[Congressional Record Volume 143, Number 78 (Saturday, June 7, 1997)]
[Extensions of Remarks]
[Pages E1147-E1148]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

[[Page E1147]]

               TRIBAL SELF-GOVERNANCE AMENDMENTS OF 1997

                                 ______
                                 

                           HON. GEORGE MILLER

                             of california

                    in the house of representatives

                         Saturday, June 7, 1997

  Mr. MILLER of California. Mr. Speaker, today I am introducing the 
Tribal Self-Governance Amendments of 1997. I am pleased to have the 
chairman of Resources Committee, Representative Don Young, as an 
original cosponsor of this important measure, and similarly welcome 
Congressmen Dale Kildee, Eni Faleomavaega, and Patrick Kennedy as 
additional cosponsors.
  The Tribal Self-Governance Amendments of 1997 establish a permanent 
self-governance program within the Department of Health and Human 
Services under which American Indian and Alaska Native tribes may enter 
into compacts with the Secretary for the direct operation, control, and 
redesign of Indian Health Service [IHS] activities. A limited number of 
Indian tribes have had a similar right since 1992 under title III of 
the Indiana Self-Determination and Education Assistance Act [the Act]. 
Title III contains authorization for a self-governance demonstration 
project within the IHS. And all Indian tribes have had a similar right 
to contract and operate individual IHS programs and functions under 
title I of the act since 1975, so called ``638 contracting''.
  In brief, our legislation expands the number of tribes who can 
participate in self-governance, makes it a permanent fixture within the 
Department, allows but does not compel the Secretary to negotiate self-
governance compacts with Indian tribes for programs outside of the IHS 
on a demonstration project basis, and incorporates a number of Federal 
contracting laws and regulations that have worked well for Indian 
tribes and the Department in the past.
  The legislation is modeled on existing self-governance legislation 
for tribal operation of programs within the Department of the Interior, 
as well as certain contracting terms incorporated in title I of the 
act. The legislation has had significant input and review by Indian 
tribes who have worked on this legislation for almost a year and have 
met twice, once in Las Vegas and once in St. Paul. Their help and 
patience has been considerable.
  What the self-governance program does is give Indian tribes who met 
certain criteria--basically they have to have experience in government 
contracting, have clean books, and demonstrate management capability--
the right to take over the operation of Indian Health Service 
functions, including the funds necessary to run them. The aim of self-
governance is to remove the often needless and sometimes harmful layers 
of Federal bureaucracy that dictate Indian affairs. By giving tribes 
direct control over Federal programs run for their benefit and making 
them directly accountable to their members, Congress has enabled Indian 
tribes to run programs more efficiently and more innovatively than 
Federal officials have in the past. And, allowing tribes to run these 
programs furthers the congressional policy of strengthening and 
promoting tribal governments.
  Self-governance is an evolution of the original 638 contracting law. 
Self-governance stands for the proposition that Indian tribes are 
legitimate sovereigns, fully capable of managing their own affairs and 
functioning as principled governments. Self-governance rejects the 
assumption that Indian tribes are incapable of managing their own 
affairs and thus seeks to reduce the role and presence of Federal 
officials. Self-governance recognizes that Indian tribes care for the 
health, safety, and welfare of their own members as well as that of 
non-Indians who either live on their reservations or conduct business 
with the tribes and are thus committed to safe and fair working 
conditions and practices.

  The following are a few of the areas in which self-governance differs 
from 638 contracting law. Whereas a tribe choosing to assume programs 
with 638 contracts must execute a different contract for each program, 
self-governance allows the tribes and the IHS to execute just one large 
compact. Whereas a tribe with multiple 638 contracts cannot move funds 
from one program to another based on need or merit, self-governance 
permits tribes to shift funds where justified. Where 638 contracts 
limit a tribe's ability to redesign programs, self-governance compacts 
allow such redesign.
  A brief section-by-section description follows:

       101. Short Title. Tribal Self-Governance Amendments of 
     1997.
       102. Findings. Self-Governance has worked well as a 
     demonstration project and is in keeping with the federal 
     trust responsibility and government-to-government 
     relationship
       103. Policy. Statement of Congressional policy calling for 
     Dept. of Health and Human Services to promote Self-Governance 
     program.
       104. Creation of Title V of the Indian Self-Determination 
     Act. As set forth below.
       105. Establishment. Creates the Self-Governance program 
     with the Department.
       502. Definitions. Allows Indian tribes to join together to 
     form consortia for purposes of compacting under the Act.
       503. Selection of Tribes. Grandfathers in all tribes now 
     participating in demonstration project. Allows for up to 50 
     new tribes a year to join the Self-Governance program. 
     Requires that, in order to be eligible, a tribe must have 
     completed a planning phase, passed a resolution requesting 
     participation in the program, and proven that it has the 
     financial stability and management capability to run a Self-
     Governance Program.
       504. Compacts. Describes a Self-Governance compact between 
     the Secretary and an Indian tribe, setting forth the general 
     terms of agreement.
       505. Funding Agreements. Describes the detailed funding 
     arrangement by which the Secretary pays the tribe its share 
     of funds necessary to run its portion of the IHS programs. 
     Allows the Secretary to negotiate demonstration projects with 
     Indian tribes for the operation of non-IHS programs within 
     the Department but does not compel him to.
       506. General Provisions. Describes the general provisions 
     of the compacts and funding agreements. Includes provisions 
     for audits, cost principles, and record keeping. Allows 
     tribes with compacts to redesign IHS programs. Allows tribes 
     to retrocede compacted programs back to the IHS. Allows 
     tribes who formed a consortium to withdraw from the 
     consortium.
       507. Provisions Relating to Secretary. Allows the Secretary 
     to impose additional reporting requirements on Indian tribes 
     as long as they are not burdensome. Allows the Secretary to 
     take back programs from a tribe if he finds that the tribe's 
     operation of the program is endangering the health or welfare 
     of people or that the tribe is mismanaging the program. 
     Provides for a hearing on the record in such cases. Provides 
     that when negotiating compact terms, if Secretary fails to 
     reject tribe's offer, that offer is deemed accepted. Allows 
     Secretary to reject tribe's offer if he finds that tribe's 
     request exceeds allowable funding, the request is for 
     operation of a function that cannot be delegated to tribes, 
     or the tribe is not capable of running the program. Requires 
     the Secretary to negotiate in good faith. Prevents the 
     Secretary from waiving or diminishing the trust 
     responsibility.
       508. Transfer of Funds. Provides for prompt payment to 
     tribes of funds necessary to run programs under Self-
     Governance. Provides that funds are available until expended. 
     Requires Secretary to provide tribes with indirect costs. 
     Allows Secretary to reduce amount of funds specified in 
     contract when Congress reduces IHS appropriations. Allows 
     tribes the same access to buildings, property and other 
     resources that the federal government had. Allows tribes to 
     retain interest on funding in keeping with present 
     regulations.
       509. Construction Projects. Exempts tribal construction 
     compacts from Procurement Act and Federal Acquisition 
     Regulations in keeping with existing Self-Governance law but 
     requires compacts to incorporate health and safety standards.
       510. Federal Procurement Laws. Exempts all tribal compacts 
     from federal contracting laws in keeping with existing Self-
     Governance law.
       511. Civil Actions. Provides tribes with access to federal 
     courts in events of disputes.
       512. Facilitation. Requires the Secretary to interpret laws 
     and regulations in a manner that further Self-Governance 
     compacting. Allows the Secretary to waive regulations where 
     permitted by law. Allows the Secretary to donate excess 
     property to tribes. Encourages the states to enter into 
     agreements with tribes that supplement their Self-Governance 
     compacts.
       513. Budget Request. Requires that the Presidential budget 
     request identify funding necessary to fund Self-Governance 
     compacts, including the present level of funding for each 
     tribe.
       514. Reports. Provides for an annual Secretarial report to 
     Congress on status of Self-Governance program.
       515. Disclaimers. Provides that nothing in the Act shall be 
     construed as diminishing the trust responsibility in any way. 
     Exempts tribes from National Labor Relations Act as 
     governmental entities in keeping with N.L.R.B. decisions.

[[Page E1148]]


       516. Application of Other Sections. Incorporates parts of 
     Title I (``638 contracting'') including penalties for 
     criminal activities, wage and labor standards, liability 
     insurance, retention of federal employee rights and benefits 
     by tribal employees, leasing of tribal facilities, funding of 
     indirect costs, preservation of tribal sovereign immunity, 
     and Federal Tort Claims Act coverage.
       517. Regulations. Requires the Secretary to publish draft 
     regulations to carry out this Act within one year of 
     enactment. Requires negotiated rulemaking with Indian tribes. 
     Provides sunset clause eliminating Secretary's rulemaking 
     authority if final regulations are not published within one 
     year and nine months after the date of enactment.
       518. Appeals. Sets the standard for burden of proof in 
     cases of disputes. Provides that the Secretary bears the 
     burden of proof of demonstrating by clear and convincing 
     evidence his decisions.
       519. Appropriations. Authorizes such sums as necessary.

  In sum, self-governance is a program that represents that next step 
beyond 638 contracting. As a demonstration project in the IHS it has 
been a true success. The time has come to transform the demonstration 
project into a permanent program. I and my colleagues cosponsoring this 
measure urge support and passage of this measure.

                          ____________________