[Senate Report 104-227]
[From the U.S. Government Publishing Office]
Calendar No. 329
104th Congress Report
SENATE
2d Session 104-227
_______________________________________________________________________
TO PROVIDE FOR THE REORGANIZATION OF THE BUREAU OF INDIAN AFFAIRS, AND
FOR OTHER PURPOSES.
_______
January 26, 1996.--Ordered to be printed
_______________________________________________________________________
Mr. McCain, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany S. 814]
[Including cost estimate of the Congressional Budget Office]
The Committee on Indian Affairs to which was referred the
bill (S. 814) to provide for the reorganization of the Bureau
of Indian Affairs, and for other purposes, having considered
the same, reports favorably thereon with an amendment in the
nature of a substitute and recommends that the bill (as
amended) do pass.
The text of the bill, as amended, follows:
Strike out all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE, PURPOSES, TABLE OF CONTENTS, AND DEFINITIONS.
(a) Short Title.--This Act may be cited as the ``Bureau of Indian
Affairs Reorganization Act of 1995''.
(b) Purposes.--The purposes of this Act are--
(1) to ensure the meaningful involvement of Indian tribes as
full negotiation partners with the United States in all efforts
to reorganize and restructure the Bureau of Indian Affairs; and
(2) to ensure the active participation by Indian tribes in
the development of the budget requests for the Bureau of Indian
Affairs and the Indian Health Services which are submitted to
the President by the Secretary of the Interior and the
Secretary of Health and Human Services for inclusion in the
annual budget request submitted by the President to the
Congress pursuant to section 1108 of title 31, United States
Code.
(c) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title, purposes, table of contents, and definitions.
TITLE I--REORGANIZATION COMPACTS
Sec. 101. Reorganization of area offices.
Sec. 102. Reorganization of agency offices.
Sec. 103. Reorganization of central office.
Sec. 104. Authority to spend funds.
Sec. 105. Savings provisions.
Sec. 106. Additional conforming amendments.
Sec. 107. Authorization of appropriations.
Sec. 108. Effective date.
Sec. 109. Separability.
Sec. 110. Suspension of certain administrative actions.
Sec. 111. Statutory construction.
Sec. 112. Tribal authority recognized.
Sec. 113. Renegotiation authority.
Sec. 114. Disclosure of information.
TITLE II--AMENDMENT TO THE INDIAN SELF-DETERMINATION AND EDUCATION
ASSISTANCE ACT
Sec. 201. Budget development.
TITLE III--REFORM OF THE REGULATIONS OF THE BUREAU OF INDIAN AFFAIRS
Sec. 301. BIA Manual.
Sec. 302. Task force.
Sec. 303. Authorization of appropriations.
(d) Definitions.--For purposes of this Act, the following definitions
shall apply:
(1) Area office.--The term ``area office'' means 1 of the 12
area offices of the Bureau of Indian Affairs in existence on
the date of enactment of this Act.
(2) Area office plan.--The term ``area office plan'' means a
plan for the reorganization of an area office negotiated by the
Secretary and Indian tribes pursuant to section 101.
(3) Agency office.--The term ``agency office'' means an
agency office of the Bureau of Indian Affairs in existence on
the date of enactment of this Act.
(4) Agency office plan.--The term ``agency office plan''
means a plan for the reorganization of an agency office
negotiated by the Secretary and Indian tribes pursuant to
section 102.
(5) BIA manual.--The term ``BIA Manual'' means the most
recent edition of the Bureau of Indian Affairs Manual issued by
the Department of the Interior.
(6) Bureau.--The term ``Bureau'' means the Bureau of Indian
Affairs.
(7) Central office.--The term ``central office'' means the
Central Office of the Bureau, and includes the offices of the
Central Office that are housed in Washington, D.C. and
Albuquerque, New Mexico.
(8) Central office plan.--The term ``central office plan''
means the plan for the reorganization of the central office
negotiated by the Secretary and Indian tribes pursuant to
section 103.
(9) Department.--The term ``Department'' means the Department
of the Interior.
(10) Director.--The term ``Director'' means, with respect to
an area office, the Director of the area office.
(11) Function.--The term ``function'' means any duty,
obligation, power, authority, responsibility, right, privilege,
activity, or program.
(12) Indian tribe.--The term ``Indian tribe'' has the same
meaning as in section 4(e) of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450b(e)).
(13) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(14) Superintendent.--The term ``Superintendent'' means the
Superintendent of an agency office.
(15) Tribal priority allocation account.--The term ``tribal
priority allocation account'' means an account so designated by
the Bureau, with respect to which program priorities and
funding levels are established by individual Indian tribes.
(16) Tribal recurring base funding.--The term ``tribal
recurring base funding'' means recurring base funding (as
defined and determined by the Secretary) for the tribal
priority allocation accounts of an Indian tribe allocated to a
tribe by the Bureau.
TITLE I--REORGANIZATION COMPACTS
SEC. 101. REORGANIZATION OF AREA OFFICES.
(a) In General.--Notwithstanding any other provision of law--
(1) not later than 30 days after the date of enactment of
this Act, the Secretary shall notify in writing each Indian
tribe served by an area office of the time and place of the
initial prenegotiation meeting to establish a schedule for
negotiations under this subsection; and
(2) not later than 150 days after the date of enactment of
this Act, the Secretary shall conclude negotiations with the
Indian tribes served by each area office on a reorganization
plan for the area office.
(b) Contents of Area Office Plans.--
(1) In general.--Each area office plan that is prepared
pursuant to this subsection shall provide for the organization
of the area office covered under the plan. To the extent that a
majority of the Indian tribes served by the area office do not
exercise the option to maintain current organizational
structures, functions, or funding priorities pursuant to
paragraph (3), the reorganization plan shall provide, with
respect to the area office covered under the plan, for--
(A) the reorganization of the administrative
structure of the area office;
(B) the reallocation of personnel (including
determinations of office size and functions);
(C) the delegation of authority of the Secretary to
the Director, Superintendents, or Indian tribes;
(D) transfers of functions;
(E) the specification of functions--
(i) retained by the Bureau; or
(ii) transferred to Indian tribes served by
the area office;
(F) the issuance of waivers or other authorities by
the Secretary so that functions and other
responsibilities of the Secretary may be carried out by
the area office or transferred to Indian tribes;
(G) the promulgation of revised regulations relating
to the functions of the area office that are performed
by the area office or transferred to Indian tribes;
(H) the reordering of funding priorities; and
(I) a formula for the transfer, to the tribal
recurring base funding for each Indian tribe served by
the area office, of unexpended balances of
appropriations and other Federal funds made available
to the area office in connection with any function
transferred to Indian tribes pursuant to subparagraph
(E)(ii).
(2) Share of funding.--An area office plan shall include, for
each Indian tribe served by the area office, a negotiated
determination of the share of the Indian tribe of the funds
used by the area office on an annual basis to support functions
and services of each tribe (hereafter in this subsection
referred to as the ``tribal share'').
(3) Option of maintenance of current status.--At the option
of a majority of the Indian tribes served by an area office, a
reorganization plan may provide for the continuation of
organizational structures, functions, or funding priorities of
the area office that are substantially similar to those in
effect at the time of the negotiation of the area office plan.
(4) Approval of area office plan by indian tribes.--
(A) In general.--On the date on which the negotiation
of an area office plan is concluded, the Secretary
shall submit the plan to the Indian tribes served by
the area office for approval.
(B) Effect of failure of indian tribe to approve
plan.--If an Indian tribe served by an area office
fails to approve an area office plan by the date that
is 60 days after the Secretary submits the plan
pursuant to subparagraph (A) to the Indian tribes
served by that office, the plan shall be considered to
have been disapproved by that Indian tribe.
(C) Reorganization compact.--If, by the date
specified in subparagraph (B), a majority of the Indian
tribes approve the area office plan by tribal
resolution or other official act of the governing body
of each Indian tribe involved, the Secretary shall
enter into a reorganization compact pursuant to
subsection (c).
(5) Single tribe area office.--Not later than 30 days after
the date of enactment of this Act, the Secretary shall notify
in writing an Indian tribe that is served by an area office
that serves only that Indian tribe of the time and place of the
initial prenegotiation meeting to establish a schedule for
negotiations for an area office plan. If, by not later than 60
days after the date of enactment of this Act, an Indian tribe
that is served by an area office that serves only that Indian
tribe notifies the Secretary in writing that the Indian tribe
elects to enter into negotiations with the Secretary to prepare
a reorganization plan for the area office--
(A) not later than 150 days after the date of
enactment of this Act, the Secretary shall conclude
such negotiations; and
(B) if, by the date that is 60 days after the date
specified in subparagraph (A), the Indian tribe
approves the area office plan by tribal resolution or
other official act of the governing body of the Indian
tribe, the Secretary shall enter into a reorganization
compact with the Indian tribe to carry out the area
office plan.
(6) Option to take tribal share.--
(A) In general.--If--
(i) by the date specified in paragraph
(4)(B), a majority of the Indian tribes served
by an area office fail to approve an area
office plan, an Indian tribe may, not later
than 60 days after the date specified in
paragraph (4)(B), notify the Secretary in
writing that the Indian tribe elects to receive
directly the tribal share of the Indian tribe;
or
(ii) by the date specified in paragraph
(5)(B), the Indian tribe served by an area
office fails to approve an area office plan,
the Indian tribe may, not later than 60 days
after the date specified in paragraph (5)(B),
notify the Secretary in writing that the Indian
tribe elects to receive directly the tribal
share of the Indian tribe.
(B) Agreement.--Not later than 30 days after the date
on which the Secretary receives a notice under
subparagraph (A), the Secretary shall enter into an
agreement with the Indian tribe for the immediate and
direct transfer to the Indian tribe of an amount equal
to the tribal share, or if the agreement covers a
period of less than 12 months, a prorated amount of the
tribal share. The agreement shall include--
(i) a negotiated determination of the amount,
if any, of residual Federal funds to be
retained by the Secretary for the area office
that are minimally necessary to carry out
trustee and other functions of the Federal
Government that are not delegable to the Indian
tribes served by the area office; and
(ii) a negotiated description of the
responsibilities to be carried out by--
(I) the area office; and
(II) the Indian tribe.
(7) Self-determination and self-governance authorities not
affected.--If an Indian tribe exercises the option to receive a
tribal share of funds in accordance with paragraph (6), the
exercise of that option may not be construed to limit or
restrict any right of that tribe or any other tribe to receive
funds under title I or IV of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450 et seq.), and funds
received under that Act may be included as part of the tribal
share identified in paragraph (6).
(8) Secretarial authority.--If, by the date specified in
subsection (c), a majority of the Indian tribes served by an
area office fail to approve the plan pursuant to paragraph (4),
the organizational structure, functions, and funding priorities
of the area office in effect at the time of the negotiation of
the area office plan shall be determined by the Secretary, in
consultation with the Indian tribes served by that area office,
and in a manner consistent with the exercise by any Indian
tribe of the option to receive directly the tribal share of the
Indian tribe under paragraph (6).
(c) Area Office Reorganization Compacts.--
(1) In general.--Not later than 30 days after the date on
which a majority of the Indian tribes served by the area office
that is the subject of a reorganization plan have approved the
plan pursuant to subsection (b)(4), the Secretary shall enter
into an area office reorganization compact with the Indian
tribes that have approved the plan to carry out that plan
(hereafter in this subsection referred to as the ``area office
reorganization compact'').
(2) Prohibition against certain limitations.--With respect to
an Indian tribe that is not a party to an area office
reorganization compact entered into by the Secretary under this
subsection, nothing in this section may limit or reduce the
level of any service or funding that the Indian tribe would
otherwise receive pursuant to applicable Federal law (including
title I or IV of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450 et seq.)).
SEC. 102. REORGANIZATION OF AGENCY OFFICES.
(a) In General.--Notwithstanding any other provision of law--
(1) not later than 30 days after the date of enactment of
this Act, the Secretary shall notify each Indian tribe in
writing of the time and place of the initial prenegotiation
meeting to establish a schedule for negotiations under this
subsection; and
(2) not later than 150 days after the date of enactment of
this Act, the Secretary, acting through the Superintendent (or
a designee of the Superintendent) of each agency office, shall
conclude negotiations with the Indian tribes served by each
agency office on an agency office plan for each agency office.
(b) Contents of Agency Office Plans.--
(1) In general.--Each agency office plan that is prepared by
the Secretary pursuant to this subsection shall provide for the
organization of the agency office covered under the plan. To
the extent that a majority of the Indian tribes served by the
agency office do not exercise the option to maintain current
organizational structures, functions, or funding priorities
pursuant to paragraph (3), the agency office plan shall
provide, with respect to the agency office covered under the
agency office plan, for--
(A) the reorganization of the administrative
structure of the agency office;
(B) the reallocation of personnel (including
determinations of office size and functions);
(C) the delegation of authority of the Secretary to
the Superintendent or Indian tribes;
(D) transfers of functions;
(E) the specification of functions--
(i) retained by the Bureau; or
(ii) transferred to Indian tribes served by
the agency office;
(F) the issuance of waivers or other authorities by
the Secretary so that functions and other
responsibilities of the Secretary may be carried out by
the agency office or transferred to Indian tribes;
(G) the promulgation of revised regulations relating
to the functions of the agency office that are carried
by the agency office or transferred to Indian tribes;
(H) the reordering of funding priorities; and
(I) a formula for the transfer, to the tribal
recurring base funding for each Indian tribe served by
the agency office, of unexpended balances of
appropriations and other Federal funds made available
to the agency office in connection with any function
transferred to Indian tribes pursuant to subparagraph
(E)(ii).
(2) Share of funding.--An agency office plan shall include,
for each Indian tribe served by the agency office, a negotiated
determination of the share of the Indian tribe of the funds
used by the agency office on an annual basis to support
functions and services of the tribe (hereafter in this
subsection referred to as the ``tribal share'').
(3) Option of maintenance of current status.--At the option
of a majority of the Indian tribes served by an agency office,
an agency office plan may provide for the continuation of
organizational structures, functions, or funding priorities of
the agency office that are substantially similar to those in
effect at the time of the development of the agency office
plan.
(4) Approval of agency office plan by indian tribes.--
(A) In general.--On the date on which the negotiation
of an agency office plan is concluded, the Secretary
shall submit the agency office plan to the Indian
tribes served by the agency office for approval.
(B) Effect of failure of indian tribe to approve
plan.--If an Indian tribe served by an agency office
fails to approve an agency office plan by the date that
is 60 days after the Secretary submits the plan
pursuant to subparagraph (A) to the Indian tribes
served by that office, the plan shall be considered to
have been disapproved by that Indian tribe.
(C) Reorganization compact.--If, by the date
specified in subparagraph (B), a majority of the Indian
tribes approve the agency office plan by a tribal
resolution or other official act of the governing body
of each Indian tribe involved, the Secretary shall
enter into a reorganization compact pursuant to
subsection (c).
(5) Single tribe agency office.--Not later than 30 days after
the date of enactment of this Act, the Secretary shall notify
in writing an Indian tribe that is served by an agency office
that serves only that Indian tribe of the time and place of the
initial prenegotiation meeting to establish a schedule for
negotiations for an agency office plan. If, by not later than
60 days after the date of enactment of this Act, an Indian
tribe that is served by an agency office that serves only that
Indian tribe notifies the Secretary in writing that the Indian
tribe elects to enter into negotiations with the Secretary to
prepare a reorganization plan for the agency office--
(A) not later than 150 days after the date of
enactment of this Act, the Secretary shall conclude
such negotiations; and
(B) if, by the date that is 60 days after the date
specified in subparagraph (A), the Indian tribe
approves the agency office plan by tribal resolution or
other official act of the governing body of the Indian
tribe, the Secretary shall enter into a reorganization
compact with the Indian tribe to carry out the area
office plan.
(6) Option to take tribal share.--
(A) In general.--If--
(i) by the date specified in paragraph
(4)(B), a majority of the Indian tribes served
by an agency office fail to approve an agency
office plan, an Indian tribe may, not later
than 60 days after the date specified in
paragraph (4)(B), notify the Secretary in
writing that the Indian tribe elects to receive
directly the tribal share of the Indian tribe;
or
(ii) by the date specified in paragraph
(5)(B), the Indian tribe served by an agency
office fails to approve an agency office plan,
the Indian tribe may, not later than 60 days
after the date specified in paragraph (5)(B),
notify the Secretary in writing that the Indian
tribe elects to receive directly the tribal
share of the Indian tribe.
(B) Agreement.--Not later than 30 days after the date
on which the Secretary receives a notice under
subparagraph (A), the Secretary shall enter into an
agreement with the Indian tribe for the immediate and
direct transfer to the Indian tribe of an amount equal
to the tribal share, or if the agreement covers a
period of less than 12 months, a prorated amount of the
tribal share. The agreement shall include--
(i) a negotiated determination of the amount,
if any, of residual Federal funds to be
retained by the Secretary for the agency office
that are minimally necessary to carry out
trustee and other functions of the Federal
Government that are not delegable to the Indian
tribes served by the agency office; and
(ii) a negotiated description of the
responsibilities to be carried out by--
(I) the agency office; and
(II) the Indian tribe.
(7) Self-determination and self-governance authorities not
affected.--If an Indian tribe exercises the option to receive a
tribal share of funds in accordance with paragraph (6), the
exercise of that option may not be construed to limit or
restrict any right of that tribe or any other tribe to receive
funds under title I or IV of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450 et seq.), and funds
received under that Act may be included as part of the tribal
share identified in paragraph (6).
(8) Secretarial authority.--If, by the date specified in
subsection (c), a majority of the Indian tribes served by an
agency office fail to approve the plan pursuant to paragraph
(4), the organizational structure, functions, and funding
priorities of the agency office in effect at the time of the
negotiation of the agency office plan shall be determined by
the Secretary, in consultation with the Indian tribes served by
that agency office, and in a manner consistent with the
exercise by any Indian tribe of the option to receive directly
the tribal share of the Indian tribe under paragraph (6).
(c) Agency Office Reorganization Compacts.--
(1) In general.--Not later than 30 days after the date on
which a majority of the Indian tribes served by an agency
office that is the subject of an agency office plan have
approved that plan pursuant to subsection (b)(4), the Secretary
shall enter into a reorganization compact with the Indian
tribes to carry out the agency office plan (hereafter in this
subsection referred to as the ``agency office reorganization
compact'').
(2) Prohibition against certain limitations.--With respect to
an Indian tribe that is not a party to an agency office
reorganization compact entered into under this subsection,
nothing in this section may limit or reduce the level of any
service or funding that the Indian tribe would otherwise
receive pursuant to applicable Federal law (including title I
or IV of the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 450 et seq.)).
SEC. 103. REORGANIZATION OF CENTRAL OFFICE.
(a) In General.--Notwithstanding any other provision of law--
(1) not later than 30 days after the date of enactment of
this Act, the Secretary shall notify in writing each Indian
tribe of the time and place of the initial prenegotiation
meeting to establish a schedule for negotiations under this
subsection; and
(2) not later than 150 days after the date of enactment of
this Act, the Secretary shall conclude negotiations with Indian
tribes on a reorganization plan for the central office. The
Secretary shall negotiate on an area-by-area basis with a
representative from each of the Indian tribes in each area, to
determine the appropriate allocation of personnel and funding
made available to the central office to serve the area and
agency offices and Indian tribes in each area office.
(b) Content of Central Office Plan.--
(1) In general.--The central office plan shall provide for
determinations on the basis of the negotiations described in
subsection (a) concerning--
(A) which portion of the funds made available to the
Secretary for the central office shall--
(i) be used to support the area and agency
offices in each area; or
(ii) be considered funds that may be
transferred directly to Indian tribes in each
area pursuant to a formula developed pursuant
to paragraph (2)(J); and
(B) the allocation of the personnel of the central
office to provide support to the area and agency
offices.
(2) Reallocation of funds and personnel.--In developing the
central office plan, to the extent that the Secretary and the
Indian tribes do not exercise the option to maintain current
organizational structures, functions, or funding priorities,
the central office plan shall provide, to the extent necessary
to accommodate the determinations made under paragraph (1),
for--
(A) the reorganization of the administrative
structure of the central office;
(B) the reallocation of personnel (including
determinations of office size and functions);
(C) the delegation of authority of the Secretary
carried out through the central office to the
Directors, Superintendents, or Indian tribes;
(D) transfers of functions;
(E) the specification of functions--
(i) retained by the central office; or
(ii) transferred to area offices, agency
offices or Indian tribes;
(F) the issuance of waivers or other authorities by
the Secretary so that functions and other
responsibilities of the Secretary may be carried out by
the central office or transferred to area offices,
agency offices, or Indian tribes;
(G) the promulgation of revised regulations relating
to the functions of the central office that are carried
by the central office or transferred to area offices,
agency offices, or Indian tribes;
(H) the reordering of funding priorities;
(I) allocation formulas to provide for the remaining
services to be provided to the area and agency offices
and Indian tribes by the central office; and
(J) with respect to the transfer of funds to the area
and agency offices and Indian tribes in each area, a
formula, negotiated with the tribal representatives
identified in subsection (a), for the transfer to the
Indian tribes of all or a portion of the funds
described in paragraph (1)(A)(ii).
(3) Share of funding.--The central office plan shall include,
for each Indian tribe, a negotiated determination of the share
of the Indian tribe (hereafter in this subsection referred to
as the ``tribal share'') of the funds used by the central
office on an annual basis to support functions and services of
the Indian tribe and the personnel and services identified in
subsection (a), after any funds identified in paragraph
(1)(A)(ii) have been allocated directly to Indian tribes.
(4) Option to take tribal share.--
(A) In general.--An Indian tribe may, not later than
60 days after the date specified in subsection (c),
notify the Secretary in writing that the Indian tribe
elects to receive directly the tribal share for that
Indian tribe determined under paragraph (3) if that
Indian tribe--
(i) receives a tribal share of an area office
under section 101(b) and also receives a tribal
share of an agency office under section 102(b);
or
(ii) receives a share pursuant to title I or
IV of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450 et
seq.).
(B) Agreement.--Not later than 30 days after the date
on which an Indian tribe provides written notification
to the Secretary under subparagraph (A), the Secretary
shall enter into an agreement with the Indian tribe for
the immediate and direct transfer to the Indian tribe
of an amount equal to the tribal share, or if the
period covered by the agreement is less than 12 months,
a prorated amount of the tribal share. The agreement
shall include--
(i) a negotiated determination of the amount
of residual Federal funds to be retained by the
Secretary for the central office that are
minimally necessary to carry out trustee and
other functions of the Federal Government that
are not delegable to the Indian tribes served
by the central office; and
(ii) a negotiated description of the
responsibilities to be carried out by--
(I) the central office; and
(II) the Indian tribe.
(5) Self-determination and self-governance authorities not
affected.--If an Indian tribe exercises the option to receive a
tribal share of funds in accordance with paragraph (4), the
exercise of that option may not be construed to limit or
restrict any right of that tribe or any other tribe to receive
funds under title I or IV of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450 et seq.), and funds
received under that Act may be included as part of the tribal
share identified in paragraph (4).
(c) Central Office Reorganization Compacts.--
(1) In general.--Not later than 90 days after the Secretary
has concluded a negotiation of a central office plan pursuant
to subsection (a), the Secretary shall, for each area office,
enter into a central office reorganization compact with the
Indian tribes in that area to implement the central office plan
(hereafter in this subsection referred to as the ``central
office reorganization compact''). The Secretary may not
implement the component of a central office plan relating to an
area until such time as a majority of the Indian tribes in that
area have entered into a central office reorganization compact.
If a majority of the Indian tribes in an area do not enter into
a central office reorganization compact with the Secretary
pursuant to this paragraph, the organizational structure,
functions, and funding priorities of the central office
relating to the area and agency offices and Indian tribes in
that area and in effect at the time of the negotiation of the
central office plan shall be determined by the Secretary, in
consultation with the Indian tribes served by each area office,
and in a manner that is consistent with the exercise by any
Indian tribe of the option to receive directly the tribal share
of the Indian tribe under subsection (b)(4).
(2) Coordination with area and agency office plans.--Each
central office reorganization compact entered into by the
Secretary under this subsection shall specify that in the event
the Secretary determines that a central office reorganization
compact is inconsistent with a related area office
reorganization compact entered into under section 101(c) or a
related agency office reorganization compact entered into under
section 102(c), the Secretary, in negotiation with the Indian
tribes that are parties to the central office reorganization
compact, shall amend the compact to make such modifications as
are necessary to ensure consistency with the applicable area or
agency office plan.
SEC. 104. AUTHORITY TO SPEND FUNDS.
Each Indian tribe that receives funds under this title shall
administer and expend those funds in a manner consistent with the
authorities provided to Indian tribes under the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450 et seq.).
SEC. 105. SAVINGS PROVISIONS.
(a) In General.--Notwithstanding any other provision of this title,
all orders, determinations, rules, regulations, permits, agreements,
grants, contracts, certificates, licenses, registrations, privileges,
and other administrative actions--
(1) that have been issued, made, granted, or allowed to
become effective by the President, any Federal agency or
official thereof, or by a court of competent jurisdiction, in
the performance of any function that is transferred to Indian
tribes pursuant to a reorganization compact that the Secretary
enters into pursuant to section 101, 102, or 103; and
(2) that are in effect on the effective date of the
reorganization compact, or were final before the effective date
of the reorganization compact and are to become effective on or
after such date;
shall continue in effect according to their terms until modified,
terminated, superseded, set aside, or revoked in accordance with law by
the President, the Secretary, or other authorized official, a court of
competent jurisdiction, or by operation of law.
(b) Proceedings Not Affected.--
(1) In general.--The provisions of a reorganization compact
that the Secretary enters into pursuant to section 101, 102, or
103 shall not affect any proceedings, including notices of
proposed rulemaking, or any application for any license,
permit, certificate, or financial assistance pending before the
Bureau at the time the reorganization compact takes effect,
with respect to the functions transferred by the reorganization
compact.
(2) Continuation of proceedings.--The proceedings and
applications referred to in paragraph (1) shall be continued.
Orders shall be issued in such proceedings, appeals shall be
taken from such orders, and payments shall be made pursuant to
such orders, as if the compact had not been entered into, and
orders issued in any such proceedings shall continue in effect
until modified, terminated, superseded, or revoked by a duly
authorized official, by a court of competent jurisdiction, or
by operation of law.
(3) Statutory construction.--Nothing in this subsection shall
be deemed to prohibit the discontinuance or modification of any
such proceeding under the same terms and conditions and to the
same extent that such proceeding could have been discontinued
or modified if this title had not been enacted.
(c) Nonabatement of Actions.--No suit, action, or other proceeding
commenced by or against the Bureau or by or against any individual in
the official capacity of such individual as an officer of the Bureau
shall abate by reason of the enactment of this title.
SEC. 106. ADDITIONAL CONFORMING AMENDMENTS.
(a) Recommended Legislation.--After consultation with Indian tribes
and the appropriate committees of the Congress, the Secretary shall
prepare and submit to the Congress appropriate recommendations for
legislation containing technical and conforming amendments to reflect
the changes made pursuant to this title.
(b) Submission to the Congress.--Not later than 120 days after the
effective date of this title, the Secretary shall submit to the
Congress the recommended legislation referred to in subsection (a).
SEC. 107. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as may be necessary
to carry out this title.
SEC. 108. EFFECTIVE DATE.
This title shall take effect on the date of enactment of this Act.
SEC. 109. SEPARABILITY.
If a provision of this title or its application to any person or
circumstance is held invalid, neither the remainder of this title nor
the application of the provision to other persons or circumstances
shall be affected.
SEC. 110. SUSPENSION OF CERTAIN ADMINISTRATIVE ACTIONS.
(a) In General.--Notwithstanding any other provision of law, during
the 2-year period beginning on the date of enactment of this Act, the
Secretary shall suspend the implementation of all administrative
activities that affect the Bureau associated with reinventing
government, national performance review, or other down sizing
initiatives of the executive branch of the Federal Government.
(b) Consideration of Compacts.--During the period specified in
subsection (a), the reorganization compacts entered into under this
title shall be deemed to satisfy the goals of the initiatives referred
to in subsection (a).
SEC. 111. STATUTORY CONSTRUCTION.
Nothing in this title may be construed to alter or diminish the
Federal trust responsibility to Indian tribes, individual Indians, or
Indians with trust allotments.
SEC. 112. TRIBAL AUTHORITY RECOGNIZED.
Nothing in this title may be construed to prohibit or limit the
capacity of 2 or more Indian tribes to authorize, by tribal resolution
or other official act of the governing body of each Indian tribe
involved, a group of Indian tribes to exercise any authority granted to
an Indian tribe under this title, except that the approval of an area
office or agency office reorganization plan under sections 101(b)(4)
and 102(b)(4), and the entering into a central office reorganization
compact under section 103(c)(1), shall be authorized by the separate
tribal resolution or other official act of the governing body of each
Indian tribe involved.
SEC. 113. RENEGOTIATION AUTHORITY.
The Indian tribes served by an agency or area office may annually
exercise any authorities that the Indian tribes are authorized to
exercise under this title during any calendar year that begins after
the date of enactment of this Act, including authorities relating to
the negotiation of reorganization plans and the election to receive
tribal shares. In any case in which an Indian tribe exercises an
authority pursuant to the preceding sentence, the timeframes set forth
in this title shall be calculated from the annual anniversary date of
the date of enactment of this Act.
SEC. 114. DISCLOSURE OF INFORMATION.
(a) In General.--Upon entering into negotiations required under
sections 101, 102, and 103, and in a timely manner throughout that
negotiation process, the Secretary shall provide to Indian tribes the
budgetary, structural, administrative, and legal information that is
necessary for the negotiated reorganization of the agency offices, area
offices, and central office.
(b) Technical Assistance.--Upon the request of an Indian tribe, the
Secretary shall provide such technical assistance as may be required to
interpret the information provided under subsection (a).
TITLE II--AMENDMENT TO THE INDIAN SELF-DETERMINATION AND EDUCATION
ASSISTANCE ACT
SEC. 201. BUDGET DEVELOPMENT.
The Indian Self-Determination and Education Assistance Act (25 U.S.C.
450 et seq.) is amended by adding at the end the following new title:
``TITLE V--BUDGET DEVELOPMENT
``SEC. 501. PARTICIPATION OF INDIAN TRIBES IN THE DEVELOPMENT OF BUDGET
REQUESTS.
``(a) Budget Requests for the Bureau of Indian Affairs.--
Notwithstanding any other provision of law, not later than 120 days
after the date of enactment of this title, the Secretary of the
Interior shall establish a program--
``(1) to provide information to Indian tribes concerning the
development of budget requests for the Bureau of Indian Affairs
that are submitted to the President by the Secretary of the
Interior for inclusion in the annual budget of the President
submitted to the Congress pursuant to section 1108 of title 31,
United States Code; and
``(2) to ensure, to the maximum extent practicable, the
participation by each Indian tribe in the development of the
budget requests referred to in paragraph (1).
``(b) Budget Requests for the Indian Health Service.--Notwithstanding
any other provision of law, not later than 120 days after the date of
enactment of this title, the Secretary of Health and Human Services
shall establish a program--
``(1) to provide information to Indian tribes concerning the
development of budget requests by the Secretary of Health and
Human Services for the Indian Health Service that are submitted
to the President by the Secretary of Health and Human Services
for inclusion in the annual budget referred to in subsection
(a)(1); and
``(2) to ensure, to the maximum extent practicable, the
participation by each Indian tribe in the development of the
budget requests referred to in paragraph (1).
``(c) Requirements for Programs.--
``(1) In general.--Each program established under this
section shall, to the maximum extent practicable--
``(A) provide for the estimation of--
``(i) the funds authorized to be appropriated
on an annual basis for the benefit of Indian
tribes; and
``(ii) for each Indian tribe, the portion of
the funds described in clause (i) that will be
provided for the benefit of the Indian tribe;
``(B) provide, for each Indian tribe--
``(i) the opportunity to establish priorities
for using the estimated funds described in
subparagraph (A)(ii); and
``(ii) the authority and flexibility to
design tribal and Federal programs that receive
Federal funds to best meet the needs of the
community served by the Indian tribe; and
``(C) provide for the collection and dissemination of
information that is necessary for effective planning,
evaluation, and reporting by the Secretary of the
Interior or the Secretary of Health and Human Services
and Indian tribes concerning the comparative social and
public health conditions of Indian communities (as
defined and determined by the Secretary of the Interior
and the Secretary of Health and Human Services) at
local, regional, and national levels.
``(2) Duties of the secretaries.--In carrying out the
programs established under this section, the Secretary of the
Interior and the Secretary of Health and Human Services shall--
``(A) use any information provided by Indian tribes
concerning the priorities referred to in paragraph
(1)(B);
``(B) support the creation of stable recurring base
funding (as defined and determined by each such
Secretary) for each Indian tribe;
``(C) seek to maintain stability in the planning and
allocation of the amounts provided for in the budget of
the Bureau of Indian Affairs and the Indian Health
Service for Indian tribes; and
``(D) assess the Federal programs or assistance
provided to each Indian tribe to determine--
``(i) the relative need for providing Federal
funds to carry out each such program; and
``(ii) the amount of recurring base funding
available to each Indian tribe to carry out
each such program.
``(3) Contracts, grants, and annual funding agreements.--To
provide, to the maximum extent practicable, for the full
participation by the governing bodies of Indian tribes on an
effective government-to-government basis in carrying out the
collection and sharing of information under this section, the
Secretary of the Interior or the Secretary of Health and Human
Services may--
``(A) enter into a self-determination contract with
an Indian tribe or make a grant to an Indian tribe
pursuant to section 102 or 103;
``(B) with respect to the Secretary of Health and
Human Services, enter into a funding agreement with a
participating Indian tribe pursuant to title III; and
``(C) with respect to the Secretary of the Interior,
enter into a funding agreement with a participating
Indian tribe pursuant to title IV.
``SEC. 502. ASSESSMENT METHODOLOGY.
``(a) In General.--Not later than 180 days after the date of
enactment of this title, the Secretary shall, in cooperation with
Indian tribes, and in accordance with the negotiated rulemaking
procedures under subchapter III of chapter 5 of title 5, United States
Code (as in effect on the date of enactment of this title), promulgate
standardized assessment methodologies to be used in carrying out any
budget determination for the Bureau concerning the levels of funding
that are necessary to fund each program area (as defined and determined
by the Secretary) of the Bureau.
``(b) Participation by Indian Tribes.--In carrying out subsection
(a), the Secretary shall take such action as may be necessary to
ensure, to the maximum extent practicable, the direct and active
participation of Indian tribes at the local, regional, and national
levels in the negotiated rulemaking process specified in subchapter III
of chapter 5 of title 5, United States Code.
``(c) Committee.--
``(1) Composition.--The negotiated rulemaking committee
established pursuant to the requirements of section 565 of
title 5, United States Code (as in effect on the date of
enactment of this title), to carry out subsection (a) shall
only be comprised of--
``(A) individuals who represent the Federal
Government; and
``(B) individuals who represent Indian tribes.
``(2) Representation by indian tribes.--A majority of the
members of the committee referred to in paragraph (1) shall be
individuals who represent Indian tribes.
``(d) Adaptation of Procedures.--The Secretary shall adapt the
negotiated rulemaking procedures carried out under this section in the
same manner as the Secretary adapts, in accordance with section 407(c),
the procedures carried out pursuant to section 407.
``SEC. 503. REPORTS TO THE CONGRESS.
``At the earliest practicable date after the date of promulgation of
the regulations under section 502 on which the Secretary of the
Interior submits a budget request to the President for inclusion in the
annual budget of the President submitted to the Congress pursuant to
section 1108 of title 31, United States Code, and annually thereafter,
the Secretary shall prepare and submit to the President for inclusion
in the annual budget submitted to the Congress, a report that--
``(1) describes the standardized methodologies that are the
subject of the regulations promulgated pursuant to section 502;
and
``(2) includes--
``(A) for each program area of the Bureau of Indian
Affairs, an assessment of the level of funding that is
necessary to fund the program area; and
``(B) for each Indian tribe served by a program area
referred to in paragraph (2)--
``(i) an assessment of the level of funding
that is necessary for each Indian tribe served
by the program area;
``(ii) the total amount of funding necessary
to cover all program areas with respect to
which the tribe receives services (as
determined by taking the aggregate of the
applicable amounts determined under paragraph
(3)); and
``(iii) a breakdown, for each program area
with respect to which the Indian tribe receives
service, of the amount determined under clause
(ii).
``SEC. 504. AUTHORIZATION OF APPROPRIATIONS.
``There are authorized to be appropriated such sums as may be
necessary to carry out this title.''.
TITLE III--REFORM OF THE REGULATIONS OF THE BUREAU OF INDIAN AFFAIRS
SEC. 301. BIA MANUAL.
(a) In General.--Not later than 180 days after the date of enactment
of this Act, the Secretary shall--
(1) conduct a review of all provisions of the BIA Manual;
(2) promulgate as proposed regulations those provisions of
the BIA Manual that the Secretary deems necessary for the
efficient implementation of the Federal functions retained by
the Bureau under the reorganization compacts authorized by this
Act; and
(3) revoke all provisions of the BIA Manual that are not
promulgated as proposed regulations under paragraph (2).
(b) Consultation With Indian Tribes.--In carrying out subsection (a),
the Secretary shall, to the maximum extent practicable, consult with
Indian tribes in such manner as to provide for the full participation
of Indian tribes.
SEC. 302. TASK FORCE.
(a) Establishment of Task Force.--
(1) In general.--Not later than 90 days after the date of
enactment of this Act, the Secretary shall establish a task
force on regulatory reform (hereafter in this section referred
to as the ``task force'').
(2) Duties.--The task force shall--
(A) review the regulations under title 25, Code of
Federal Regulations; and
(B) make recommendations concerning the revision of
the regulations.
(3) Membership.--The task force shall be composed of 16
members, appointed by the Secretary, including 12 members who
are representatives of Indian tribes from each of the 12 areas
served by area offices.
(4) Initial meeting.--Not later than 60 days after the date
on which all members of the task force have been appointed, the
task force shall hold its first meeting.
(5) Meetings.--The task force shall meet at the call of the
Chairperson.
(6) Quorum.--A majority of the members of the task force
shall constitute a quorum, but a lesser number of members may
hold hearings.
(7) Chairperson.--The task force shall select a Chairperson
from among its members.
(b) Reports.--
(1) Reports to secretary.--The task force shall submit to the
Secretary such reports as the Secretary determines to be
appropriate.
(2) Report to the congress and to indian tribes.--In addition
to submitting the reports described in paragraph (1), not later
than 120 days after its initial meeting, the task force shall
prepare, and submit to the Congress and to the governing body
of each Indian tribe, a report that includes--
(A) the findings of the task force concerning the
review conducted pursuant to subsection (a)(2)(A); and
(B) the recommendations described in subsection
(a)(2)(B).
(c) Powers of the Task Force.--
(1) Hearings.--The task force may hold such hearings, sit and
act at such times and places, take such testimony, and receive
such evidence as the task force considers advisable to carry
out the duties of the task force specified in subsection
(a)(2).
(2) Information from federal agencies.--The task force may
secure directly from any Federal department or agency such
information as the task force considers necessary to carry out
the duties of the task force specified in subsection (a)(2).
(3) Postal services.--The task force may use the United
States mails in the same manner and under the same conditions
as other departments and agencies of the Federal Government.
(4) Gifts.--The task force may accept, use, and dispose of
gifts or donations of services or property.
(d) Task Force Personnel Matters.--
(1) Compensation of members.--Members of the task force who
are not officers or employees of the Federal Government shall
serve without compensation, except for travel expenses, as
provided under paragraph (2). Members of the task force who are
officers or employees of the United States shall serve without
compensation in addition to that received for their services as
officers or employees of the United States.
(2) Travel expenses.--The members of the task force shall be
allowed travel expenses, including per diem in lieu of
subsistence, at rates authorized for employees of agencies
under subchapter I of chapter 57 of title 5, United States
Code, while away from their homes or regular places of business
in the performance of services for the task force.
(3) Staff.--
(A) In general.--The Chairperson of the task force
may, without regard to the civil service laws, appoint
and terminate such personnel as may be necessary to
enable the task force to perform its duties.
(B) Procurement of temporary and intermittent
services.--The Chairperson of the task force may
procure temporary and intermittent service under
section 3109(b) of title 5, United States Code, at
rates for individuals that do not exceed the daily
equivalent of the annual rate of basic pay prescribed
under GS-13 of the General Schedule established under
section 5332 of title 5, United States Code.
(e) Termination of Task Force.--The task force shall terminate 30
days after the date on which the task force submits its reports to the
Congress and to Indian tribes under subsection (b)(2).
(f) Exemption From Federal Advisory Committee Act.--All of the
activities of the task force conducted under this title shall be exempt
from the Federal Advisory Committee Act (5 U.S.C. App.).
(g) Prohibition.--Beginning on the date of enactment of this Act, no
provision of any internal manual or handbook or other written procedure
purporting to govern the conduct of the Department in relation to
Indian tribes shall be binding upon any Indian tribe unless that
provision has been promulgated as a final regulation in accordance with
applicable Federal law.
SEC. 303. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as may be necessary
to carry out this title.
PURPOSE
The purpose of S. 814, as amended, the Bureau of Indian
Affairs Reorganization Act of 1995, is to provide Federal
authority to permit Native American tribal governments to
reorganize the Bureau of Indian Affairs (BIA) through a process
of government-to-government negotiation concerning the size,
shape, scope and location of the programs, services and
functions to be carried out, within available appropriations,
by the BIA or by the Indian tribes themselves.
BACKGROUND
A. Nearly Two Centuries of BIA Reorganization Efforts
Since the BIA was first established as part of the War
Department in 1824, Native Americans have relied on the BIA as
the lead agency through which the Federal government has
focused its efforts to carry out this Nation's trust
obligations for American Indians and Alaska Natives. But based
on its own studies and investigations, the BIA has utterly
failed to meet this Nation's solemn obligations to American
Indians.
The Committee has received overwhelming evidence to support
the disturbing conclusion that, as trustee for Indian tribes
and their members, the BIA has not met even the most minimal of
fiduciary obligation standards. Billions of dollars held in
trust for the Indians by the United States through the BIA
cannot be reconciled to the degree required of a fiduciary,
according to a 1992 report of the U.S. General Accounting
Office. Other income-producing assets held in trust for the
Indians are mismanaged by the Federal bureaucracy within the
Department of the Interior (DOI). Government auditors report
there are $1.9 billion worth of BIA construction project costs
which cannot be reconciled, and billions of BIA assets which
cannot be accounted for. The Interior Department Inspector
General has reported that many BIA school facilities are very
poorly maintained and, in some instances, Indian children must
sit in classrooms in school buildings that have been condemned
and must sleep in dormitories the Inspector General has
described as ``uninhabitable''.
From the first reorganization efforts in 1834 through the
Meriam Report in 1929 to the 1994 Joint Tribal/BIA/DOI Task
Force Report on BIA Reorganization, there has been report after
report detailing how the BIA should be reformed, restructured,
and reorganized. At the request of the Committee, the
Congressional Research Service recently uncovered more than
1,050 such investigations, reports, commissions, and studies on
BIA reorganization compiled since 1834. The continuing, abysmal
living conditions in most Native American communities reflect
the human impact of these many failed efforts at BIA reform.
B. Joint Tribal/BIA/DOI Reorganization Task Force
On December 20, 1990, Secretary Lujan chartered the Joint
Tribal/BIA/DOI Reorganization Task Force (hereinafter Joint
Reorganization Task Force). The Joint Reorganization Task Force
was established to develop recommendations for the
reorganization of the BIA in order to strengthen the
administration of Indian programs funded through the BIA. It
submitted its final recommendations in the fall of 1994.
The Joint Reorganization Task Force was comprised of 36
tribal representatives, five BIA employees and two Department
of Interior employees. The tribes selected three
representatives from each of the 12 BIA service areas to serve
on the task force. Over the next four years, the Joint
Reorganization Task Force met 22 times across the country and
developed 44 recommendations for the reorganization of the BIA.
These recommendations were developed through various working
groups and task forces established by the Joint Reorganization
Task Force.
The recommendations fell into four general categories:
organizational reform, regulatory reform, educational reform,
and budgetary reform. The Joint Reorganization Task Force
adopted the following guiding principles for BIA
reorganization: decentralize decision-making to the tribe/
agency level, provide maximum funding to the service delivery
level, maintain flexibility of the area/agency organizational
design, specify well-defined roles at all levels of the
bureaucracy, strengthen educational support, create a tribal-
Federal participatory consultation process to govern all
aspects of reorganization actions, and improve performance and
accountability.
The recommendations of the Joint Reorganization Task Force
were not new. Many of its recommendations have been discussed
since the Meriam report was released in 1929. Like each
subsequent report and recommendation, from the Hoover
Commission in 1955 to the American Indian Policy Review
Commission in 1977, the Meriam report recommended that the
BIA's principle focus be the social and economic advancement of
American Indians to achieve ``a minimum standard of health and
decency.'' The Meriam report concluded that the BIA must be
reorganized to provide maximum administrative control and
responsibility to the local BIA Agency Superintendent at the
Indian reservation and community level.
On October 14, 1994, soon after the Joint Reorganization
Task Force had filed its report and recommendations, the BIA
proposed a separate, organizational streamlining plan in
compliance with the directives of the National Performance
Review (NPR) efforts of the Clinton-Gore Administration. The
BIA streamlining plan called for a 50% reduction in Central
Office staff, reducing it by 212 employees. Several key aspects
of the plan were not revealed to the Congress nor to the
tribes. The lack of detail in the Administration's
reorganization plan raised many questions and provided few
answers. Some of these questions focused on how many full time
equivalent positions would be retained in the Area Offices,
what specific authorities would be vested in the local
agencies, and what would happen to any financial cost savings
realized through the NPR ``downsizing'' of the BIA.
Tribal opposition to the 1994 NPR streamlining proposal for
the BIA was nearly unanimous. This may have been in large part
due to the fact that the BIA proposal bore little resemblance
to the recommendations of the Joint Reorganization Task Force.
Many tribes raised concerns that four years of work by many
tribal representatives had been completely ignored. In response
to this tribal opposition, in early 1995 the Secretary of the
Interior Department, the Honorable Bruce Babbitt, agreed to a
one-year moratorium on implementation of the NPR plan for BIA
and upon the application of the NPR mandates on the BIA. Within
weeks of that announcement, the Committee began to receive
reports from several concerned tribes that the moratorium has
not slowed efforts in the Agency and Area Offices to meet the
staffing reductions mandated under the NPR.
Tribal leaders have consistently maintained the same basic
position on the BIA from the days of the 1929 Meriam Report to
this decade's Joint Reorganization Task Force: true BIA
reorganization and reform is required in order to put an end to
the series of Federal failures in Indian Country. The Committee
believes that actual reform of the BIA can only be achieved by
providing the authority directly to the tribes to design both
the structure and function of the principal agent of their
trustee, the Bureau of Indian Affairs.
C. Impact of Fiscal Year 1996 Appropriations Reductions on BIA
Reorganization
Reorganization of the BIA can be driven by any number of
factors, including a sharp decrease in the Federal
appropriations provided to the BIA. S. 814 was introduced
before the fiscal year 1996 appropriations process began in the
Congress. Since then, a major reduction has been proposed for
BIA and tribal funding in fiscal year 1996.
The fiscal year 1996 Interior Appropriations Conference
Report calls for significant reductions in three general areas
of the BIA budget: Tribal Priority Allocations (TPA), which are
funds directly controlled by tribal governments, Central Office
Accounts, and Area Office Accounts. In August, 1995, the Senate
approved TPA funding reductions of more than $200 million from
the fiscal year 1995 levels, nearly a 28% cut. In mid-December,
1995, the House-Senate Conference Committee lessened that
reduction, providing $654 million for TPA in fiscal year 1996,
a reduction of $68 million (a 9.5% cut) from fiscal year 1995
funding levels. The conference level would also fund Central
Office operations at $50 million, which is $14 million below (a
22% cut) the fiscal year 1995 funding levels. The conference
action would fund BIA Area Office operations at $37 million,
which is $16 million below (a 30% cut) fiscal year 1995 funding
levels.
The proposed reductions at the Area Offices (30%), the
Central Office (22%) and at the agency/tribal level (9.5%) will
have significant impacts on the program staffing levels of the
BIA and tribal governments. The BIA reports that if its Central
Office is funded at the conference committee level passed by
both the House and the Senate in mid-December, the BIA
immediately will be required to reduce its Central Office staff
from 857 positions to 532 positions. Alone, these sharp
reductions in funding will require a major restructuring of BIA
offices and staffing patterns in fiscal year 1996 and future
years.
As these cuts materialized, tribal governments informed the
Committee that they were all the more convinced of the need for
prompt enactment of S. 814. Without the tribal negotiating
authority provided under S. 814, tribes have concluded that the
BIA staff reductions required by the fiscal 1996 funding cuts
will not be made pursuant to any tribally-developed plans or
reflect any tribal priorities for BIA reorganization. Instead,
tribes believe these appropriations-driven reorganization
efforts will be made unilaterally by the BIA based on the
priorities of the internal BIA bureaucracy, not the priorities
of the tribal governments.
DISCUSSION OF MAJOR PROVISIONS OF S. 814
A. Overview
S. 814, the Bureau of Indian Affairs Reorganization Act of
1995, would implement many of the recommendations of the Joint
Reorganization Task Force. This legislation provides Indian
tribes with the option to reorganize the BIA at its 12 Area
Offices, 83 Agency Offices, 3 sub-Agency Offices, 6 Field
Stations, 2 Irrigation Offices, and multiple Central Offices.
This reorganization authority is provided so that Indian tribes
themselves can tailor the structure of the BIA to meet their
unique circumstances and needs.
S. 814 provides the authority to Indian tribes to develop,
in negotiations with the Interior Department, reorganization
plans for each level of the BIA. These plans may include a
reorganization of BIA organizational structures, reallocation
of personnel, delegations of secretarial authority, transfers
of functions, waivers of regulations or other authorities,
reordering of funding priorities, and the transfer of any
savings realized by such reorganization directly to the Indian
tribes. At issue in the negotiations between tribal governments
and the Interior Department will be the redesignation, transfer
or termination of more than 14,500 Federal employee positions
within the BIA.
S. 814 provides for the transfer or delegation of decision-
making authority to the tribe or the Agency Office level of the
BIA, consistent with the principles of Tribal Self-Governance
and Self-Determination authorized under Public Law 93-638, as
amended. The bill provides that Indian tribes from each Area
Office may determine how the BIA Central Office resources used
to provide services to their Area should be allocated. Tribes
in each Area of the BIA will be able to determine what services
will be provided by the Central Office, what Central Office
funds and authorities should be distributed or delegated to the
Area and Agency Offices, and what Central Office funds and
authorities should be distributed or delegated to the tribes
themselves. Likewise, tribes in each Area and Agency Office of
the BIA will be permitted to determine what services will be
provided by their Area and Agency Offices, what funds and
authorities should be distributed or delegated from the Area
Office to the Agency Office, or the Agency Office to the Area
Office, and what Area Office and Agency Office funds and
authorities should be distributed or delegated to the tribes
themselves.
The bill requires the Secretary to repeal the provisions of
the BIA manual, an internal document of uncertain length and
content, which is used to guide Federal and tribal decision-
making but has never been subjected to the tribal review and
comment under the Administrative Procedures Act. Any provision
of the BIA manual which is deemed necessary will have to be
promulgated as a regulation subject to review and comment. The
bill also provides for the establishment of a tribal task force
to recommend regulatory reforms in the BIA manual and title 25
of the Code of Federal Regulations.
S. 814 was developed to complement the changes in the BIA
that have been made by tribal governments over the past two
decades pursuant to the Indian Self-Determination and Education
Assistance Act and the Tribal Self-Governance Act (Public Law
93-638, as amended, 25 U.S.C. 450 et seq.). This legislation is
not meant to supplant or replace Self-Determination contracting
or Self-Governance compacting. Rather, S. 814 is intended to
complement these policies and to accommodate the BIA downsizing
that is occurring under these laws. To date, this BIA
downsizing has been haphazard and disjointed. Tribes have
reported that much of the downsizing that has resulted from
tribal assumption of BIA duties under Public Law 93-638, as
amended, has occurred when Area Directors and Agency
Superintendents simply do not replace personnel who quit,
retire or are transferred, whether or not these personnel had
been carrying out functions taken over by the tribes. As a
result, the personnel remaining on the BIA payroll often are
ill-suited to carry out the tasks remaining with the BIA. By
way of contrast, S. 814 is intended to produce BIA
reorganization plans that are shaped by the priorities of
tribal governments, not the personal priorities of Federal
bureaucrats.
B. Negotiation Process
In general terms, the Committee intends this legislation to
accord to Indian tribes the Federal authority necessary to
effect a complete reorganization of the BIA, the Federal agency
whose sole purpose and reason for existence is to serve the
interests of the Indian tribes and their members in fulfillment
of the trust obligations of the United States. The bill
mandates a negotiation process. It does not prescribe the
outcome of those negotiations, but instead it requires that the
outcomes be those upon which the tribal governments have
agreed.
The negotiations are premised on a government-to-government
relationship which each Indian tribe has with the United States
and its agents, including the BIA. Consistent with this
relationship, the Committee expects the BIA to conduct its
negotiations with the tribal governments in a dignified and
governmental way that fosters respect for each tribal
government. No unilateral Federal decisions are permitted under
such a negotiating framework. The tribal right to negotiate a
reorganization plan under this legislation is as solemn and
enforceable as the right accorded Indian tribes to negotiate
contracts or compacts under titles I and IV of Public Law 93-
638, as amended.
Decades ago, the necessary and proper role of the BIA may
well have been to unilaterally, if not paternalistically,
manage and administer virtually every aspect of tribal life.
But for nearly every Indian tribe today, that paternal role is
part of an increasingly distant past. Many if not all Indian
tribes today operate complex governmental systems and
administer a variety of Federal, State, and tribal programs.
Some Indian tribal governments also manage sophisticated
economic enterprises. In this era of Tribal Self-Determination
and Self-Governance, the appropriate role of the BIA is that of
a trustee and a technical resource, not that of a tribal
manager or tribal administrator. The Committee anticipates that
Indian tribes will use the authority provided them under this
legislation to do what tribes have long sought to do--
dramatically restructure the BIA into a technical assistance
agency serving tribal priorities.
C. Trust Relationship--Delegable and Non-Delegable Functions
The role of the United States as trustee can take many
different forms. The Committee intends this legislation to
permit Indian tribes, as the beneficiaries of the trust
relationship, to shape how the trustee's duties are carried
out. Many of the day-to-day functions of the trustee are
delegable to the Indian tribes if the tribes so request. For
example, nearly all of the work required for the transfer of a
leasehold interest can be delegated to an Indian tribe under
current law. The only non-delegable act may be the review and
signature of an official representative of the Federal trustee.
Should the Indian tribes so choose, this legislation provides a
process by which the tribal and Federal negotiators can
delineate the specific functions retained by the BIA (for
example, review and signature authority) and require the
delegation of all other functions to the tribal government
involved.
D. Scheduling of Negotiations
The timelines in the bill were carefully drawn to strike a
balance between the need to provide adequate time for full and
complete negotiations, and the need for deadlines that
encourage the parties to resolve differences and make decisions
in an efficient manner.
The Committee assumes that the Secretary will direct all
BIA personnel to make as their top priority the immediate
implementation of this legislation with their full and active
cooperation. The Committee expects action from the Office of
the Secretary within days of the bill being signed into law.
Notices should be sent to each tribal government and to each
Agency, Area and Central Office. The Committee is concerned
that the BIA will not vest the Federal negotiators with full
decision-making authority to reach agreements during the
negotiation sessions. In other settings, the Committee is aware
of circumstances where Federal negotiators lacked the basic
authority to strike an agreement on behalf of the Department.
This lack of authority resulted in a series of wholly non-
productive negotiations between the Federal and tribal
governments. Accordingly, it is the Committee's intention that
the Federal negotiation team should be promptly appointed by
the Secretary, with clear lines of authority delegated to the
actual Federal negotiators. Decisions should be made and
defended by the Federal negotiators themselves, and not by
persons of authority who are not present during negotiations
with the tribal negotiators. The Committee intends to maintain
extensive and vigilant oversight throughout the reorganization
negotiations to ensure that the spirit and intention of the law
is fulfilled by the Department and its negotiators.
The Committee anticipates that, in most cases, the Indian
tribes will choose to arrange for the simultaneous negotiation
of Agency, Area and Central Office plans, and that the location
of these negotiations will be near the Area Offices. This
process will assist in coordinating negotiations so that plans
for each administrative level are consistent with each other,
and it will encourage all the negotiation decision-makers to be
accessible to each party in a timely and efficient manner. For
example, if the tribes previously served by an Agency Office
wish to completely dissolve the Office so that there are no
longer any Federal employees in the Agency Office, that should
reduce the requirements for administrative supervision and
personnel support in the Area or Central Offices reorganization
plans. Conversely, if the tribes in an Area decide to dissolve
the Area Office and transfer to the Agency Office level certain
functions previously carried out at the Area Office, some
administrative supervision and personnel support activities may
have to be carried out at the Central Office level for those
tribes.
E. Residual Functions and Costs are the First Issues To Be Negotiated
Under the bill, the Committee expects the reorganization
negotiations to first take up the issue of what are the minimum
Federal residual functions, including those related to the
Federal trust obligation, and what specific amount of funds is
required to carry out that function.
Residual functions are those which by Federal law may not
be delegated to anyone other than a Federal official. These
inherently Federal activities include the hiring and firing of
Federal personnel, approving on behalf of the United States the
obligation of appropriated funds, the preparation of the
President's annual budget request, the response to
congressional inquiries, and the review and approval of audit
reports or similar activities.
The Committee expects the Federal negotiators to give due
respect to the use of the term ``minimal'' in the legislative
language. The negotiated residual functions are to be kept to a
minimum for three reasons. First, Federal negotiators naturally
may be tempted to expansively define everything they now do as
``residual'' in order to preserve the status quo of Federal
employment and Federal power. But much of what Federal
employees now do can lawfully be delegated to a non-Federal
person or entity. One does not have to be a Federal official to
prepare documents for a lease of trust land. Nor must one be a
Federal employee to conduct audits and reviews or to carry out
other systems of oversight and accountability according to
Federal standards. There are many Indian tribes, inter-tribal
groups and Indian organizations which can and do carry out
these and other functions on behalf of Indian tribes.
Second, Federal negotiators, and perhaps the Indian tribes
as well, naturally may be tempted to expansively define
residual functions so as to include everything that the Federal
agency should be doing in a so-called perfect world of no
financial or structural limitations. This approach, however,
would be self-defeating for the tribal governments, because it
would result in all power and funds remaining with the Federal
bureaucracy. Rather than an expanded wish list, the Committee
anticipates that the negotiated residual functions will begin
with what has been done in recent years by Federal officials,
and then be pared down in BIA-tribal negotiations to the bare
essentials that cannot, by Federal law, be performed by anyone
other than a Federal employee.
Third, residual functions are to be distinguished from
those things that are done most wisely or efficiently, in the
opinion of the Federal and tribal negotiators, in a combined
manner by the Federal government for the benefit of all Indian
tribes. Such activities are not included within the definition
of Federal residuals in the bill. Rather, these non-residual
activities can be funded, if the tribes so agree, by some
portion of the remaining money that is identified as tribal
shares for the benefit of each Indian tribe. For example, among
the functions of the BIA's present congressional and
legislative affairs office may be an inherently Federal
residual function--that of monitoring congressional activity
and assisting the Assistant Secretary in preparing responses.
But another function of that office has been to monitor
congressional activity for Indian tribes and to inform Indian
tribes on legislative matters. The latter function is not an
inherently Federal function, it can be delegated to a non-
Federal entity or person. Regardless of whether the tribal and
Federal negotiators agree that this function is most wisely and
efficiently performed by the BIA on behalf of all Indian
tribes, or is best left to the tribes themselves to do singly
or in combination with each other, the cost of carrying out
that function should be identified in the next stage of the
negotiations--the determination of tribal shares for each
tribe.
F. Tribal Shares Are the Second Issue To Be Negotiated
Once the negotiations have identified the residual
functions and the amount of money that must be reserved to fund
them, the Committee expects the BIA-tribal negotiations will
next turn to the question of what is each Indian tribe's share
of the remaining funds previously expended by the Agency, Area
and Central Offices. This step is the last step before the
negotiators develop reorganization plans for each Agency, Area
and Central Office.
The identification of tribal share amounts for each Indian
tribe simply means that the BIA and Indian tribes negotiate how
much of the present funding levels are identified to the
benefit of each Indian tribe after a negotiated amount of funds
is reserved to pay for the negotiated Federal residual
functions.
The Committee acknowledges that the negotiated
determination of tribal shares in each Agency, Area and Central
Office may be one of the most contentious activities of the
negotiation process. The Committee suggests as guidance for
this process the rules which are soon to be promulgated under
Title IV of Public Law 93-638, as amended. Developed under
negotiated rulemaking procedures by tribal and Federal
government representatives, these rules could provide a
framework for the fair and equitable identification of tribal
shares based upon rational factors. For example, a tribe's
share of the Agency Office human services budget would be keyed
to that tribe's relative share of the service population of all
tribes in the Agency Office. Similarly, a tribe's share of the
forestry-related funds in an Area Office budget would be keyed
to that tribe's relative share of the forestry acreage (or
other negotiated measure) of all tribes in the Area Office. The
Committee intends the same procedure to be applied at the
Central Office level.
Once each tribe's share of the remaining funds is
identified, the next step in the negotiations is to decide who
spends how much of those tribal shares--the tribes themselves,
or the BIA for the benefit of those tribes, or a group of
tribes combining their efforts as one, or any combination of
these entities. A majority of the tribes previously served by
an Agency or Area Office can negotiate a reorganization plan
that includes a transfer of part or all of their tribal shares
to the tribes. Under such a plan, tribes could negotiate to
receive differing portions of their tribal shares. These shares
could include the portion of their shares they already receive
under Self-Determination contracts or Self-Governance compacts,
or it could include a larger amount. If a tribe chooses to
receive more of its share than it already receives, these funds
can be transferred under existing law to that tribe under a new
or modified Self-Determination contract or Self-Governance
agreement. If the tribes choose to have the BIA spend some of
their tribal shares for the benefit of tribes, in addition to
the residual funds already retained, how and where those funds
are spent is subject to the negotiated approval of the tribes.
In other words, any part of the tribal shares that is held back
by the BIA with the consent of the affected tribes must be
expended on behalf of those consenting tribes according to the
requirements of the plan those tribes have negotiated and
approved.
A negotiated plan may continue, in part or in whole, the
existing organizational structures, functions, or funding
priorities of an Agency or Area Office, or a portion of the
Central Office. The negotiated plan may also completely
dissolve, restructure or reorganize any such Office. In any
event, if the negotiated plan retains any programs, services,
non-residual functions or activities with a BIA Agency Office,
Area Office, or Central Office, the reorganization plan must
include a negotiated determination of the share of funds used
by the Area Office to support those programs, services, non-
residual functions and activities benefiting each Indian tribe,
identified on a tribe-by-tribe basis.
G. Majority Approval
Before any negotiated reorganization plan is implemented,
it must first be approved by a simple majority of the Indian
tribes previously served by the Agency, Area or Central Office
which is the subject of the reorganization plan. If an Indian
tribe fails to approve the negotiated plan within sixty days of
when it is distributed, its inaction is deemed a disapproval.
The Committee wishes to encourage, wherever possible,
tribal agreement on the reorganization plans. However, the
legislation does not compel a reorganization plan to require
each Indian tribe to make identical decisions on how or whether
it wants the BIA to benefit that tribe under an approved
reorganization plan. For example, in negotiating a
reorganization plan one tribe may choose to receive 80% of its
tribal share funds and leave the remaining 20% with the BIA for
Federal expenditure on specific programs, services, non-
residual functions, and activities of benefit to that tribe.
Another Indian tribe may negotiate a provision in the same
reorganization plan to receive 10% of its tribal share funds
and leave the remaining 90% with the BIA for Federal
expenditures on specific programs, services, non-residual
functions, and activities of benefit to that tribe. In any
event, whatever is left for BIA expenditure is to be subject to
the negotiated direction of the tribe or tribes to be
benefitted by those expenditures.
Any Indian tribe which is among a minority of tribes
failing to approve a reorganization plan is protected. The
level of its funding and services must be maintained, subject
to available appropriations, and it has the option to receive
directly all or part of its tribal share previously used by a
BIA office to carry out programs, services, non-residual
functions, and activities for the benefit of that tribe. The
agreement to receive the tribal share must include a negotiated
determination of the amount of residual funds, if any, to be
retained by the Secretary for that BIA office to pay for those
trust or other Federal functions that are not delegable to
Indian tribes, and a negotiated determination of the respective
responsibilities of that BIA office and the Indian tribe.
H. Implementation Efforts and Related Funding
The Committee would discourage any effort by the BIA to set
up an ``office of reorganization'' to implement this
legislation. The task of reorganization lies within the Office
of the Assistant Secretary-Indian Affairs and the Office of the
Deputy Commissioner for the BIA. This legislation requires no
special office to develop reorganization policies. The only
reorganization policy that is required is that which is set
forth in this legislation--Indian tribes, not Federal
officials, are the ones who have the authority to redesign the
BIA from top to bottom. Upon enactment of this bill, the
Committee expects the Offices cited in this paragraph to halt
all other reorganization efforts and redirect their focus,
through the exercise of their existing management authorities,
to the task of implementing the procedures required by this
legislation.
Likewise, the Committee does not anticipate any need for
any substantial reprogramming of funds from other BIA
activities in order to fund the negotiations required under
this legislation. For the Federal side, the negotiation costs
should be funded from the regular administrative and management
functions of the BIA. Without enactment of this bill, the BIA
would continue to engage itself in reorganization efforts to
which it dedicates a portion of the funds appropriated for
administrative and executive management functions. The
Committee expects these funds to be redirected by the BIA for
the purposes of this bill. However, the Committee directs that
the BIA properly vest its negotiators with full authority to
make decisions during negotiations on behalf of the BIA and its
various offices at each level. There are two reasons for this.
Unrestrained, every BIA official with something at stake in the
negotiations would be tempted to create an official excuse to
attend the negotiations, whether in the role of an assistant to
the negotiator or that of a mere spectator. The Committee
strongly encourages the Assistant Secretary and Deputy
Commissioner to establish a Federal negotiation team of no more
than three persons for each negotiation, and that the number of
Federal officials attending the negotiations be kept to a bare
minimum in order to conserve funds and provide for a coherent
and efficient presentation of the Federal positions during
negotiations. The BIA should discipline its various offices and
programs to present a unified approach to the reorganization
negotiation process. The BIA's negotiation objectives should
not be to maintain the status quo but rather to see that Indian
tribes have the authority and flexibility to redesign the BIA
from top to bottom.
Similarly, for the tribal side of the negotiations, the
Committee anticipates that tribal governments will fund their
negotiation activity by redirecting some of the funds they
already expend for ongoing governmental, administrative and
management functions and activities. The tribal costs
associated with negotiation will primarily be in travel and per
diem associated with several weeks of negotiations. Since the
negotiations for all three levels of the BIA are expected to
occur near each Area Office location, the travel costs for most
tribal leaders should be limited. The assumption for tribal
governments, like for the BIA, is that the task of reorganizing
and restructuring is part of the associated costs of their
ongoing administrative and management responsibilities. In
fact, many of the tribal and Federal activities and expenses
contemplated in the bill are similar to those incurred during
the negotiation of Self-Determination contracts or Self-
Governance agreements.
I. Flexible Inter-Tribal Efforts on Direct Services Are Anticipated
The Committee notes that a majority of the Indian tribes
now served by an Agency or Area Office may vote to do away with
that Office altogether. In such an instance, the Secretary must
ensure that Indian tribes which do not want to take over these
functions themselves, but instead seek to continue to receive
direct services should be allowed to do so. There are several
alternative ways in which those direct services from the BIA
could be provided. The Committee would consider it entirely
permissible for the Secretary to delegate to one or more Indian
tribes the responsibility of carrying out the provision of
direct services to other tribes. Of course, such an arrangement
would require the agreement of all three parties: the BIA, the
tribe(s) providing services, and the tribe(s) receiving
services. In any event, funds would be made available for the
provision of those services based upon the tribal share amount
of each tribe receiving services. In addition, a specific
provision in the bill recognizes the sovereign authority of two
or more tribes to choose to combine their efforts to expend
tribal share or other funds allocated to them under this
legislation. This authority should prove of some assistance to
smaller tribes who face the challenge of economies of scale in
administering services at the tribal level.
J. Information Exchange
The Committee included a provision in the bill to require
the Secretary to provide Indian tribes with information on the
BIA budget and structure during the reorganization process. The
Committee notes that Indian tribes have indicated that the BIA
has been sometimes reluctant, sometimes recalcitrant, and
sometimes hostile in response to tribal requests for
information, especially information regarding budgetary and
organizational details internal to the various BIA offices. The
Committee wishes to underscore the fact that the legislation
compels the BIA to provide to any requesting tribe all
documents required for the negotiating process. However, the
Committee expects the BIA to anticipate the negotiation needs
of tribes and not wait until specific documents are requested
by the tribal government. BIA staff should be instructed to
resist any temptation to conceal negotiation information from
tribal governments. The key to successful implementation of
this legislation is a cooperative negotiation between the BIA
and tribal governments, and in this regard, the cooperation of
the BIA is mandated by law.
K. Suspension of Certain Administrative Actions
The Committee has included a directive that, within
available appropriations, all other reorganization activities
related to downsizing of the BIA be suspended while the
reorganization process mandated under this legislation is
implemented. The purpose of this provision is to suspend the
reinventing government initiative, the National Performance
Review, and other activities that tribal governments have
opposed because they have been barred from participating in the
actual decision-making and because the objective of those
efforts has been to transfer to the U.S. Treasury, rather than
to the Indian tribes, any funds saved by the Federal
downsizing. In contrast, the approach taken in S. 814 is to
``tribalize'' the funding that has been made available for the
benefit of the Indian tribes through the BIA. Within available
appropriations, any funds freed up through the reorganization
of the BIA under a tribal plan are to be ``tribalized'' in a
process that identifies, by tribe and by amount, each tribe's
share of these funds which are then either spent by the BIA on
behalf of the tribe identified, or are transferred to that
tribe for its expenditure on its own behalf.
The Committee has adopted this approach for several
reasons. First, the United States owes a trust responsibility
to Indian tribes that flows from treaties, statutes and the
general course of dealings, government-to-government, between
the United States and the Indian tribes. This trust is a legal
relationship that involves some promise of funding based upon
treaty obligations undertaken in exchange for peace and title
to some of the most valuable land and resources on earth. The
promises made to Indian tribes are as binding as are other
domestic and international agreements entered into by the
United States. The United States Constitution characterizes
these treaties as the highest law of our land. Consequently,
the Federal responsibility for the Indian programs funded as a
result of these obligations cannot be devolved to State or
local governments, nor can they be devolved to the Indian
tribal governments themselves without a corresponding transfer
of funds. Hence, as a general policy, it is the intent of the
Committee that any BIA downsizing that occurs by reduction in
BIA personnel or office structure shall result in a
``dividend'' to the tribal governments those personnel and
structures were supposed to benefit. Funds appropriated for the
benefit of Indians should remain dedicated to that purpose. As
the number of Federal employees decreases, the amount of
``tribalized dollars'' transferred to the Indian tribes should
correspondingly increase.
L. Tribal Priority Allocations Account Established
S. 814 establishes, for the first time in statute, a
``tribal priority allocations account'' (TPA). The Committee
notes that in previous years the methodologies established by
the BIA, including the Indian Priority System (IPS), have
purported to represent the views of Indian Country on budget
priorities. The Committee has received reports that the systems
set up by the BIA have never adequately reflected the true
priorities of Indian Country. The TPA account provided for
under this legislation seeks to establish an accurate, fair
and, most importantly, tribally-driven system to establish
tribal funding priorities. Likewise, the bill references
recurring base funding for tribes. While all such references
are subject to available appropriations, it is the intention of
this Committee to facilitate the provision by the Congress of
stable, base funding amounts annually to each tribe so that
tribal governments may execute long-term financial planning and
investment activities for governmental purposes.
M. Budget Development
The bill adds a new title V to the Indian Self-
Determination and Education Assistance Act. One of the goals of
the Committee is to assure that Indian tribes be permitted to
play a significant role as an equal partner at each stage of
the budget formulation for the BIA and for the Indian Health
Service. Of key importance to the success of this title is the
cooperation of both the Department of the Interior and the
Department of Health and Human Services. This new title
mandates the input of Indian tribes in the formulation of
annual agency budgets by both Departments. It allows for the
provision of stable, base funding for all tribes, subject of
course to the willingness of the Administration and the
Congress to make available sufficient appropriations for that
purpose. And it mandates the development of standardized and
tribally-driven needs assessment methodologies that employ
objective criterion. Such a needs assessment effort would mark
the first time the Congress has authorized the development of a
comprehensive measure of tribal needs and conditions to be used
in the allocation of limited Federal resources. This approach
for BIA funding has some precedent. For example, in the area of
Indian health, the Congress authorized the development of
resource allocation methodologies in the Indian Health Care
Improvement Act of 1976, as amended. The budget development
process adopted in S. 814 is premised on the legal trust
responsibility borne by the United States for Indian tribes,
and assumes that the budget preparation process should be done
with the participation of the Indian tribes who were promised
this funding when they gave up substantial rights to property
and resources.
legislative history
S. 814, the Bureau of Indian Affairs Reorganization Act of
1995, was introduced on May 17, 1995 by Senator McCain, for
himself and Senators Inouye and Domenici. On May 24, 1995,
Senator Thomas was added as a co-sponsor. The Committee held
oversight hearings on March 8, 1995 and May 18, 1995 on the
recommendations of the Joint Reorganization Task Force and on
the various efforts of the Administration to restructure the
BIA under the National Performance Review process. In addition,
the Committee held two hearings on S. 814, one in Washington,
D.C. on June 28, 1995 and one in Anchorage, Alaska on October
6, 1995.
committee recommendation and tabulation of vote
On December 12, 1995, the Committee on Indian Affairs, in
an open business session, considered an amendment in the nature
of a substitute to S. 814 proposed by Chairman McCain. By
unanimous vote, the Committee adopted the Substitute Amendment
to S. 814 and ordered S. 814 to be favorably reported to the
Senate as amended with a recommendation that it do pass.
section-by-section analysis
Section 1. Short title, table of contents, and definitions
Section 1 cites the short title of the Act as the Bureau of
Indian Affairs Reorganization Act of 1995. This section also
sets forth the table of contents for the Act and the
definitions used in the Act. This section also states the
general purposes of the Act.
Title I--Reorganization Compacts
Sec. 101. Reorganization of area offices
Subsection (a) of this section provides that, not later
than 30 days after enactment, the Secretary must notify in
writing each Indian tribe served by each Area Office of the BIA
of the time and place of the initial prenegotiation meeting to
establish a schedule of negotiations for the Area Office, and
not later than 150 days after enactment, the Secretary shall
conclude negotiations with those Indian tribes to prepare a
reorganization plan for the Area Office.
Subsection (b) of this section sets forth the requirement
that each Area Office plan must provide for the reorganization
of the administrative structure of the Area Office, the
reallocation of personnel, the delegation of secretarial
authorities, the issuance of waivers of regulations and other
authorities, the reordering of funding priorities, and specify
which functions are retained by the BIA and which functions are
transferred to the tribes. The Area Office plan shall include a
formula for transferring unexpended balances to the recurring
base funding of the tribes.
Paragraph (2) of this subsection provides that an Area
Office plan must include a negotiated determination of the
share of funds used by the Area Office to support the programs,
services, functions and activities benefiting each tribe.
Paragraph (3) of this subsection provides that a majority
of tribes served by an Area Office may elect to continue the
existing organizational structures, functions, or funding
priorities of the Area Office.
Paragraph (4) of this subsection provides that upon
completion of the negotiation of an Area Office plan the
Secretary shall submit the plan for approval by the Indian
tribes served by the Area Office. If an Indian tribe fails to
approve the plan within 60 days, the plan shall be considered
to have been disapproved by that tribe. If a majority of tribes
approve the Area Office plan, the Secretary shall enter into a
reorganization compact with the tribes.
Paragraph (5) of this subsection provides that for an Area
Office which serves only one Indian tribe, the Secretary must
notify in writing that Indian tribe, not later than 30 days
after enactment, of the time and place of the initial
prenegotiation meeting to establish a schedule of negotiations
for the Area Office, and not later than 150 days after
enactment, the Secretary shall conclude negotiations with that
Indian tribe to prepare a reorganization plan for the Area
Office, if the tribe elects to develop a reorganization plan
for its Area Office. Once the tribe approves the plan, the
Secretary shall enter into a reorganization compact with the
tribe to carry out the reorganization plan.
If a majority of the Indian tribes served by an Area Office
fail to approve the reorganization plan for that Area Office,
paragraph (6) of this subsection provides that an Indian tribe
served by that Area Office may elect to receive its tribal
share of the funds used by the Area Office to carry out
programs, services, functions, and activities directly from the
Secretary. The agreement to receive the tribal share must
include a negotiated determination of the amount of residual
funds, if any, to be retained by the Secretary for the Area
Office to pay for trustee and other Federal functions that are
not delegable to Indian tribes, and a negotiated determination
of the respective responsibilities of the Area Office and the
Indian tribe.
If an Indian tribe elects to receive its tribal share under
this subsection, paragraph (7) of this subsection prohibits the
exercise of that option from being construed to limit or
restrict the right of that or any other tribe to receive funds
under title I or title IV of the Indian Self-Determination and
Education Assistance Act (P.L. 93-638). However, funds received
under P.L. 93-638 may be included in the tribal share
identified in this subsection.
If a majority of the Indian tribes served by an Area Office
fail to approve the reorganization plan, paragraph (8) of this
subsection provides that the Secretary has the authority to
determine the organizational structure, functions, and funding
priorities of the Area Office after consulting with the Indian
tribes served by that Area Office and in a manner consistent
with the exercise by any Indian tribe of its option to receive
directly its tribal share under this subsection.
Subsection (c) of this section provides that not later than
30 days after a majority of the Indian tribes served by an Area
Office have approved a reorganization plan, the Secretary shall
enter into an Area Office reorganization compact with the
Indian tribes to carry out the Area Office reorganization plan.
This subsection also provides that nothing in this section may
limit or reduce the level of any service or funding that an
Indian tribe would otherwise receive under Federal law,
including contracts, grants or annual funding agreements under
P.L. 93-638.
Sec. 102. Reorganization of agency offices
Subsection (a) of this section provides that not later than
30 days after enactment, the Secretary must notify in writing
each Indian tribe served by each Agency Office of the BIA of
the time and place of the initial prenegotiation meeting to
establish a schedule of negotiations for the Agency Office, and
not later than 150 days after enactment, the Secretary shall
conclude negotiations with those Indian tribes to prepare a
reorganization plan for the Agency Office.
Subsection (b) of this section sets forth the requirement
that each Agency Office plan must provide for the
reorganization of the administrative structure of the Agency
Office, the reallocation of personnel, the delegation of
secretarial authorities, the issuance of waivers of regulations
and other authorities, the reordering of funding priorities,
and must specify which functions are retained by the BIA and
which functions are transferred to the tribes. The Agency
Office plan shall include a formula for transferring unexpended
balances to the recurring base funding of the tribes.
Paragraph (2) of this subsection provides that an Agency
Office plan must include a negotiated determination of the
share of funds used by the Agency Office to support the
programs, services, functions and activities benefiting each
tribe.
Paragraph (3) of this subsection provides that a majority
of tribes served by an Agency Office may elect to continue the
existing organizational structures, functions, or funding
priorities of the Agency Office.
Paragraph (4) of this subsection provides that upon
completion of the negotiation of an Agency Office plan the
Secretary shall submit the plan for approval by the Indian
tribes served by the Agency Office. If an Indian tribe fails to
approve the plan within 60 days, the plan shall be considered
to have been disapproved by that tribe. If a majority of tribes
approve the Agency Office plan, the Secretary shall enter into
a reorganization compact with the tribes.
Paragraph (5) of this subsection provides that for an
Agency Office which serves only one Indian tribe, the Secretary
must notify in writing that Indian tribe, not later than 30
days after enactment, of the time and place of the initial
prenegotiation meeting to establish a schedule of negotiations
for the Agency Office, and not later than 150 days after
enactment, the Secretary shall conclude negotiations with that
Indian tribe to prepare a reorganization plan for the Agency
Office, if the tribe elects to develop a reorganization plan
for its Agency Office. Once the tribe approves the plan, the
Secretary shall enter into a reorganization compact with the
tribe to carry out the reorganization plan.
If a majority of the Indian tribes served by an Agency
Office fail to approve the reorganization plan for that Agency
Office, paragraph (6) of this subsection provides that an
Indian tribe served by that Agency Office may elect to receive
its tribal share of the funds used by the Agency Office to
carry out programs, services, functions, and activities
directly from the Secretary. The agreement to receive the
tribal share must include a negotiated determination of the
amount of residual funds, if any, to be retained by the
Secretary for the Agency Office to pay for trustee and other
Federal functions that are not delegable to Indian tribes, and
a negotiated determination of the respective responsibilities
of the Agency Office and the Indian tribe.
If an Indian tribe elects to receive its tribal share under
this subsection, paragraph (7) of this subsection prohibits the
exercise of that option from being construed to limit or
restrict the right of that or any other tribe to receive funds
under title I or title IV of the Indian Self-Determination and
Education Assistance Act (P.L. 93-638). However, funds received
under P.L. 93-638 may be included in the tribal share
identified in this subsection.
If a majority of the Indian tribes served by an Agency
Office fail to approve the reorganization plan, paragraph (8)
of this subsection provides that the Secretary has the
authority to determine the organizational structure, functions,
and funding priorities of the Agency Office after consulting
with the Indian tribes served by that Agency Office and in a
manner consistent with the exercise by any Indian tribe of its
option to receive directly its tribal share under this
subsection.
Subsection (c) of this section provides that not later than
30 days after a majority of the Indian tribes served by an
Agency Office have approved a reorganization plan, the
Secretary shall enter into an Agency Office reorganization
compact with the Indian tribes to carry out the Agency Office
reorganization plan. This subsection also provides that nothing
in this section may limit or reduce the level of any service or
funding that an Indian tribe would otherwise receive under
Federal law, including contracts, grants or annual funding
agreements under P.L. 93-638.
Sec. 103. Reorganization of central office
Subsection (a) of this section provides that, not later
than 30 days after enactment, the Secretary must notify in
writing each Indian tribe of the time and place of the initial
prenegotiation meeting to establish a schedule of negotiations
for the Central Office and that, not later than 150 days from
the date of enactment, the Secretary must conclude negotiations
with Indian tribes to develop a Central Office reorganization
plan. The Secretary must conduct negotiations on an Area by
Area basis with representatives from each tribe in each Area in
order to develop the Central Office plan, which must include a
negotiated determination of the appropriate allocation of
personnel and funding made available to Central Office to serve
the Area and Agency Offices and the tribes in each Area.
Subsection (b) of this section sets forth the contents of
the Central Office reorganization plan.
Paragraph (1) of this subsection provides that the Central
Office plan must contain a determination of funds and personnel
used to support the Area and Agency Offices in each Area and
those funds which may be allocated directly to Indian tribes
pursuant to the formula developed under this section.
Paragraph (2) of this subsection sets forth the requirement
that the Central Office plan must provide for the negotiated
reorganization of the administrative structure of the Central
Office, the reallocation of personnel, the delegation of
secretarial authorities, the issuance of waivers of regulations
and other authorities, the reordering of funding priorities,
and must specify which functions are retained by the BIA and
which functions are transferred to the Indian tribes. The
Central Office plan must include an allocation formula to
provide for the remaining services to be provided to the Area
and Agency Offices and the Indian tribes by the Central Office
and a formula for the transfer of savings to the recurring base
funding of the tribes and to the Area and Agency Offices.
Paragraph (3) of this subsection provides that the Central
Office plan must include a negotiated determination of the
share of funds used by the Central Office to support the
programs, services, functions and activities benefiting each
tribe.
Paragraph (4) of this subsection provides that an Indian
tribe that has received a tribal share of both an Area and
Agency Office, or has received a tribal share pursuant to title
I or IV of P.L. 93-638, may elect to receive its tribal share
of the funds used by the Central Office to carry out programs,
services, functions, and activities directly from the
Secretary. The agreement to receive the tribal share must
include a negotiated determination of the amount of residual
funds, if any, to be retained by the Secretary for the Central
Office to pay for Federal functions that are not delegable to
Indian tribes, and a negotiated determination of the respective
responsibilities of the Central Office and the Indian tribe.
Paragraph (5) of this subsection provides that an Indian
tribe's exercise of the option to receive directly a tribal
share of funds under this section may not be construed to limit
or restrict any right of that tribe or any other tribe to
receive funds under P.L. 93-638, and funds received under that
Act may be included as part of the tribal share.
Subsection (c) of this section provides that not later than
90 days after the Secretary has concluded the negotiation of a
Central Office plan, the Secretary shall, for each Area Office,
enter into a Central Office reorganization compact with the
tribes in that Area to implement the Central Office
reorganization plan. The Secretary may not implement the
component of a Central Office reorganization plan relating to
an Area Office until a majority of tribes served by that Area
Office have entered into a Central Office reorganization
compact with the Secretary. This subsection also provides that
if a majority of the Indian tribes served by an Area Office do
not enter into a Central Office reorganization compact, the
Secretary has the authority to determine the organizational
structure, functions, and funding priorities of the component
of the Central Office which relates to that Area Office, but
only after consulting with the Indian tribes served by that
Area Office and in a manner consistent with the exercise by any
Indian tribe of its option to receive directly its tribal share
under this section. Where the Secretary determines that a
Central Office reorganization compact is inconsistent with a
related Area or Agency Office reorganization compact, the
Secretary and the Indian tribes served by that Area or Agency
Office must negotiate such modifications to the Central Office
compact as are necessary to ensure its consistency with the
applicable Area or Agency Office compact.
Sec. 104. Authority to spend funds
Each Indian tribe receiving funds under this title must
administer and expend those funds in a manner consistent with
the authorities provided Indian tribes under P.L. 93-638.
Sec. 105. Savings provisions
Subsection (a) of this section provides that all orders,
determinations, rules, regulations, permits, agreements,
grants, contracts, licenses, and other administrative actions
that are in effect on the effective date of the reorganization
compact shall continue in effect according to their terms until
modified, terminated, superseded or set aside in accordance
with law.
Subsection (b) of this section provides that a
reorganization compact may not affect any proceedings,
including any notices for proposed rulemaking, that are pending
at the time the reorganization compact takes effect. These
proceedings may continue as if the compact had not been entered
into and any orders issued in such proceedings shall continue
in effect until modified, terminated or superseded by a duly
authorized official, a court of competent jurisdiction, or by
operation of law.
Subsection (c) of this section provides that no suit,
action, or other proceeding commenced by or against the BIA or
any official in the BIA shall abate by reason of enactment of
this title.
Sec. 106. Additional conforming amendments
Subsection (a) of this section authorizes the Secretary to
prepare and submit to the Congress, after consultation with the
Indian tribes and the Committees of jurisdiction in the
Congress, recommended legislation containing technical and
conforming amendments to reflect changes made pursuant to this
title.
Subsection (b) of this section requires the Secretary to
submit such legislation to the Congress within 120 days of
enactment of this title.
Sec. 107. Authorization of appropriations
This section authorizes such sums as may be necessary to
carry out this title to be appropriated.
Sec. 108. Effective date
This section provides that this title shall take effect on
the date of enactment.
Sec. 109. Separability
This section provides that if a provision of this title or
its application is held invalid, neither the remainder of this
title nor the application of the provision to other persons or
circumstances shall be affected.
Sec. 110. Suspension of certain administrative actions
This section provides that during the two year period
beginning on the date of enactment the Secretary shall suspend
the implementation of all administrative activities associated
with reinventing government, the national performance review
and other downsizing initiatives affecting the Bureau of Indian
Affairs. This section also provides that during this two year
period the reorganization compacts entered into under this
title shall be deemed to satisfy the goals of reinventing
government, the national performance review and other
downsizing initiatives of the Executive Branch of the United
States.
Sec. 111. Statutory construction
This section provides that nothing in this title may be
construed to alter or diminish the Federal trust responsibility
to Indian tribes, individual Indians, or Indians with trust
allotments.
Sec. 112. Tribal authority recognized
This section provides that nothing in this title may be
construed to prohibit or limit the capacity of two or more
Indian tribes to authorize a group of Indian tribes to exercise
any authority granted to an Indian tribe under this title,
except that the approval by an Indian tribe of an agency or
Area Office plan, and the entering into of a Central Office
plan by an Indian tribe, shall require the separate tribal
resolution or other official act of the governing body of the
Indian tribe involved.
Sec. 113. Renegotiation authority
In the years following the year of enactment, the Indian
tribes may annually exercise the authorities provided under
this title, including those relating to the negotiation of
reorganization plans and elections to receive tribal shares, in
which case the timeframes set forth in this title shall be
calculated from the annual anniversary date of the date of
enactment of this title.
Sec. 114. Disclosure of information
Upon entering negotiations on agency, Area and Central
Offices, and in a timely manner throughout the negotiations,
the Secretary must provide to Indian tribes all budgetary,
structural, administrative and legal information necessary to
negotiate the reorganization of those offices, and, at the
request of a tribe, must provide technical assistance to
interpret that information.
Title II--Amendment to the Indian Self-Determination and Education
Assistance Act
Sec. 201. Budget development
Section 201 amends the Indian Self-Determination Act (25
U.S.C. 450 et seq.) by adding the following new title:
``Title V--Budget Development
Sec. 501. Participation of Indian tribes in the development of budget
requests
Subsection (a) of this section requires, within 120 days
after enactment, the Secretary to establish a program to
provide information to Indian tribes concerning the development
of budget requests for the Bureau of Indian Affairs and to
ensure that each Indian tribe participates to the maximum
extent practicable in the development of the budget request for
the Bureau of Indian Affairs.
Subsection (b) of this section requires, within 120 days
after enactment, the Secretary of Health and Human Services to
establish a program to provide information to Indian tribes
concerning the development of budget requests for the Indian
Health Service and to ensure that each Indian tribe
participates to the maximum extent practicable in the
development of the budget request for the Indian Health
Service.
Subsection (c) of this section sets forth certain
requirements which the Secretary must carry out to the maximum
extent practicable.
Paragraph (1) of this subsection requires that each budget
program under this section must provide for the estimation of
the funds annually authorized to be appropriated for the
benefit of Indian tribes and an estimation of the funds
annually provided for the specific benefit of each Indian
tribe. In addition, this paragraph requires each budget program
to provide each Indian tribe with an opportunity to establish
individual tribal funding priorities, and the authority and
flexibility to design tribal and Federal programs in order to
best address the needs of the Indian community served by the
Indian tribe. The budget program shall also collect and
disseminate information necessary for effective planning and
evaluation relating to the comparative social and public health
conditions of Indian communities at the local, regional, and
national levels.
Paragraph (2) of this subsection requires the Secretary of
the Interior and the Secretary of Health and Human Services to
support the creation of stable recurring base funding for each
Indian tribe, to maintain stability in the planning and
allocation of the IHS and BIA budgets to Indian tribes, to
assess the Federal programs of assistance to Indian tribes to
determine the relative need for providing Federal funds to
carry out each such program and determine the amount of
recurring base funding available to each Indian tribe to carry
out each such program.
Paragraph (3) of this subsection authorizes the Secretary
of the Interior and the Secretary of Health and Human Services
to enter into self-determination contracts, self-governance
compacts or make a grant to an Indian tribe to carry out the
information collection and dissemination functions under this
title.
Sec. 502. Assessment methodology
Subsection (a) of this section requires the Secretary of
the Interior within 180 days of enactment to promulgate
standardized assessment methodologies to be used in carrying
out any budget determination for the BIA concerning levels of
funding that are necessary for each program Area.
Subsection (b) of this section requires the Secretary to
ensure the direct and active participation of Indian tribes at
the local, regional and national levels in the negotiated
rulemaking process established under this section.
Subsection (c) of this section provides that the negotiated
rulemaking committee created under this section shall be
comprised of individuals who represent the Federal government
and individuals who represent Indian tribes. A majority of the
Committee shall be comprised of individuals who represent
Indian tribes.
Subsection (d) of this section authorizes the Secretary to
adapt the negotiated rulemaking procedures in accordance with
section 407 of P.L. 93-638 (Title IV--Self-Governance).
Sec. 503. Reports to the Congress
This section provides that the Secretary shall annually
prepare a report that describes the standardized methodologies
and includes an assessment of the level of funding that is
necessary to fund each program Area of the Bureau of Indian
Affairs. This report shall include an assessment for each
Indian tribe of the level funding necessary for each Indian
tribe to carry out each program Area and an assessment of the
total amount of funds needed to carry out all the programs
Areas with respect to which the tribe receives services. The
report is to accompany the annual budget submission.
Sec. 504. Authorization of appropriations
This section authorizes to be appropriated such sums as may
be necessary to carry out this title.
Title III--Reform of the Regulations of the Bureau of Indian Affairs
Sec. 301. BIA manual
This section requires the Secretary not later than 180 days
after enactment to conduct a review of all the provisions of
the BIA manual and to promulgate as proposed regulations those
provisions of the BIA manual that are deemed necessary and to
revoke all provisions of the BIA manual that are not
promulgated as proposed regulations. In carrying out this
section, the Secretary shall consult with Indian tribes to the
maximum extent practicable.
Sec. 302. Task Force
This section provides for the establishment of a Joint
Tribal-Federal task force on regulatory reform. The task force
shall be composed of 16 members, including 12 members who are
representatives of Indian tribes from each of the 12 Areas
served by the BIA. The task force shall review the regulations
under title 25 of the Code of Federal Regulations and make
recommendations concerning revision of the regulations. The
task force shall submit reports to the Secretary as is deemed
appropriate and, not later than 120 days after its initial
meeting, submit a report to the Congress and the governing body
of each Indian tribe that includes their findings and
recommendations after reviewing title 25 of the Code of Federal
Regulations. The task force shall terminate 30 days after the
date on which the task force submits its report to the
Congress. This section also prohibits the BIA from using any
internal manual or handbook or other written procedure to bind
any Indian tribe unless it is first published as a final
regulation in accordance with Federal law.
Sec. 303. Authorization of Appropriations
This section authorizes to be appropriated such sums as may
be necessary to carry out this title.
cost and budgetary considerations
The cost estimate for S. 814, as amended, as provided by
the Congressional Budget Office, is set forth below:
U.S. Congress,
Congressional Budget Office,
Washington, DC, January 5, 1996.
Hon. John McCain,
Chairman, Committee on Indian Affairs, U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
reviewed S. 814, the Bureau of Indian Affairs Reorganization
Act of 1995, as ordered reported by the Senate Committee on
Indian Affairs on December 12, 1995. CBO estimates that
implementing S. 814 would cost approximately $1.5 million in
1996, assuming appropriation of the necessary funds, but would
have no significant impact on the federal budget thereafter.
Enacting S. 814 would not affect direct spending or receipts;
therefore, pay-as-you-go procedures would not apply.
Bill Purpose.--Title I of S. 814 would require the Bureau
of Indian Affairs (BIA) to change its structure and functions
through direct negotiation with all interested Indian tribes.
While such reorganization is taking place, the BIA would
provide the tribes with any information necessary to carry out
the negotiations, as well as technical assistance, if
requested. Title II of the bill would require the direct
involvement of the tribes in the development of the annual
budgets of both the BIA and the Indian Health Service. This
title would require these agencies to collect data regarding
the comparative social and public health conditions of Indian
communities. In addition, the Secretary of the Interior would
be required to establish standardized assessment methodologies
to determine each tribe's relative need for federal funds.
Title III would require that any internal BIA rules be
established as formal regulations. The bill also would create a
temporary task force to review BIA's rules and regulations, and
recommend any revisions to the Congress.
Impact on the Federal Budget.--CBO estimates that
implementing S. 814 would cost about $1.5 million in fiscal
year 1996 for costs related to information gathering,
dissemination, and travel for meetings with tribes at the
regional level. Most of the bill's requirements would be
fulfilled within the first six months after enactment. Because
of the short timeframe, significant BIA staff time would have
to be devoted to carrying out the requirements specified in the
bill. Of the $1.5 million total, CBO estimates that about
$500,000 would be spent for contracting out the collection of
data required by Title II.
Impact on State, Local, and Tribal Governments.--S. 814
would have no impact on the budgets of state or local
governments. While enacting the bill would affect Indian
tribes, it would impose no new mandates on tribal governments.
Impact on the Private Sector.--This bill would impose no
new federal private sector mandates, as defined in Public Law
104-4.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Rachel
Robertson.
Sincerely,
June E. O'Neill, Director.
regulatory impact statement
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires each report accompanying a bill to evaluate the
regulatory and paperwork impact that would be incurred in
carrying out the bill. The Committee believes that S. 814, as
amended, will have a minimal impact on regulatory or paperwork
requirements.
executive communications
Prior to the date on which it ordered the bill reported,
the Committee received a letter dated December 1, 1995 from the
Bureau of Indian Affairs which is reprinted below, providing
the views of the Administration on S. 814 as introduced. Before
the report was filed, the Committee received an additional
letter dated January 22, 1996 from the Office of the Assistant
Secretary-Indian Affairs, which is also reprinted below.
U.S. Department of the Interior,
Bureau of Indian Affairs,
Washington, DC, December 1, 1995.
Hon. John McCain,
Chairman, Committee on Indian Affairs, U.S. Senate, Washington, DC.
Dear Mr. Chairman: This is in response to your letter of
July 12, 1995 in which you enclosed questions in follow up to
the June 28, 1995 hearing before your Committee on S. 814, a
bill ``To provide for the reorganization of the Bureau of
Indian Affairs, and for other purposes.''
Our responses to the questions are enclosed. For purposes
of clarity, the questions are listed with our response
following each question.
Thank you for the opportunity to respond to the
supplemental questions submitted by the Committee. If we can
provide additional information to the Committee, please contact
us again.
Sincerely,
Hilda A. Manuel,
Deputy Commissioner of Indian Affairs.
Enclosure.
questions submitted by the senate indian affairs committee in follow up
to the june 28 hearing on s. 814, a bill to provide for the
reorganization of the bureau of indian affairs, and for other purposes
Question 1. Your testimony indicates that the BIA is still
under the one year moratorium for the implementation of the
cuts mandated under the National Performance Review. Yet we
have heard disturbing reports that in the field, Area Directors
and Agency Superintendents are proceeding with the NPR staffing
cuts without regard to this moratorium. Could you respond?
Response. The Colorado River Agency was the site not
specifically mentioned in the question where downsizing was
occurring while a Bureau wide moratorium was in effect. The
downsizing was the result of replacing people-operated power
systems with a more cost-efficient computerized monitoring
system which displaced several employees in the Branch of
Irrigation and Power in the Colorado River Agency. Since the
June 28 hearing, many other changes have occurred which
required the BIA to lift the moratorium on reduction-in-force
such as the House and Senate Appropriations Committees' actions
on the FY 1996 budget. Both Houses made significant reductions
in the BIA's budget which will result in a sizeable reduction-
in-force across the BIA. Approximately 1,500 jobs will be cut
from the Agency and Area offices and the Central Office.
Question 2. In the absence of legislation, what guarantees
are there that savings realized through NPR reductions will be
retained by the tribes themselves? Is there a written
commitment on the part of OMB to ensure that savings realized
through reorganization will be transferred to tribal
governments?
Response. The Conference Report language directs the BIA to
``hold distribution of tribal shares of Central Office funding;
to continue to implement tribal shares concepts at the Area
Office level; and to hold distribution of tribal shares of
pooled overhead funding''. Previous to the Appropriations
Committees' actions, the Administration strongly supported the
transfer of functions that strengthen tribal governments. The
BIA is awaiting the final FY 1996 appropriation before it
continues to pursue the establishment of Tribal Shares.
Question 3. I note your opposition to the provision
requiring the BIA to develop standard assessment methodologies
in an effort to determine the level of need funded in each
program area. As you know there is increasing pressure in
Congress to examine the growing disparity between Indian tribes
with gaming revenues and tribes that do not have those
revenues. If we do not have these standard measures, we will
have to rely on the historic funding levels of the BIA that
lack basic justification. What is your alternative?
Response. The BIA agrees we must have a mechanism that
accurately measures the unmet needs of tribes. We do not oppose
a standard assessment methodology for assessing the unmet needs
in each program area. However, the process that was recommended
by the task force is very costly, labor intensive and produced
negligible results. It is our understanding that the Budget
Reform Workgroup has submitted a revised methodology with which
the BIA will again try to pilot for use.
Question 4. In your testimony you have stated that the BIA
has eliminated 2,000 pages of the BIA Manual. That gets us down
to 14,000 pages. Have Indian tribes participated in these
efforts to eliminate the BIA Manual and reexamine the
provisions of 25 CFR?
Response. As the Committee is aware, the BIA Manual is an
internal procedural handbook which is used by BIA employees,
not tribal governments. However, Tribes have been extensively
involved in the revision of 25 CFR. In June 1995, in
Albuquerque, New Mexico, a consultation was held with tribal
leaders on three parts of 25 CFR. There are also two separate
tribal working groups currently working on developing
regulations to Self-Determination amendments and Self-
Governance. As a matter of fact, the BIA has published a
Customer Service Plan which commits the BIA to consulting with
Tribes in the development of all future regulations.
Question 5. Although your testimony has indicated that
there is no need for this legislation, it appears that only in
the Portland Area have there been constructive discussions
between the tribes and the Area Director in the formulation of
an Area Office reorganization plan. Why have there not been
similar efforts in other areas of the BIA?
Response. There are several other areas, such as Muskogee
and Juneau that have been heavily involved with Self-Governance
Tribes in determining area tribal shares and have actively
involved tribal participation during the last few years. It is
our belief that Public Law 103-413, the Indian Self-
Determination Act Amendments of 1994, enacted by Congress to
make the Self-governance demonstration project a permanent
program, will serve as the single most compelling force to
drive the reorganization of the BIA through a tribal shares
determination process, if authorized. I have directed all of
the 12 Area Directors to convene meetings with Tribes in their
respective jurisdictions to develop, in partnership with
tribes, the following action plan: (1) identification of
uniform program definitions; (2) level of program functions to
be left at each area and agency office; (3) formulas for the
determination of tribal shares for those remaining programs;
and (4) the core residual functions.
Question 6. You testified our bill is unnecessary because
the tribal share process you have begun, and which I support,
will restructure the BIA. But what is left at the BIA after
some tribes pull out their tribal shares? My bill would permit
all tribes to negotiate the shape, size, location, and scope of
what remains of the BIA. I fail to see any comparable role for
tribes in the Administration's plans. Is this not a good reason
for a bill like S. 814?
Response. The process for determining tribal shares and
residuals began in April 1995, with the first round to be
completed by the end of the summer. It is our expectation that
both agency and area programs will be reviewed and discussed to
arrive at a tribal share for every Tribe in an area, including
those who choose to rely on the BIA for delivery of program
services. This is necessary in order to determine the size of
the programs that will remain with the BIA. Through this
process the BIA will be restructured based on negotiations of
tribal shares and residual functions. As shown in the response
to question 5, all steps involve tribal participation.
Question 7. In formulating its reorganization plan, did the
BIA consider a meaningful change in purpose, including a more
equal partnership with tribal governments or is the plan simply
a reflection of the National Performance Review goals to reduce
the size of government?
Response. The BIA's initiative under REGOII is to
accelerate the transfer of programs and functions to
contracting and compacting Tribes in order for the Tribes to be
self-functioning. The premise of the plan is that downsizing
and reorganization will be tribally driven from the local
level. The process involved in REGOII, that of determining
tribal shares, is based upon a partnership with tribal
governments.
Question 8. During the previous Congress, I was a co-
sponsor of the American Indian Trust Fund Management Reform Act
which will address the problems associated with the
mismanagement of Indian trust funds and provide Indian account
holders with a greater role in managing their own funds. Can
you assure the Congress that progress on this important issue,
has not and will not, be adversely affected by BIA
reorganization plans?
Response. The Bureau of Indian Affairs is committed to
implementing long term reforms in the area of trust funds
management. The recently enacted American Indian Trust Funds
Management Reform Act of 1994 is a major milestone in formally
addressing reform efforts we have been undertaking in this
area. We fully intend to continue with these efforts including
providing adequate systems, adequate controls, periodic and
timely reconciliations, determining of accurate cash balances,
preparing and supplying account holders with periodic
statements (with balances that are available daily),
establishing written procedures and policies, providing
adequate staffing and supervision and appropriately managing
natural resources. Accordingly, we do not intend streamlining
efforts within the BIA to adversely impact these reform
efforts. However, any reduction in funding levels below the
President's 1996 request level could adversely impact trust
reform efforts.
It is important to point out that the recent House and
Senate action on the FY 1996 appropriation bill will be
disastrous to Indian country and will obviate any attempts to
accomplish Tribal Shares. The House reduced President Clinton's
budget for BIA by $228 million. It is $48 million below 1995.
The Senate reductions to BIA are even more severe than the
House and will have even more negative impacts. The Senate
slashed the FY 1996 President's Budget for BIA by $34 million,
or 23 percent. The cut is $255 million (15 percent) below 1995.
The House and Senate reductions to Central Office basically
make the Tribal Shares policy impossible, as the BIA will not
even have funds to carry out basic residual functions. While
the BIA fully supports the concept of Tribal Shares, the recent
House and Senate action on the BIA's budget make it unworkable.
----------
U.S. Department of the Interior,
Office of the Secretary,
Washington, DC, January 22, 1996.
Hon. John McCain,
Chairman, Committee on Indian Affairs, U.S. Senate, Washington, DC.
Dear Mr. Chairman: This letter presents the Department of
the Interior's concerns with S. 814, the proposed ``Bureau of
Indian Affairs Reorganization Act of 1995.''
The Department is strongly committed to the goals of S. 814
and acknowledges that any successful reorganization of the
Bureau of Indian Affairs (BIA) must include the participation
of Indian tribes. We also agree that Indian tribes, as primary
stakeholders, should be assured an active role in the
development of the BIA's annual budget requests.
At the June hearing on S. 814, we reported that all efforts
to ``streamline'' the BIA in accordance with the National
Performance Review (NPR) mandates had been placed on hold in
response to the strong opposition of the tribes, Instead, the
Department decided to use the self-determination and self-
governance processes as the vehicle to streamline the BIA
organization. The 1994 amendments to the Indian Self-
Determination Act of 1976, P.L. 103-413, authorized the
``tribal share determination'' process by expanding the scope
of contracting and compacting by tribes of all functions,
activities and services without regard to the organizational
level of the BIA.
We found this process to be the most feasible means to
ensure the involvement of the tribes in a reorganization
effort. We believe that the tribal shares determination process
is a critical first step because it presents the ultimate
opportunity for tribes to learn all the necessary facts and
information (including FTE staffing levels, costs or performing
functions and residuals tied to federal functions) to make
informed decisions about the reorganization. As tribal shares
are determined, tribes will be in a better position to decide
if they want to take their shares or leave their shares with
the BIA. As tribes take their shares, the BIA will be required
to downsize/streamline to accommodate the decrease in
operational funding.
The tribal shares determination process also sets out the
framework for the BIA to reexamine its role and to begin
focusing only on those core, residual functions that are
necessary to fulfill the Federal trust responsibility. This, we
believe, is another factor critical to a successful
reorganization.
In April 1995, the Deputy Commissioner of Indian Affairs
directed all Area Directors to begin the seven-step tribal
share determination process for each tribe in the respective
Areas. With some minor exceptions, all Areas completed the
identification of residual functions and tribal shares. This
information was reviewed by Central Office directors and the
Office of the Solicitor, Division of Indian Affairs, to
determine whether such residuals were legally sound. The
Solicitor's review resulted in a detailed listing of legal and
statutory authorities for over 300 BIA programs and activities.
This voluminous document will serve as the centerpiece of the
tribal share determination process between the Bureau and the
tribes.
Unfortunately, the Congressional action on the FY 1996
budget took precedence over the tribal share determination
process resulting in all staff assigned to this process being
reassigned to work only budget-related matters. Consequently,
we were delayed in completing the residual and ``inherently
federal'' documents for final review by the tribes. The drastic
reductions to both the operational and Tribal Priority
Allocation components of the BIA budget will make it difficult
for tribes to operate contracted or compacted programs. While
the BIA is committed to the tribal shares process, the
reductions are making it difficult for the BIA to maintain
adequate residual services without offsetting tribal shares.
This undermines the intent and purpose of the tribal shares
determination process contemplated by P.L. 103-413.
We are concerned that S. 814 will have the unintended
result of exacerbating this situation. Our experience over the
past several months leads us to believe that tribes will not
readily agree to close or consolidate their own Areas or
Agencies if they have an option to maintain the status quo. In
view of the budget levels contained in the most recent
conference version of the FY 1996 Interior and Related Agencies
Appropriations bill, we have serious concerns that any option
of maintaining the current is unrealistic.
Furthermore, on December 14, 1995, the Senate and House
Appropriations Committee Chairmen and the Interior
Appropriations Subcommittee Chairman wrote to the President to
inform him that they believe future funding for the Interior
Appropriations bill will be less than the FY 1996 conference
level in order to help achieve a balanced Federal budget.
Budget cuts of this magnitude not only threaten further tribal
contracting envisioned by P.L. 103-413, but also diminish
expectations of stable base funding as proposed in this
legislation.
Our immediate efforts, therefore, must focus on working in
full partnership with the tribes to determine how
reorganization of the BIA will be accomplished without
jeopardizing our Federal Trust responsibility while maximizing
the right of tribes to contract and compact for activities
previously performed by the BIA. We believe that completion of
the tribal shares determination process is the most expedient
and efficient means to do this because it will allow for direct
tribal participation and decisionmaking. In the end, we will
achieve our goal of maximizing the amount of resources that are
transferred to the tribes in this process without crippling our
ability to perform the residual functions.
Finally, we remain committed to tribal participation in the
development of the BIA's budget through the Tribal Budget
System, established at the recommendation of the Joint Tribal/
BIA/DOI Task Force on Reorganization, and the annual National
Tribal Budget meetings.
Our longstanding practice of involving Indian tribes in the
budget formulation process will continue to be followed by the
BIA tempered only by our efforts to improve the process. We
also intend to provide every feasible opportunity for each
tribe to develop individual funding priorities through growth
in the Tribal Priority Allocation (TPA) budget activity.
We also have concerns with the Budget Development
requirements of S. 814 that will mandate the BIA to incur
additional administrative costs to collect and disseminate
information on the conditions of Indian communities and to
develop a standard assessment methodology. The BIA does not
have the resources to meet these additional requirements within
the mandated time frames. Our best current estimate of the cost
to complete these requirements is at least $14 million in the
first year after enactment. During this critical time of budget
reductions, the BIA is committed to moving all available
resources to the tribes for reservation level programs. We
would prefer to do this in lieu of increasing bureaucratic
responsibilities as proposed by S. 814.
Our position on the Standard Assessment Methodology (SAM)
concept remains the same as indicated during the hearing on
June 28, 1995. We do not believe that SAM will be an efficient
or effective process in providing an objective measure of the
overall need for government funded services. Our experience
piloting the Indian Child Welfare Assistance program using SAM
was disappointing. We learned that it is too costly and
produces questionable results.
Finally, with regard to the provisions on regulatory
reform, we agree that there is a need to examine the need for
extensive regulations and the appropriateness of the BIA
Manual. We are pleased to report that over 2,000 pages of the
BIAM have been eliminated to date with more pages to be deleted
as program offices complete their review of the BIAM chapters
specific to their respective programs. The BIA has also
completed its review of Title 25 of the Code of Federal
Regulations to determine whether the regulations are needed,
duplicative, redundant or obsolete. This effort was conducted
in response to the Administration's mandate to reduce
regulations. We have completed this task and have begun to
implement the plan for regulatory reform.
In as much as this effort is currently in progress we
cannot support the establishment of a task force which will
duplicate the BIA's ongoing effort. Moreover, our experience
working with task forces is that they become costly and
unwieldy.
Overall, we feel that S. 814 implicitly fails to recognize
the current climate of diminishing resources. The BIA cannot
guarantee a recurring base level of funding for tribes as such
funds are subject to the availability of appropriations. The
BIA also cannot guarantee to protect any tribe that is not part
of a reorganization effort against a reduction in services or
funding.
While we remain committed to working with the Congress and
the tribes to accomplish a streamlined and responsive
organization of the Bureau, and to increase tribal involvement
in the budget priority setting, the Department of the Interior
oppose S. 814 in its present form. We urge you to delay final
action by the Senate on the bill until we have had time to work
with staff to revise several of the bill's provisions.
Thank you for your consideration of this letter.
The Office of Management and Budget has advised that it has
no objection to the presentation of this report from the
standpoint of the Administration's program.
Sincerely,
Ada E. Deer,
Assistant Secretary-Indian Affairs.
changes in existing law
In compliance with subsection 12 of rule XXVI of the
Standing rules of the Senate, the Committee notes that, in its
entirety, S. 814 as reported would add new provisions but make
no changes in existing law.