[Congressional Record Volume 140, Number 145 (Friday, October 7, 1994)]
[Senate]
[Page S]
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[Congressional Record: October 7, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
            INDIAN SELF-DETERMINATION ACT AMENDMENTS OF 1994

  Mr. BREAUX. Mr. President, I ask unanimous consent the Senate proceed 
to the immediate consideration of H.R. 4842, a bill to specify the 
terms and contracts entered under the Indian Self-determination and 
Education Assistance Act just received from the House, the bill be read 
three times and passed, the motion to reconsider be laid upon the 
table; further, that any statements on this measure appear in the 
Record as though read.
  The PRESIDING OFFICER. Without objection, it is so ordered.
   The bill (H.R. 4842) was ordered to a third reading, was read the 
third time, and passed.
  Mr. McCAIN. Mr. President, I rise today to make a few remarks 
concerning H.R. 4842, the Indian Self-Determination Act amendments of 
1994. H.R. 4842 passed the House earlier this morning and combines two 
bills regarding Indian Self-Determination and Tribal Self-Governance.
  Title I of H.R. 4842 is the Indian Self-Determination Contract Reform 
Act of 1994 and is virtually identical to S. 2036, a bill that passed 
the Senate last night. Title I incorporates technical changes that were 
inadvertently omitted from the Senate bill. Although I made a statement 
on S. 2036 last night, I want to repeat my comments today so that they 
parallel the bill that hopefully will be enacted into law this year.
  Title I of H.R. 3842 reflects a good faith effort on the part of the 
Senate, House and the tribes to be responsive to the Administration's 
concerns. With the inclusion of the changes incorporated in this 
amendment, I am advised that the Administration is finally able to 
express its full support for the bill.
  I want to comment on one aspect of H.R. 4842 which relates to the 
standards to be applied to the exercise of discretion by the Secretary. 
Under Public Law 93-638, the Secretary must justify his decisions by a 
preponderance of the evidence. During the consideration of S. 2036 and 
H.R. 4842, the Indian tribes urged the Congress to raise this 
evidentiary standard to clear and convincing. The Department objected 
to this higher standard and suggested that it would compromise with the 
standard of clearly demonstrates which is included in H.R. 4842. 
Although this standard is not defined in the bill, it is clearly 
understood by all parties to mean more than a preponderance of the 
evidence, but less than clear and convincing evidence.
  Although I am pleased that we are acting on H.R. 4842 today, I am 
deeply trouble by what has taken place during consideration of self-
determination reform legislation. In my view, after the administration 
concluded that its attempts to indefinitely postpone he bill would be 
useless, the administration had one thing in mind with respected to 
self-determination reform: the administration's concerns were critical; 
tribal concerns were negotiable. I suspect the tribes themselves will 
be troubled by this because the administration has gone out of it way 
to proclaim itself as an administration that is more sensitive to 
tribal concerns. Frankly, if there is a unifying theme in this 
administration's Indian policy, it is the casual relationship between 
words and action.
  Mr. President, this administration needs an Indian policy with fewer 
illusions and more attentiveness to the problems and opportunities that 
exist in Indian country today. If this administration really desires to 
match rhetoric with action, I encourage them to heed the advice 
contained in President Nixon's 1970 ``Special Message to the Congress 
on Indian Affairs'':

       For years we have talked about encouraging Indians to 
     exercise greater self-determination, but our progress has 
     never been commensurate with your promises. Part of the 
     reason for this situation has been the threat of termination. 
     But another reason is the fact that when a decision is made 
     as to whether a Federal program will be turned over to Indian 
     administration, it is the federal authorities and not the 
     Indian people who finally make that decision.
       This situation should be reversed. In my judgment, it 
     should be up to the Indian tribe to determine whether it is 
     willing to assume administrative responsibility for a service 
     program which is presently administered by a federal agency.

  Mr. President, title II of H.R. 4842, the Tribal Self-Governance Act 
of 1994, is identical to H.R. 3508 and reflects the various agreements 
negotiated by the Senate Committee on Indian Affairs and the House 
Subcommittee on Native American Affairs with the Department of the 
Interior, Self-Governance tribes and the Senate Committee on 
Environment and Public Works. In addition, a new subsection (k) has 
been added which addresses further concerns raised by the International 
Association of Fish and wildlife Agencies.
  Title II is the culmination of months of hard work, persistence and 
determination by the self-governance tribes. Nearly 1 year ago I met 
with the leaders and representatives of these tribes to discuss the 
future of self-governance and their desire for legislation making self-
governance permanent at the Department of the Interior. We had a frank 
and candid discussion about the possibility of extending self-
governance to other Federal agencies, but in the end we agreed that, 
for now, the legislation would focus solely on the Department of the 
Interior. With the benefit of hindsight, I can say that we made a very 
wise decision, indeed. I know all of us who met that day fully 
anticipated that the Bureau of Indian Affairs as well as other Interior 
bureaus and offices would be resistant to the idea of establishing 
self-governance on a permanent basis. Nevertheless, I think all of us 
were a bit surprised at the level of resistance that came from an 
administration that takes pride in pointing out that reinventing 
government is one of its highest priorities. Perhaps changes are 
occurring in the operations of other Federal programs, but when it 
comes to the manner in which the Bureau of Indian Affairs administers 
Federal Indian programs, the old way of business--that is, the 
government knows best--still reigns at 1849 C Street.

  Although the passage of permanent legislation has taken longer than I 
had expected, I never lost faith in the men and women who believe in 
self-governance and who have been committed to seeing this bill enacted 
into law. For them, the passage of this legislation is nothing less 
than the right of tribes to be self-governing. I am pleased to have 
played a small role in seeing that this legislation is passed by the 
Congress this year.
  Mr. President, in recent weeks concerns have been raised by the 
International Association of Fish and Wildlife Agencies [IAFWA] about 
the potential impact of self-governance legislation on the existing 
jurisdiction and authority of the tribal, State and Federal governments 
over natural resources, including fish and wildlife resources. I ask 
unanimous consent that a copy of IAFWA's October 3, 1994, letter be 
printed in the Record immediately following my remarks.
  Consequently, I asked Secretary Babbitt to review H.R. 3508 in light 
of IAFWA's concerns. Secretary Babbitt's letter of September 28, 1994, 
stated, in part, that

       Nothing in H.R. 3508 or Public Law 93-638 would change 
     jurisdictional responsibilities for administering Federal 
     laws governing natural resources, including fish and wildlife 
     resources, or exempt Indian tribes from adhering to Federal 
     laws and standards with respect to the protection and 
     management of such resources.

  Secretary Babbitt went on to state that

       * * * let me state a point which should be obvious to 
     everyone--the Secretary of the Interior has no authority to 
     change State law or jurisdiction. Consequently, I have no 
     authority to confer on an Indian tribe jurisdiction exercised 
     by a State government over any natural resource, including 
     management of fish and wildlife resources. Nothing in Public 
     Law 93-638 or H.R. 3508 confers such authority on the 
     Secretary.

  I ask unanimous consent that the Secretary's September 28, 1994, 
letter be printed in the Record immediately following the IAFWA letter.
  I fully agree with the Secretary's construction of H.R. 3508--which 
also applies to title II of H.R. 4842--that the bill is not intended to 
change the jurisdictional authorities of the tribal, State and Federal 
governments over natural resources, including fish and wildlife 
resources.
  I am aware, for example, of reservations that are home to listed 
threatened or endangered species. Indian tribes are in a position to 
contribute data on those listed species that could be both helpful to 
the Secretary in carrying out his responsibilities under the Endangered 
Species Act, and beneficial to the Indian tribe in negotiating a 
compact for biological data collection. We also recognize that Indian 
tribes conduct conservation efforts on their reservations to benefit 
migratory birds, such as participation in the North American Waterfowl 
Management Plan. It is intended that H.R. 4842 facilitate such 
cooperation. This legislation is not intended to alter any existing 
state jurisdiction.
  Concerns have been raised as to the scope of non-BIA programs, 
services, functions, and activities that are subject to compacts 
pursuant to sections 403(b)(2). Because National Parks and National 
Wildlife Refuges, for example, and programs such as the Endangered 
Species Act and the Marine Mammal Protection Act were established by 
Congress to benefit the general public, including Indians, a question 
could arise as to what elements, if any, of the Park and Refuge 
programs or the Endangered Species program fall within the scope of 
section 403(b)(2). It is not intended that the Secretary's authority to 
enter into compacts under section 403(b)(2) permit the transfer of 
inherently Federal responsibilities vested by Congress in the Secretary 
which are determined by the federal courts not to be delegable under 
the constitution.
  It is not possible at this time to list all the elements of Federal 
programs which may not be subject to self-governance compacts, but such 
a list certainly could include discretionary administration of Federal 
fish and wildlife protection laws, promulgation of regulations, 
obligation and allocation of Federal funds, the exercise of certain 
prosecutorial powers, and other discretionary functions vested in 
Federal officials. Thus, for example, with respect to Federal 
apportionments made to States under the Federal Aid in Fish Restoration 
Act (Dingell-Johnson-Wallop-Breaux Program) or with respect to the 
Federal Aid in Wildlife Restoration Act (Pittman-Robertson Program) 
exclusive authority appears to relate to aid to the States, and 
therefore these programs would not be subject to inclusion in compacts 
under section 403(b)(2) of this act. However, where a tribe otherwise 
meets grant, contract, or other requirements for a program, a tribe, 
tribes or Indians do not have be identified in the authorizing statute 
to have said program included in a compact under section 403(b)(2).
  To make clear that nothing in H.R. 4842 is intended to permit the 
Secretary to enter into a compact for the performance of 
responsibilities which are inherently Federal, that is, Federal 
responsibilities vested by the Congress in the Secretary which are 
determined by the Federal courts not to be delegable under the 
constitution, section 403 is amended by adding a new subsection (k), as 
follows:

       (k) Disclaimer--Nothing in this section is intended or 
     shall be construed to expand or alter existing statutory 
     authorities in the Secretary as to authorize the Secretary to 
     enter into any agreement under sections 403(b)(2) and 
     405(c)(1) with respect to functions which are inherently 
     federal or where legislation establishing the existing 
     program does not authorize the participation sought by the 
     tribe; Provided, however an Indian tribe or tribes need not 
     be identified in the authorizing statute in order for a 
     program or element of a program to be included in a compact 
     under section 403(b)(2).

  Mr. President, I ask unanimous consent that a copy of the letter from 
the Secretary of the Interior stating the administration's views on 
these amendments, with the exception of subsection (k), be inserted in 
the Record immediately following my remarks.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                    Secretary of the Interior,

                                   Washington, September 22, 1994.
     Hon. John McCain,
     Vice Chairman, Senate Committee on Indian Affairs, 
         Washington, DC.
       Dear Mr. Vice Chairman: I am pleased to transmit to you the 
     Department of the Interior's favorable response to your 
     proposed amendments to sections 403(b) and 405 of H.R. 3508 
     of the Tribal Self-Governance Act of 1994. This attached 
     suggested language encompasses the compromises reached by the 
     Department, your staff, Mr. Richardson's staff and tribal 
     representatives. With the inclusion of these amendments, the 
     Administration strongly supports H.R. 3508, as amended.
       Tribal Self-Governance is consistent with my commitment to 
     enhancing the government-to-government relationship with 
     Tribes. I believe that this legislation is the single most 
     important piece of legislation to advance Indian self-
     determination since P.L. 93-638. Further, Tribal Self-
     Governance is consistent with the Federal government's 
     efforts to reinvent itself, by shifting responsibility for 
     use of federal resources to elected tribal leaders.
       I realize that there are some who are concerned about the 
     possibility that Self-Governance tribes may compact for 
     national programs that benefit the public at large. I must 
     point out that the only non-BIA programs that will be 
     available are those listed by mutual consent of both the 
     Department and the Self-Governance Tribes. In addition, 
     actual negotiations between a Tribe and the Department 
     regarding programs that are eventually included in a Self-
     Governance agreement will identify any special conditions or 
     requirements that should be met. Consequently, I am confident 
     that the attached language adequately protects the 
     responsibilities that my Department has to the American 
     people.
       I appreciate the leadership of many Tribal leaders and 
     especially the leadership that you have rendered in making 
     the possibility of permanent Tribal Self-Governance a 
     reality. The Department has also transmitted this response to 
     Congressman Richardson.
       The Office of Management and Budget advises that it has no 
     objection to the presentation of this report from the 
     standpoint of the Administration's program.
           Sincerely,
                                                    Bruce Babbitt.
                                  ____

       Sec. 403 (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 through the Bureau of Indian Affairs without regard 
     to the agency or office of the Bureau of Indian Affairs 
     within which it is performed, including funding for agency, 
     area and central office functions in accordance with section 
     403(g)(3) and, also, including (but not limited to) those 
     administered under the authority of * * *
       A new 403(b)(2):
       (2) subject to such terms as may be negotiated, authorize 
     the tribe to plan, conduct, consolidate, and administer 
     programs, services, functions, and activities or portions 
     thereof, administered by the Department of the Interior other 
     than through the Bureau of Indian Affairs and that are 
     otherwise available to Indian tribes or Indians as identified 
     in section 405(c), except that nothing in subsection (b)(2) 
     shall be construed to provide any tribe with a preference in 
     its opportunity to administer programs, services, functions, 
     activities or portions thereof, unless such preference is 
     otherwise provided for by law;
       A new 403(b)(3):
       (3) 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, except that reallocation, 
     consolidation, and redesign with respect to 403(b)(2) 
     programs shall require the joint agreement of the Secretary 
     of the Interior and the tribe;
       In section 403(g)(3), the first sentence should be changed 
     to conform to the recommended changes above in the following 
     manner:
       (3) Subject to paragraph (4) of this subsection and 
     paragraphs (1), (2) and (3) of subsection (b),
       Revised Section 405(c)(1):
       (1) In order to optimize opportunities for including non-
     Bureau Indian Affairs programs, services, functions, and 
     activities, or portions thereof, in agreements with tribes 
     participating in Self-Governance under this title, the 
     Secretary--
       (A) shall review all programs, services, functions, and 
     activities, or portions thereof, administered by the 
     Department of the Interior other than through 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 with the concurrence of tribes participating in 
     Self-Governance under this title, are eligible for inclusion 
     in such agreements at the request of a participating Indian 
     tribe.
                                  ____



                                    Secretary of the Interior,

                                   Washington, September 28, 1994.
     Hon. John McCain,
     U.S. Senate, Senate Russell Office Building, Washington, DC.
       Dear Senator McCain: It has come to my attention that 
     concerns have been raised about the potential impact of H.R. 
     3508 on the existing jurisdiction and authority of the 
     tribal, state and federal governments over natural resources, 
     including fish and wildlife resources.
       It is important to note that the self-governance project is 
     authorized as part of the Indian Self-Determination and 
     Education Assistance Act, more commonly referred to as P.L. 
     93-638 or 638. This law was originally enacted in 1974 and 
     was amended to include the self-governance demonstration 
     project in 1988. As you know, H.R. 3508 would make the self-
     governance project permanent.
       Nothing in H.R. 3508 or P.L. 93-638 would change 
     jurisdictional responsibilities for administering federal 
     laws governing natural resources, including fish and wildlife 
     resources, or exempt Indian tribes from adhering to federal 
     laws and standards with respect to the protection and 
     management of such resources. Indeed, I am obligated by 
     virtue of my oath of office to uphold and carry out these 
     federal laws. This responsibility includes conditioning 
     approval of self-determination and self-governance compacts 
     as necessary to fulfill my responsibilities under such laws. 
     Lastly, let me state a point which should be obvious to 
     everyone--the Secretary of the Interior has no authority to 
     change state law or jurisdiction. Consequently, I have no 
     authority to confer on an Indian tribe jurisdiction exercised 
     by a state government over any natural resource, including 
     management of fish and wildlife resources. Nothing in P.L. 
     93-638 or H.R. 3508 confers such authority on the Secretary.
       Thank you again for your leadership on this important 
     legislation. I look forward to continuing to work with you to 
     ensure its enactment.
       The Office of Management and Budget advises that it has no 
     objection to the presentation of this report from the 
     standpoint of the Administration's program
           Sincerely,
                                                    Bruce Babbitt.
                                  ____

                                         International Association


                                of Fish and Wildlife Agencies,

                                  Washington, DC, October 3, 1994.
     Hon. John McCain,
     Co-Chairman, Committee on Indian Affairs, Hart Senate Office 
         Building, Washington, DC.
       Dear Senator McCain: We sincerely appreciate your 
     continuing efforts to address our concerns regarding H.R. 
     3508, and your willingness to provide language and 
     legislative history which ensures that the scope of programs 
     eligible for compact are those to which the statute already 
     reaches. We would like to particularly recognize that both 
     Mr. Dan Lewis and Mr. Eric Eberhard of your staff have been 
     particularly helpful in bringing consensus to the proposal. 
     We do regret that the lateness of the session constrains the 
     time over which we have to perfect this language.
       One of the Association's interests is in facilitating 
     cooperation between the States and the tribes regarding the 
     conservation of fish and wildlife resources. As you are 
     aware, this cooperation has been improving in recent years 
     because both parties have endorsed the merits of working 
     together to meet all of our citizens' needs and interests in 
     the future of fish and wildlife resources.
       As you know, we are concerned about the overly broad and 
     ambiguous language in H.R. 3508 because of its impact on both 
     the tribes and the States. From the tribes' perspective, this 
     language could raise expectations about programs which are 
     not intended to be eligible for compact, or the Secretary is 
     otherwise constrained from compacting to the tribes. From the 
     States' perspective, this same ambiguous language may raise 
     concerns about the reach of language such as ``otherwise 
     available to Indian tribes or Indians'' which has yet to be 
     judicially interpreted.
       As agreed with Mr. Dan Lewis of your staff and tribal 
     representatives/attorneys this morning, we have made a good 
     faith effort to draft some language which makes minimal 
     changes to the bill, and addresses most of our concerns 
     through furthering the legislative history. We would ask for 
     your endorsement of this language in response to the efforts 
     we have made to further passage of H.R. 3508.
       We also request that this letter and suggested language, 
     along with that of Secretary Babbitt to you of September 28, 
     1994, be made a part of the public record for H.R. 3508.
       Thank you for your sincere interest in facilitating 
     cooperation between the Indian tribes and the States on fish 
     and wildlife issues.
           Sincerely,
                                                  R. Max Peterson,
     Executive Vice-President.

                          ____________________