[Congressional Record Volume 140, Number 115 (Tuesday, August 16, 1994)]
[House]
[Page H]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: August 16, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                   TRIBAL SELF-GOVERNANCE ACT OF 1994

  Mr. RICHARDSON. Mr. Speaker, I move to suspend the rules and pass the 
bill (H.R. 3508) to provide for tribal self-governance, and for other 
purposes, as amended.
  The Clerk read as follows:

                               H.R. 3508

       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 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 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 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 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 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 
     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 subsection (c) 
     to participate in Self-Governance.
       ``(2) If each tribe requests, two or more otherwise 
     eligible 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-Governance 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 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 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 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, 
     or portions thereof, administered by the Department of the 
     Interior that are otherwise available to Indian tribes or 
     Indians, without regard to the agency or office of the 
     Department of the Interior within which it is performed, 
     including (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 activities 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, authorize the 
     tribe to redesign or consolidate programs, 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 section 1128 of the Education 
     Amendments of 1978 (25 U.S.C. 2008); and
       ``(C) 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) allow 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) Additional Activities.--Each funding agreement 
     negotiated pursuant to subsections (a) and (b) may, in 
     accordance to such additional terms as the parties deem 
     appropriate, also include other programs, services, 
     functions, and activities, or portions thereof, administered 
     by the Secretary of the Interior which are of special 
     geographic, historical, or cultural significance to the 
     participating 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 functions by the 
     tribe through the annual trust evaluation, 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 construction 
     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 agreement, 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 Affairs 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 installments 
     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 addition, any funds that 
     are specifically or functionally related to the provision by 
     the Secretary of services and benefits to the tribe or its 
     members, without regard to the organization level within the 
     Department where such functions 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 professional contracts by 
     Indian tribal governments participating in Self-Governance 
     under this title.
       ``(i) Facilitation.--(1) 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)(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 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 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 purposes 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 following 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 provision 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) 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 including non-
     Bureau of Indian Affairs programs for compacts under section 
     403(b)(1) and special programs 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 eligible for inclusion in such agreements at 
     the request of a participating Indian tribe.
       ``(2) The Secretary shall establish programmatic 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 Register and be made 
     available to any Indian tribe participating in Self-
     Governance under this title. The list shall be published 
     before January 1, 1995, and annually thereafter by January 1 
     preceding the fiscal 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-Governance under this title, a 
     revised listing and programmatic 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 compacts. The Secretary 
     shall include such formula in the annual 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 
     Indians 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 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 may 
     be necessary to carry out this title.''.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from New 
Mexico [Mr. Richardson] will be recognized for 20 minutes, and the 
gentleman from Colorado [Mr. Allard] will be recognized for 20 minutes.
  The Chair recognizes the gentleman from new Mexico [Mr. Richardson].


                             general leave

  Mr. RICHARDSON. Mr. Speaker, I ask unanimous consent that all Members 
may have 5 legislative days within which to revise and extend their 
remarks on H.R. 3508.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from New Mexico?
  There was no objection.
  Mr. RICHARDSON. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, today I have the honor of bringing a measure before this 
body, which may well be one of the most important pieces of legislation 
impacting Indian tribes and Indian people in many years.
  The bill before the House today reflects agreements which were 
reached with the other body. It includes recommendations from the 
administration and the Indian tribes. The bill is a compromise which I 
firmly believe respects the recommendations and needs of the Indian 
nations and the Secretary of the Interior.
  Mr. Speaker, tribal self-governance has been a demonstration project 
since 1988. Under the project, Indian tribes enter into compacts 
directly with the Secretary of the Interior to carry out Interior 
Department functions on reservations. The demonstration has been an 
overwhelming success. This bill makes tribal self-governance permanent.
  There has been much confusion and some misinformation circulating 
lately over what this project is about. Let me set the record straight 
on this. This project does not mean that Indian tribes will take over 
the Washington Monument or the Gettysburg Battlefield. This project 
does not mean that Indians are free to raid the Interior Department 
budget. This project does not mean that the Secretary can waive tax 
laws or regulations for Indian tribes. This project does not mean the 
Secretary is cutting off his trust responsibilities to individual 
Indians with allotments.
  What the bill does mean is that Indian tribes who voluntarily elect 
to participate in self-governance will sit down with the Secretary of 
the Interior and negotiate agreements on a government to government 
basis. If the tribe over-reaches and requests to negotiate for program 
or functions which have no relevance to Indian affairs, the Secretary 
can simply say ``no.''
  There is an irrational fear in the Interior Department that tribes 
will get too much money under this program. Trust me on this, if that 
happens it will be a first in American history. Such allegations are 
based on ignorance or a lack of understanding of the Secretary's 
pervasive discretion which is intended under this bill. However, it is 
also this bill's intention that the negotiations be just that--
bilateral government-to-government negotiations.
  A more realistic fear is that there will be downsizing at the Bureau 
of Indian Affairs. This will happen under this project. Indeed, the 
goal of this bill is to channel the resources currently being chewed up 
by lazy Agency bureaucrats, mindless area office paper shufflers, and 
central office lackeys in the BIA--these funds will be channeled to the 
Indian tribes who will put these resources to the highest and best use.

  Mr. Speaker, some new provisions were added to the bill. The first 
requires non-BIA agencies in Interior to list the programs that are 
available to Indian tribes. The second requires the Secretary to 
ascertain the level of central office funding which each tribe will 
receive under the program. These provisions were included to guarantee 
compliance by the Department of Interior which has been reluctant to 
cooperate with tribes under Indian self-determination and tribal self-
governance.
  Mr. Speaker, today let the word go forth that a new Bureau of Indian 
Affairs will result from this bill. It will be leaner and hopefully 
more efficient. More importantly, today the Indian nations take a giant 
step forward. Tribes have been building capacity to take control of 
their own destinies for decades. Let us usher in the era of tribal 
self-governance with respect for tribal sovereignty, a recognition of 
Indian self-determination, and a great hope that today we are laying 
the foundation for a better Federal Indian policy.
  I urge my colleagues to support this important measure.
  Mr. ALLARD. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, we fully support H.R. 3508.
  Mr. THOMAS of Wyoming. Mr. Speaker, I believe my strong support for 
tribal self-determination is well-known, so I will keep my statement to 
a minimum.
  I fully support H.R. 3508. It is an important step toward giving the 
tribes more control, flexibility, and decision-making authority over 
federal programs and financial resources. I have long been convinced 
that it is the individual tribal government, and not some bureaucrat in 
Washington with his or her own agenda, that is in the best position to 
know the needs of the tribe and how best to meet those needs. It is my 
hope that in this same vein we will also bring H.R. 4842 to the floor 
soon.
  Mr. ALLARD. Mr. Speaker, I have no further requests for time, and I 
yield back the balance of my time.
  Mr. RICHARDSON. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, I would like to state that none of these very positive 
initiatives would have been possible had we not had a chairman on the 
Committee on Natural Resources like the gentleman from California [Mr. 
Miller], who has not only shown leadership on natural resources issues 
but has shown leadership on native American issues. Let me acknowledge 
again his outstanding contributions to this bill.
  Mr. Speaker, I have no further requests for time, and I yield back 
the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from New Mexico [Mr. Richardson] that the House suspend the 
rules and pass the bill, H.R. 3508, as amended.
  The question was taken; and (two-thirds having voted in favor 
thereof) the rules were suspended and the bill, as amended, was passed.
  A motion to reconsider was laid on the table.

                          ____________________