[Congressional Record Volume 144, Number 141 (Friday, October 9, 1998)]
[Extensions of Remarks]
[Pages E1982-E1988]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


               TRIBAL SELF-GOVERNANCE AMENDMENTS OF 1998

                                 ______
                                 

                               speech of

                           HON. GEORGE MILLER

                             of california

                    in the house of representatives

                        Monday, October 5, 1998

  Mr. MILLER of California. Mr. Speaker, I am proud to have sponsored 
this bill, the Tribal Self-Governance Amendments of 1998, which I 
believe will mark yet another milestone in the history of Indian self-
determination. This major legislation is the product of more than two 
years of hard work and consultation with Indian tribes and the 
Administration. We have worked diligently with the tribes and the 
Department of Health and Human Services to make this bill as fair as 
possible. I would like to extend my appreciation to the tribal leaders, 
their representatives, and the Departmental staff who have made passage 
of this bill possible.
  It is important to note that subsequent to the full committee mark up 
that occurred this spring, the tribes and the Department were able to 
work out additional differences. Thus there are several changes that I 
want to highlight. We were able to come to agreement on issues 
regarding reassumption, regulation waiver, trial de novo, rejection of 
final offer, and the creation of a new title VI to carry out the non-
IHS demonstration project study.
  Let me briefly explain what this bill does. H.R. 1833, the Tribal 
Self-Governance Amendments Act of 1998, would create two new titles in 
the 1975 Indian Self-Determination and Education Assistance Act. The 
1975 Act allows Indian tribes to contract for or take over the 
administration and operation of certain federal programs which provide 
services to Indian tribes. Subsequent amendments to the 1975 Act 
created Title III of the Act which provided for a Self-Governance 
Demonstration Project that allows for large-scale tribal Self-
Governance compacts and funding agreements on a ``demonstration'' 
basis.
  The new title V created by H.R. 1833 would make this contracting by 
tribes permanent for programs contracted for within the Indian Health 
Service (IHS). Thus, Indian and Alaska Native tribes would be able to 
contract for the operation, control, and redesign of various IHS 
activities on a permanent basis. In short, what was a demonstration 
project would become a permanent IHS Self-Governance program. Pursuant 
to H.R. 1833, tribes which have already contracted for IHS activities 
would continue under the provisions of their contracts while an 
additional 50 new tribes would be selected each year to enter into 
contracts.
  The 1998 amendments require that Indian tribes must meet certain 
criteria--they have to have experience in government contracting, have 
clean audits, and demonstrate management capability--in order to 
exercise the right to take over the operation of IHS functions, 
including the funds necessary to run them.
  H.R. 1833 also adds a new title VI which authorizes a feasibility 
study regarding the execution of tribal Self-Governance compacts and 
funding agreements of Indian-related programs outside the IHS but 
within the Department of Health and Human Services on a demonstration 
project basis.
  Although this issue was not addressed in this legislation, I want to 
express my continued concern about the poor labor relations at various 
Indian Health Service facilities throughout the West, but particularly 
the IHS facilities at Sacaton, Arizona and Owyhee, Nevada. Contrary to 
both the law and agency decisions, the IHS has refused to complete its 
obligation to meet and negotiate with the Laborers' International Union 
which represents workers at these facilities. I also understand that 
the IHS continues to commit unfair labor practices. I want to send a 
strong message to the IHS that I will continue to monitor labor 
relations at IHS facilities and that continued indifference to the law 
and agency decisions will not be ignored by Congress. I understand that 
the Administration is aware of my concerns and has agreed to correct 
these issues in the very near future.

  I firmly believe that this bill advances the principle focus of the 
Self-Governance program--to remove 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, we are enabling 
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.
  The Self-Governance program 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.
  A comprehensive description of the substitute follows. I strongly 
urge my colleagues to pass this legislation.

              Section-by-Section Description of Substitute


                        Section 1. Short Title.

       This provision sets forth the short title, ``The Tribal 
     Self-Governance Act Amendments of 1998.''


                          Section 2. Findings

       This provision sets forth the findings of Congress which 
     reaffirm the inherent sovereignty of Indian tribes and the 
     unique government-to-government relationship between the 
     United States and Indian tribes. The findings make clear that 
     while progress has been made, the federal bureaucracy has 
     eroded tribal self-governance. The findings state that the 
     Federal Government has failed to fully meet its trust 
     responsibility and to satisfy its obligations under treaties 
     and other laws. The findings explain that Congress has 
     reviewed the tribal self-governance demonstration project and 
     concluded that self-governance is an effective mechanism to 
     implement and strengthen the federal policy of government-to-
     government relations with Indian tribes by transferring 
     Indian tribes full control and funding for federal programs, 
     functions, services, or activities, or portions thereof.


                    Section 3. Declaration of Policy

       This section provides that it is Congress' policy to 
     permanently establish and implement tribal self-governance 
     within the Department of Health and Human Services with the 
     full cooperation of its agencies. Among the key policy 
     objectives Congress seeks to achieve through the self-
     governance program are to (1) maintain and continue the 
     United States' unique relationship with Indian tribes; (2) 
     allow Indian tribes the flexibility to choose whether they 
     wish to participate in self-governance; (3) ensure the 
     continuation and fulfillment of the United States' trust 
     responsibility and other responsibilities towards Indian 
     Tribes that are contained in treaties and other laws; (4) 
     permit a transition to tribal control and authority over 
     programs, functions, services, or activities (or portions 
     thereof); and (5) provide a corresponding parallel 
     reduction in the Federal bureaucracy.


                   Section 4. Tribal Self Governance

       This section sets out the substantive provisions of the 
     Self-Governance program within the Indian Health Service and 
     authorizes a feasibility study of the applicability of Self-
     Governance to other Departmental agencies by adding Titles V 
     and VI to the Indian Self-Determination and Education 
     Assistance Act.


                       Section 501. Establishment

       This provision directs the Secretary of HHS to establish a 
     permanent Tribal Self-Governance Program in the Indian Health 
     Service.


                        Section 502. Definitions

       Subsection (a)(1) defines the term ``construction 
     project''. The Committee does not

[[Page E1983]]

     intend this legislation to preclude agreements between self-
     governance tribes and the Indian Health Service for carrying 
     out sanitary facilities construction projects pursuant to a 
     ``Project Funding Agreement'' or ``Memorandum of Agreement'' 
     executed as an addendum to a Title V Annual Funding Agreement 
     as authorized by Section 7(a)(3) of Pub. L. 86-121, 73 Stat. 
     267 (42 U.S.C. Sec. 2004(a)).
       Subsection (a)(2) provides that a ``construction project 
     agreement'' is one between the Secretary and the Indian tribe 
     that, at a minimum, establishes start and completion dates, 
     scope of work and standards, identifies party 
     responsibilities, addresses environmental considerations, 
     identifies the owner and maintenance entity of the proposed 
     work, provides a budget, provides a payment process, and 
     establishes a duration of the construction project agreement.
       Subsection (a)(3) defines ``inherent federal functions'' as 
     those functions which cannot be legally delegated to Indian 
     tribes. This definition states the obvious. Inherent federal 
     functions are functions which the Executive Branch cannot by 
     law delegate to other branches of governments, or non-
     governmental entities. The Committee's definition is 
     consistent with the Department of the Interior Solicitor's 
     Memorandum of May 17, 1996 entitled ``Inherently Federal 
     Functions under the Tribal Self-Governance Act of 1994.'' The 
     Committee's definition is expressly intended to provide 
     flexibility so as to allow the Secretary and the tribes to 
     come to agreement on which functions are inherently federal 
     on a case-by-case basis. It is important to note that, in the 
     tribal procurement context, there is another factor the 
     Committee has considered--when the federal government is 
     returning tribal governmental powers and functions that are 
     inherent in tribes governmental status such as those 
     possessed by tribes before the establishment of the 
     federal Indian bureaurcracy, the scope of allowable 
     transfers is broader than in the transfer of federal 
     government powers to private or other governmental 
     entities.
       Subsection (a)(4) defines ``inter-tribal consortium''. The 
     Committee notes that during the Title III Demonstration 
     Project the IHS authorized intertribal consortia, such as the 
     co-signers to the Alaska Tribal Health Compact, to 
     participate in the Project and that participation has had 
     great success. The definition of ``inter-tribal consortium'' 
     is intended to include ``tribal organizations'' as that term 
     is defined in Section 4(l) of the Indian Self-Determination 
     Act, Pub. L. No. 93-638. This would include consortia such as 
     those involved in the Alaska Tribal Health Consortium. It is 
     the Committee's intent that inter-tribal consortia and tribal 
     organizations shall count as one tribe for purposes of the 50 
     tribe per year limitation contained in section 503(a).
       Subsection (a)(5) defines ``gross mismanagement''. The 
     inclusion of this term is to govern one of the criteria that 
     the Secretary is to consider in the reassumption of a 
     tribally-operated program. The Secretary will be given the 
     authority to reassume programs that imminently endanger the 
     public health where the danger arises out of a compact or 
     funding agreement violation. The Committee believes that the 
     inclusion of a performance standard, in this case gross 
     mismanagement, is also an appropriate grounds for 
     reassumption. Gross mismanagement is defined as a 
     significant, clear, and convincing violation of compact, 
     funding agreement, regulatory or statutory requirements 
     related to the transfer of Self-Governance funds to the tribe 
     that results in a significant reduction of funds to the 
     tribe's Self-Governance program. The Committee's definition 
     of gross mismanagement is narrowly tailored and will require 
     a high degree of proof by the Secretary. The Committee is 
     well aware of tribal concerns and agrees that the inclusion 
     of this performance standard must not be utilized by the 
     Secretary in such a manner as to needlessly impose monitoring 
     and auditing requirements that hinder the efficient operation 
     of tribal programs. Intrusive and overburdensome monitoring 
     and auditing activities are antithetical to the goals of 
     Self-Governance.
       Subsection (a)(6) defines ``tribal shares''. This 
     definition is consistent with the Title IV Rule-making 
     Committee's determination that residual funds are those 
     ``necessary to carry out the inherently federal functions 
     that must be performed by federal officials if all tribes 
     assume responsibilities for all BIA programs.'' Fed. Reg. 
     Vol. 63, No. 29, 7235, (Feb. 12, 1998) (Proposed Rule, 25 CFR 
     Sec. 1000.91). All funds appropriated under the Indian Self-
     Determination and Education Assistance Act are either tribal 
     shares or Agency residual.
       Subsection (a)(7) defines ``Secretary'' as the Secretary of 
     Health and Human Services.
       Subsection (a)(8) defines ``Self-Governance'' as the 
     program established under this title.
       Section (b) defines ``Indian Tribe''. This definition 
     enables an Indian tribe to authorize another Indian tribe, 
     inter-tribal consortium or tribal organization to participate 
     in self-governance of its behalf. The authorized Indian 
     Tribe, inter-tribal consortium or tribal organization may 
     exercise the authorizing Indian tribe's rights as 
     specified by Tribal resolution.


             section 503. selection of participating tribes

       This section describes the eligibility criteria that must 
     be satisfied by any Indian tribe interested in participating.
       (a) Continuing Participation. All tribes presently 
     participating in the Tribal Self-Governance Demonstration 
     Project under Title III of the Indian Self-Determination Act 
     may elect to participate in the permanent Self-Governance 
     program. Tribes must do so through tribal resolution.
       (b) Additional Participants. (1) This section allows an 
     additional 50 tribes a year to participate in self-
     governance.
       (2) This section allows an Indian tribe that chooses to 
     withdraw from an inter-tribal consortium or tribal 
     organization to participate in self-governance provided it 
     independently meets the eligibility criteria in Title V. 
     Tribes and tribal organizations that withdraw from tribal 
     organizations and inter-tribal consortia under this section 
     shall be entitled to participate in the permanent program 
     under section 503(b)(2) and such participation shall not be 
     counted against the 50 tribe a year limitation contained in 
     section 503(a).
       (c) Applicant Pool. The eligibility criteria for self-
     governance tribes are the same as those that apply under 
     Title IV. To participate, an Indian tribe must successfully 
     complete a planning phase, must request participation in the 
     program through a resolution or official action of the 
     governing body, and must have demonstrated financial 
     stability and financial management capability for the past 
     three years. Proof of no material audit exceptions in the 
     tribe's self determination contracts or Self Governance 
     funding agreements is conclusive proof of such qualification. 
     The Committee notes that the financial examination addressed 
     in subsection 503(c)(3) refers solely to funds managed by the 
     tribe under Title I and Title IV of the Indian Self-
     Determination Act. The bill has been deliberately crafted to 
     make clear that a tribe's activities in other economic 
     endeavors are not subject of the Section 503(c) examination. 
     Similarly, the ``budgetary research'' referred to in section 
     503(d)(1) of the bill requires a tribe to research only 
     budgetary issues related to the administration of the 
     programs the tribe anticipates transferring to tribal 
     operation under Self-Governance.
       (d) Planning Phase. Every Indian tribe interested in 
     participating in self-governance shall complete a planning 
     phase prior to participating in the program. The planning 
     phase is to include legal and budgetary research and internal 
     tribal government planning and organizational preparation. 
     The planning phase is to be completed to the satisfaction of 
     the tribe.
       (e) Grants. Subject to available appropriations, any Indian 
     tribe interested in participating in self-governance is 
     eligible to receive a grant to plan for participation in the 
     Program or to negotiate the terms of a Compact and funding 
     agreement.
       (f) Receipt of Grant not Required. This section provides 
     that receipt of a grant from HHS is not required to 
     participate in the permanent program.


                         Section 504. Compacts

       This section authorizes Indian tribes to negotiate Compacts 
     with the Secretary and identifies generally the contents of 
     Compacts. While the Compact process was not specifically part 
     of prior legislative enactment, the Committee understands 
     that Compacts have developed as an integral part of Self 
     Governance. The Committee believes that Compacts serve an 
     important and necessary function in establishing government-
     to-government relations, which as noted earlier, is the 
     keystone of modern federal Indian policy.
       (a) Compact Required. The Secretary is required to 
     negotiate and enter into a written Compact consistent with 
     the trust responsibility, treaty obligations and the 
     government-to-government relationship between the United 
     States and each participating tribe.
       (b) Contents. This section requires that Compacts state the 
     terms of the government-to-government relationship between 
     the Indian Tribe and the United States. Compacts may only be 
     amended by agreement of both parties.
       (c) Existing Compacts. Upon enactment of Title V, Indian 
     tribes have the option of retaining their existing Compacts, 
     or any portion of the Compacts that do not contradict the 
     provisions of Title V.
       (d) Term and Effective Date. The date of approval and 
     execution by the Indian Tribe is generally the effective date 
     of a Compact, unless otherwise agreed to by the parties. A 
     Compact will remain in effect as long as permitted by federal 
     law or until terminated by written agreement of the parties, 
     or by retrocession or reassumption.


                    Section 505. Funding Agreements

       This section authorizes Indian tribes to negotiate funding 
     agreements with the Secretary and identifies generally the 
     contents of those agreements.
       (a) Funding Agreement Required. The Secretary is required 
     to negotiate and enter into a written funding agreement 
     consistent with the trust responsibility, treaty obligations 
     and the government-to-government relationship between the 
     United States and each participating tribe.
       (b) Contents. An Indian tribe may include in an funding 
     agreement all programs, functions, services, or activities, 
     (or portions thereof) that it is authorized to carry out 
     under Title I of the Act. Funding agreements may, at the 
     option of the Indian tribe, authorize the Tribe to plan and 
     carry-out all programs, functions, services, or activities 
     (or portion thereof) administered by the IHS

[[Page E1984]]

     that are carried out for the benefit of Indians because of 
     their status as Indians or where Indian tribes or Indian 
     beneficiaries are the primary or significant beneficiaries, 
     as set forth in status. For each program, function, service, 
     or activity (or portion thereof) included in a funding 
     agreement, an Indian tribe is entitled to receive its full 
     tribal share of funding, including funding for all local, 
     field, service unit, area, regional, and central/
     headquarters or national office locations. Available 
     funding includes the Indian tribe's share of discretionary 
     IHS competitive grants but not statutorily mandated 
     competitive grants.
       The Committee is concerned with the reluctance of the 
     Indian Health Service to include all available federal health 
     funding in self governance funding agreements. We note, as an 
     example, the refusal of the IHS to so include the Diabetes 
     Prevention Initiative funding. As a result, funding was 
     delayed and undue administrative requirements diverted 
     resources from direct services. This section is intended to 
     directly remedy this situation.
       The Committee has received ample testimony showing the 
     benefits of self governance. In 1998, the National Indian 
     Health Board recently released its' ``National Study on Self-
     Determination and Self-Governance,'' providing empirical 
     evidence that self-governance leads to more efficient 
     management of tribal health service delivery, especially 
     preventive services. This study consistently observed an 
     overall improvement in quality of care when tribes operate 
     their own Health Care systems. Less than full funding 
     agreements will result in less than maximum use of federal 
     resources to address the health care in Indian country. 
     Accordingly, this section is to be interpreted broadly by 
     affording a presumption in favor of including in a tribe's 
     self-governance funding agreement any federal funding 
     administered by that Agency.
       (c) Inclusion in Compact or Funding Agreement. Indians do 
     not need to be specifically identified in authorizing 
     legislation for a program to be eligible for inclusion in a 
     Compact or funding agreement.
       (d) Funding Agreement Terms. Each funding agreement should 
     generally set out the programs, functions, services, or 
     activities, (or portions thereof) to be performed by the 
     Indian tribe, the general budget category assigned to each 
     program, function, service, or activity (or portion thereof), 
     the funds to be transferred, the time and method of payment 
     and other provisions that the parties agree to.
       (e) Subsequent Funding Agreements. Each funding agreement 
     remains in full force and effect unless the Secretary 
     receives notice from the Indian tribe that it will no longer 
     operate one or more of the programs, functions, services, or 
     activities, (or portions thereof) included in the funding 
     agreement or until a new funding agreement is executed by the 
     parties.
       The Committee is concerned with reports that the IHS has 
     been able to use the annual negotiations provisions of 
     Section 303(a) of the Act to obtain an unfair bargaining 
     advantage during negotiations by threatening to suspend 
     application of the Act to a tribe if it does not sign an 
     Annual Funding Agreement. This subsection is meant to 
     facilitate negotiation between the tribes and the Indian 
     Health Service on a true government-to-government basis. The 
     Committee believes the retroactive provision is fair because 
     this assures that no act or omission of the federal 
     government endangers the health and welfare of tribal 
     members.
       (f) Existing Funding Agreements. Upon enactment of Title V, 
     Tribes may either retain their existing annual funding 
     agreements, or any portion thereof, that do not conflict with 
     provisions of title V, or negotiate new funding agreements 
     that conform to Title V.
       (g) Stable Base Funding. An Indian tribe may include a 
     stable base budget in its funding agreement. A stable base 
     budget contains the tribe's recurring funding amounts and 
     provides for transfer of the funds in a predictable and 
     consistent manner over a specific period of time. Adjustments 
     are made annually only if there are changes in the level of 
     funds appropriated by Congress. Non-recurring funds are not 
     included and must be negotiated on an annual basis. The 
     Committee intends this section to codify the existing Agency 
     policy guidance on stable base funding.


                    Section 506. General Provisions

       (a) Applicability. The provisions in this section may, at 
     the tribe's option, be included in a Compact or funding 
     agreement negotiated under Title V.
       (b) Conflicts of Interest. Indian tribes are to assure that 
     internal measures are in place to address conflicts of 
     interest in the administration of programs, functions, 
     services, or activities, (or portions thereof).
       (c) Audits. The Single Agency Audit Act applies to Title V 
     funding agreements. Indian tribes are required to apply cost 
     principles set out in applicable OMB Circulars, as modified 
     by section 106 of Title I or by any exemptions that may be 
     applicable to future OMB Circulars. No other audit or 
     accounting standards are required. Claims against Indian 
     tribes by the Federal Government based on any audit of funds 
     received under a Title V funding agreement are subject to the 
     provisions of section 106(f) of Title I.
       (d) Records. An Indian tribe's records are not considered 
     federal records for purposes of the Federal Privacy Act, 
     unless otherwise stated in the Compact or funding agreement. 
     Indian tribes are required to maintain a record keeping 
     system and, upon reasonable advance request, provide the 
     Secretary with reasonable access to records to enable HHS to 
     meet its minimum legal record keeping requirements under the 
     Federal Records Act.
       (e) Redesign and Consolidation. An Indian tribe may 
     redesign or consolidate programs, functions, services, or 
     activities, (or portions thereof) and reallocate or redirect 
     funds in any way the Indian tribe considers to be in the best 
     interest of the Indian community. Any redesign or 
     consolidation, however, must not have the effect of unfairly 
     denying eligibility to people otherwise eligible to be served 
     under federal law.
       (f) Retrocession. An Indian tribe may retrocede fully or 
     partially back to the Secretary any program, function, 
     service, or activity (or portion thereof) included in a 
     Compact or funding agreement. A 1retrocession request becomes 
     effective within the time frame specified in the Compact or 
     funding agreement, one year from the date the request was 
     made, the date the funding agreement expires, or any date 
     mutually agreed to by the parties, whichever occurs first.
       (g) Withdrawal. An Indian tribe that participates in self-
     governance through an inter-tribal consortium or tribal 
     organization can withdraw from the consortium or 
     organization. The withdrawal becomes effective within the 
     time frame set out in the tribe's authorizing resolution. If 
     a time frame is not specified, withdrawal becomes effective 
     one year from the submission of the request or on the date 
     the funding agreement expires, whichever occurs first. An 
     alternative date can be agreed to by the parties, including 
     the Secretary.
       When an Indian tribe withdraws from an inter-tribal 
     consortium or tribal organization and wishes to enter into a 
     Title I contract or Title V agreement on its own, it is 
     entitled to receive its share of funds supporting the 
     program, function, service, or activity, (or portion thereof) 
     that it will carry out under its new status. The funds must 
     be removed from the funding agreement of the participating 
     organization or inter-tribal consortium and included in the 
     withdrawing tribe's agreement or contract. If the withdrawing 
     tribe is to receive services directly from the Secretary, the 
     tribe's share of funds must be removed from the funding 
     agreement of the participating organization or inter-tribal 
     consortium and retained by the Secretary to provide services. 
     Finally, an Indian tribe that chooses to terminate its 
     participation in the self-governance program may, at its 
     option, carry out programs, functions, services, or 
     activities, (or portions thereof) in a Title I contract of 
     Self-Governance funding agreement and retain its mature 
     contractor status.
       (h) Nonduplication. This section provides that a tribe 
     operating programs under a Self-Governance compact may not 
     contract under Title I (a ``638 contract'') for the same 
     programs.


           Section 507. Provisions Relating to the Secretary

       This section sets out mandatory and non-mandatory 
     provisions relating to the Secretary's obligations.
       (a) Mandatory Provisions.
       (1) Health Status Reports. To the extent that the data is 
     not otherwise available to the Secretary, Compacts and 
     funding agreements must include a provision requiring the 
     Indian tribe to report data on health status and service 
     delivery. The Secretary is to use this data in her annual 
     reports to Congress. The Secretary is required to provide 
     funding to the Indian tribe to compile such data. Reporting 
     requirements can only impose minimal burdens on the Indian 
     tribe and may only be imposed if they are contained in 
     regulations developed under negotiated rulemaking.
       (2) Reassumption. Compacts or funding agreements must 
     include a provision authorizing the Secretary to reassume a 
     program, function, service, or activity, (or portion thereof) 
     if she makes a finding of imminent endangerment of the public 
     health caused by the Indian tribe's failure to carry out the 
     Compact or funding agreement or gross mismanagement that 
     causes a significant reduction in available funding. The 
     Secretary is required to provide the Indian tribe with notice 
     of a finding. The Indian tribe may take action to correct the 
     problem identified in the notice. The Secretary has 
     the burden at the hearing of demonstrating by clear and 
     convincing evidence the validity of the grounds for 
     reassumption. In cases where the Secretary finds imminent 
     substantial and irreparable endangerment of the public 
     health caused by the tribe's failure to carry out the 
     Compact or funding agreement, the Secretary may 
     immediately reassume the program but is required to 
     provide the tribe with a hearing on the record within ten 
     days after reassumption.
       (b) Final Offer. If the parties cannot agree on the terms 
     of a Compact or funding agreement, the Indian tribe may 
     submit a final offer to the Secretary. The Secretary has 45 
     days to determine if the offer will be accepted or rejected. 
     The 45 days can be extended by the Indian tribe. If the 
     Secretary takes no action the offer is deemed accepted by the 
     Secretary.
       (c) Rejection of Final Offers. This provision describes the 
     only circumstances under which the Secretary may reject an 
     Indian tribe's final offer.
       A rejection requires written notice to the Indian tribe 
     within 45 days of receipt with

[[Page E1985]]

     specific findings that clearly demonstrate or are supported 
     by controlling legal authority that: (1) the amount of funds 
     proposed exceeds the funding level that the Indian tribe is 
     entitled to; (2) the program, function, service, or activity 
     (or portion thereof) that is the subject of the offer is an 
     inherent federal function that only can be carried out by the 
     Secretary; (3) the applicant is not eligible to participate 
     in self-governance; or (4) the Indian tribe cannot carry out 
     the program, function, service or activity, (or portion 
     thereof) without a significant danger or risk to the public 
     health. The Committee believes the fourth provision 
     appropriately balances the Secretary's trust responsibility 
     to assure the delivery of health care services to Indian 
     beneficiaries, with the equally important goal of fostering 
     maximum tribal self-determination in the administration of 
     health care programs transferred under Title V. The Committee 
     has included the requirement of a ``specific finding'' is 
     included to avoid rejections which merely state conclusory 
     statements that offer no analysis and determination of facts 
     supporting the rejection.
       The Secretary must also offer assistance to the Indian 
     tribe to overcome the stated objections, and must provide the 
     Indian tribe with an opportunity to appeal the rejection and 
     have a hearing on the record. In any hearing the Indian tribe 
     has the right to engage in full discovery. The Indian tribe 
     also has the option to proceed directly to federal district 
     court under section 110 of Title I of the Act in lieu of an 
     administrative hearing.
       The Secretary may only reject those portions of a ``final 
     offer'' which do not justify a rejection. By entering into a 
     partial Compact or funding agreement the Indian tribe does 
     not waive its right to appeal the Secretary's decision for 
     the rejected portions of the offer.
       (d) Burden of Proof. The Secretary has the burden of 
     demonstrating by clear and convincing evidence the validity 
     of a rejection of a final offer in any hearing, appeal or 
     civil action. A decision relating to an appeal within the 
     Department is considered a final agency action if it was made 
     by an administrative judge or by an official of the 
     Department whose position is at a higher level than the level 
     of the departmental agency in which the decision that is 
     the subject of the appeal was made.
       (e) Good Faith. The Secretary is required to negotiate in 
     good faith and carry out his discretion under Title V in a 
     manner that maximizes the implementation of self-governance.
       (f) Reduction of Secretarial Responsibilities. Any savings 
     in the Department's administrative costs that result from the 
     transfer of programs, functions, services, or activities, (or 
     portions thereof) to Indian tribes in self-governance 
     agreements that are not otherwise transferred to Indian 
     tribes under Title V must be made available to Indian tribes 
     for inclusion in their Compacts or funding agreements. We 
     have consistently indicated that Self Governance should 
     achieve reductions in federal bureaucracy and create 
     resultant cost savings. This subsection makes clear that such 
     savings are for the benefit of the Indian tribes. Savings are 
     not to be utilized for other agency purposes, but rather are 
     to be provided as additional funds or services to all tribes, 
     inter-tribal consortia, and tribal organizations in a fair 
     and equitable manner.
       (g) Trust Responsibility. The Secretary is prohibited from 
     waiving, modifying or diminishing the trust responsibilities 
     or other responsibilities as reflected in treaties, executive 
     orders or other laws and court decisions of the United States 
     to Indian tribes and individual Indians. The Committee 
     reaffirms that the protection of the federal trust 
     responsibility to Indian tribes and individuals is a key 
     element of Self Governance. The ultimate and legal 
     responsibility for the management and preservation of trust 
     resources resides with the United States as Trustee. The 
     Committee believes that health care is a trust resource 
     consistent with federal court decisions. This subsection 
     continues the practice of permitting substantial tribal 
     management of its trust resources provided that tribal 
     activities do not replace the trustee's specific legal 
     responsibilities. Section 507(a)(2) (reassumption) with its 
     concept of imminent endangerment of the public health 
     provides guidance in defining the Secretary's trust 
     obligation in the health context.
       (h) Decisionmaker. Final agency action is a decision by 
     either an official from the Department at any higher 
     organizational level than the initial decision maker or an 
     administrative law judge. Subparagraph (h)(2) is included to 
     assure that the persons deciding an administrative appeal are 
     not the same individuals who made the initial decision to 
     reject a tribe's ``final offer.''


                     Section 508. Transfer of Funds

       (a) In General. The Secretary is required to transfer all 
     funds provided for in a funding agreement, pursuant to 
     Section 509(c) below. Funds are also required to be provided 
     for periods covered by continuing resolutions adopted by 
     Congress, to the extent permitted by such resolutions. When a 
     funding agreement requires that funds be transferred at the 
     beginning of the fiscal year, the transfer are to be made 
     within 10 days after the Office of Management and Budget 
     apportions the funds, unless the funding agreement states 
     otherwise.
       (b) Multi-Year Funding. The Secretary is authorized to 
     negotiate multi-year funding agreements.
       (c) Amount of Funding. The Secretary is required to provide 
     an Indian tribe the same funding for a program, function, 
     service, or activity, (or portion thereof) under self-
     governance that the tribe would have received under Title I. 
     This includes all Secretarial resources that support the 
     transferred program, and all contract support costs 
     (including indirect costs) that are not available from the 
     Secretary but are reasonably necessary to operate the 
     program. The bill requires that the transfer of funds occur 
     along with the transfer of the program. Thus the bill states 
     that ``the Secretary shall provide'' the funds specified, and 
     the Secretary is not authorized to phase-in funds in any 
     manner that is not voluntarily agreed to by Self-Governance 
     tribe.
       (d) Prohibitions. The Secretary is specifically prohibited 
     from withholding, refusing to transfer or reducing any 
     portion of an Indian tribe's full share of funds during a 
     Compact or funding agreement year, or for a period of years. 
     The Committee is aware that for the first twenty-one years of 
     administration of the Indian Self-Determination Act, the 
     Department had never taken the position that it has the 
     discretion to delay funding for any program transferred under 
     the Act absent tribal consent. However, a 1996 IHS circular 
     purported to do just that. Since this circular was issued, 
     several Area offices have refused to turn over substantial 
     program funds to tribal operation. In one instance both an 
     Area office and Headquarters refused to transfer portions of 
     programs for several years, and with respect to several 
     Headquarters functions the IHS refused to transfer the 
     functions altogether. A recent Oregon Federal district court 
     decision declared Indian Health Service's actions in these 
     instances illegal and the Committee agrees.
       Additionally, funds that an Indian tribe is entitled to 
     receive may not be reduced to make funds available to the 
     Secretary for monitoring or administration; may not be used 
     to pay for federal functions (such as pay costs or retirement 
     benefits); and, may not be used to pay costs associated with 
     federal personnel displaced by self-governance or Title I 
     contracting.
       In subsequent years, funds may only be reduced in very 
     limited circumstances: if Congress reduces the amount 
     available from the prior year's appropriation; if there is a 
     directive in the statement of managers which accompanies an 
     appropriation; if the Indian tribe agrees; if there is a 
     change in the amount of pass-through funds; or, if the 
     project contained in the funding agreement has been 
     completed.
       (e) Other Resources. If an Indian tribe elects to carry out 
     a Compact or funding agreement using federal personnel, 
     supplies, supply sources or other resources that the 
     Secretary has available under procurement contracts, the 
     Secretary is required to acquire and transfer the personnel, 
     supplies or resources to the Indian tribe.
       (f) Reimbursement to Indian Health Service. The Indian 
     Health Service is authorized on a reimbursable basis to 
     provide goods and services to tribes. Reimbursements are to 
     be credited to the same or subsequent appropriation account 
     which provided the initial funding. The Secretary is 
     authorized to receive and retain the reimbursed amounts until 
     expended without remitting them to the Treasury.
       (g) Prompt Payment Act. This subsection makes the Prompt 
     Payment Act (31 U.S.C. Chapter 39) applicable to the transfer 
     of all funds due to a tribe under a Compact or funding 
     agreement. The first annual or semi-annual transfer due under 
     a funding agreement must be made within 10 calendar days of 
     the date the Office of Management and Budget apportions the 
     appropriations for that fiscal year. Under this section, the 
     Secretary is obligated to pay to a Self-Governance tribe 
     interest, as calculated under the Prompt Payment Act, for any 
     late payment under a funding agreement.
       (h) Interest or Other Income on Transfers. An Indian tribe 
     may retain interest earned or other income on funds 
     transferred under a Compact or funding agreement. Interest 
     earned must not reduce the amount of funds the tribe is 
     entitled to receive during the year the interest was earned 
     or in subsequent years. An Indian tribe may invest funds 
     received in a funding agreement as it wishes, provided it 
     follows the ``prudent investment standard'', a commonly 
     utilized fiduciary standard, that the Committee believes is 
     strict enough to ensure that funds are invested wisely and 
     safely yet provide a reasonable yield on investment.
       Eligible investments under the prudent investment standard 
     may include the following: (1) cash and cash equivalents 
     (including bank checking accounts, savings accounts, and 
     brokerage account free cash balances that carry a quality 
     rating A1 P1, or AA or higher) (2) money market accounts with 
     an A rating or higher, (3) certificates of deposit where the 
     amounts qualify for insurance ($100,000 or less) or where the 
     issuing bank has delivered a specific assignment, (4) bank 
     repossession certificates where the amounts qualify for 
     insurance ($100,000 or less) or where the issuing bank has 
     delivered a specific assignment, (5) U.S. Government or 
     Agency Securities, (6) commercial paper rated A1 P1 at time 
     of purchase and which cannot exceed 10% of portfolio at time 
     of purchase with any one issuer (short term paper--under 90 
     days--may be treated as a cash equivalent), (7) auction rate 
     preferred instruments that are issued by substantial issuers, 
     are rated AA or better, and may be utilized with auction 
     maturities of 28 to 90

[[Page E1986]]

     days, (8) corporate bonds of U.S. Corporations that have 
     Moody's, Standard and Poor's, or Fitch's rating of A or 
     equivalent and where no more than 10% of portfolio at time of 
     purchase is invested in the securities of any one issuer, (9) 
     dollar denominated short term bonds of the G7 Nations or 
     World Bank only if the yields exceed those of U.S. 
     instruments of equivalent maturity and quality, and where no 
     more than 25% of portfolio at time of purchase is invested in 
     this asset category, (10) properly registered short term no-
     load government or corporate bond mutual funds with a safety 
     rating and average fund quality of A or higher, which 
     demonstrate low volatility, and where no more than 25% of 
     portfolio at time of purchase is invested in any one fund.
       Carryover of Funds. All funds paid to an Indian tribe under 
     a Compact or funding agreement are ``no year'' funds and may 
     be spent in the year they are received or in any future 
     fiscal year. Carryover funds are not to reduce the amount of 
     funds that the tribe may receive in subsequent years.
       (j) Program Income. All program income (including Medicare/
     Medicaid) earned by an Indian tribe is supplemental to the 
     funding that is included in its funding agreement. The 
     Secretary may not reduce the amount of funds that the Indian 
     tribe may receive under its funding agreement for future 
     fiscal years. The Indian tribe may retain such income and 
     spend it either in the current or future years.
       (k) Limitation of Costs. An Indian tribe is not required to 
     continue performance of a Program, function, service, or 
     activity (or portion thereof) included in a funding agreement 
     if doing so requires more funds than were provided under the 
     funding agreement. If an Indian tribe believes that the 
     amount of funds transferred is not enough to carry out a 
     program, function, service, or activity, (or portion thereof) 
     for the full year, the Indian tribe may so notify the 
     Secretary. If the Secretary does not supply additional funds 
     the tribe may suspend performance of the program, function, 
     service, or activity (or portion thereof) until additional 
     funds are provided.


                   Section 509. Construction Projects

       (a) In General. Indian tribes are authorized to conduct 
     construction projects authorized under this Section. The 
     tribes are to assume full responsibility for the projects, 
     including responsibility for enforcement and compliance with 
     all relevant federal laws, including the National Historic 
     Preservation Act of 1966 and the National Environmental 
     Policy Act of 1969. A tribe undertaking a construction 
     project must designate a certifying officer to represent the 
     tribe and accept federal court jurisdiction for purposes of 
     the enforcement of federal environmental laws.
       (b) Negotiations. This subsection provides that negotiation 
     of construction projects are negotiated pursuant to Section 
     105(m) of the Act and construction project agreements 
     included in the funding agreement as an addendum.
        (c) Codes and Standards. The tribes and the IHS must agree 
     to standards and codes for the construction project. The 
     agreement will be in conformity with nationally accepted 
     standards for comparable projects.
       (d) Responsibility for Completion. This subsection provides 
     that the Indian tribe must assume responsibility for the 
     successful completion of the project according to the terms 
     of the construction project agreement.
       (e) Funding. This subsection provides that funding of 
     construction projects will be through advance payments, on 
     either an annual or semi-annual basis. Payment amounts will 
     be determined by project schedules, work already completed, 
     and the amount of funds already expended. Flexibility in 
     payment schedules will be maintained by the IHS through 
     contingency funds to take account of exigent circumstances 
     such as weather and supply.
       (f) Approval. This subsection allows the Secretary to have 
     at least one opportunity to approve tribal project planning 
     and design documents or significant amendments to the 
     original scope of work before construction. The tribe is to 
     provide at least semiannual progress and financial reports. 
     The Secretary is allowed to conduct semiannual site visits or 
     on another basis if agreed to by the tribe.
       (g) Wages. This subsection mirrors section 7(a) of the 
     Indian Self-Determination and Education Assistance Act which 
     incorporates Davis-Bacon wage protections for workers.
       (h) Application of Other Laws. This subsection provides 
     that provisions of the Office of Federal Procurement Policy 
     Act, the Federal Acquisition Regulations, and other federal 
     procurement laws and regulations do not apply to construction 
     projects, unless agreed to by the participating tribe.


     Section 510. Federal Procurement Laws and Program Regulations

       This section provides that unless otherwise agreed to by 
     the parties, Compacts and funding agreements are not subject 
     to federal contracting or cooperative agreement laws and 
     regulations (including executive orders) unless those laws 
     expressly apply to Indian tribes. Compacts and funding 
     agreements are also not subject to program regulations that 
     apply to the Secretary's operations.


                       Section 511. Civil Actions

       (a) Contract Defined. The Committee intends that Section 
     110 of Title I of the Act, which grants tribes access to 
     Federal District Court to challenge a decision by the 
     Secretary, shall apply to this Title.
       (b) Applicability of Certain Laws. This subsection provides 
     that Department of Interior approval of tribal contracts (25 
     U.S.C. 81) and section 16 of the Indian Reorganization Act 
     (25 U.S.C. 476) shall not apply to attorney and other 
     professional contracts with Self-Governance tribes.


                       Section 512. Facilitation

       (a) Secretarial Interpretation. This section requires the 
     Secretary to interpret all executive orders, regulations and 
     federal laws in a manner that will facilitate the inclusion 
     of programs, functions, services, or activities, (or portions 
     thereof) and funds associated therewith under Title V, 
     implementation of Title V Compacts and funding agreements, 
     and the achievement of Tribal health goals and objectives 
     where they are not inconsistent with Federal law. This 
     section reinforces the Secretary's obligation not merely to 
     provide health care services to Native American tribes, but 
     to facilitate the efforts of tribes to manage those programs 
     for the maximum benefit of their communities.
       (b) Regulation Waiver. An Indian tribe participating in 
     Self-Governance under Title V may seek a waiver of an 
     applicable Indian Self-Determination Act regulation by 
     submitting a written waiver request to the Secretary. The 
     Secretary has 90 days to respond and a failure to act within 
     that period is deemed an approval of the request by operation 
     of law. Action on a waiver request is final for the 
     Department. Denials may be made upon a specific finding that 
     the waiver is prohibited by federal law. Failure to act 
     within the 90 day period by the Secretary is deemed an 
     approval.
       (c) Access to Federal Property. This subsection addresses 
     tribal use of federal buildings, hospitals and other 
     facilities, as well as the transfer to tribes of title to 
     excess personal or real property. At the request of an Indian 
     tribe the Secretary is required to permit the Indian tribe to 
     use government-owned real or personal property under the 
     Secretary's jurisdiction under such terms as the parties may 
     agree to.
       The Secretary is required to donate title to personal or 
     real property that is excess to the needs of any agency or 
     the General Services Administration as long as the Secretary 
     has determined that the property is appropriate for any 
     purpose for which a compact is authorized, irrespective of 
     whether a tribe is in fact administering a particular program 
     that matches that purpose. For instance, if a tribe is not 
     administering a mental health program under its IHS compact 
     or funding agreement, the Secretary may nonetheless acquire 
     excess or surplus property and donate such property to the 
     tribe so long as the Secretary determines that the tribe will 
     be using the property to administer mental health services.
       Title to property furnished by the government or purchased 
     with funds received under a Compact or funding agreement 
     vests in the Indian tribe if it so chooses. Such property 
     also remains eligible for replacement, maintenance or 
     improvement on the same terms as if the United States had 
     title to it. Any property that is worth $5,000 or more at the 
     time of a retrocession, withdrawal or reassumption may revert 
     back to the United States at the option of the Secretary.
       (d) Matching or Cost-Participation Requirement. Funds 
     transferred under Compacts and funding agreements are to be 
     considered non-federal funds for purposes of meeting matching 
     or cost participation requirements under federal or non-
     federal programs.
       (e) State Facilitation. This section encourages and 
     authorizes States to enter agreements with tribes 
     supplementing and facilitating Title V and other federal laws 
     that benefit Indians and Indian tribes, for example, welfare 
     reform. It is designed to provide federal authority so as to 
     remove equal protection objections where states enter into 
     special arrangements with tribes.
       The Committee wants to foster enlightened and productive 
     partnerships between state and local governments, on the one 
     hand, and Indian tribes on the other; and, the Committee 
     wants to be sure that states are authorized by the Federal 
     Government to undertake such initiatives, as part of the 
     Federal Government's constitutional authority to deal with 
     Indian tribes as political entities, irrespective of any 
     limitations which have from time to time been argued might 
     otherwise exist with respect to state action under either 
     state constitutional provisions or other provisions of the 
     Constitution. Many state and tribal governments have 
     undertaken positive initiatives both in health care issues 
     and in natural resource management, and it is the Committee's 
     strong desire to fully support, authorize and encourage such 
     cooperative efforts.
       (f) Rules of Construction. Provisions in this Title and in 
     Compacts and funding agreements shall be liberally construed 
     and ambiguities decided for the benefit of the Indian tribe 
     participating in the program.


                      Section 513. Budget Request

       (a) The President is required to annually identify in his/
     her budget all funds needed to fully fund all Title V 
     Compacts and funding agreements. These funds are to be 
     apportioned to the Indian Health Service which will then be 
     transferred to the Office of Tribal Self-Governance. The IHS 
     may not thereafter reduce the funds a tribe is otherwise 
     entitled to receive whether or not such funds have been 
     apportioned to the Office of Tribal Self-Governance.

[[Page E1987]]

       The Committee has been made aware that the current system 
     for payment and approval of funding and amendments for Annual 
     Funding Agreements for Self-Governance Demonstration tribes 
     is inefficient and time consuming. In addition, by leaving 
     authority and responsibility for distributions to Area 
     Offices, there have been reported instances of excessive and 
     unwarranted assertion of authority by Area Offices over self 
     governance tribes. This includes Area Offices retaining 
     shares of funds not authorized to be retained by the tribe's 
     Annual Funding Agreement. The Committee concludes that by 
     requiring a report on Self Governance expenditures, and by 
     moving all Self-Governance funding onto a single line, the 
     Congress will be able to achieve the following ends: more 
     accurately gauge the amount of funding flowing directly to 
     Tribes through participation in Self governance; generate 
     savings through decreasing the bureaucratic burden on the 
     payment and approval process in the Indian Health Service; 
     expedite the transferal of funding to tribal operating units; 
     and, aid in the implementation of true government to 
     government relations and tribal self determination.
       (b) The budget must identify the present level of need and 
     any shortfalls in funding for every Indian tribe in the 
     United States that receives services directly from the 
     Secretary, through a Title I contract or in a Title V Compact 
     and funding agreement.


                          section 514. reports

       (a) Annual Report. The Secretary is required to submit to 
     Congress on January 1 of every year a written report on the 
     Self-Governance program. The report is to include the level 
     of need presently funded or unfunded for every Indian tribe 
     in the United States that receives services directly from the 
     Secretary, through a Title I contract or in a Title V Compact 
     and funding agreement. The Secretary may not impose reporting 
     requirements on Indian tribes unless specified in Title V.
       (b) Contents. The Secretary's report must identify: (1) the 
     costs and benefits of self-governance; (2) all funds related 
     to the Secretary's provision of services and benefits to 
     self-governance tribes and their members; (3) all funds 
     transferred to self-governance tribes and the corresponding 
     reduction in the federal bureaucracy; (4) the funding formula 
     for individual tribal shares; (5) the amount expended by the 
     Secretary during the preceding fiscal year to carry out 
     inherent federal functions; and (6) contain a description of 
     the method used to determine tribal shares. The Secretary's 
     report must be distributed to Indian tribes for comment no 
     less than 30 days prior to its submission to Congress and 
     include the separate views of Indian tribes.
       (c) Report on IHS Funds. This section requires the 
     Secretary to consult with Indian tribes and report, within 
     180 days after Title V is enacted, on funding formulae used 
     to determine tribal shares of funds controlled by IHS. The 
     formulae are to become a part of the annual report to 
     Congress discussed above in Section 514(d). This provision is 
     not intended to relieve HHS from its obligation under Title V 
     to make all funds controlled by the central office, national, 
     headquarters or regional offices available to Indian tribes. 
     This provision is also not intended to require reopening 
     funding formulae that are already being used by HHS to 
     distribute funds to Indian tribes. Any new formulae or 
     revision of existing formulae should be determined only 
     after significant regional and national tribal 
     consultation.


                        Section 515. Disclaimers

       (a) No Funding Reduction. This provision states that 
     nothing in Title V shall be interpreted to limit or reduce 
     the funding for any program, project or activity that any 
     other Indian tribe may receive under Title I or other 
     applicable federal laws. A tribe that alleges that a Compact 
     or funding agreement violates this section may rely on 
     Section 110 of the Act to seek judicial review of the 
     allegation.
       (b) Federal Trust and Treaty Responsibilities. This section 
     clarifies that the trust responsibility of the United States 
     to Indian tribes and individual Indians which exists under 
     treaties, Executive Orders, laws and court decisions shall 
     not be reduced by any provision of Title V.
       (c) Tribal Employment. This provision excludes Indian 
     tribes carrying out responsibilities under a Compact or 
     funding agreement from falling under the definition of 
     ``employer'' as that term is used in the National Labor 
     Regulations Act.
       (d) Obligations of the United States. The IHS is prohibited 
     from billing, or requiring Indian tribes from billing, 
     individual Indians who have the economic means to pay for 
     services. For many years the Interior and Related Agencies 
     Appropriations Bills included language that prohibited the 
     Indian Health Service, without explicit direction from 
     Congress, from billing or charging Indians who have the 
     economic means to pay. In 1997 the language was removed from 
     the Appropriation bills and it has not been included since. 
     This section reflects the Committee's intent that the IHS is 
     prohibited from billing Indians for services, and is further 
     prohibited from requiring any Indian tribe to do so.


         Section 516. Application of Other Sections of the Act

       (a) This section expressly incorporates a number of 
     provisions from other areas of the Indian Self-Determination 
     and Education Assistance Act into Title V. These sections 
     include: 5(b) (access for three years to tribal records), 6 
     (setting our penalties that apply if an individual embezzles 
     or otherwise misappropriates funds under Title V); 7 (Davis-
     Bacon wage and labor standards and Indian preference 
     requirements); 102(c) and (d) (relating to Federal Tort 
     Claims Act coverage); 104 (relating to the right to use 
     federal personnel to carry out responsibilities in a Compact 
     or funding agreement); 105(k) (access to federal supplies); 
     111 (clarifying that Title V shall have no impact on existing 
     sovereign immunity and the United States' trust 
     responsibility); and section 314 Public Law No. 101-512 
     (coverage under the Federal Tort Claims Act).
       (b) At the request of an Indian tribe, other provisions of 
     Title I of the Indian Self-Determination Act which do not 
     conflict with provisions in Title V may be incorporated into 
     a Compact or funding agreement. If incorporation is requested 
     during negotiations it will be considered effective 
     immediately.


                        Section 517. Regulations

       This section gives the Secretary limited authority to 
     promulgate regulations implementing Title V.
       (a) In general. The Secretary is required to initiate 
     procedures to negotiate and promulgate regulations necessary 
     to carry out Title V within 90 days of enactment of Title V. 
     The procedures must be developed under the Federal Advisory 
     Committee Act. The Secretary is required to publish proposed 
     regulations no later than one year after the date of 
     enactment of Title V. The authority to promulgate final 
     regulations under Title V expires 21 months after enactment. 
     The Committee is aware of the success of the Title I 
     negotiated rulemaking and believes that one reason for its 
     success is a similar limitation of rulemaking authority 
     contained in section 107(a) of the Indian Self-Determination 
     Act, which this section is modeled after.
       (b) Committee. This provision requires that a negotiated 
     rulemaking committee made up of federal and tribal government 
     members be formed in accordance with the Negotiated 
     Rulemaking Act. A majority of the tribal committee members 
     must be representatives of and must have been nominated by 
     Indian tribes with Title V Compacts and funding agreements. 
     The committee will confer with and allow representatives of 
     Indian tribes, inter-tribal consortiums, tribal organizations 
     and individual tribal members to actively participate in the 
     rulemaking process.
       (c) Adaptation of Procedures. The negotiated rulemaking 
     procedures may be modified by the Secretary to ensure that 
     the unique context of self-governance and the government-to-
     government relationship between the United States and Indian 
     tribes is accommodated.
       (d) Effect. The effect of Title V shall not be limited if 
     regulations are not published.
       (e) Effect of Circulars, Policies, Manuals, Guidances and 
     Rules. Unless an Indian tribe agrees otherwise in a Compact 
     or funding agreement, no agency circulars, policies, manuals, 
     guidances or rules adopted by the IHS apply to the tribe.


                          Section 518. Appeals

       In any appeal (including civil actions) involving a 
     decision by the Secretary under Title V, the Secretary 
     carries the burden of proof. To satisfy this burden the 
     Secretary must establish by clear and convincing evidence the 
     validity of the grounds for the decision made and that the 
     decision is fully consistent with provisions and policies of 
     Title V.


              Section 519. Authorization of appropriations

       This section authorizes Congress to appropriate such funds 
     as are necessary to carry out Title V.


             Section 601. Demonstration Project Feasibility

       This provision requires an 18 month study to determine the 
     feasibility of creating a Tribal Self-Governance 
     Demonstration Project for other agencies, programs and 
     services in the Department of Health and Human Services.
       (a) Study. This subsection authorizes the feasibility 
     study.
       (b) Considerations. This subsection requires the Secretary 
     to consider (1) the effects of a Demonstration Project on 
     specific programs and beneficiaries, (2) statutory, 
     regulatory or other impediments, (3) strategies for 
     implementing the Demonstration Project, (4) associated costs 
     or savings, (5) methods to assure Demonstration Project 
     quality and accountability, and (6) such other issues that 
     may be raised during the consultation process.
       (c) Report. This subsection provides that the Secretary is 
     to submit a report to Congress on the results of the study, 
     which programs and agencies are feasible to be included in a 
     Demonstration Project, which programs would not require 
     statutory changes or regulatory waivers, a list of 
     legislative recommendations for programs that are feasible 
     but would require statutory changes, and any separate views 
     of Indian tribes or other entities involved in the 
     consultation process.
       The Committee has deferred to the Secretary's request not 
     to provide for a demonstration or pilot project component to 
     the Feasibility Study to determine how to best apply Self-
     Governance to agencies other than the Indian Health Service 
     at HHS. The Secretary has pledged to work in a cooperative 
     spirit with the Indian tribes to quickly identify those 
     programs outside the IHS that are suitable for Self-
     Governance. The Committee believes that there are agencies 
     and

[[Page E1988]]

     programs outside of the IHS that should be ready to 
     participate in the Self-Governance program at the conclusion 
     of the study and anticipates the introduction of legislation 
     at that time to authorize such participation.


                       Section 602. Consultation

       (a) Study Protocol. This Provision requires the Secretary 
     to consult with Indian tribes to determine a protocol for 
     conducting the study. The protocol shall require that the 
     government-to-government relationship between the United 
     States and the Indian tribes forms the basis for the study, 
     that consultations are jointly conducted by the tribes and 
     the Secretary, and that the consultation process allow for 
     input from Indian tribes and other entities who wish to 
     comment.
       (b) Conducting Study. This provision requires that when the 
     Secretary conducts the study, she is to consult with Indian 
     tribes, states, counties, municipalities, program 
     beneficiaries, and interested public interest groups.


                        Section 603. Definitions

       (a) This subsection is intended to incorporate into Title 
     VI the definitions used in Title V.
       (b) This subsection defines ``agency'' to mean any agency 
     in the Department of Health and Human Services other than the 
     Indian Health Service.


              Section 604. Authorization of Appropriations

       This section authorizes the appropriation of such sums as 
     necessary for fiscal years 1999 and 2000 in order to carry 
     out Title VI.


           Section 5. Amendments Clarifying Civil Proceedings

       (a) This provision amends Section 102(e)(1) of the Act to 
     clarify that the Secretary has the burden of proof in any 
     civil action pursuant to Section 110(a).
       (b) The provision provides that the amendment to Section 
     102(e)(1) set out subsection (a) shall apply to any 
     proceeding commenced after October 25, 1994.


          Section 6. Speedy Acquisition of Goods and Services

       This section requires the Secretary to enter into 
     agreements for acquisition of goods and services for tribes, 
     including pharmaceuticals at the best price and in as fast a 
     manner as is possible, similar to those obtained buy 
     agreement by the Veterans Administration.


                       Section 7. Patient Records

       This section provides that Indian patient records may be 
     deemed to be federal records under the Federal Records Acts 
     in order to allow tribes to store patient records in the 
     Federal Records Center.


                           Section 8. Repeals

       This Section repeals Title III of the Indian Self-
     Determination and Education Assistance Act which authorizes 
     the Demonstration Project replaced by this Act.


                      Section 9. Savings Provision

       This section provides that funds already appropriated for 
     Title III of the Indian Self-Determination and Education 
     Assistance Act shall remain available for use under the new 
     Title V.


                       Section 10. Effective Date

       This section provides that the Act shall take effect on the 
     date of enactment.

     

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