.--
                    ``(A) In general.--If the Secretary rejects a final 
                offer, the Secretary shall--
                            ``(i) submit to the Indian tribe a written 
                        statement clearly setting forth the reasons for 
                        rejecting the final offer; and
                            ``(ii) provide the Indian tribe with a 
                        hearing on the record (except that the Indian 
                        tribe may, in lieu of such a hearing, file an 
                        appeal of the rejection to the Intra-
                        Departmental Council on Native American 
                        Affairs, the decision of which shall be final 
                        and not subject to judicial review).
                    ``(B) Burden of proof.--In a hearing or appeal 
                under subparagraph (A)(ii), the Secretary shall have 
                the burden of proving by clear and convincing evidence 
                the validity of the grounds for rejecting the final 
                offer.
    ``(c) Other Funding.--Participation by an Indian tribe in the 
demonstration project under this title shall not affect the amount of 
funding that the Indian tribe would receive under the laws (including 
regulations) governing the included programs if the Indian tribe did 
not participate.
    ``(d) Duplication of Eligibility.--To the maximum extent 
practicable, an Indian tribe shall make efforts to coordinate with 
appropriate States to identify dually eligible individuals to address 
the potential for the provision of duplicate benefits.
    ``(e) Appeals.--Except as provided in subsection (b)(2), a compact 
or funding agreement under this title shall be considered to be a 
contract for the purposes of section 110.
    ``(f) Regulations; Other Agency Statements.--
            ``(1) Regulations.--An Indian tribe shall comply with final 
        regulations for the included programs in connection with the 
        demonstration project.
            ``(2) Other agency statements.--Unless expressly agreed to 
        by an Indian tribe in a compact or funding agreement, the 
        Indian tribe shall not be subject to any agency circular, 
        policy, manual, guidance, or rule that is promulgated by 
        regulation.
    ``(g) Applicability of Other Provisions.--The following provisions 
of this Act shall apply to a compact or funding agreements entered into 
under this title:
            ``(1) Section 102(d).
            ``(2) Section 506(b) (conflicts of interest).
            ``(3) Section 506(c)(1) (Single Agency Audit Act).
            ``(4) Section 506(c)(2) (cost principles).
            ``(5) Section 506(c) (records).
            ``(6) Section 507(c)(1)(A) (grounds for rejecting a final 
        offers).
            ``(7) Section 508(g) (prompt payment).
            ``(8) Section 506(h) (nonduplication).
            ``(9) Section 508(h) (interest or other income on 
        transfers).
            ``(10) Section 508(i) (carryover of funds).
            ``(11) Section 509 (construction projects).
            ``(12) Section 510 (Federal procurement laws).
            ``(13) Section 512(b) (regulation waivers).

``SEC. 607. REPORT.

    ``(a) In General.--The Secretary shall annually submit to Congress 
a report on the relative costs and benefits of the demonstration 
project using evaluation and reporting data provided by participating 
Indian tribes.
    ``(b) Baseline Measurements.--
            ``(1) In general.--A report under subsection (a) shall be 
        based on baseline measurements developed jointly by the 
        Secretary and participating Indian tribes.
            ``(2) Financial assistance.--The Secretary shall provide 
        financial assistance to Indian tribes to assist Indian tribes 
        in evaluating and reporting on the demonstration project.
    ``(c) Contents.--A report under subsection (a) shall--
            ``(1) verify that the participating Indian tribes met the 
        statutory purposes of the included programs;
            ``(2) confirm that key self-governance principles were 
        carried out as Indian tribes operated the included programs; 
        and
            ``(3) separately include Federal and tribal viewpoints 
        regarding--
                    ``(A) the merger of included programs operated 
                under this title and self-governance principles; and
                    ``(B) the impact on program beneficiaries.

``SEC. 608. AUTHORIZATION OF APPROPRIATIONS.

    ``There are authorized to be appropriated such sums as are 
necessary to carry out this title, to remain available until 
expended.''.
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