[Congressional Record Volume 146, Number 98 (Tuesday, July 25, 2000)]
[Senate]
[Pages S7536-S7537]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 DEPARTMENT OF INTERIOR APPROPRIATIONS


               indian tribal self-governance regulations

  Mr. McCAIN. Mr. President, I rise to engage several of my colleagues 
in a colloquy about some regulations which the Department of the 
Interior is preparing to issue in final form. These regulations would 
govern the federal and tribal administration of the Tribal Self-
Governance program. I understand there is strong opposition from 
American Indian and Alaska Native groups to a handful of the proposed 
provisions.
  Mr. CAMPBELL. Mr. President, the Senator from Arizona is correct. The 
Committee on Indian Affairs has received a series of communications 
from Native American tribes and tribal organizations indicating their 
opposition to eight of the hundreds of proposed provisions. These eight 
``impasse'' issues appear to involve particularly sensitive matters 
which the Indian tribes believe would seriously set back the advances 
these tribes have made in the field of tribal self-governance during 
the past decade.
  Mr. McCAIN. I share the concerns raised by the Indian tribes, and 
would note that in 1994 when we enacted the Tribal Self-Governance Act, 
the Congress expressly authorized the tribal self-governance effort to 
go forward without regulations. At the same time, we required the 
Department to engage in a negotiated rulemaking with tribal government 
representatives to develop mutually acceptable rules. Now it appears 
that this effort has been largely successful. There are hundreds of 
provisions that have been developed and mutually accepted by the tribal 
and federal representatives. These should be permitted to go forward. 
But as to the eight or so provisions upon which there is a negotiation 
impasse, I believe it would be contrary to the intent of the 1994 Act 
and to the negotiated rulemaking process to impose objectionable 
provisions upon the Indian tribes.
  Mr. INOUYE. I concur in the views of my colleagues, and add that the 
1994 Act has been implemented without the benefit of any regulations 
for the past six years. Accordingly, I can imagine no undue hardship 
would come to the Department if the final regulations are silent as to 
eight of the hundreds of issues addressed in the draft regulations. As 
to these eight so-called ``impasse'' issues, I would encourage the

[[Page S7537]]

Department to simply not issue any regulatory provisions that touch 
upon these objectionable issues. As I understand it, the ninety-five 
percent of the remaining regulations that deal with other issues are 
acceptable to the Indian tribes. The Department should publish those as 
final and withhold from publication of the eight provisions that are 
objectionable. I would inquire of the Chairman of the Committee on 
Indian Affairs as to the nature of the eight objectionable provisions.
  Mr. CAMPBELL. The tribal representatives have provided the Committee 
with a list of eight issues. They have asked the Department to agree to 
not publish any regulatory provision which: limits the reallocation 
authority of a Self-Governance Tribe/consortium by requiring that 
reallocation of funds may only be between programs in annual funding 
agreements; limits the local decision-making of a Self-Governance 
Tribe/consortium by requiring that funds in an annual funding agreement 
shall only be spent on specific programs listed in such funding 
agreement; prohibits Tribal Base funding from including other recurring 
funding within Tribal Priority Allocations; requires renegotiation or 
rejection of a previously executed Self-Governance Compact or Funding 
Agreement or a provision therein; prohibits a Self-Governance Tribe/
consortium from investing funds received under Self-Governance Compacts 
in a manner consistent with the ``prudent investor'' standard; requires 
any Self-Governance Tribe/consortium to adopt ``conflict of interest'' 
standards which differ from those previously adopted by its governing 
body; applies project-specific construction requirements to a tribal 
assumption of project design and other construction management services 
or of road construction activities involving more than one project; or 
fails to provide that ``Inherent Federal functions'' for purposes of 
the published regulations shall mean those Federal functions that 
cannot be legally transferred to a Self-Governance Tribe/consortium.

  Mr. McCAIN. I want to inquire of the chairman on one of these eight 
impasse issues. Is it your understanding that the Department would have 
the regulatory authority, in one of the objectionable regulatory 
provisions, to delete unilaterally certain provisions in the various 
Compacts of Self-Governance that the Department has signed with various 
tribal governments and that have existed as long as nine years? I 
thought we expressly indicated in 1994 when we gave permanent authority 
to the Tribal Self-Governance Demonstration program that these Compacts 
and Annual Funding Agreements are to be bilateral agreements reached on 
a government-to-government basis that cannot be unilaterally amended by 
the Department?
  Mr. CAMPBELL. The Senator is correct. In 1994, the Congress received 
a series of complaints from Indian tribes that the Department was 
attempting to unilaterally amend agreements it had previously reached 
with Indian tribes who were assuming functions previously carried out 
by Federal officials. The Congress had to remind the Department in 1994 
that it must treat the agreements it reached with Indian tribes as 
bilateral accords that cannot be amended except by mutual consent. Now, 
the Department is insisting on a regulation that would permit it to 
unilaterally revise agreements it had previously reached on a bilateral 
basis with individual Indian tribes. The American Indian and Alaska 
Native organizations find these and the remaining seven regulatory 
provisions objectionable, and I agree with them.
  Mr. McCAIN. I hope the Department will withdraw its proposals to 
regulate in each of these eight areas. The negotiated rulemaking 
process works best when it is based upon consensus, and in these eight 
instances the Department has failed to make its case for regulations.
  Mr. INOUYE. I thank my colleagues. I share their concerns. I am 
hopeful that in bringing affected parties together we can resolve these 
differences.
  Mr. CAMPBELL. I thank the Senator and will work with him on this 
issue in the days and weeks ahead.

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