[Congressional Record Volume 142, Number 33 (Tuesday, March 12, 1996)]
[Senate]
[Pages S1867-S1868]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. McCAIN (for himself and Mr. Inouye):
  S. 1608. A bill to extend the applicability of certain regulatory 
authority under the Indian Self-Determination and Education Assistance 
Act, and for other purposes; to the Committee on Indian Affairs.


 EXTENSION OF THE INDIAN SELF-DETERMINATION CONTRACT REFORM ACT OF 1994

  Mr. McCAIN. Mr. President, I rise today to introduce a measure that 
would extend for 60 days the authority Congress delegated in 1994 to 
the Secretary of the Interior and the Secretary of Health and Human 
Services to promulgate regulations implementing the Indian Self-
Determination Contract Reform Act of 1994.
  Under longstanding Federal-Indian policies favoring tribal self-
determination, the United States has encouraged native American tribal 
governments and tribal organizations to assume the responsibility of 
carrying out essential governmental services previously performed by 
Federal employees of the Bureau of Indian Affairs [BIA] and the Indian 
Health Service [IHS]. Indian tribes have been waiting since 1988 for 
regulations that would guide the implementation of the act. The bill I 
am introducing today would elongate that delay by an additional 60 
days, extending the authority to issue final regulations from April 25, 
1996 to June 25, 1996.
  Despite my initial hesitancy to sponsor such an extension, tribal 
governments have now convinced me of the need for this 60-day 
extension. The United South and Eastern Tribes, the National Congress 
of American Indians, and numerous tribal governments have asked me to 
support the extension. I respect their judgment and ask that the 
Congress honor their request. In addition, several days ago the Senate 
referred executive communication No. 1959 to the Committee on Indian 
Affairs, which I chair. EC 1959 forwards the request of the Department 
of Health and Human Services and the Department of the Interior that 
Congress enact the bill I am introducing today. The Departments argue 
that a 60-day extension is needed because winter weather conditions and 
recent Federal employee furloughs related to the budget impasse between 
the Congress and the administration have made it impossible for the 
administration to comply with the statutory deadline.
  I remain, however, very concerned that further delay in issuing the 
regulations will erode the power Congress placed with Indian tribes in 
the negotiated rulemaking provisions of the 1994 act. A 60-day delay 
could potentially allow the Federal agencies more time to undermine 
tribal provisions in the negotiated regulations that were published in 
proposed form in late January.
  My concern is based on history. On three occasions, the Congress has 
had to enact precise statutory directives--in 1988, 1990, and in 1994--
to overcome the two Departments' entrenched resistance to the 
requirements in the original act. When, for example, in 1988 the two 
Secretaries were given a statutory 10-month timeframe to promulgate 
regulations with tribal participation, they cut off all tribal input 
and began a delaying process that extended to 6 years. After 6 years--
not 10 months--the Clinton administration released proposed regulations 
in 1994 that sought in every conceivable way to retard, rather than 
enhance, tribal self-determination contracting. The Congress responded 
by promptly enacting the Indian Self-Determination Contract Reform Act 
of 1994. That act mandated, for the first time in the history of 
Federal-Indian legislation, that tribal governments be directly 
involved in the process of drafting the proposed regulations through a 
negotiated rulemaking format rather than the traditional process of 
being ``consulted'' on drafts prepared by Federal officials.
  In the 1994 act, the Congress accepted the administration's request 
that the 12-month regulatory period, originally proposed by the Senate, 
be enlarged to 18 months. That 18-month period ends on April 25, 1996. 
The Clinton administration assured the Congress that this would be 
ample time to get the job done.
  I am told that the proposed regulations prepared by the joint 
Federal-Tribal negotiated rulemaking committee were largely completed 
and ready for publication in October 1995. However, the draft 
regulations languished in the Office of Management and Budget, or OMB, 
for over 3 months before they were finally released for publication in 
the Federal Register on January 24, 1996. Soon after publication, the 
administration began to mount pressure for an extension.
  Mr. President, I am very concerned about reports that OMB officials 
recently raised dozens of questions and issues after the joint Federal-
Tribal negotiated rulemaking committee had finalized the proposed 
regulations. This is particularly disturbing, because I and other 
authors of the 1994 act expected the entire administration, including 
the OMB, to raise its concerns and questions during the negotiated 
rulemaking committee's deliberations with the Indian tribes, not 
afterward. What is most troubling to me, is that tribal representatives 
on the joint Federal-Tribal negotiated rulemaking committee have 
informed me that many of these OMB questions reflected a basic lack of 
understanding of the act and the special statutory and historic context 
in which these regulations have been developed. It appears that the 
administration's negotiators did not release these OMB questions to the 
tribal representatives until late last month. The questions are of the 
type that could easily have been addressed during the Federal-Tribal 
negotiated rulemaking process. I am disturbed that the OMB has 
apparently elected not to participate directly in the negotiations, 
where the OMB officials could have openly aired their concerns and 
afforded tribal government representatives an opportunity to respond.
  The apparent risk associated with extending the deadline for final 
promulgation of the regulations is that the OMB, and their allies 
within the Departments, will have more time to unilaterally undo much 
of what the joint Federal-Tribal negotiated rulemaking committee has 
achieved to date as a result of government-to-government negotiations, 
and more time to resolve, against the Indian tribes, the remaining 
areas in dispute set forth in the January 24, 1996, notice of proposed 
rulemaking.
  I am deeply concerned that the Departments' resistance to the act has

[[Page S1868]]

undercut the negotiated rulemaking process, as evidenced by the nature 
of the issues remaining in dispute. For instance, neither Department 
wants to use the negotiated rulemaking process to develop their agency 
procedures, despite the law's directive that they do so. The Interior 
Department insists on incomprehensible organizational conflict-of-
interest provisions which can only serve to undermine the goal of 
tribal self-determination. The Interior Department insists that a 
standard contract renewal with no material change must be processed 
through the full contract application and declination process even 
though that is plainly not what Congress intended--as the IHS, to its 
credit, does recognize. The Departments both seek to preserve the right 
to impose on tribes unpublished requirements, despite the clear 
statutory prohibitions against doing so. And perhaps most 
distressingly, the Departments have resisted placing any language in 
the new regulations that would state that Federal laws and regulations 
will be interpreted liberally for the benefit of the Indian tribes in 
order to facilitate contracting activities under the act. This is the 
position of the Departments despite the fact that this language is a 
well-settled U.S. Supreme Court rule of statutory construction that 
applies to all remedial Indian legislation.
  To sum it up, Mr. President, I and other Members of Congress in 1994 
were persuaded by the Indian tribes to set a hard and fast publication 
deadline of April 25, 1996 in response to the delays tribes had 
experienced in getting final regulations under the 1988 amendments. 
Likewise, at the request of the Indian tribes, Congress mandated that 
the proposed regulations be developed by a joint, tribal-Federal 
negotiated rulemaking committee. Assuming substantial tribal 
involvement in that committee, and good faith on the part of the 
administration, it would be reasonable to expect that these timeframes 
could be met. But apparently, 60 more days is needed. Accordingly, I 
will support the extension with the warning to the administration that 
I do not want to learn at some later date that the expanded timeframe 
has allowed the administration additional advantage over tribal 
governments in the negotiation of the final regulations.
  Despite my reservations, I remain hopeful that the ongoing negotiated 
rulemaking process can be successfully concluded within the extended 
timeframe. But the Departments and the OMB must commit themselves to 
this process, just as the Indian tribes have done, and they must resist 
the temptation to slide back into the paternalistic, adversarial, and 
bureaucratic thinking that has compelled the Congress since 1988 to 
micromanage the Departments in the area of tribal self-determination 
contracting.
  I thank my friend, Senator Inouye, for joining with me as an original 
cosponsor of the bill. I urge my colleagues to support the 60-day 
extension and to join me in ensuring that the administration does not, 
by reason of the 60-day delay, gain any negotiation advantage over the 
Indian tribes.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1608

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. EXTENSION OF APPLICABILITY OF CERTAIN REGULATORY 
                   AUTHORITY.

       Section 107(a)(2)(B) of the Indian Self-Determination and 
     Education Assistance Act (25 U.S.C. 450k(a)(2)(B)) is amended 
     by striking ``18 months'' and inserting ``20 months''.
                                 ______