[Senate Report 116-34]
[From the U.S. Government Publishing Office]
Calendar No. 73
116th Congress } { Report
SENATE
1st Session } { 116-34
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TO AMEND THE INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACT TO
PROVIDE FURTHER SELF-GOVERNANCE BY INDIAN TRIBES, AND FOR OTHER
PURPOSES
_______
April 29, 2019.--Ordered to be printed
_______
Mr. Hoeven, from the Committee on Indian Affairs,
submitted the following
R E P O R T
[To accompany S. 209]
[Including cost estimate of the Congressional Budget Office]
The Committee on Indian Affairs, to which was referred the
bill (S. 209) to amend the Indian Self-Determination and
Education Assistance Act to provide further self-governance by
Indian tribes, and for other purposes, having considered the
same, reports favorably thereon without amendment and
recommends that the bill do pass.
PURPOSE
The purpose of S. 209 is to amend the Indian Self-
Determination and Education Assistance Act of 1975 (Act) to
streamline the Department of the Interior's process for
approving self-governance compacts and annual funding
agreements. The bill would align the process used by the
Department of the Interior to be similar to the processes used
by the Indian Health Service.
NEED FOR LEGISLATION
This legislation, S. 209, is needed to correct the
bureaucratic processes and procedures that the Department of
the Interior Self-Governance program has imposed which have
either discouraged, to some degree, the further compacting of
Indian programs within the Department of the Interior
(Department) by Indian tribes or hindered negotiations between
the Department and Indian tribes for renewing compacts or
annual funding agreements. The provisions included in S. 209
provide greater certainty and more guidance from Congress on
issues relating to decision-making timeframes, re-assumption of
programs by the Department, construction projects, and timing
of funding transfers.
BACKGROUND
The Indian Self-Determination and Education Assistance Act
of 1975 (Act) is one of the most important legislative acts
affecting Indian country of the last four decades. This Act has
been a key driver in improving communities throughout Indian
country.
The Act originally authorized Indian tribes to enter into
contracts with the Bureau of Indian Affairs (BIA) within the
Department of the Interior, and the Indian Health Service (IHS)
within the Department of Health and Human Services, to receive
Federal funds and manage programs that would otherwise be
managed by the Federal agencies. These contracts are commonly
referred to as ``638 contracts'' after the Pub. L. No. 93-638
for the Act.
Expansion of this tribal administration approach has taken
separate paths at these agencies. The Act was amended in 1988
to establish the Department of the Interior Self-Governance
Demonstration Program. For the first time, tribes were
authorized to plan, administer, and consolidate multiple
programs and services that had always been administered by the
Department of the Interior.
Indian tribes can administer these programs through
compacts after demonstrating a higher level of accountability
and fiscal responsibility, including three years of
administering 638 contracts without material audit problems.
Each 638 contract or self-governance compact identifies
functions and activities to be carried out by the tribe, as
well as any administrative, reporting, or other requirements
that must be followed. However, these self-governance
agreements allow tribal management of programs pursuant to one
compact instead of requiring different contracts for each
individual program.
In 1992, the Act was amended to establish a self-governance
demonstration program within the IHS as well. In 1994, the Act
was again amended to make the Department of the Interior Self-
Governance Demonstration Program permanent. The 1994 amendments
also made certain non-BIA programs within the Department of the
Interior eligible for contracting or compacting.\1\
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\1\Title IV of the Act mandates that all BIA programs are eligible
for inclusion in self-governance compacts, but allows certain non-BIA
programs in DOI to be subject to compacting under certain limited
circumstances.
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When Congress made the IHS self-governance program
permanent in 2000, several detailed improvements were enacted,
such as adding specific definitions and identifying mandatory
and prohibited terms and conditions of compacts, funding
agreements, and construction projects. Tribes wanted to
incorporate those improvements into the Department of the
Interior self-governance program, in part, to gain consistency
in the administration of their self-governance programs.
In addition, Indian tribes contend that the Department
bureaucracy has for many years resisted efforts by the tribes
to further streamline compacting processes, and that, without
additional reforms, the success of the Act's policy of tribal
self-determination may not reach the full potential.
LEGISLATIVE HISTORY
In the 108th Congress, Senators Campbell and Inouye
introduced the ``Department of the Interior Tribal Self-
Governance Act of 2004'', S. 1715. The Committee held a hearing
on the bill on May 12, 2004. The Committee met to consider the
bill on June 16, 2014. The Committee favorably ordered the bill
to be reported, as amended, to the Senate. The bill did not
pass the Senate.
In the 109th and 110th Congresses, the Committee held
oversight hearings relative to tribal self-governance, but no
bill was introduced. In the 109th Congress on September 20,
2006, the Committee held an oversight hearing on ``Tribal Self
Governance.'' During the 110th Congress, the Committee held an
oversight hearing on the ``Successes and Shortfalls of Title IV
of the Indian Self-Determination and Education Assistance Act:
Twenty Years of Self-Governance'' on May 13, 2008.
Even though no Senate bill was introduced in the 111th
Congress, the Committee held a hearing on November 18, 2010 on
a bill the House of Representatives passed, H.R. 4347, the
``Department of the Interior Tribal Self-Governance Act of
2010'' at which the Department of the Interior testified
against the bill. While considerable work to address the
Department's issues was undertaken by Congressional staff and
tribal representatives, no further Committee action was taken
on the bill.
In the 112th Congress, Representative Boren introduced H.R.
2444, the ``Department of the Interior Tribal Self-Governance
Act of 2011.'' This bill contained several revisions to prior
bills based on discussions between Congressional staff, the
Department officials, and tribal representatives. The
Subcommittee on Indian and Insular Affairs of the Committee on
Natural Resources of the House of Representatives held a
hearing on this bill on September 22, 2011. No further action
was taken on this bill.
Also in the 112th Congress, the Committee on Indian Affairs
held an oversight hearing, ``Advancing the Federal-Tribal
Relationship through Self-Governance and Self-Determination'',
on September 20, 2012. On December 17, 2012, Senators Akaka and
Barrasso introduced S. 3685, but no further action was taken by
the Committee on the bill.
In the 113th Congress, Senator Cantwell introduced S. 919,
the ``Department of the Interior Tribal Self-Governance Act of
2014'' on May 9, 2013. Senators Barrasso, Baucus, Crapo,
Heinrich, Murray, Schatz, Tester, Udall (NM) and Wyden were
original co-sponsors. Senators Murkowski, Begich, Warren and
Walsh were later added as cosponsors. The Committee held a
hearing on S. 919 on January 29, 2014. On June 11, 2014, the
Committee met to consider the bill. One substitute amendment
was offered and adopted, and the Committee then ordered the
bill, as amended, to be reported favorably to the Senate by
voice vote.
The House companion bill, H.R. 4546 was sponsored by
Representative DeFazio with six cosponsors. That bill was
referred to the Committee on Natural Resources of the House of
Representatives on May 1, 2014, with referrals to both
Subcommittees on Indian and Alaska Native Affairs and on Water
and Power. The Subcommittee on Indian and Alaska Native Affairs
held a hearing on the bill on July 15, 2014. No further action
was taken on this bill.
In the 114th Congress, Senator Barrasso introduced S. 286
on January 18, 2015. Senators Tester, Crapo, Franken,
Murkowski, and Schatz co-sponsored the bill. No legislative
hearing was held on this bill. On February 4, 2015, the
Committee met to consider the bill. The Committee ordered the
bill, without amendments, to be reported favorably to the
Senate by voice vote.
During the 115th Congress, Senator Hoeven introduced S.
2515 on March 7, 2018. Senators Barrasso, Murkowski, and Udall
were original co-sponsors. Senator Cantwell joined as a co-
sponsor on March 20, 2018 and Senator Sullivan joined on April
10, 2018. Senator McCain joined as a co-sponsor on August 21,
2018.
No legislative hearing was held on this bill. However, on
April 18, 2018, the Committee held an oversight hearing on
``The 30th Anniversary of Tribal Self-Governance: Successes in
Self-governance and an Outlook for the Next 30 Years'' where
the Committee received testimony in support of the bill.
On April 11, 2018, the Committee held a duly called
business meeting at which S. 2515 was considered. The Committee
ordered the bill, without amendments, to be reported favorably
to the Senate by voice vote.
During this Congress, Senators Hoeven, Udall, Barrasso, and
Smith, introduced S. 209 on January 24, 2019. Senator Cantwell
was added as a co-sponsor on January 29, 2019. No legislative
hearing was held on this bill. On January 29, 2019, the
Committee held a duly called business meeting at which S. 209
was considered. The Committee ordered the bill, without
amendments, to be reported favorably to the Senate by voice
vote.
OVERVIEW OF THE BILL
This legislation, S. 209, would amend the Act to streamline
the Department of the Interior's process for approving self-
governance compacts and annual funding agreements for Indian
programs. The bill would also align the process used by the
Department of the Interior to be similar to the processes used
by the IHS. Currently each tribe seeking a new compact or
renewal of a compact (or annual funding agreement) must use two
different negotiation processes.
The bill, S. 209, contains two titles. The first title
includes amendments to the self-governance provisions of Title
IV of the Indian Self-Determination and Education Assistance
Act of 1975 that would clarify procedures and limit the
Secretary's ability to delay compacting or release of funding.
These changes are meant to mirror the provisions that the
tribes have found beneficial in the IHS compacting process.
Section 101 of this legislation also makes clear that
nothing in the bill expands or limits which non-BIA programs
are eligible for inclusion in self-governance compacts beyond
those already authorized to be included by current law. The
section also clarifies that provisions of water settlements and
their authorizing legislation, state authority to regulate fish
and wildlife under state law, applicability of federal law
related to management of fish and wildlife (except for the
authority described in subparagraph (A) of this Section), and
any tribal treaty-reserved or other rights are not affected by
the self-governance amendments.
While the bill is not expanding the scope of Federal
programs eligible for inclusion in self-governance agreements,
current law does provide the Secretary with the discretion to
include certain non-BIA programs in self-governance agreements
as negotiated with tribes. These programs include those which
have a special geographic, historical, or cultural significance
to a petitioning tribe.
Even though it has been in the Act for over twenty years,
this authority has been used sparingly by the Secretary. The
bill leaves this discretionary authority unchanged. The
Committee commends the Department for its past efforts to
include programs such as the National Bison Range Complex in
Montana and the Yukon Flats National Wildlife Refuge in Alaska,
both of which satisfy the requirements as eligible programs
under existing law.
The second title would amend the Pub. L. No. 93-638
contract negotiation process under Title I (i.e., the non-self-
governance title) of the Indian Self-Determination and
Education Assistance Act of 1975 and adds more flexibility in
administering those contracts for tribes that either have not
qualified for self-governance or have chosen to administer only
a few BIA programs.
SUMMARY OF KEY PROVISIONS OF S. 209
This bill, S. 209, reflects the numerous changes that have
been made over time during the debate on prior bills. Most
notably, discussions between Congressional staff, tribal, and
Federal officials led to greater clarity in several provisions
for negotiating and renewing BIA compacts as well as the
``savings'' clause set forth in Section 101. The bill was
reorganized by switching the two titles (Title II became Title
I and vice versa). It also sets forth additional subsections
reflecting negotiations between the Indian tribal governments
and the Association of Fish and Wildlife Agencies.
Title I. The first title of the bill is intended to mirror
the IHS self-governance program in several respects by
codifying several regulations, clarifying procedures, and
minimizing opportunities for the Secretary to delay compacting
or funding. These provisions amend Title IV of the Indian Self-
Determination and Education Assistance Act of 1975. A few of
the key sections (as amended by Section 101(e) of the bill) are
summarized below.
Sections 404 and 405 set forth requirements and procedures
for amendments to compacts, retrocession of programs\2\ and the
types of programs that may be included in compacts. For the
most part, many of these provisions are merely codifying
existing regulations.
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\2\Retrocession means to ``return'' a compacted program to the BIA
to resume Federal management of the program. This retrocession rarely
happens--but if it does, this section would provide certainty to that
process.
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Section 407 authorizes, for construction contracts for
buildings, roads, or infrastructure, tribes to assume some
Federal responsibilities under the National Environmental
Policy Act and National Historic Preservation Act. It further
requires tribes to adhere to certain codes (similar to what
tribes do under Indian housing laws).
Section 408 sets forth an expedited process for funding
transfers from the Secretary to the tribe and prohibit the
Secretary from failing to transfer funds or reducing funding
unless authorized by Federal law. Current law authorizes lump-
sum funding, but many tribes contend that the transfers have
been obstructed in various other ways by the Secretary,
contrary to the Act. They further contend that the Secretary
has held back funding as leverage in compact negotiations.
Section 409 requires the Secretary to act on a compacting
tribe's regulatory waiver request within 120 days or the waiver
is deemed approved, except for section 403(b)(2) or (c)
programs (current law provides no alternative for tribes when
the Secretary fails to act, except to sue for performance).
Section 412 requires an annual report to Congress regarding
the needs of, and funding to Indian tribes, funding formula
methodology, list of non-BIA programs eligible for compacting,
programmatic targets to encourage compacting, and views of
tribes on this information. This provision essentially codifies
existing regulations or imports IHS self-governance
requirements to the BIA self-governance.
Section 415 requires that, for judicial review of any
appeals or administrative actions, the Secretary have the
burden of proof demonstrating by a preponderance of the
evidence the validity of the grounds for the decision, except
for ``final offers'' to compact, which require a higher
standard of clearly demonstrating the validity of the grounds
for the decision.
Section 101 Amendments. One important change in S. 209
(also included in S. 2515 from the 115th Congress, S. 286 from
the 114th Congress, and S. 919 from the 113th Congress) from
the prior bills is a new Section 101(a) that includes a
``savings clause.'' Section 101(a) states in this ``savings
clause'' that nothing in the bill expands or limits which
programs are eligible for inclusion in self-governance compacts
beyond those already authorized to be included by current law.
The subsection also clarifies that provisions of water
settlements and their authorizing legislation are not affected
by the self-governance amendments in the bill.
The principal intended purpose of Section 101(a) is to
clarify and make more succinct that none of the amendments or
provisions of the bill will affect current law relating to (1)
contracting or compacting of non-BIA programs under the Act,
(2) Congressionally approved water settlements, (3) state
authority to manage fish and wildlife under state law, (4)
except as in subparagraph (A), the application of federal law
to fish and wildlife management, and (5) tribal treaty or other
rights.
With respect to contracting or compacting non-BIA programs,
if a non-BIA program or function could not be contracted or
compacted under the Act on the day before the enactment of the
bill, that program or function cannot be compacted after the
enactment of the bill. It also clarifies that the water
settlements that are relevant are only those which have been
``expressly ratified or approved by an Act of Congress.''
Title II. Other technical amendments were made in Title II
of the bill, including the movement of references to the
savings clause of the bill, changing dates, and clarifying the
good faith negotiations requirement provisions.
Section 201 clarifies that 638 contracts are subject to the
Act's procurement rules, but remain exempt from other Federal
procurement rules.
Section 202 requires the Secretary to negotiate 638
contracts in good faith.
Section 204 codifies current Office of Management and
Budget policy that not less than fifty percent of expenses of a
tribal governing body for administering these Indian programs
be deemed reasonable and allowable for determining ``indirect
cost rates.''\3\
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\3\The ``indirect cost rate'' means a negotiated rate for such
costs as utilities or administrative overhead, agreed to between an
Indian tribe or tribal organization and the appropriate Federal agency.
Indirect costs include reasonable and allowable costs of administrative
or other expense related to the overhead incurred in connection with
the operation of the Federal program (defined at 25 CFR Sec. 900.6).
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SECTION-BY-SECTION ANALYSIS OF S. 209, AS ORDERED REPORTED
Section 1--Short title; Table of contents
Section 1 states that the Act may be cited as the
`Practical Reforms and Other Goals To Reinforce the
Effectiveness of Self-Governance and Self-Determination for
Indian Tribes Act of 2018' or the `PROGRESS for Indian Tribes
Act.'
TITLE I--TRIBAL SELF-GOVERNANCE
Section 101. Tribal self-governance
Section 101 amends the Act by revising several provisions
of Title IV which govern the tribal self-governance program.
Section 101(a) provides that nothing in the PROGRESS for
Indian Tribes Act increases, limits, or modifies the
Secretary's authority regarding including non-BIA programs in
638 contracts or compacts held the day before the enactment of
the Act. Further, (1) no tribal water settlement or
Congressional Act expressly ratifying or approving such water
settlement, (2) state authority to manage fish and wildlife
under state law, (3) except as in subparagraph (A), the
application of Federal law to fish and wildlife management, and
(4) tribal treaty or other rights are affected by the enactment
of this Act.
Section 101(b) provides definitions for key terms included
in Title IV which, in addition to those in Title I, include
`compact', `construction program and construction project',
`Department', `funding agreement', `program', `self-governance'
and `Secretary'.
Section 101(c) amends Section 402 of the Act and provides
for the establishment and eligibility requirements for the
Tribal Self-Governance Program. It also sets forth procedures
for a tribe to withdraw from a tribal organization, in whole or
in part, as well as provisions for distributing funds to a
withdrawing tribe. To be eligible to participate in self-
governance, a tribe must successfully complete a planning
phase; request participation in self-governance by resolution
or other official action by the tribal governing body; and
demonstrate, for the previous three fiscal years, financial
stability and financial management capability as evidenced by
the tribe having no uncorrected significant and material audit
exceptions in the required annual audit of its agreements with
any Federal agency. Tribes are eligible to receive grants for
planning to participate, or negotiating the terms of
participation, in the Program.
Section 101(d) amends Section 403 of the Act and directs
the Secretary to negotiate and enter into a funding agreement
with the governing body of an Indian tribe or tribal
organization. It clarifies that a funding agreement authorizes
a tribe, at its option, to plan, conduct, consolidate,
administer and receive full tribal share funding for all
programs, functions, services or activities of the BIA, the
Office of the Assistant Secretary for Indian Affairs, and the
Office of the Special Trustee. A funding agreement may include
programs, functions, services or activities administered by the
Secretary that are of special geographic, historical, or
cultural significance to the tribe. However, for discretionary
programs of special significance, the Secretary has discretion
with respect to reallocation and consolidation, re-assumption,
terms and conditions regarding construction, and applicable
regulations. In addition, this section provides the Secretary
the discretion to reassume any program and associated funding
upon certain findings.
The section also provides that a funding agreement shall
authorize a tribe, at its option, to plan, conduct,
consolidate, administer, and receive full tribal share funding
for any program administered by the Department of the Interior
other than through the BIA, Office of the Assistant Secretary
for Indian Affairs, and the Office of the Special Trustee, that
is otherwise available to tribes or Indians under Section 102
of Indian Self-Determination and Education Assistance Act. A
tribe has discretion to include in its funding agreement, a
stable budget specifying the recurring funds to be transferred
to the tribe, except for programs described in subsections
(b)(2) or (c), in that case the Secretary's agreement is
required. Absent tribal consent, the Secretary cannot amend the
terms of a funding agreement. This section also provides tribes
with existing funding agreements more options with respect to
subsequent funding agreements and negotiating multiyear funding
agreements.
Section 101(e) amends Title IV, Sections 404 through 418,
of the Act by mirroring for the Department of the Interior
those self-governance provisions found in Title V of the Act
which governs tribal self-governance within the Indian Health
Service and clarifying any distinctions that are needed for the
Department of the Interior differences.
Section 404 of the Indian Self-Determination and Education
Assistance Act directs the Secretary to negotiate and enter
into a written compact with tribes participating in the
Program. Tribes may retain existing compacts, in whole or in
part, or negotiate new compacts.
Section 405 provides for certain provisions that must be
included in funding agreements. Conflicts of interest, auditing
principles, tribal redesign, and consolidation authority must
be addressed. With respect to discretionary programs of special
significance, however, tribal reallocation, consolidation, and
redesign are only allowed when the Secretary and the tribe
enter into a joint agreement.
The section also provides that tribal records are not
subject to the Freedom of Information Act, unless a tribe
specifies otherwise in a funding agreement or a compact. A
tribe must provide the Secretary with reasonable access to its
records with at least 30 days' notice.
Section 406 provides that a funding agreement include a
provision to monitor the performance of trust functions by the
Indian tribe. A compact or a funding agreement shall include
provisions for the Secretary to reassume a program and
associated funding upon certain findings. It requires the
Secretary to provide notice, a hearing, and an opportunity for
a tribe to take corrective action before reassuming a program.
The Secretary must make a specific finding of imminent jeopardy
to a trust asset, natural resources, or public health and
safety; or gross mismanagement (under a preponderance of the
evidence standard), to reassume a program and associated
funding. However, the Secretary may, on written notice to the
tribe, immediately reassume operation of a program if there is
a finding of imminent and substantial jeopardy and irreparable
harm to a trust asset, a natural resource, or the public health
and safety caused by an act or omission of the tribe.
This section further provides that, if the Secretary and a
participating Indian tribe are unable to agree on the terms of
a compact or funding agreement, the Indian tribe may submit a
final offer to the Secretary. It further provides the
Secretary's criteria and procedures for considering a tribe's
final offer. The Secretary bears the burden to prove, by a
preponderance of the evidence, the validity of the grounds for
reassuming a program and by clearly demonstrating the validity
of the grounds for rejecting a final offer.
In addition, this section provides that the Secretary shall
negotiate in good faith and may not waive, modify, or diminish
the trust responsibility. Further, the Secretary must make
savings available to a tribe for the provision of additional
services to tribal beneficiaries. Finally, this section
requires that Title IV compacts and funding agreements be
construed for the benefit of tribes and any ambiguities be
resolved in favor of tribes.
Section 407 provides that Indian tribes participating in
tribal self-governance may carry out construction projects
under Title IV and sets forth the responsibilities and
procedures of tribes undertaking these construction projects.
Tribes may, subject to the Secretary's agreement, choose to
carry out certain federal responsibilities under the National
Environmental Policy Act, the National Historic Preservation
Act, and related Federal laws that are applicable if the
Secretary undertakes a construction project.
Further, tribes must adhere to building codes and standards
in carrying out a construction project, and must be accountable
for successful completion of a project. This section provides
that funding for construction projects must be included in
funding agreements as annual or semi-annual advance payments.
Section 407 provides the Secretary with at least one
opportunity to review and approve a tribe's project planning
and design documents. Finally, Federal laws pertaining to
procurement do not apply to a construction program or project
absent tribal consent.
Section 408 authorizes multi-year funding agreements. It
directs the Secretary to transfer tribal shares and resources
to a tribe in a timely fashion. The Secretary may not reduce
funding from year-to-year unless one of five narrowly defined
exceptions applies. A tribe may carry over funding, interest,
or income from year to year without diminishing its future
entitlements. A tribe need not continue to perform a compact or
a funding agreement with insufficient funds and may suspend its
performance (after providing reasonable notice of such
insufficiency to the Secretary) until funds are adequate.
Section 409 requires the Secretary to interpret Federal
laws in a manner that facilitates the implementation of, and
the inclusion of programs in, funding agreements. It provides
that an Indian tribe may submit a written request for a waiver
of Federal regulations to the Secretary. The Secretary must
approve a tribe's request for a waiver if the waiver is not
prohibited by statute. In addition, if the request is not
approved or denied within 120 days, the waiver request is
deemed approved, except for programs described in Sections
403(b)(2) or (c), then the request is deemed denied.
Section 410 provides a tribe with the discretion to
incorporate any provision of Title I into a compact or a
funding agreement, except as provided in Section 201(d) and to
the extent that such inclusions do not conflict with Section
101(a) of the PROGRESS for Indian Tribes Act.
Section 411 requires the Secretary to identify in a report
to accompany the annual budget request submitted to Congress
any funds proposed to be included in funding agreements
authorized under this Act.
Section 412 requires the Secretary to submit an annual
report to Congress regarding the administration of Title IV.
Tribes may submit to the Office of Self-Governance and Congress
an analysis of unmet tribal needs, whether the tribe is served
directly by the Secretary or under compacts and funding
agreements. It provides that the reports be compiled from
certain documents and identifies particular areas of interest.
It further requires that reports include a description of
methodologies used to determine individual tribal shares.
Reports must be distributed to tribes for comment prior to
submission.
This section also requires the Secretary to submit an
annual report to Congress on non-BIA and non-Office of Special
Trustee programs. Section 412 requires that the Secretary, in
consultation with tribes, develop a funding formula to
determine the individual tribal share of funds controlled by
the Central Office of the BIA and the Office of the Special
Trustee for inclusion in compacts.
Section 413 requires negotiated rulemaking and, within 21
months of the enactment of this legislation, the publication of
proposed implementing regulations in the Federal Register. It
sets forth the membership criteria for the negotiated
rulemaking committee. This section further authorizes the
Secretary to repeal any regulation inconsistent with the
provisions of the PROGRESS for Indian Tribes Act. Finally, it
provides that the lack of promulgated regulations shall not
limit the effect or implementation of this title.
Section 414 provides that except for the eligibility
provisions of section 105(g) and regulations of section 413 of
the Indian Self-Determination and Education Assistance Act, a
tribe is not subject to any agency circular, policy, manual, or
guidance absent the tribe's consent.
Section 415 provides that, except as provided Section
406(d), the Secretary has the burden to prove by a
preponderance of the evidence the validity of grounds for his
decisions, as well as their consistency with Title IV
requirements and policies.
Section 416 clarifies that `Section 413 of the Department
of the Interior and Related Agencies Appropriations Act, 1991'
shall apply to self-governance compacts and funding agreements.
Section 417 authorizes the appropriation of such sums as
may be necessary to carry out Title IV--Tribal Self-Governance.
TITLE II--INDIAN SELF-DETERMINATION
Section 201. Definitions; reporting and audit requirements; application
of provisions
Section 201(a) amends the Indian Self-Determination and
Education Assistance Act of 1975 (25 U.S.C. 450) by adding to
the definition of `self-determination contract. This section
revises the definition to state that, except as provided in:
(1) section 105(a)(3) of the Act, no contract shall be
considered to be a procurement contract, and (2) section
107(a)(1) of the Act, no contract shall be subject to any
Federal procurement law, including regulations (e.g., the
Federal Acquisition Regulations).
Section 105(a)(3) of the Act governs construction contracts
and allows the Secretary and respective tribe to agree to make
certain procurement provisions applicable to those contracts.
Section 107(a)(1) of the Act authorizes the Secretary to
promulgate regulations governing procurement (and other
matters) applicable to these contracts under this Act in
accordance the rulemaking procedures under 5 U.S.C. 552, 553,
and subchapter III.
Section 201(b) provides for the retention period of records
for auditing purposes to be defined in regulations promulgated
by the Secretary.
Section 201(c) provides that certain sections of Indian
Self-Determination and Education Assistance Act relating to the
definitions, reporting and auditing requirements, criminal
penalties, wage and labor standards, liability insurance,
retention of Federal employees, application of Federal
contracting laws, and the use and acquisition of Federal
property apply to compacts and funding agreements under Title
IV of this Act.
In addition, Section 314 of the Department of the Interior
and Related Agencies Appropriations Act, 1991 (Pub. L. No. 101-
512) relating to Federal Tort Claim Act coverage also applies
to compacts and funding agreements under Title IV of this Act.
Section 202. Contracts by the Secretary of Interior
Section 202(1) amends the Act to simplify a reference to
the Indian Financing Act of 1974. Section 202(2) provides that
the Secretary shall at all times negotiate in good faith and,
subject to section 101(a) of the PROGRESS for Indian Tribes
Act, that the provisions of contracts or funding agreements
should be liberally construed for the benefit of the Indian
tribe.
Section 203. Administrative provisions
Section 203 makes a minor technical correction to Section
105 of the Act by substituting a corrected reference to
sections 102 and 103 (instead of referencing sections 450f and
450h) of the Act. Further, this section would require, except
as otherwise provided by law, the Secretary to interpret all
Federal laws and Executive Orders in a manner that benefits
tribes and facilitates inclusion of programs, functions,
services, and activities in self-determination contracts and
funding agreements; implementation of self-determination
contracts and funding agreements; and achievement of tribal
health objectives. This section also requires the Secretary, in
considering proposals or amendments to contracts, to provide
technical assistance to a tribe that lacks adequate internal
controls.
Section 204. Contract funding and indirect costs
Section 204 adds a category of expenses that are eligible
costs for the purposes of receiving funding and would codify a
decision by the Office of Management and Budget and the
Department of the Interior regarding documentation
requirements. Under this section, eligible costs would include
not less than fifty percent of the expenses incurred by the
governing body of a tribe or tribal organization relating to a
program, function, service or activity pursuant to the
contract. Furthermore, such expenses of a tribal governing body
shall be treated as reasonable and allowable without burdensome
documentation requirements because these costs are presumed to
be related to the administration of Federal responsibilities
assumed by the tribal governing body.
Section 205. Contract or grant specifications
Section 205 clarifies that provisions in the model
statutory agreement allowing the parties to agree to additional
contract and funding agreement terms are subject to the
provisions in section 102 of the Act governing the negotiation
process and declinations.
COST AND BUDGETARY CONSIDERATIONS
U.S. Congress,
Congressional Budget Office,
Washington, DC, March 25, 2019.
Hon. John Hoeven,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 209, the PROGRESS
for Indian Tribes Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Jon Sperl.
Sincerely,
Keith Hall,
Director.
Enclosure.
S. 209--PROGRESS for Indian Tribes Act
Summary: S. 209 would modify eligibility requirements for
tribes participating in the Tribal Self-Governance (SG)
program, which authorizes Indian tribes to assume
responsibility for certain programs, functions, and services or
activities that would otherwise be carried out by the federal
government for the benefit of tribal governments. The bill also
would amend the process for negotiating agreements between the
tribes and the Bureau of Indian Affairs (BIA) and would
establish new guidelines for how to administer the program. In
particular, the bill would allow tribes to correct significant
errors (known as material exceptions) in annual financial
audits when they apply to participate in the program. Under
current law, a tribe must achieve three consecutive years of
audits with no material exceptions in order to be eligible to
enter into an SG contract with the federal government.
Under the bill, CBO expects, the number of tribes that
enter into SG agreements with the federal government would
increase by about 25 each year, beginning in 2021. (Currently,
285 tribes participate.) Using information from BIA, CBO
estimates that the Office of Self Governance (OSG) would
require additional employees over the 2020-2024 period to work
on audits, contracts, and negotiations with tribes. At the same
time, CBO expects that the workload under BIA's Self
Determination (SD) program would result in a decrease of a
comparable number of employees because tribes would exit SD
agreements and enter into SG agreements.\4\ On balance, CBO
estimates, the increased personnel and benefits costs under the
SG program would be offset by reduced costs to operate the SD
program.
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\4\Under the Indian Self-Determination and Education Assistance
Act, tribal governments may enter into either SD contracts or SG
contracts with BIA to implement federal programs that provide services
to tribal communities. Under SG contracts, tribes receive annual
funding in the form of block grants that allow tribes greater autonomy
in making decisions over how to use funds. SD contracts govern
individual programs and entail greater federal oversight.
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In addition, CBO estimates that OSG would need $500,000
over two years to upgrade computers and software for the
increased administrative activities required under the bill.
CBO also estimates that a rulemaking required in the bill would
cost $1 million over two years, primarily to cover the costs of
travel to meet with the different tribes involved in the
rulemaking.
The CBO staff contact for this estimate is Jon Sperl. The
estimate was reviewed by H. Samuel Papenfuss, Deputy Assistant
Director for Budget Analysis.
EXECUTIVE COMMUNICATIONS
The Committee has received no communications from the
Executive Branch regarding S. 209.
REGULATORY AND PAPERWORK 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. 209 will
have a minimal impact on regulatory or paperwork requirements.
CHANGES IN EXISTING LAW
In accordance with Committee Rules, subsection 12 of rule
XXVI of the Standing Rules of the Senate is waived. In the
opinion of the Committee, it is necessary to dispense with
subsection 12 of rule XXVI of the Standing Rules of the Senate
to expedite the business of the Senate.
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