[House Report 106-477]
[From the U.S. Government Publishing Office]
106th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 106-477
=======================================================================
TRIBAL SELF-GOVERNANCE AMENDMENTS OF 1999
_______
November 17, 1999.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Young of Alaska, from the Committee on Resources, submitted the
following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 1167]
[Including cost estimate of the Congressional Budget Office]
The Committee on Resources, to whom was referred the bill
(H.R. 1167) to amend the Indian Self-Determination and
Education Assistance Act to provide for further self-governance
by Indian tribes, and for other purposes, having considered the
same, report favorably thereon with an amendment and recommend
that the bill as amended do pass.
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Tribal Self-Governance Amendments of
1999''.
SEC. 2. FINDINGS.
Congress finds that--
(1) the tribal right of self-government flows from the
inherent sovereignty of Indian tribes and nations;
(2) the United States recognizes a special government-to-
government relationship with Indian tribes, including the right
of the Indian tribes to self-governance, as reflected in the
Constitution, treaties, Federal statutes, and the course of
dealings of the United States with Indian tribes;
(3) although progress has been made, the Federal bureaucracy,
with its centralized rules and regulations, has eroded tribal
self-governance and dominates tribal affairs;
(4) the Tribal Self-Governance Demonstration Project,
established under title III of the Indian Self-Determination
and Education Assistance Act (25 U.S.C. 450f note) was designed
to improve and perpetuate the government-to-government
relationship between Indian tribes and the United States and to
strengthen tribal control over Federal funding and program
management;
(5) although the Federal Government has made considerable
strides in improving Indian health care, it has failed to fully
meet its trust responsibilities and to satisfy its obligations
to the Indian tribes under treaties and other laws; and
(6) Congress has reviewed the results of the Tribal Self-
Governance Demonstration Project and finds that transferring
full control and funding to tribal governments, upon tribal
request, over decision making for Federal programs, services,
functions, and activities (or portions thereof)--
(A) is an appropriate and effective means of
implementing the Federal policy of government-to-
government relations with Indian tribes; and
(B) strengthens the Federal policy of Indian self-
determination.
SEC. 3. DECLARATION OF POLICY.
It is the policy of Congress to--
(1) permanently establish and implement tribal self-
governance within the Department of Health and Human Services;
(2) call for full cooperation from the Department of Health
and Human Services and its constituent agencies in the
implementation of tribal self-governance--
(A) to enable the United States to maintain and
improve its unique and continuing relationship with,
and responsibility to, Indian tribes;
(B) to permit each Indian tribe to choose the extent
of its participation in self-governance in accordance
with the provisions of the Indian Self-Determination
and Education Assistance Act relating to the provision
of Federal services to Indian tribes;
(C) to ensure the continuation of the trust
responsibility of the United States to Indian tribes
and Indian individuals;
(D) to affirm and enable the United States to fulfill
its obligations to the Indian tribes under treaties and
other laws;
(E) to strengthen the government-to-government
relationship between the United States and Indian
tribes through direct and meaningful consultation with
all tribes;
(F) to permit an orderly transition from Federal
domination of programs and services to provide Indian
tribes with meaningful authority, control, funding, and
discretion to plan, conduct, redesign, and administer
programs, services, functions, and activities (or
portions thereof) that meet the needs of the individual
tribal communities;
(G) to provide for a measurable parallel reduction in
the Federal bureaucracy as programs, services,
functions, and activities (or portions thereof) are
assumed by Indian tribes;
(H) to encourage the Secretary to identify all
programs, services, functions, and activities (or
portions thereof) of the Department of Health and Human
Services that may be managed by an Indian tribe under
this Act and to assist Indian tribes in assuming
responsibility for such programs, services, functions,
and activities (or portions thereof); and
(I) to provide Indian tribes with the earliest
opportunity to administer programs, services,
functions, and activities (or portions thereof) from
throughout the Department of Health and Human Services.
SEC. 4. TRIBAL SELF-GOVERNANCE.
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 titles:
``TITLE V--TRIBAL SELF-GOVERNANCE
``SEC. 501. ESTABLISHMENT.
``The Secretary of Health and Human Services shall establish and
carry out a program within the Indian Health Service of the Department
of Health and Human Services to be known as the `Tribal Self-Governance
Program' in accordance with this title.
``SEC. 502. DEFINITIONS.
``(a) In General.--For purposes of this title--
``(1) the term `construction project' means an organized
noncontinuous undertaking to complete a specific set of
predetermined objectives for the planning, environmental
determination, design, construction, repair, improvement, or
expansion of buildings or facilities, as described in a
construction project agreement. The term `construction project'
does not mean construction program administration and
activities described in paragraphs (1) through (3) of section
4(m), which may otherwise be included in a funding agreement
under this title;
``(2) the term `construction project agreement' means a
negotiated agreement between the Secretary and an Indian tribe
which at a minimum--
``(A) establishes project phase start and completion
dates;
``(B) defines a specific scope of work and standards
by which it will be accomplished;
``(C) identifies the responsibilities of the Indian
tribe and the Secretary;
``(D) addresses environmental considerations;
``(E) identifies the owner and operations/maintenance
entity of the proposed work;
``(F) provides a budget;
``(G) provides a payment process; and
``(H) establishes the duration of the agreement based
on the time necessary to complete the specified scope
of work, which may be 1 or more years;
``(3) the term `inherent Federal functions' means those
Federal functions which cannot legally be delegated to Indian
tribes;
``(4) the term `inter-tribal consortium' means a coalition of
two or more separate Indian tribes that join together for the
purpose of participating in self-governance, including, but not
limited to, a tribal organization;
``(5) the term `gross mismanagement' means a significant,
clear, and convincing violation of compact, funding agreement,
or regulatory, or statutory requirements applicable to Federal
funds transferred to a tribe by a compact or funding agreement
that results in a significant reduction of funds available for
the programs, services, functions, or activities (or portions
thereof) assumed by an Indian tribe;
``(6) the term `tribal shares' means an Indian tribe's
portion of all funds and resources that support secretarial
programs, services, functions, and activities (or portions
thereof) that are not required by the Secretary for performance
of inherent Federal functions;
``(7) the term `Secretary' means the Secretary of Health and
Human Services; and
``(8) the term `self-governance' means the program
established pursuant to section 501.
``(b) Indian Tribe.--Where an Indian tribe has authorized another
Indian tribe, an inter-tribal consortium, or a tribal organization to
plan for or carry out programs, services, functions, or activities (or
portions thereof) on its behalf under this title, the authorized Indian
tribe, inter-tribal consortium, or tribal organization shall have the
rights and responsibilities of the authorizing Indian tribe (except as
otherwise provided in the authorizing resolution or in this title). In
such event, the term `Indian tribe' as used in this title shall include
such other authorized Indian tribe, inter-tribal consortium, or tribal
organization.
``SEC. 503. SELECTION OF PARTICIPATING INDIAN TRIBES.
``(a) Continuing Participation.--Each Indian tribe that is
participating in the Tribal Self-Governance Demonstration Project under
title III on the date of enactment of this title may elect to
participate in self-governance under this title under existing
authority as reflected in tribal resolutions.
``(b) Additional Participants.--
``(1) In addition to those Indian tribes participating in
self-governance under subsection (a), each year an additional
50 Indian tribes that meet the eligibility criteria specified
in subsection (c) shall be entitled to participate in self-
governance.
``(2)(A) An Indian tribe that has withdrawn from
participation in an inter-tribal consortium or tribal
organization, in whole or in part, shall be entitled to
participate in self-governance provided the Indian tribe meets
the eligibility criteria specified in subsection (c).
``(B) If an Indian tribe has withdrawn from participation in
an inter-tribal consortium or tribal organization, it shall be
entitled to its tribal share of funds supporting those
programs, services, functions, and activities (or portions
thereof) that it will be carrying out under its compact and
funding agreement.
``(C) In no event shall the withdrawal of an Indian tribe
from an inter-tribal consortium or tribal organization affect
the eligibility of the inter-tribal consortium or tribal
organization to participate in self-governance.
``(c) Applicant Pool.--The qualified applicant pool for self-
governance shall consist of each Indian tribe that--
``(1) successfully completes the planning phase described in
subsection (d);
``(2) has requested participation in self-governance by
resolution or other official action by the governing body (or
bodies) of the Indian tribe or tribes to be served; and
``(3) has demonstrated, for the previous 3 fiscal years,
financial stability and financial management capability.
Evidence that during such years the Indian tribe had no uncorrected
significant and material audit exceptions in the required annual audit
of the Indian tribe's self-determination contracts or self-governance
funding agreements shall be conclusive evidence of the required
stability and capability for the purposes of this subsection.
``(d) Planning Phase.--Each Indian tribe seeking participation in
self-governance shall complete a planning phase. The planning phase
shall be conducted to the satisfaction of the Indian tribe and shall
include--
``(1) legal and budgetary research; and
``(2) internal tribal government planning and organizational
preparation relating to the administration of health care
programs.
``(e) Grants.--Subject to the availability of appropriations, any
Indian tribe meeting the requirements of paragraphs (2) and (3) of
subsection (c) shall be eligible for grants--
``(1) to plan for participation in self-governance; and
``(2) to negotiate the terms of participation by the Indian
tribe or tribal organization in self-governance, as set forth
in a compact and a funding agreement.
``(f) Receipt of Grant Not Required.--Receipt of a grant under
subsection (e) shall not be a requirement of participation in self-
governance.
``SEC. 504. COMPACTS.
``(a) Compact Required.--The Secretary shall negotiate and enter into
a written compact with each Indian tribe participating in self-
governance in a manner consistent with the Federal Government's trust
responsibility, treaty obligations, and the government-to-government
relationship between Indian tribes and the United States.
``(b) Contents.--Each compact required under subsection (a) shall set
forth the general terms of the government-to-government relationship
between the Indian tribe and the Secretary, including such terms as the
parties intend shall control year after year. Such compacts may only be
amended by mutual agreement of the parties.
``(c) Existing Compacts.--An Indian tribe participating in the Tribal
Self-Governance Demonstration Project under title III on the date of
enactment of this title shall have the option at any time thereafter
to--
``(1) retain its Tribal Self-Governance Demonstration Project
compact (in whole or in part) to the extent the provisions of
such compact are not directly contrary to any express provision
of this title, or
``(2) negotiate in lieu thereof (in whole or in part) a new
compact in conformity with this title.
``(d) Term and Effective Date.--The effective date of a compact shall
be the date of the approval and execution by the Indian tribe or
another date agreed upon by the parties, and shall remain in effect for
so long as permitted by Federal law or until terminated by mutual
written agreement, retrocession, or reassumption.
``SEC. 505. FUNDING AGREEMENTS.
``(a) Funding Agreement Required.--The Secretary shall negotiate and
enter into a written funding agreement with each Indian tribe
participating in self-governance in a manner consistent with the
Federal Government's trust responsibility, treaty obligations, and the
government-to-government relationship between Indian tribes and the
United States.
``(b) Contents.--Each funding agreement required under subsection (a)
shall, as determined by the Indian tribe, authorize the Indian tribe to
plan, conduct, consolidate, administer, and receive full tribal share
funding, including tribal shares of Indian Health Service competitive
grants (excluding congressionally earmarked competitive grants), for
all programs, services, functions, and activities (or portions
thereof), that are carried out for the benefit of Indians because of
their status as Indians withoutregard to the agency or office of the
Indian Health Service within which the program, service, function, or
activity (or portion thereof) is performed. Such programs, services,
functions, or activities (or portions thereof) include all programs,
services, functions, activities (or portions thereof) where Indian
tribes or Indians are primary or significant beneficiaries,
administered by the Department of Health and Human Services through the
Indian Health Service and grants (which may be added to a funding
agreement after award of such grants) and all local, field, service
unit, area, regional, and central headquarters or national office
functions administered under the authority of--
``(1) the Act of November 2, 1921 (25 U.S.C. 13);
``(2) the Act of April 16, 1934 (25 U.S.C. 452 et seq.);
``(3) the Act of August 5, 1954 (68 Stat. 674);
``(4) the Indian Health Care Improvement Act (25 U.S.C. 1601
et seq.);
``(5) the Indian Alcohol and Substance Abuse Prevention and
Treatment Act of 1986 (25 U.S.C. 2401 et seq.);
``(6) any other Act of Congress authorizing agencies of the
Department of Health and Human Services to administer, carry
out, or provide financial assistance to such programs,
functions, or activities (or portions thereof) described in
this section; or
``(7) any other Act of Congress authorizing such programs,
functions, or activities (or portions thereof) under which
appropriations are made to agencies other than agencies within
the Department of Health and Human services when the Secretary
administers such programs, functions, or activities (or
portions thereof).
``(c) Inclusion in Compact or Funding Agreement.--Indian tribes or
Indians need not be identified in the authorizing statute for a program
or element of a program to be eligible for inclusion in a compact or
funding agreement under this title.
``(d) Funding Agreement Terms.--Each funding agreement shall set
forth terms that generally identify the programs, services, functions,
and activities (or portions thereof) to be performed or administered,
the general budget category assigned, the funds to be provided,
including those to be provided on a recurring basis, the time and
method of transfer of the funds, the responsibilities of the Secretary,
and any other provisions to which the Indian tribe and the Secretary
agree.
``(e) Subsequent Funding Agreements.--Absent notification from an
Indian tribe that is withdrawing or retroceding the operation of one or
more programs, services, functions, or activities (or portions thereof)
identified in a funding agreement, or unless otherwise agreed to by the
parties, each funding agreement shall remain in full force and effect
until a subsequent funding agreement is executed, and the terms of the
subsequent funding agreement shall be retroactive to the end of the
term of the preceding funding agreement.
``(f) Existing Funding Agreements.--Each Indian tribe participating
in the Tribal Self-Governance Demonstration Project established under
title III on the date of enactment of this title shall have the option
at any time thereafter to--
``(1) retain its Tribal Self-Governance Demonstration Project
funding agreement (in whole or in part) to the extent the
provisions of such funding agreement are not directly contrary
to any express provision of this title; or
``(2) adopt in lieu thereof (in whole or in part) a new
funding agreement in conformity with this title.
``(g) Stable Base Funding.--At the option of an Indian tribe, a
funding agreement may provide for a stable base budget specifying the
recurring funds (including, for purposes of this provision, funds
available under section 106(a) of the Act) to be transferred to such
Indian tribe, for such period as may be specified in the funding
agreement, subject to annual adjustment only to reflect changes in
congressional appropriations by sub-sub activity excluding earmarks.
``SEC. 506. GENERAL PROVISIONS.
``(a) Applicability.--The provisions of this section shall apply to
compacts and funding agreements negotiated under this title and an
Indian tribe may, at its option, include provisions that reflect such
requirements in a compact or funding agreement.
``(b) Conflicts of Interest.--Indian tribes participating in self-
governance under this title shall ensure that internal measures are in
place to address conflicts of interest in the administration of self-
governance programs, services, functions, or activities (or portions
thereof).
``(c) Audits.--
``(1) Single agency audit act.--The provisions of chapter 75
of title 31, United States Code, requiring a single agency
audit report shall apply to funding agreements under this
title.
``(2) Cost principles.--An Indian tribe shall apply cost
principles under the applicable Office of Management and Budget
Circular, except as modified by section 106 or other provisions
of law, or by any exemptions to applicable Office of Management
and Budget Circulars subsequently granted by Office of
Management and Budget. No other audit or accounting standards
shall be required by the Secretary. Any claim by the Federal
Government against the Indian tribe relating to funds received
under a funding agreement based on any audit under this
subsection shall be subject to the provisions of section
106(f).
``(d) Records.--
``(1) In general.--Unless an Indian tribe specifies otherwise
in the compact or funding agreement, records of the Indian
tribe shall not be considered Federal records for purposes of
chapter 5 of title 5, United States Code.
``(2) Recordkeeping system.--The Indian tribe shall maintain
a recordkeeping system, and, after 30 days advance notice,
provide the Secretary with reasonable access to such records to
enable the Department of Health and Human Services to meet its
minimum legal recordkeeping system requirements under sections
3101 through 3106 of title 44, United States Code.
``(e) Redesign and Consolidation.--An Indian tribe may redesign or
consolidate programs, services, functions, and activities (or
portionsthereof) included in a funding agreement under section 505 and
reallocate or redirect funds for such programs, services, functions,
and activities (or portions thereof) in any manner which the Indian
tribe deems to be in the best interest of the health and welfare of the
Indian community being served, only if the redesign or consolidation
does not have the effect of denying eligibility for services to
population groups otherwise eligible to be served under Federal law.
``(f) Retrocession.--An Indian tribe may retrocede, fully or
partially, to the Secretary programs, services, functions, or
activities (or portions thereof) included in the compact or funding
agreement. Unless the Indian tribe rescinds the request for
retrocession, such retrocession will become effective within the time
frame specified by the parties in the compact or funding agreement. In
the absence of such a specification, such retrocession shall become
effective on--
``(1) the earlier of--
``(A) one year from the date of submission of such
request; or
``(B) the date on which the funding agreement
expires; or
``(2) such date as may be mutually agreed by the Secretary
and the Indian tribe.
``(g) Withdrawal.--
``(1) Process.--An Indian tribe may fully or partially
withdraw from a participating inter-tribal consortium or tribal
organization its share of any program, function, service, or
activity (or portions thereof) included in a compact or funding
agreement. Such withdrawal shall become effective within the
time frame specified in the resolution which authorizes
transfer to the participating tribal organization or inter-
tribal consortium. In the absence of a specific time frame set
forth in the resolution, such withdrawal shall become effective
on--
``(A) the earlier of--
``(i) one year from the date of submission of
such request; or
``(ii) the date on which the funding
agreement expires; or
``(B) such date as may be mutually agreed upon by the
Secretary, the withdrawing Indian tribe, and the
participating tribal organization or inter-tribal
consortium that has signed the compact or funding
agreement on behalf of the withdrawing Indian tribe,
inter-tribal consortium, or tribal organization.
``(2) Distribution of funds.--When an Indian tribe or tribal
organization eligible to enter into a self-determination
contract under title I or a compact or funding agreement under
this title fully or partially withdraws from a participating
inter-tribal consortium or tribal organization, the withdrawing
Indian tribe or tribal organization shall be entitled to its
tribal share of funds supporting those programs, services,
functions, or activities (or portions thereof) which it will be
carrying out under its own self-determination contract or
compact and funding agreement (calculated on the same basis as
the funds were initially allocated in the funding agreement of
the inter-tribal consortium or tribal organization), and such
funds shall be transferred from the funding agreement of the
inter-tribal consortium or tribal organization, provided that
the provisions of sections 102 and 105(i), as appropriate,
shall apply to such withdrawing Indian tribe.
``(3) Regaining mature contract status.--If an Indian tribe
elects to operate all or some programs, services, functions, or
activities (or portions thereof) carried out under a compact or
funding agreement under this title through a self-determination
contract under title I, at the option of the Indian tribe, the
resulting self-determination contract shall be a mature self-
determination contract.
``(h) Nonduplication.--For the period for which, and to the extent to
which, funding is provided under this title or under the compact or
funding agreement, the Indian tribe shall not be entitled to contract
with the Secretary for such funds under section 102, except that such
Indian tribe shall be eligible for new programs on the same basis as
other Indian tribes.
``SEC. 507. PROVISIONS RELATING TO THE SECRETARY.
``(a) Mandatory Provisions.--
``(1) Health status reports.--Compacts or funding agreements
negotiated between the Secretary and an Indian tribe shall
include a provision that requires the Indian tribe to report on
health status and service delivery--
``(A) to the extent such data is not otherwise
available to the Secretary and specific funds for this
purpose are provided by the Secretary under the funding
agreement; and
``(B) if such reporting shall impose minimal burdens
on the participating Indian tribe and such requirements
are promulgated under section 517.
``(2) Reassumption--(A) Compacts and funding agreements
negotiated between the Secretary and an Indian tribe shall
include a provision authorizing the Secretary to reassume
operation of a program, service, function, or activity (or
portions thereof) and associated funding if there is a specific
finding relative to that program, service, function, or
activity (or portion thereof) of--
``(i) imminent endangerment of the public health
caused by an act or omission of the Indian tribe, and
the imminent endangerment arises out of a failure to
carry out the compact or funding agreement; or
``(ii) gross mismanagement with respect to funds
transferred to a tribe by a compact or funding
agreement, as determined by the Secretary in
consultation with the Inspector General, as
appropriate.
``(B) The Secretary shall not reassume operation of a
program, service, function, or activity (or portions thereof)
unless (i) the Secretary has first provided written notice and
a hearing on the record to the Indian tribe; and (ii) the
Indian tribe has not taken corrective action to remedy the
imminent endangerment to public health or gross mismanagement.
``(C) Notwithstanding subparagraph (B), the Secretary may,
upon written notification to the tribe, immediately reassume
operation of a program, service, function, or activity (or
portion thereof) and associated funding if (i) the Secretary
makes a finding of imminent substantial and irreparable
endangerment of the public health caused by an act or omission
of the Indian tribe; and (ii) the endangerment arises out of a
failure to carry out the compact or funding agreement. If the
Secretary reassumes operation of a program, service, function,
or activity (or portion thereof) under this subparagraph, the
Secretary shall provide the tribe with a hearing on the record
not later than 10 days after such reassumption.
``(D) In any hearing or appeal involving a decision to
reassume operation of a program, service, function, or activity
(or portion thereof), the Secretary shall have the burden of
proof of demonstrating by clear and convincing evidence the
validity of the grounds for the reassumption.
``(b) Final Offer.--In the event the Secretary and a participating
Indian tribe are unable to agree, in whole or in part, on the terms of
a compact or funding agreement (including funding levels), the Indian
tribe may submit a final offer to the Secretary. Not more than 45 days
after such submission, or within a longer time agreed upon by the
Indian tribe, the Secretary shall review and make a determination with
respect to such offer. In the absence of a timely rejection of the
offer, in whole or in part, made in compliance with subsection (c), the
offer shall be deemed agreed to by the Secretary.
``(c) Rejection of Final Offers.--If the Secretary rejects an offer
made under subsection (b) (or one or more provisions or funding levels
in such offer), the Secretary shall provide--
``(1) a timely written notification to the Indian tribe that
contains a specific finding that clearly demonstrates, or that
is supported by a controlling legal authority, that--
``(A) the amount of funds proposed in the final offer
exceeds the applicable funding level to which the
Indian tribe is entitled under this title;
``(B) the program, function, service, or activity (or
portion thereof) that is the subject ofthe final offer
is an inherent Federal function that cannot legally be delegated to an
Indian tribe;
``(C) the Indian tribe cannot carry out the program,
function, service, or activity (or portion thereof) in
a manner that would not result in significant danger or
risk to the public health; or
``(D) the tribe is not eligible to participate in
self-governance under section 503;
``(2) technical assistance to overcome the objections stated
in the notification required by paragraph (1);
``(3) the Indian tribe with a hearing on the record with the
right to engage in full discovery relevant to any issue raised
in the matter and the opportunity for appeal on the objections
raised, provided that the Indian tribe may, in lieu of filing
such appeal, directly proceed to initiate an action in a
Federal district court pursuant to section 110(a); and
``(4) the Indian tribe with the option of entering into the
severable portions of a final proposed compact or funding
agreement, or provision thereof, (including lesser funding
amount, if any), that the Secretary did not reject, subject to
any additional alterations necessary to conform the compact or
funding agreement to the severed provisions. If an Indian tribe
exercises the option specified herein, it shall retain the
right to appeal the Secretary's rejection under this section,
and paragraphs (1), (2), and (3) shall only apply to that
portion of the proposed final compact, funding agreement or
provision thereof that was rejected by the Secretary.
``(d) Burden of Proof.--With respect to any hearing or appeal or
civil action conducted pursuant to this section, the Secretary shall
have the burden of demonstrating by clear and convincing evidence the
validity of the grounds for rejecting the offer (or a provision
thereof) made under subsection (b).
``(e) Good Faith.--In the negotiation of compacts and funding
agreements the Secretary shall at all times negotiate in good faith to
maximize implementation of the self-governance policy. The Secretary
shall carry out this title in a manner that maximizes the policy of
tribal self-governance, consistent with section 3.
``(f) Savings.--To the extent that programs, functions, services, or
activities (or portions thereof) carried out by Indian tribes under
this title reduce the administrative or other responsibilities of the
Secretary with respect to the operation of Indian programs and result
in savings that have not otherwise been included in the amount of
tribal shares and other funds determined under section 508(c), the
Secretary shall make such savings available to the Indian tribes,
inter-tribal consortia, or tribal organizations for the provision of
additional services to program beneficiaries in a manner equitable to
directly served, contracted, and compacted programs.
``(g) Trust Responsibility.--The Secretary is prohibited from
waiving, modifying, or diminishing in any way the trust responsibility
of the United States with respect to Indian tribes and individual
Indians that exists under treaties, Executive orders, other laws, or
court decisions.
``(h) Decisionmaker.--A decision that constitutes final agency action
and relates to an appeal within the Department of Health and Human
Services conducted under subsection (c) shall be made either--
``(1) by an official of the Department who holds a position
at a higher organizational level within the Department than the
level of the departmental agency in which the decision that is
the subject of the appeal was made; or
``(2) by an administrative judge.
``SEC. 508. TRANSFER OF FUNDS.
``(a) In General.--Pursuant to the terms of any compact or funding
agreement entered into under this title, the Secretary shall transfer
to the Indian tribe all funds provided for in the funding agreement,
pursuant to subsection (c), and provide funding for periods covered by
joint resolution adopted by Congress making continuing appropriations,
to the extent permitted by such resolutions. In any instance where a
funding agreement requires an annual transfer of funding to be made at
the beginning of a fiscal year, or requires semiannual or other
periodic transfers of funding to be made commencing at the beginning of
a fiscal year, the first such transfer shall be made not later than 10
days after the apportionment of such funds by the Office of Management
and Budget to the Department, unless the funding agreement provides
otherwise.
``(b) Multiyear Funding.--The Secretary is hereby authorized to
employ, upon tribal request, multiyear funding agreements, and
references in this title to funding agreements shall include such
multiyear agreements.
``(c) Amount of Funding.--The Secretary shall provide funds under a
funding agreement under this title in an amount equal to the amount
that the Indian tribe would have been entitled to receive under self-
determination contracts under this Act, including amounts for direct
program costs specified under section 106(a)(1) and amounts for
contract support costs specified under sections 106(a)(2), (a)(3),
(a)(5), and (a)(6), including any funds that are specifically or
functionally related to the provision by the Secretary of services and
benefits to the Indian tribe or its members, all without regard to the
organizational level within the Department where such functions are
carried out.
``(d) Prohibitions.--The Secretary is expressly prohibited from--
``(1) failing or refusing to transfer to an Indian tribe its
full share of any central, headquarters, regional, area, or
service unit office or other funds due under this Act, except
as required by Federal law;
``(2) withholding portions of such funds for transfer over a
period of years; and
``(3) reducing the amount of funds required herein--
``(A) to make funding available for self-governance
monitoring or administration by the Secretary;
``(B) in subsequent years, except pursuant to--
``(i) a reduction in appropriations from the
previous fiscal year for the program or
function to be included in a compact or funding
agreement;
``(ii) a congressional directive in
legislation or accompanying report;
``(iii) a tribal authorization;
``(iv) a change in the amount of pass-through
funds subject to the terms of the funding
agreement; or
``(v) completion of a project, activity, or
program for which such funds were provided;
``(C) to pay for Federal functions, including Federal
pay costs, Federal employee retirement benefits,
automated data processing, technical assistance, and
monitoring of activities under this Act; or
``(D) to pay for costs of Federal personnel displaced
by self-determination contracts under this Act or self-
governance;
except that such funds may be increased by the Secretary if necessary
to carry out this Act or as provided in section 105(c)(2).
``(e) Other Resources.--In the event an Indian tribe elects to carry
out a compact or funding agreement with the use of Federal personnel,
Federal supplies (including supplies available from Federal warehouse
facilities), Federal supply sources (including lodging, airline
transportation, and other means of transportation including the use of
interagency motor pool vehicles) or other Federal resources (including
supplies, services, and resources available to the Secretary under any
procurement contracts in which the Department is eligible to
participate), the Secretary is authorized to transfer such personnel,
supplies, or resources to the Indian tribe.
``(f) Reimbursement to Indian Health Service.--With respect to
functions transferred by the Indian Health Service to an Indian tribe,
the Indian Health Service is authorized to provide goods and services
to the Indian tribe, on a reimbursable basis, including payment in
advance with subsequent adjustment, and the reimbursements received
therefrom, along with the funds received from the Indian tribe pursuant
to this title, may be credited to the same or subsequent appropriation
account which provided the funding, such amounts to remain available
until expended.
``(g) Prompt Payment Act.--Chapter 39 of title 31, United States
Code, shall apply to the transfer of funds due under a compact or
funding agreement authorized under this title.
``(h) Interest or Other Income on Transfers.--An Indian tribe is
entitled to retain interest earned on any funds paid under a compact or
funding agreement to carry out governmental or health purposes and such
interest shall not diminish the amount of funds the Indian tribe is
authorized to receive under its funding agreement in the year the
interest is earned or in any subsequent fiscal year. Funds transferred
under this Act shall be managed using the prudent investment standard.
``(i) Carryover of Funds.--All funds paid to an Indian tribe in
accordance with a compact or funding agreement shall remain available
until expended. In the event that an Indian tribe elects to carry over
funding from one year to the next, suchcarryover shall not diminish the
amount of funds the Indian tribe is authorized to receive under its
funding agreement in that or any subsequent fiscal year.
``(j) Program Income.--All medicare, medicaid, or other program
income earned by an Indian tribe shall be treated as supplemental
funding to that negotiated in the funding agreement and the Indian
tribe may retain all such income and expend such funds in the current
year or in future years except to the extent that the Indian Health
Care Improvement Act (25 U.S.C. 1601 et seq.) provides otherwise for
medicare and medicaid receipts, and such funds shall not result in any
offset or reduction in the amount of funds the Indian tribe is
authorized to receive under its funding agreement in the year the
program income is received or for any subsequent fiscal year.
``(k) Limitation of Costs.--An Indian tribe shall not be obligated to
continue performance that requires an expenditure of funds in excess of
the amount of funds transferred under a compact or funding agreement.
If at any time the Indian tribe has reason to believe that the total
amount provided for a specific activity in the compact or funding
agreement is insufficient the Indian tribe shall provide reasonable
notice of such insufficiency to the Secretary. If the Secretary does
not increase the amount of funds transferred under the funding
agreement, the Indian tribe may suspend performance of the activity
until such time as additional funds are transferred.
``SEC. 509. CONSTRUCTION PROJECTS.
``(a) In General.--Indian tribes participating in tribal self-
governance may carry out construction projects under this title if they
elect to assume all Federal responsibilities under the National
Environmental Policy Act of 1969, the Historic Preservation Act, and
related provisions of law that would apply if the Secretary were to
undertake a construction project, by adopting a resolution (1)
designating a certifying officer to represent the Indian tribe and to
assume the status of a responsible Federal official under such laws,
and (2) accepting the jurisdiction of the Federal court for the purpose
of enforcement of the responsibilities of the responsible Federal
official under such environmental laws.
``(b) Negotiations.--Construction project proposals shall be
negotiated pursuant to the statutory process in section 105(m) and
resulting construction project agreements shall be incorporated into
funding agreements as addenda.
``(c) Codes and Standards.--The Indian tribe and the Secretary shall
agree upon and specify appropriate buildings codes and architectural/
engineering standards (including health and safety) which shall be in
conformity with nationally recognized standards for comparable
projects.
``(d) Responsibility for Completion.--The Indian tribe shall assume
responsibility for the successful completion of the construction
project in accordance with the negotiated construction project
agreement.
``(e) Funding.--Funding for construction projects carried out under
this title shall be included in funding agreements as annual advance
payments, with semiannual payments at the option of the Indian tribe.
Annual advance and semiannual payment amounts shall be determined based
on mutually agreeable project schedules reflecting work to be
accomplished within the advance payment period, work accomplished and
funds expended in previous payment periods, and the total prior
payments. The Secretary shall include associated project contingency
funds with each advance payment installment. The Indian tribe shall be
responsible for the management of the contingency funds included in
funding agreements.
``(f) Approval.--The Secretary shall have at least one opportunity to
approve project planning and design documents prepared by the Indian
tribe in advance of construction of the facilities specified in the
scope of work for each negotiated construction project agreement or
amendment thereof which results in a significant change in the original
scope of work. The Indian tribe shall provide the Secretary with
project progress and financial reports not less than semiannually. The
Secretary may conduct on-site project oversight visits semiannually or
on an alternate schedule agreed to by the Secretary and the Indian
tribe.
``(g) Wages.--All laborers and mechanics employed by contractors and
subcontractors in the construction, alteration, or repair, including
painting or decorating of building or other facilities in connection
with construction projects undertaken by self-governance Indian tribes
under this Act, shall be paid wages at not less than those prevailing
wages on similar construction in the locality as determined by the
Secretary of Labor in accordance with the Davis-Bacon Act of March 3,
1931 (46 Stat. 1494). With respect to construction, alteration, or
repair work to which the Act of March 3, 1921, is applicable under the
terms of this section, the Secretary of Labor shall have the authority
and functions set forth in Reorganization Plan Numbered 14, of 1950,
and section 2 of the Act of June 13, 1934 (48 Stat. 948).
``(h) Application of Other Laws.--Unless otherwise agreed to by the
Indian tribe, no provision of the Office of Federal Procurement Policy
Act, the Federal Acquisition Regulations issued pursuant thereto, or
any other law or regulation pertaining to Federal procurement
(including Executive orders) shall apply to any construction project
conducted under this title.
``SEC. 510. FEDERAL PROCUREMENT LAWS AND REGULATIONS.
``Notwithstanding any other provision of law, unless expressly agreed
to by the participating Indian tribe, the compacts and funding
agreements entered into under this title shall not be subject to
Federal contracting or cooperative agreement laws and regulations
(including Executive orders and the regulations relating to procurement
issued by the Secretary), except to the extent that such laws expressly
apply to Indian tribes.
``SEC. 511. CIVIL ACTIONS.
``(a) Contract Defined.--For the purposes of section 110, the term
`contract' shall include compacts and funding agreements entered into
under this title.
``(b) Applicability of Certain Laws.--Section 2103 of the Revised
Statutes of the United States Code (25 U.S.C. 81) and section 16 of the
Act of June 18, 1934 (25 U.S.C. 476), shall not apply to attorney and
other professional contracts entered into by Indian tribes
participating in self-governance under this title.
``(c) References.--All references in the Indian Self-Determination
and Education Assistance Act (25 U.S.C. 450 et seq.) to section 1 of
the Act of June 26, 1936 (25 U.S.C. 81) are hereby deemed to include
section 1 of the Act of July 3, 1952 (25 U.S.C. 82a).
``SEC. 512. FACILITATION.
``(a) Secretarial Interpretation.--Except as otherwise provided by
law, the Secretary shall interpret all Federal laws, Executive orders
and regulations in a manner that will facilitate--
``(1) the inclusion of programs, services, functions, and
activities (or portions thereof) and funds associated
therewith, in the agreements entered into under this section;
``(2) the implementation of compacts and funding agreements
entered into under this title; and
``(3) the achievement of tribal health goals and objectives.
``(b) Regulation Waiver.--
``(1) An Indian tribe may submit a written request to waive
application of a regulation promulgated under this Act for a
compact or funding agreement entered into with the Indian
Health Service under this title, to the Secretary identifying
the applicable Federal regulation under this Act sought to be
waived and the basis for the request.
``(2) Not later than 90 days after receipt by the Secretary
of a written request by an Indian tribe to waive application of
a regulation under this Act for a compact or funding agreement
entered into under this title, the Secretary shall either
approve or deny the requested waiver in writing. A denial may
be made only upon a specific finding by the Secretary that
identified language in the regulation may not be waived because
such waiver is prohibited by Federal law. A failure to approve
or deny a waiver request not later than 90 days after receipt
shall be deemed an approval of such request. The Secretary's
decision shall be final for the Department.
``(c) Access to Federal Property.--In connection with any compact or
funding agreement executed pursuant to this title or an agreement
negotiated under the Tribal Self-Governance Demonstration Project
established under title III, as in effect before the enactment of the
Tribal Self-Governance Amendments of 1999, upon the request of an
Indian tribe, the Secretary--
``(1) shall permit an Indian tribe to use existing school
buildings, hospitals, and other facilities and all equipment
therein or appertaining thereto and other personal property
owned by the Government within the Secretary's jurisdiction
under such terms and conditions as may be agreed upon by the
Secretary and the tribe for their use and maintenance;
``(2) may donate to an Indian tribe title to any personal or
real property found to be excess to the needs of any agency of
the Department, or the General Services Administration, except
that--
``(A) subject to the provisions of subparagraph (B),
title to property and equipment furnished by the
Federal Government for use in the performance of the
compact or funding agreement or purchased with funds
under anycompact or funding agreement shall, unless
otherwise requested by the Indian tribe, vest in the appropriate Indian
tribe;
``(B) if property described in subparagraph (A) has a
value in excess of $5,000 at the time of retrocession,
withdrawal, or reassumption, at the option of the
Secretary upon the retrocession, withdrawal, or
reassumption, title to such property and equipment
shall revert to the Department of Health and Human
Services; and
``(C) all property referred to in subparagraph (A)
shall remain eligible for replacement, maintenance, and
improvement on the same basis as if title to such
property were vested in the United States; and
``(3) shall acquire excess or surplus Government personal or
real property for donation to an Indian tribe if the Secretary
determines the property is appropriate for use by the Indian
tribe for any purpose for which a compact or funding agreement
is authorized under this title.
``(d) Matching or Cost-Participation Requirement.--All funds provided
under compacts, funding agreements, or grants made pursuant to this
Act, shall be treated as non-Federal funds for purposes ofmeeting
matching or cost participation requirements under any other Federal or
non-Federal program.
``(e) State Facilitation.--States are hereby authorized and
encouraged to enact legislation, and to enter into agreements with
Indian tribes to facilitate and supplement the initiatives, programs,
and policies authorized by this title and other Federal laws benefiting
Indians and Indian tribes.
``(f) Rules of Construction.--Each provision of this title and each
provision of a compact or funding agreement shall be liberally
construed for the benefit of the Indian tribe participating in self-
governance and any ambiguity shall be resolved in favor of the Indian
tribe.
``SEC. 513. BUDGET REQUEST.
``(a) In General.--The President shall identify in the annual budget
request submitted to the Congress under section 1105 of title 31,
United States Code, all funds necessary to fully fund all funding
agreements authorized under this title, including funds specifically
identified to fund tribal base budgets. All funds so appropriated shall
be apportioned to the Indian Health Service. Such funds shall be
provided to the Office of Tribal Self-Governance which shall be
responsible for distribution of all funds provided under section 505.
Nothing in this provision shall be construed to authorize the Indian
Health Service to reduce the amount of funds that a self-governance
tribe is otherwise entitled to receive under its funding agreement or
other applicable law, whether or not such funds are made available to
the Office of Tribal Self-Governance under this section.
``(b) Present Funding; Shortfalls.--In such budget request, the
President shall identify the level of need presently funded and any
shortfall in funding (including direct program and contract support
costs) for each Indian tribe, either directly by the Secretary, under
self-determination contracts, or under compacts and funding agreements
authorized under this title.
``SEC. 514. REPORTS.
``(a) Annual Report.--Not later than January 1 of each year after the
date of the enactment of this title, the Secretary shall submit to the
Committee on Resources of the House of Representatives and the
Committee on Indian Affairs of the Senate a written report regarding
the administration of this title. Such report shall include a detailed
analysis of the level of need being presently funded or unfunded for
each Indian tribe, either directly by the Secretary, under self-
determination contracts under title I, or under compacts and funding
agreements authorized under this Act. In compiling reports pursuant to
this section, the Secretary may not impose any reporting requirements
on participating Indian tribes or tribal organizations, not otherwise
provided in this Act.
``(b) Contents.--The report shall be compiled from information
contained in funding agreements, annual audit reports, and Secretarial
data regarding the disposition of Federal funds and shall--
``(1) identify the relative costs and benefits of self-
governance;
``(2) identify, with particularity, all funds that are
specifically or functionally related to the provision by the
Secretary of services and benefits to self-governance Indian
tribes and their members;
``(3) identify the funds transferred to each self-governance
Indian tribe and the corresponding reduction in the Federal
bureaucracy;
``(4) identify the funding formula for individual tribal
shares of all headquarters funds, together with the comments of
affected Indian tribes or tribal organizations, developed under
subsection (c);
``(5) identify amounts expended in the preceding fiscal year
to carry out inherent Federal functions, including an
identification of those functions by type and location;
``(6) contain a description of the method or methods (or any
revisions thereof) used to determine the individual tribal
share of funds controlled by all components of the Indian
Health Service (including funds assessed by any other Federal
agency) for inclusion in self-governance compacts or funding
agreements;
``(7) prior to being submitted to Congress, be distributed to
the Indian tribes for comment, such comment period to be for no
less than 30 days; and
``(8) include the separate views and comments of the Indian
tribes or tribal organizations.
``(c) Report on Fund Distribution Method.--Not later than 180 days
after the date of enactment of this title, the Secretary shall, after
consultation with Indian tribes, submit a written report to the
Committee on Resources of the House of Representatives and the
Committee on Indian Affairs of the Senate which describes the method or
methods used to determine the individual tribal share of funds
controlled by all components of the Indian Health Service (including
funds assessed by any other Federal agency) for inclusion in self-
governance compacts or funding agreements.
``SEC. 515. DISCLAIMERS.
``(a) No Funding Reduction.--Nothing in this title shall be construed
to limit or reduce in any way the funding for any program, project, or
activity serving anIndian tribe under this or other applicable Federal
law. Any Indian tribe that alleges that a compact or funding agreement
is in violation of this section may apply the provisions of section
110.
``(b) Federal Trust and Treaty Responsibilities.--Nothing in this Act
shall be construed to diminish in any way the trust responsibility of
the United States to Indian tribes and individual Indians that exists
under treaties, Executive orders, or other laws and court decisions.
``(c) Tribal Employment.--For purposes of section 2(2) of the Act of
July 5, 1935 (49 Stat. 450, chapter 372) (commonly known as the
National Labor Relations Act), an Indian tribe carrying out a self-
determination contract, compact, annual funding agreement, grant, or
cooperative agreement under this Act shall not be considered an
employer.
``(d) Obligations of the United States.--The Indian Health Service
under this Act shall neither bill nor charge those Indians who may have
the economic means to pay for services, nor require any Indian tribe to
do so.
``SEC. 516. APPLICATION OF OTHER SECTIONS OF THE ACT.
``(a) Mandatory Application.--All provisions of sections 5(b), 6, 7,
102(c) and (d), 104, 105(k) and (l), 106(a) through (k), and 111 of
this Act and section 314 of Public Law 101-512 (coverage under the
Federal Tort Claims Act), to the extent not in conflict with this
title, shall apply to compacts and funding agreements authorized by
this title.
``(b) Discretionary Application.--At the request of a participating
Indian tribe, any other provision of title I, to the extent such
provision is not in conflict with this title, shall be made a part of a
funding agreement or compact entered into under this title. The
Secretary is obligated to include such provision at the option of the
participating Indian tribe or tribes. If such provision is incorporated
it shall have the same force and effect as if it were set out in full
in this title. In the event an Indian tribe requests such incorporation
at the negotiation stage of a compact or funding agreement, such
incorporation shall be deemed effective immediately and shall control
the negotiation and resulting compact and funding agreement.
``SEC. 517. REGULATIONS.
``(a) In General.--
``(1) Not later than 90 days after the date of enactment of
this title, the Secretary shall initiate procedures under
subchapter III of chapter 5 of title 5, United States Code, to
negotiate and promulgate such regulations as are necessary to
carry out this title.
``(2) Proposed regulations to implement this title shall be
published in the Federal Register by the Secretary no later
than 1 year after the date of enactment of this title.
``(3) The authority to promulgate regulations under this
title shall expire 21 months after the date of enactment of
this title.
``(b) Committee.--A negotiated rulemaking committee established
pursuant to section 565 of title 5, United States Code, to carry out
this section shall have asits members only Federal and tribal
government representatives, a majority of whom shall be nominated by
and be representatives of Indian tribes with funding agreements under
this Act, and the Committee shall confer with, and accommodate
participation by, representatives of Indian tribes, inter-tribal
consortia, tribal organizations, and individual tribal members.
``(c) Adaptation of Procedures.--The Secretary shall adapt the
negotiated rulemaking procedures to the unique context of self-
governance and the government-to-government relationship between the
United States and Indian tribes.
``(d) Effect.--The lack of promulgated regulations shall not limit
the effect of this title.
``(e) Effect of Circulars, Policies, Manuals, Guidances, and Rules.--
Unless expressly agreed to by the participating Indian tribe in the
compact or funding agreement, the participating Indian tribe shall not
be subject to any agency circular, policy, manual, guidance, or rule
adopted by the Indian Health Service, except for the eligibility
provisions of section 105(g).
``SEC. 518. APPEALS.
``In any appeal (including civil actions) involving decisions made by
the Secretary under this title, the Secretary shall have the burden of
proof of demonstrating by clear and convincing evidence--
``(1) the validity of the grounds for the decision made; and
``(2) the decision is fully consistent with provisions and
policies of this title.
``SEC. 519. AUTHORIZATION OF APPROPRIATIONS.
``There are authorized to be appropriated such sums as may be
necessary to carry out this title.
``TITLE VI--TRIBAL SELF-GOVERNANCE--DEPARTMENT OF HEALTH AND HUMAN
SERVICES
``SEC. 601. DEMONSTRATION PROJECT FEASIBILITY.
``(a) Study.--The Secretary shall conduct a study to determine the
feasibility of a Tribal Self-Governance Demonstration Project for
appropriate programs, services, functions, and activities (or portions
thereof) of the agency.
``(b) Considerations.--When conducting the study, the Secretary shall
consider--
``(1) the probable effects on specific programs and program
beneficiaries of such a demonstration project;
``(2) statutory, regulatory, or other impediments to
implementation of such a demonstration project;
``(3) strategies for implementing such a demonstration
project;
``(4) probable costs or savings associated with such a
demonstration project;
``(5) methods to assure quality and accountability in such a
demonstration project; and
``(6) such other issues that may be determined by the
Secretary or developed through consultation pursuant to section
602.
``(c) Report.--Not later than 18 months after the enactment of this
title, the Secretary shall submit a report to the Committee on
Resources of the House of Representatives and the Committee on Indian
Affairs of the Senate. The report shall contain--
``(1) the results of the study;
``(2) a list of programs, services, functions, and activities
(or portions thereof) within the agency which it would be
feasible to include in a Tribal Self-Governance Demonstration
Project;
``(3) a list of programs, services, functions, and activities
(or portions thereof) included in the list provided pursuant to
paragraph (2) which could be included in a Tribal Self-
Governance Demonstration Project without amending statutes, or
waiving regulations that the Secretary may not waive;
``(4) a list of legislative actions required in order to
include those programs, services, functions, and activities (or
portions thereof) included in the list provided pursuant to
paragraph (2) but not included in the list provided pursuant to
paragraph (3) in a Tribal Self-Governance Demonstration
Project; and
``(5) any separate views of tribes and other entities
consulted pursuant to section 602 related to the information
provided pursuant to paragraph (1) through (4).
``SEC. 602. CONSULTATION.
``(a) Study Protocol.--
``(1) Consultation with indian tribes.--The Secretary shall
consult with Indian tribes to determine a protocol for
consultation under subsection (b) prior to consultation under
such subsection with the other entities described in such
subsection. The protocol shall require, at a minimum, that--
``(A) the government-to-government relationship with
Indian tribes forms the basis for the consultation
process;
``(B) the Indian tribes and the Secretary jointly
conduct the consultations required by this section; and
``(C) the consultation process allow for separate and
direct recommendations from the Indian tribes and other
entities described in subsection (b).
``(2) Opportunity for public comment.--In determining the
protocol described in paragraph (1), the Secretary shall
publish the proposed protocol and allow a period of not less
than 30 days for comment by entities described in subsection
(b) and other interested individuals, and shall take comments
received into account in determining the final protocol.
``(b) Conducting Study.--In conducting the study under this title,
the Secretary shall consult with Indian tribes, States, counties,
municipalities, program beneficiaries, and interested public interest
groups, and may consult with other entities as appropriate.
``SEC. 603. DEFINITIONS.
``(a) In General.--For purposes of this title, the Secretary may use
definitions provided in title V.
``(b) Agency.--For purposes of this title, the term `agency' shall
mean any agency or other organizational unit of the Department of
Health and Human Services, other than the Indian Health Service.
``SEC. 604. AUTHORIZATION OF APPROPRIATIONS.
``There are authorized to be appropriated for fiscal years 2000 and
2001 such sums as may be necessary to carry out this title. Such sums
shall remain available until expended.''.
SEC. 5. AMENDMENTS CLARIFYING CIVIL PROCEEDINGS.
(a) Burden of Proof in District Court Actions.--Section 102(e)(1) of
the Indian Self-Determination and Education Assistance Act (25 U.S.C.
450f(e)(1)) is amended by inserting after ``subsection (b)(3)'' the
following: ``or any civil action conducted pursuant to section
110(a)''.
(b) Effective Date.--The amendment made by this section shall apply
to any proceedings commenced after October 25, 1994.
SEC. 6. SPEEDY ACQUISITION OF GOODS, SERVICES, OR SUPPLIES.
Section 105(k) of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450j(k)) is amended--
(1) by striking ``carrying out a contract'' and all that
follows through ``shall be eligible'' and inserting the
following: ``or Indian tribe shall be deemed an executive
agency and a part of the Indian Health Service, and the
employees of the tribal organization or the Indian tribe, as
the case may be, shall be eligible''; and
(2) by adding at the end thereof the following: ``At the
request of an Indian tribe, the Secretary shall enter into an
agreement for the acquisition, on behalf of the Indian tribe,
of any goods, services, or supplies available to the Secretary
from the General Services Administration or other Federal
agencies that are not directly available to the Indian tribe
under this section or any other Federal law, including
acquisitions from prime vendors. All such acquisitions shall be
undertaken through the most efficient and speedy means
practicable, including electronic ordering arrangements.
SEC. 7. PATIENT RECORDS.
Section 105 of the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 450j) is amended by adding at the end the following new
subsection:
``(o) At the option of a tribe or tribal organization, patient
records may be deemed to be Federal records under the Federal Records
Act of 1950 for the limited purposes of making such records eligible
for storage by Federal Records Centers to the same extent and in the
same manner as other Department of Health and Human Services patient
records. Patient records that are deemed to be Federal records under
the Federal Records Act of 1950 pursuant to this subsection shall not
be considered Federal records for the purposes of chapter 5 of title 5,
United States Code.''.
SEC. 8. REPEAL.
Title III of the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 450f note) is hereby repealed.
SEC. 9. SAVINGS PROVISION.
Funds appropriated for title III of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450f note) shall be available for
use under title V of such Act.
SEC. 10. EFFECTIVE DATE.
Except as otherwise provided, the provisions of this Act shall take
effect on the date of the enactment of this Act.
Purpose of the Bill
The purpose of H.R. 1167 is to amend the Indian Self-
Determination and Education Assistance Act to provide for
further self-governance by Indian tribes, and for other
purposes.
Background and Need for Legislation
H.R. 1167 would create a new title in the 1975 Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450 et
seq.). The 1975 Act allows Indian tribes to contract for or
take over the administration and operation of certain federal
programs which provide services to Indian tribes. Title III of
the Act establishes a Self-Governance Demonstration Project
that allows for large-scale tribal self-governance compacts and
funding agreements on a ``demonstration'' basis. To date, 42
separate compacts, representing 57 individual funding
agreements with tribes, have already been negotiated.
The new title created by H.R. 1167 would make this
authority permanent for programs contracted for within the
Indian Health Service (IHS). Under H.R. 1167, Indian and Alaska
Native tribes would be able to contract for the operation,
control, and redesign of various IHS activities on a permanent
basis. In short, what was a demonstration project would become
a permanent IHS Self-Governance program. Pursuant to H.R. 1167,
tribes which have already contracted for IHS activities would
continue under the provisions of their contracts while an
additional 50 new tribes would be selected each year to enter
into contracts.
H.R. 1167 also allows for a feasibility study regarding the
execution of tribal Self-Governance compacts and funding
agreements for Indian-related programs outside the IHS but
within the Department of Health and Human Services on a
demonstration project basis.
Committee Action
H.R. 1167 was introduced on March 17, 1999, by Congressman
George Miller (D-CA) and was cosponsored by Congressman Don
Young (R-AK). The bill was referred to the Committee on
Resources. On June 9, 1999, the Full Committee on Resources met
to consider H.R. 1833. Mr. Miller offered an amendment in the
nature of a substitute. The amendment inserted the phrase
``regulations relating to procurement issued by the Secretary''
into Section 510 to clarify that the section is only referring
to procurement regulations. The amendment also clarified that
Indian tribes administering their own health programs are
eligible to receive reduced rate pharmaceuticals and that
patient records are not subject to the Freedom of Information
Act. The amendment was adopted by voice vote. The bill as
amended was then ordered favorably reported to the House of
Representative by voice vote.
Section-by-Section Analysis
Section 1. Short title
This provision sets forth the short title, the Tribal Self-
Governance Act Amendments of 1999.
Section 2. Findings
This provision sets forth the findings of Congress which,
among other things, reaffirm the sovereignty of Indian tribes
and the unique government-to-government relationship between
the United States and Indian tribes. The findings make clear
that the federal government has failed to fully meet its trust
responsibility and to satisfy its obligations under treaties
and other laws. The findings also explain that Congress has
concluded that self-governance is an effective mechanism to
implement and strengthen the federal policy of government-to-
government relations with Indian tribes by transferring to
Indian tribes full control and funding for federal programs,
functions, services, or activities, or portions thereof.
Throughout this bill, but particularly in the Findings and
Declaration of Policy sections, the phrase ``under treaties''
is used in describing the United States' trust obligation to
Indian tribes and individuals. This provision is intended to
explain that much of the federal-Indian relationship is
predicated on a government-to-government relationship as
reflected in the treaties, which are contractual relationships
between governments. Treaties are a significant part of the
legal relationship between Indian tribes and the United States.
Self-governance, by its use of compacts, another traditional
contracting device used between governments, is designed to
honor the government-to-government relationship and remind the
parties to these agreements of the historical basis for their
relationship.
Section 3. Declaration of policy
This section states Congress' policy to permanently
establish and implement Tribal self-governance within the
Department of Health and Human Services with the full
cooperation of its agencies. Among the key policy objectives
Congress seeks to achieve through the self-governance program
are to: (1) maintain and continue the United States' unique
relationship with Indian tribes; (2) allow Indian tribes the
flexibility to choose whether they wish to participate in self-
governance; (3) ensure the continuation and fulfillment of the
United States' trust responsibility and other responsibilities
towards Indian tribes that are contained in treaties and other
laws; (4) permit a transition to tribal control and authority
over programs, functions, services, or activities (or portions
thereof); and (5) provide a corresponding parallel reduction in
the federal bureaucracy.
Section 4. Tribal self governance
This section sets out the substantive provisions of the
Self-Governance program in the Indian Health Service (HHS),
added as a new Title V of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450 et seq.). The following
description refers to the new sections of Title V:
Section 501. Establishment
This provision directs the Secretary of HHS to establish a
permanent Tribal Self-Governance Program in the Indian Health
Service.
Section 502. Definitions
Subsection (a)(1) defines ``construction project'' as an
undertaking described in a ``construction project agreement.''
Subsection (a)(2) defines ``construction project
agreement'' as a negotiated agreement which includes at a
minimum: start and completion of dates; scope of work; party
responsibilities; environmental considerations; identifies
owner and operations/maintenance entity; a budget; payment
process; and duration of the agreement.
Subsection (a)(3) defines ``inherent federal functions''.
Inherent federal functions are functions which the Executive
Branch cannot by law delegate to other branches of governments,
or to non-governmental entities. This definition is consistent
with the Department of the Interior Solicitor's Memorandum of
May 17, 1996, entitled ``Inherently Federal Functions under the
Tribal Self-Governance Act of 1994.'' It is the Committee's
understanding that this definition recognizes that there are
differences between departmental and agency functions and those
may be analyzed on a case-by-case basis. It is important to
note that, in the tribal procurement context, there is another
factor the Committee has considered--when the federal
government is returning tribal governmental powers and
functions that are inherent in tribal governmental status (such
as those possessed by tribes before the establishment of the
federal Indian bureaucracy), the scope of allowable transfers
is broader than in the transfer of federal governmental powers
to private or other governmental entities.
Subsection (a)(4) defines ``inter-tribal consortium''. The
Committee notes that during the Title III Demonstration
Project, the IHS authorized intertribal consortia, such as the
co-signers to the Alaska Tribal Health Compact, to participate
in the Project and that participation has had great success.
The definition of ``inter-tribal consortium'' is intended to
include ``tribal organizations'' as that term is defined in
Section 4(l) of the Indian Self-Determination Act, Public Law
93-638. This would include consortia such as those involved in
the Alaska Tribal Health Consortium. It is the Committee's
intent that inter-tribal consortia and tribal organizations
shall count as one tribe for purposes of the 50 tribe per year
limitation contained in new Section 503(a).
Subsection (a)(5) provides a definition of ``gross
mismanagement.'' The Committee has added this definition
pursuant to the Department's request and tribal agreement. The
inclusion of this term is to govern one of the criteria that
the Secretary is to consider in the reassumption of a tribally-
operated program. The Secretary will be given the authority to
reassume programs that imminently endanger the public health
where the danger arises out of a compact or funding agreement
violation. The Committee believes that the inclusion of a
performance standard, in this case gross mismanagement, is also
an appropriate grounds for reassumption. Gross mismanagement is
defined as a significant, clear, and convincing violation of
compact, funding agreement, regulatory or statutory
requirements related to the transfer of self-governance funds
to the tribe that results in a significant reduction of funds
to the tribe's self-governance program. The Committee's
definition of gross mismanagement is narrowly tailored and will
require a high degree of proof by the Secretary. The Committee
is well aware of tribal concerns and agrees that the inclusion
of this performance standard must not be utilized by the
Secretary in such a manner as to needlessly impose monitoring
and auditing requirements that hinder the efficient operation
of tribal programs. Intrusive and overburdensome monitoring and
auditing activities are antithetical to the goals of self-
governance.
Subsection (a)(6) defines ``tribal shares''. This
definition is consistent with the Title IV rule-making
committee's determination that residual funds are those
``necessary to carry out the inherently federal functions that
must be performed by federal officials if all tribes assume
responsibilities for all BIA programs.'' 63 Fed. Reg. 7235,
(Feb. 12, 1998) (Proposed Rule, 25 CFR 1000.91). All funds
appropriated under the Indian Self-Determination and Education
Assistance Act are either tribal shares or agency residual.
Subsection (a)(7) defines ``Secretary'' as the Secretary of
Health and Human Services.
Subsection (a)(8) defines ``self-governance'' as the
program established under this title.
Section (b) defines ``Indian tribe''. This definition
enables an Indian tribe to authorize another Indian tribe,
inter-tribal consortium or tribal organization to participate
in self-governance on its behalf. The authorized Indian tribe,
inter-tribal consortium or tribal organization may exercise the
authorizing Indian tribe's rights as specified by tribal
resolution.
Section 503. Selection of participating indian tribes
This section describes the eligibility criteria that must
be satisfied by any Indian tribe interested in participating in
the self-governance program.
(a) Continuing Participation. All tribes presently
participating in the Tribal Self-Governance Demonstration
Project under Title III of the Indian Self-Determination and
Education Assistance Act may elect to participate in the
permanent self-governance program. Tribes must do so through
tribal resolution.
(b) Additional Participants. (1) This section allows an
additional 50 tribes a year to participate in self-governance.
(2) This section allows an Indian tribe that chooses to
withdraw from an inter-tribal consortium or tribal organization
to participate in self-governance provided it independently
meets the eligibility criteria in new Title V. Tribes and
tribal organizations that withdraw from tribal organizations
and inter-tribal consortia under this section shall be entitled
to participate in the permanent program under Section 503
(b)(2) and such participation shall not be counted against the
50 tribe a year limitation contained in Section 503(a).
(c) Applicant Pool. The eligibility criteria for self-
governance tribes are the same as those that applied under
Title IV, the permanent Department of the Interior Self-
Governance Program. To participate, an Indian tribe must
successfully complete a planning phase, must request
participation in the program through a resolution or official
action of the governing body, and must have demonstrated
financial stability and financial management capability for the
past three years. Proof of no material audit exceptions in the
tribe's self determination contracts or self-governance funding
agreements is conclusive proof of such qualification. The
Committee notes that the financial examination addressed in
Subsection 503(c)(3) refers solely to funds managed by the
tribe under Title I and Title IV of the Indian Self-
Determination and Education Assistance Act. The bill has been
deliberately crafted to make clear that a tribe's activities in
other economic endeavors are not subject of the Section 503(c)
examination. Similarly, the ``budgetary research'' referred to
in Section 503(d)(1) of the bill requires a tribe to research
only budgetary issues related to the administration of the
programs the tribe anticipates transferring to tribal operation
under self-governance.
(d) Planning Phase. Every Indian tribe interested in
participating in self-governance shall complete a planning
phase prior to participating in the program. The planning phase
is to include legal and budgetary research and internal tribal
government planning and organizational preparation. The
planning phase is to be completed to the satisfaction of the
tribe.
(e) Grants. Subject to available appropriations, any Indian
tribe interested in participating in self-governance is
eligible to receive a grant to plan for participation in the
program or to negotiate the terms of a Compact and funding
agreement.
(f) Receipt of Grant not Required. This section provides
that receipt of a grant from HHS is not required to participate
in the permanent program.
Section 504. Compacts
This section authorizes Indian tribes to negotiate Compacts
with the Secretary and identifies generally the contents of
Compacts. While the Compact process was not specifically part
of prior legislative enactment, the Committee understands that
Compacts have developed as an integral part of self-governance.
The Committee believes that Compacts serve an important and
necessary function in establishing government-to-government
relations, which as noted earlier, is the keystone of modern
federal Indian policy.
(a) Compact Required. The Secretary is required to
negotiate and enter into a written Compact consistent with the
trust responsibility, treaty obligations and the government-to-
government relationship between the United States and each
participating tribe.
(b) Contents. This subsection requires that Compacts state
the terms of the government-to-government relationship between
the Indian tribe and the United States. Compacts may only be
amended by agreement of both parties.
(c) Existing Compacts. On enactment of Title V, Indian
tribes have the option of retaining their existing Compacts, or
any portion of the Compacts that do not contradict the
provisions of Title V.
(d) Term and Effective Date. The date of approval and
execution by the Indian tribe is generally the effective date
of a Compact, unless otherwise agreed to by the parties. A
Compact will remain in effect as long as permitted by federal
law or until terminated by written agreement of the parties, or
by retrocession or reassumption.
Section 505. Funding agreements
This section authorizes Indian tribes to negotiate funding
agreements with the Secretary and generally identifies the
contents of those agreements.
(a) Funding Agreement Required. The Secretary is required
to negotiate and enter into a written funding agreement
consistent with the trust responsibility, treaty obligations
and the government-to-government relationship between the
United States and each participating tribe.
(b) Contents. An Indian tribe may include in an funding
agreement all programs, functions, services, or activities, (or
portions thereof) that it is authorized to carry out under
Title I of the Indian Self-Determination and Education
Assistance Act. Funding agreements may, at the option of the
Indian tribe, authorize the tribe to plan and carry-out all
programs, functions, services, or activities, (or portion
thereof) administered by the Indian Health Service (IHS) that
are carried out for the benefit of Indians because of their
status as Indians or where Indian tribes or Indian
beneficiaries are the primary or significant beneficiaries, as
set forth in statutes. For each program, function, service, or
activity (or portion thereof) included in a funding agreement,
an Indian tribe is entitled to receive its full tribal share of
funding, including funding for all local, field, service unit,
area, regional, and central/headquarters or national office
locations. Available funding includes the Indian tribe's share
of discretionary IHS competitive grants but not statutorily
mandated competitive grants.
The Committee is concerned with the reluctance of the IHS
to include all available federal health funding in self
governance funding agreements. We note, as an example, the
refusal of the IHS to so include the Diabetes Prevention
Initiative funding. As a result, funding was delayed and undue
administrative requirements diverted resources from direct
services. This section is intended to directly remedy this
situation.
The Committee has received ample testimony showing the
benefits of self governance. In 1998, the National Indian
Health Board recently released its' ``National Study on Self-
Determination and Self-Governance,'' providing empirical
evidence that self-governance leads to more efficient
management of tribal health service delivery, especially
preventive services. This study consistently observed an
overall improvement in quality of care when tribes operate
their own health care systems. Less than full funding
agreements will result in less than maximum use of federal
resources to address the health care in Indian country.
Accordingly, this section is to be interpreted broadly by
affording apresumption in favor of including in a tribe's self-
governance funding agreement any federal funding administered by that
agency.
(c) Inclusion in Compact or Funding Agreement. Indians do
not need to be specifically identified in authorizing
legislation for a program to be eligible for inclusion in a
Compact or funding agreement.
(d) Funding Agreement Terms. Each funding agreement should
generally set out the programs, functions, services, or
activities, (or portions thereof) to be performed by the Indian
tribe, the general budget category assigned to each program,
function, service, or activity (or portion thereof), the funds
to be transferred, the time and method of payment and other
provisions that the parties agree to.
(e) Subsequent Funding Agreements. Each funding agreement
remains in full force and effect unless the Secretary receives
notice from the Indian tribe that it will no longer operate one
or more of the programs, functions, services, or activities,
(or portions thereof) included in the funding agreement or
until a new funding agreement is executed by the parties.
The Committee is concerned with reports that the IHS has
been able to use the annual negotiations provisions of Section
303(a) of the Indian Self-Determination and Education
Assistance Act to obtain an unfair bargaining advantage during
negotiations by threatening to suspend application of the Act
to a tribe if it does not sign an annual funding agreement.
This subsection is meant to facilitate negotiation between the
tribes and the IHS on a true government-to-government basis.
The Committee believes the provision is fair because this
assures that no act or omission of the federal government
endangers the health and welfare of tribal members.
(f) Existing Funding Agreements. Upon enactment of Title V,
tribes may either retain their existing annual funding
agreements, or any portion thereof, that do not conflict with
provisions of Title V, or negotiate new funding agreements that
conform to Title V.
(g) Stable Base Funding. An Indian tribe may include a
stable base budget in its funding agreement. A stable base
budget contains the tribe's recurring funding amounts and
provides for transfer of the funds in a predictable and
consistent manner over a specific period of time. Adjustments
are made annually only if there are changes in the level of
funds appropriated by Congress. Non- recurring funds are not
included and must be negotiated on an annual basis. The
Committee intends this section to codify the existing agency
policy guidance on stable base funding.
Section 506. General provisions.
(a) Applicability. The provisions in this section may, at
the tribe's option, be included in a Compact or funding
agreement.
(b) Conflicts of Interest. Indian tribes are to assure that
internal measures are in place to address conflicts of interest
in the administration of programs, functions, services, or
activities (or portions thereof).
(c) Audits. The Single Agency Audit Act applies to Title V
funding agreements. Indian tribes are required to apply cost
principles set out in applicable Office of Management and
Budget (OMB) Circulars, as modified by Section 106 of the
Indian Self-Determination and Education Assistance Act or by
any exemptions that may be applicable to future OMB Circulars.
No other audit or accounting standards are required. Claims
against Indian tribes by the federal government based on any
audit of funds received under a Title V funding agreement are
subject to the provisions of Section 106(f) of the Act.
(d) Records. An Indian tribe's records are not considered
federal records for purposes of the Federal Privacy Act, unless
otherwise stated in the Compact or funding agreement. Indian
tribes are required to maintain a record keeping system and,
upon reasonable advance request, provide the Secretary with
reasonable access to records to enable HHS to meet its minimum
legal record keeping requirements under the Federal Records
Act.
(e) Redesign and Consolidation. An Indian tribe may
redesign or consolidate programs, functions, services, or
activities, (or portions thereof) and reallocate or redirect
funds in any way the Indian tribe considers to be in the best
interest of the Indian community being served.
(f) Retrocession. An Indian tribe may retrocede fully or
partially back to the Secretary any program, function, service,
or activity (or portion thereof) included in a Compact or
funding agreement. A retrocession request becomes effective
within the time frame specified in the Compact or funding
agreement, one year from the date the request was made, the
date the funding agreement expires, or any date mutually agreed
to by the parties, whichever occurs first.
(g) Withdrawal. An Indian tribe that participates in self-
governance through an inter-tribal consortium or tribal
organization can withdraw from the consortium or organization.
The withdrawal becomes effective within the timeframe set out
in the tribe's authorizing resolution. If a timeframe is not
specified, withdrawal becomes effective one year from the
submission of the request or on the date the funding agreement
expires, whichever occurs first. An alternative date can be
agreed to by the parties, including the Secretary.
When an Indian tribe withdraws from an inter-tribal
consortium or tribal organization and wishes to enter into a
Title I contract or Title V agreement on its own, it is
entitled to receive its share of funds supporting the program,
function, service, or activity, (or portion thereof) that it
will carry out under its new status. The funds must be removed
from the funding agreement of the participating organization or
inter-tribal consortium and included in the withdrawing tribe's
agreement or contract. If the withdrawing tribe is to receive
services directly from the Secretary, the tribe's share of
funds must be removed from the funding agreement of the
participating organization or inter-tribal consortium and
retained by the Secretary to provide services. Finally, an
Indian tribe that chooses to terminate itsparticipation in the
self-governance program may, at its option, carry out programs,
functions, services, or activities, (or portions thereof) in a Title I
contractor agreement or self-governance funding agreement and retain
its mature contractor status.
(h) Nonduplication. This section provides that a tribe
operating under a self-governance Compact may not contract
under Title I agreement (a ``638 contract'') for the same
programs.
Section 507. Provisions relating to the Secretary
This section sets out mandatory and non-mandatory
provisions relating to the Secretary's obligations.
(a) Mandatory Provisions.
(1) Health Status Reports. To the extent that the data is
not otherwise available to the Secretary, Compacts and funding
agreements must include a provision requiring the Indian tribe
to report data on health status and service delivery. The
Secretary is to use this data in her annual reports to
Congress. The Secretary is required to provide funding to the
Indian tribe to compile such data. Reporting requirements can
only impose minimal burdens on the Indian tribe and may only be
imposed if they are contained in regulations developed under
negotiated rulemaking.
(2) Reassumption. Compacts and funding agreements must
include a provision authorizing the Secretary to reassume a
program, function, service, or activity, (or portion thereof)
if the Secretary makes a finding of imminent endangerment of
the public health caused by the Indian tribe's failure to carry
out the Compact or funding agreement of gross mismanagement
that causes a significant reduction in available funding. The
Secretary is required to provide the Indian tribe with notice
of a finding. The Indian tribe may take action to correct the
problem identified in the notice. The Secretary has the burden
at the hearing of demonstrating by clear and convincing
evidence the validity of the grounds for reassumption. In cases
where the Secretary finds imminent substantial and irreparable
endangerment of the public health caused by the tribe's failure
to carry out the Compact or funding agreement, the Secretary
may immediately reassume the program but is required to provide
the tribe with a hearing on the record within ten days after
reassumption.
(b) Final Offer. If the parties cannot agree on the terms
of a Compact or funding agreement, the Indian tribe may submit
a final offer to the Secretary. The Secretary has 45 days to
determine if the offer will be accepted or rejected. The 45
days can be extended by the Indian tribe. If the Secretary
takes no action the offer is deemed accepted by the Secretary.
(c) Rejection of Final Offers. This provision describes the
only circumstances under which the Secretary may reject an
Indian tribe's final offer. A rejection requires written notice
to the Indian tribe within 45 days of receipt with specific
findings that clearly demonstrate or are supported by
controlling legal authority that: (1) the amount of funds
proposed exceeds the funding level that the Indian tribe is
entitled to; (2) the program, function, service, or activity
(or portion thereof) that is the subject of the offer is an
inherent federal function that only can be carried out by the
Secretary; (3) the applicant is not eligible to participate in
self-governance; or (4) the Indian tribe cannot carry out the
program, function, service or activity, (or portion thereof)
without a significant danger or risk to the public health. The
Committee believes the fourth provision appropriately balances
the Secretary's trust responsibility to assure the delivery of
health care services to Indian beneficiaries, with the equally
important goal of fostering maximum tribal self-determination
in the administration of health care programs transferred under
Title V. The Committee has included the requirement of a
``specific finding'' is included to avoid rejections which
merely state conclusory statements that offer no analysis and
determination of facts supporting the rejection.
The Secretary must also offer assistance to the Indian
tribe to overcome the stated objections, and must provide the
Indian tribe with an opportunity to appeal the rejection and
have a hearing on the record. In any hearing the Indian tribe
has the right to engage in full discovery. The Indian tribe
also has the option to proceed directly to federal district
court under Section 110 the Indian Self-Determination and
Education Assistance Act.
The Secretary may only reject those portions of a ``final
offer'' that are supported by the findings and must agree to
all severable portions of a ``final offer'' which do not
justify a rejection. By entering into a partial Compact or
funding agreement the Indian tribe does not waive its right to
appeal the Secretary's decision for the rejected portions of
the offer.
(d) Burden of Proof. The Secretary has the burden of
demonstrating by clear and convincing evidence the validity of
a rejection of a final offer in any hearing, appeal or civil
action. A decision relating to an appeal within HHS is
considered a final agency action if it was made by an
administrative judge or by an official of HHS whose position is
at a higher level than the level of the departmental agency in
which the decision that is the subject of the appeal was made.
(e) Good Faith. The Secretary is required to negotiate in
good faith and carry out his discretion under Title V in a
manner that maximizes the implementation of self-governance.
(f) Savings. Any savings in the Department's administrative
costs that result from the transfer of programs, functions,
services, or activities, (or portions thereof) to Indian tribes
in self-governance agreements that are not otherwise
transferred to Indian tribes under Title V must be made
available to Indian tribes for inclusion in their Compacts or
funding agreements. We have consistently indicated that self
governance should achieve reductions in federal bureaucracy and
create resultant cost savings. This subsection makes clear that
such savings are for the benefit of the Indian tribes. Savings
are not to be utilized for other agency purposes, but rather
are to be provided as additional funds or services to all
tribes, inter-tribal consortia, and tribal organizations in a
fair and equitable manner.
(g) Trust Responsibility. The Secretary is prohibited from
waiving, modifying or diminishing the trust responsibilities or
other responsibilities as reflected in treaties, executive
orders or other laws and court decisions of the United States
to Indian tribes and individual Indians. The Committee
reaffirms that the protection of the federal trust
responsibility to Indian tribes and individuals is a key
element ofself-governance. The ultimate and legal
responsibility for the management and preservation of trust resources
resides with the United States as Trustee. The Committee believes that
health care is a trust resource consistent with federal court
decisions. This subsection continues the practice of permitting
substantial tribal management of its trust resources provided that
tribal activities do not replace the trustee's specific legal
responsibilities. Section 506(a)(2) (reassumption) with its concept of
imminent endangerment of the public health provides guidance in
defining the Secretary's trust obligation in the health context.
(h) Decisionmaker. Final agency action is a decision by
either an official from the Department at any higher
organizational level than the initial decision maker or an
administrative law judge. Subparagraph (h)(2) is included to
assure that the persons deciding an administrative appeal are
not the same individuals who made the initial decision to
reject a tribe's ``final offer.''
Section 508. Transfer of funds
(a) In General. The Secretary is required to transfer all
funds provided for in a funding agreement, pursuant to Section
508(c) below. Funds are also required to be provided for
periods covered by continuing resolutions adopted by Congress,
to the extent permitted by such resolutions. When a funding
agreement requires that funds be transferred at the beginning
of the fiscal year, the transfer are to be made within 10 days
after the Office of Management and Budget apportions the funds,
unless the funding agreement states otherwise.
(b) Multi-Year Funding. The Secretary is authorized to
negotiate multi-year funding agreements.
(c) Amount of Funding. The Secretary is required to provide
an Indian tribe the same funding for a program, function,
service, or activity, (or portion thereof) under self-
governance that the tribe would have received under Title I.
This includes all Secretarial resources that support the
transferred program, and all contract support costs (including
indirect costs) that are not available from the Secretary but
are reasonably necessary to operate the program. The bill
requires that the transfer of funds occur along with the
transfer of the program. Thus the bill states that ``the
Secretary shall provide'' the funds specified, and the
Secretary is not authorized to phase-in funds in any manner
that is not voluntarily agreed to by self-governance tribe.
(d) Prohibition. The Secretary is specifically prohibited
from withholding, refusing to transfer or reducing any portion
of an Indian tribe's full share of funds during a Compact or
funding agreement year, or for a period of years. The Committee
is aware that for the first 21 years of administration of the
Indian Self-Determination and Education Assistance Act, the
Department had never taken the position that it has the
discretion to delay funding for any program transferred under
the Act absent tribal consent. However, a 1996 IHS circular
purported to do just that. Since this circular was issued,
several area offices have refused to turn over substantial
program funds to tribal operation. In one instance both an area
office and headquarters refused to transfer portions of
programs for several years, and with respect to several
headquarters functions the IHS refused to transfer the
functions altogether. A recent Oregon federal district court
decision declared IHS's actions in these instances illegal and
the Committee agrees.
Additionally, funds that an Indian tribe is entitled to
receive may not be reduced to make funds available to the
Secretary for monitoring or administration; may not be used to
pay for federal functions (such as pay costs or retirement
benefits), and may not be used to pay costs associated with
federal personnel displaced by self-governance or Title I
contracting.
In subsequent years, funds may only be reduced in very
limited circumstances: if Congress reduces the amount available
from the prior year's appropriation; if there is a directive in
the statement of managers which accompanies an appropriation;
if the Indian tribe agrees; if there is a change in the amount
of pass-through funds; or if the project contained in the
funding agreement has been completed.
(e) Other Resources. If an Indian tribe elects to carry out
a Compact or funding agreement using federal personnel,
supplies, supply sources or other resources that the Secretary
has available under procurement contracts, the Secretary is
required to acquire and transfer the personnel, supplies or
resources to the Indian tribe.
(f) Reimbursement to Indian Health Service. The IHS is
authorized on a reimbursable basis to provide goods and
services to tribes. Reimbursements are to be credited to the
same or subsequent appropriation account which provided the
initial funding. The Secretary is authorized to receive and
retain the reimbursed amounts until expended without remitting
them to the Treasury.
(g) Prompt Payment Act. This section makes the Prompt
Payment Act (31 U.S.C. Chapter 39) applicable to the transfer
of all funds due to a tribe under a Compact or funding
agreement. The first annual or semi-annual transfer due under a
funding agreement must be made within 10 calendar days of the
date the Office of Management and Budget apportions the
appropriations for that fiscal year. Under this section, the
Secretary is obligated to pay to a self-governance tribe
interest, as calculated under the Prompt Payment Act, for any
late payment under a funding agreement.
(h) Interest or Other Income on Transfers. An Indian tribe
may retain interest earned or other income on funds transferred
under a Compact or funding agreement. Interest earned must not
reduce the amount of funds the tribe is entitled to receive
during the year the interest was earned or in subsequent years.
An Indian tribe may invest funds received in a funding
agreement as it wishes, provided it follows the ``prudent
investment standard.''
(i) Carryover of Funds. All funds paid to an Indian tribe
under a Compact or funding agreement are ``no year'' funds and
may be spent in the year they are received or in any future
fiscal year. Carryover funds are not to reduce the amount of
funds that the tribe may receive in subsequent years.
(j) Program Income. All program income (including Medicare/
Medicaid) earned by an Indian tribe is supplemental to the
funding that is included in its funding agreement. The
Secretary may notreduce the amount of funds that the Indian
tribe may receive under its funding agreement for future fiscal years.
The Indian tribe may retain such income and spend it either in the
current or future years.
(k) Limitation of Costs. An Indian tribe is not required to
continue performance of a program, function, service, or
activity (or portion thereof) included in a funding agreement
if doing so requires more funds than were provided under the
funding agreement. If an Indian tribe believes that the amount
of funds transferred is not enough to carry out a program,
function, service, or activity (or portion thereof) for the
full year, the Indian tribe may so notify the Secretary. If the
Secretary does not supply additional funds the tribe may
suspend performance of the program, function, service, or
activity (or portion thereof) until additional funds are
provided.
Section 509. Construction projects
(a) In General. Indian tribes are authorized to conduct
construction projects authorized under this section. The tribes
are to assume full responsibility for the projects, including
responsibility for enforcement and compliance with all relevant
federal laws, including the National Historic Preservation Act
of 1966 and the National Environmental Policy Act of 1969.
The Committee intends to allow tribes to include the
maximum available project responsibilities, including
environmental compliance responsibilities and associated
funding in their construction project agreements. However, the
Committee recognizes that due to individual circumstances, this
may not always be possible. The Committee intends that tribes
may ``buy back'' project related services in their construction
project agreement, including design and construction
engineering and environmental compliance services from the IHS
in accordance with Section 508(f), subject to the availability
of the IHS' capacity to conduct the work.
(b) Negotiations. Negotiation of construction projects are
negotiated pursuant to Section 105(m) of the Indian Self-
Determination and Education Assistance Act and construction
project agreements included in the funding agreement as an
addendum.
(c) Codes and Standards. Tribes and the IHS will agree to
standards and codes for the construction project. The agreement
will be in conformity with nationally accepted standards for
comparable projects.
(d) Responsibility for Completion. Payments for
construction projects will be on an annual or semi-annual
basis, at the option of the tribe. Flexibility in payment
schedules will be maintained by the IHS through contingency
funds to take account of exigent circumstances such as weather
and supply.
(e) Funding. The reporting requirements in this section are
not to be read as requiring any more than the tribe sharing
with the Secretary such information as is otherwise required to
be compiled under the normal and customary course of a
construction project under the standards prescribed in Section
509(c). Further, this section does not provide for nor
contemplate any additional administrative or financial
reporting or record-keeping requirements on a tribe beyond the
standards otherwise applicable under this Title.
(f) Approval. This section provides the Secretary at least
one opportunity to approve project planning and design
documents prepared by an Indian tribe. The tribe shall also
provide the Secretary with project progress and financial
reports as specified. The Secretary may conduct on-site project
oversight visits as specified.
(g) Wages. This section sets forth the standards for wages
paid in connection with the projects funded under this section.
(h) Application of Other Laws. This section clarifies the
application of certain other federal laws and regulations to
Indian tribes under Title V.
Section 510. Federal procurement laws and program
regulations.
Unless otherwise agreed to by the parties, Compacts and
funding agreements are not subject to federal contracting or
cooperative agreement laws and regulations (including executive
orders) unless those laws expressly apply to Indian tribes.
Compacts and funding agreements are also not subject to program
regulations that apply to the Secretary's operations.
Section 511. Civil actions
The Committee intends that Section 110 the Indian Self-
Determination and Education Assistance Act, which provides
tribes access to Federal District Court to challenge a decision
by the Secretary, shall apply to compacts and funding
agreements in this Title.
Section 512. Facilitation
(a) Secretarial Interpretation. This section requires the
Secretary to interpret all executive orders, regulations and
federal laws in a manner that will facilitate the inclusion of
programs, functions, services, or activities (or portions
thereof) and funds associated therewith under Title V,
implementation of Title V Compacts and funding agreements, and
the achievement of tribal health goals and objectives where
they are not inconsistent with federal law. This section
reinforces the Secretary's obligation not merely to provide
health care services to Native American tribes, but to
facilitate the efforts of tribes to manage those programs for
the maximum benefit of their communities.
(b) Regulation Waiver. An Indian tribe may seek a waiver of
any applicable federal regulation issued under the Indian Self-
Determination and Education Assistance Act, as amended, by
submitting a written waiver request to the Secretary. The
Secretary has 90 days to respond and a failure to act within
that period is deemed an approval of the request by operation
of law. Action on a waiver request is final for the Department.
Denials may only be made on a specific finding that the waiver
is prohibited by federal law. No action within the 90 day
period by the Secretary is deemed an approval.Although the
waiver procedures do not apply to other departmental regulations, this
section makes clear that tribes are not subject to departmental program
regulations that govern how the Department administers a particular
program. Rather, tribes are expected to carry out transferred health
care programs pursuant to tribal rules and regulations. The only
exception is where a particular program requirement is set forth in
statute, in which case a tribe must comply with the statutory
limitation or mandate.
(c) Access to Federal Property. This subsection addresses
tribal use of federal buildings, hospitals and other
facilities, as well as the transfer to tribes of title to
excess personal or real property. At the request of an Indian
tribe the Secretary is required to permit the Indian tribe to
use government-owned real or personal property under the
Secretary's jurisdiction under such terms as the parties may
agree to.
The Secretary is required to donate title to personal or
real property that is excess to the needs of any agency or the
General Services Administration as long as the Secretary has
determined that the property is appropriate for any purpose for
which a compact is authorized, irrespective of whether a tribe
is in fact administering a particular program that matches that
purpose. For instance, if a tribe is not administering a mental
health program under its IHS compact or funding agreement, the
Secretary may nonetheless acquire excess or surplus property
and donate such property to the tribe so long as the Secretary
determines that the tribe will be using the property to
administer mental health services.
Title to property furnished by the government or purchased
with funds received under a Compact or funding agreement vests
in the Indian tribe if it so chooses. Such property also
remains eligible for replacement, maintenance or improvement on
the same terms as if the United States had title to it. Any
property that is worth $5,000 or more at the time of a
retrocession, withdrawal or reassumption may revert back to the
United States at the option of the Secretary.
(d) Matching or Cost-Participation Requirement. Funds
transferred under Compacts and funding agreements are to be
considered non-federal funds for purposes of meeting matching
or cost participation requirements under federal or non-federal
programs.
(e) State Facilitation. This section encourages and
authorizes States to enter agreements with tribes supplementing
and facilitating Title V and other federal laws that benefit
Indians and Indian tribes, e.g., Welfare Reform. It is designed
to provide federal authority so as to remove potential equal
protection objections where states enter into special
arrangements with tribes.
The Committee wants to foster enlightened and productive
partnerships between State and local governments, on the one
hand, and Indian tribes on the other; and, the Committee wants
to be sure that States are authorized by the federal government
to undertake such initiatives, as part of the federal
government's constitutional authority to deal with Indian
tribes as political entities, irrespective of any limitations
which have from time to time been argued might otherwise exist
with respect to State action under either State constitutional
provisions or other provisions of the Constitution. Many State
and tribal governments have undertaken positive initiatives
both in health care issues and in natural resource management,
and it is the Committee's strong desire to fully support,
authorize and encourage such cooperative efforts.
(f) Rules of Construction. Provisions in this Title and in
Compacts and funding agreements shall be liberally construed
and ambiguities decided for the benefit of the Indian tribe
participating in the program.
Section 513. Budget request
(a) In General. The President is required to annually
identify in his/her budget all funds needed to fully fund all
Title V Compacts and funding agreements. These funds are to be
apportioned to the IHS Office of Tribal Self-Governance. The
IHS may not thereafter reduce the funds a tribe is otherwise
entitled to receive whether or not such funds have been
apportioned to the Office of Tribal Self-Governance.
The Committee has been made aware that the current system
for payment and approval of funding and amendments for annual
funding agreements for self-governance demonstration tribes is
inefficient and time consuming. In addition, by leaving
authority and responsibility for distributions to area offices,
there have been reported instances of excessive and unwarranted
assertion of authority by area offices over self governance
tribes. This includes area offices retaining shares of funds
not authorized to be retained by the tribe's annual funding
agreement. The Committee concludes that by requiring a report
on self-governance expenditures, and by moving all self-
governance funding onto a single line, the Congress will be
able to achieve the following ends: more accurately gauge the
amount of funding flowing directly to tribes through
participation in self governance; generate savings through
decreasing the bureaucratic burden on the payment and approval
process in the IHS; expedite the transferal of funding to
tribal operating units; and aid in the implementation of true
government to government relations and tribal self
determination.
(b) Present Funding; Shortfalls. The budget must identify
the present level of need and any shortfalls in funding for
every Indian tribe in the United States that receives services
directly from the Secretary, through a Title I contract or in a
Title V Compact and funding agreement.
Section 514. Reports
(a) Annual Report. The Secretary is required to submit to
Congress on January 1 of every year a written report on the
Self-Governance program. The report is to include the level of
need presently funded or unfunded for every Indian tribe in the
United States that receives services directly from the
Secretary, through a Title I contract or in a Title V Compact
and funding agreement.
(b) Contents. The Secretary's report must identify: the
costs and benefits of self-governance; all funds related to the
Secretary's provision of services and benefits to self-
governance tribes and their members; all funds transferred to
self-governance tribes and the corresponding reduction in the
federalbureaucracy; the funding formula for individual tribal
shares; and the amount expended by the Secretary during the preceding
fiscal year to carry out inherent federal functions.
The Secretary's report must, at the request of any Indian
tribe, include comments from the tribe. The report must be
distributed to all Indian tribes for comment no less than 30
days prior to its submission to Congress. Finally, the
Secretary may not impose reporting requirements on Indian
tribes unless specified in Title V.
(c) Report on Fund Distribution Method. This section
requires the Secretary to consult with Indian tribes and
report, within 180 days after Title V is enacted, on funding
formulae used to determine tribal shares of funds controlled by
IHS. The formulae are to become a part of the annual report to
Congress discussed above in Section 514(a). This provision is
not intended to relieve HHS from its obligation under Title V
to make all funds controlled by the central office, national,
headquarters or regional offices available to Indian tribes.
This provision is also not intended to require reopening
funding formulae that are already being used by HHS to
distribute funds to Indian tribes. Any new formulae or revision
of existing formulae should be determined only after
significant regional and national tribal consultation.
Section 515. Disclaimers
(a) No Funding Reduction. This provision states that
nothing in Title V shall be interpreted to limit or reduce the
funding for any program, project or activity that any other
Indian tribe may receive under Title I or other applicable
federal laws. A tribe that alleges that a Compact or funding
agreement violates this section may rely on Section 110 of the
Indian Self-Determination and Education Assistance Act to seek
judicial review of the allegation.
(b) Federal Trust and Treaty Responsibilities. This section
clarifies that the trust responsibility of the United States to
Indian tribes and individual Indians which exists under
treaties, Executive Orders, laws and court decisions shall not
be reduced by any provision of Title V.
(c) Tribal Employment. This provision excludes Indian
tribes carrying out responsibilities under a Compact or funding
agreement from falling under the definition of ``employer'' as
that term is used in the National Labor Regulations Act.
(d) Obligations of the United States. The IHS is prohibited
from billing, or requiring Indian tribes from billing,
individual Indians who have the economic means to pay for
services. For many years the Interior and Related Agencies
Appropriations Bills included language that prohibited the IHS,
without explicit direction from Congress, from billing or
charging Indians who have the economic means to pay. In 1997
the language was removed from the appropriation laws and it has
not been included since. This section reflects the Committee's
intent that the IHS is prohibited from billing Indians for
services, and is further prohibited from requiring any Indian
tribe to do so.
Section 516. Application of other sections of the act
(a) Mandatory Application. This section incorporates a
number of sections from Title I of the Indian Self-
Determination and Education Assistance Act and makes them
applicable to Title V. These sections include: 6 (setting out
penalties that apply if an individual embezzles or otherwise
misappropriates funds under Title V); 7 (Davis-Bacon wage and
labor standards and Indian preference requirements); 102(c)-(d)
(relating to Federal Tort Claims Act coverage); 104 (relating
to the right to use federal personnel to carry out
responsibilities in a Compact or funding agreement); 105(k)
(access to federal supplies); 111 (clarifying that Title V
shall have no impact on existing sovereign immunity and the
United States' trust responsibility); and section 314 from
Public Law 101-512, as amended (relating to Federal Tort Claims
Act coverage).
(b) Discretionary Application. At the request of an Indian
tribe, other provisions of Title I of the Indian Self-
Determination and Education Assistance Act which do not
conflict with provisions in Title V may be incorporated into a
Compact or funding agreement. If incorporation is requested
during negotiations it will be considered effective
immediately.
Section 517. Regulations
This section gives the Secretary limited authority to
promulgate regulations implementing Title V.
(a) In General. The Secretary is required to initiate
procedures to negotiate and promulgate regulations necessary to
carry out Title V within 90 days of enactment of Title V. The
procedures must be developed under the Federal Advisory
Committee Act. The Secretary is required to publish proposed
regulations no later than one year after the date of enactment
of Title V. The authority to promulgate final regulations under
Title V expires 21 months after enactment. The Committee is
aware of the success of the Title I negotiated rulemaking and
believes that one reason for its success is a similar
limitation of rulemaking authority contained in section 1070(a)
of the Indian Self-Determination Act, which this section is
modeled after.
(b) Committee. This provision requires that a negotiated
rulemaking committee made up of federal and tribal government
members be formed in accordance with the Negotiated Rulemaking
Act. A majority of the tribal committee members must be
representatives of and must have been nominated by Indian
tribes with Title V Compacts and funding agreements. The
committee will confer with and allow representatives of Indian
tribes, inter-tribal consortiums, tribal organizations and
individual tribal members to actively participate in the
rulemaking process.
(c) Adaptation of Procedures. The negotiated rulemaking
procedures may be modified by the Secretary to ensure that the
unique context of self-governance and the government-to-
government relationship between the United States and Indian
tribes is accommodated.
(d) Effect. The effect of Title V shall not be limited if
regulations are not published.
(e) Effect of Circulars, Policies, Manuals, Guidances and
Rules. Unless an Indian tribe agrees otherwise in a Compact or
funding agreement, no agency circulars, policies, manuals,
guidances or rules adopted by the IHS apply to the tribe,
except as specified.
Section 518. Appeals
In any appeal (including civil actions) involving a
decision by the Secretary under Title V, the Secretary carries
the burden of proof. To satisfy this burden the Secretary must
establish by clear and convincing evidence the validity of the
grounds for the decision made and that the decision is fully
consistent with provisions and policies of Title V.
Section 519. Authorization of appropriations
This section authorizes Congress to appropriate such funds
as are necessary to carry out Title V.
TITLE VI--TRIBAL SELF-GOVERNANCE, DEPARTMENT OF HEALTH AND HUMAN
SERVICES
This new Title to sets out the requirements of a
feasibility study in the Department of Health and Human
Services.
Section 601. Demonstration project feasibility
This section requires the Secretary to conduct a
feasibility study to determine whether non-IHS programs in HHS
are appropriate for a tribal self-governance demonstration
project. The Secretary shall consider the probable effects on
specific programs and beneficiaries; statutory or other
impediments; costs and/or savings; assurance of quality in such
a demonstration project; and other issues. The Secretary's
report is required no later than 18 months from the enactment
of this Act.
Section 602. Consultation
This section requires the Secretary to consult with Indian
tribes to develop a consultation protocol. The government-to-
government relationship between the tribes and the federal
government will be an important part of the protocol.
Consultation will be conducted jointly by the Secretary and the
tribes. States, counties, municipalities, program beneficiaries
and Indian tribes will be part of the consultation process.
Section 603. Definitions
This section provides definitions used under this new Title
which are to be the same as those under Title V, except the
definition of ``agency'' which means a unit of HHS other than
IHS.
Section 604. Authorization of appropriations
This section authorizes such sums as may be necessary to
carry out the feasibility study.
Section 5. Amendments clarifying civil proceedings
(a) Burden of Proof to District Court Actions. This
provision amends Section 102(e)(1) of the Indian Self-
Determination and Education Assistance Act to clarify that the
Secretary has the burden of proof in any civil action pursuant
to Section 110(a).
Earlier versions of this legislation stated a confirmation
that the district courts were able to conduct a de novo review
of claims arising under section 110 of the Indian Self-
Determination and Education Assistance Act. Section 110
provides tribes and tribal contractors with the right to pursue
civil claims over tribal contracts, compacts, and funding
agreements in the federal district courts. Congress provided
tribes with this relief to assure that tribes had a strong,
effective, and immediate means to obtain agency compliance with
the Act's requirements. The federal courts, however, have given
opposing interpretations over whether this section vests courts
with de novo review authority. Legislative history arising
under the 1994 Indian Self-Determination Act Amendments
indicates that this section gave district courts original
jurisdiction over any civil action or claim against the
appropriate Secretary, without prior exhaustion of an
administrative remedy. As noted at the time, this direct access
to the district court was required to assure a strong,
effective, and immediate means to obtain agency compliance with
the Act's contracting requirements. Since the amendment, at
least two district court have declined to afford tribal
contractors the intended de novo review and full discovery on
their claims, effectively requiring tribal plaintiffs to go
through an administrative appeal first to obtain discovery from
the agency. This result is contrary to the clear purpose of the
1994 amendments, and defeats the broad self-determination and
contracting policies underlying the Act. To cure confirmed
agency inclinations to block, delay, or minimize tribal
contracting and funding, it is essential for the district
courts to actively adjudicate de novo contracting and funding
issues based on full discovery regarding agency budget and
accounting practices, program and staffing decisions, and
assertions of non-contractibility. Because the Act requires the
agencies to divest themselves of programs, staff, and funding
at tribal request, the courts should not give Administrative
Procedure Act-type deference to agency decisionmaking.
The Committee's elimination of the de novo clarifying
provision from this bill is not intended in any way to send a
signal to the courts or the Administration that de novo review
was not intended in the first place. Rather, elimination of
this provision is simply intended to let litigation between the
tribes and the Administration continue on, and for the courts
to ultimately decide this matter against the background of the
clear legislative history of the 1994 amendments.
(b) Effective Date. The provisions of subsection (a) shall
apply to any proceeding commenced after October 25, 1994.
Section 6. Speedy acquisition of goods and services
This section requires the Secretary to enter into
agreements for acquisition of goods and services for tribes,
including pharmaceuticals at the best price and in as fast a
manner as is possible, similar to those obtained by agreement
by the Veterans Administration.
Section 7. Patent records
Patent records may be deemed to be federal records for
storage purposes by the Federal Records Center.
Section 8. Repeal
This section repeals Title III of the Indian Self-
Determination and Education Assistance Act effective on the
date of enactment.
Section 9. Savings provisions
Funds appropriated under Title III shall be available for
use under Title V.
Section 10. Effective date
This section provides that the provisions of H.R. 1167
shall take effect on the date of the enactment, except as
otherwise provided.
Committee Oversight Findings and Recommendations
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Resources' oversight findings and recommendations
are reflected in the body of this report.
Constitutional Authority Statement
Article I, section 8 of the Constitution of the United
States grants Congress the authority to enact H.R. 1167.
Compliance With House Rule XIII
1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(3)(B)
of that rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
2. Congressional Budget Act. As required by clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, this
bill does not contain any new budget authority, spending
authority, credit authority, or an increase or decrease in
revenues or tax expenditures.
3. Government Reform Oversight Findings. Under clause
3(c)(4) of rule XIII of the Rules of the House of
Representatives, the Committee has received no report of
oversight findings and recommendations from the Committee on
Government Reform on this bill.
4. Congressional Budget Office Cost Estimate. Under clause
3(c)(3) of rule XIII of the Rules of the House of
Representatives and section 403 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for this bill from the Director of the Congressional Budget
Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, August 27, 1999.
Hon. Don Young,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1167, the Tribal
Self-Governance Amendments of 1999.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Dorothy
Rosenbaum.
Sincerely,
Barry B. Anderson
(For Dan L. Crippen, Director).
Enclosure.
H.R. 1167--Tribal Self-Governance Amendments of 1999
CBO estimates that H.R. 1167 would increase authorizations
of appropriations by less than $500,000 in each of fiscal years
2000 through 2004. Because enacting the bill would not affect
direct spending or receipts, pay-as-you-go procedures would not
apply. The legislation contains no intergovernmental or
private-sector mandates as defined in the Unfunded Mandates
Reform Act and would impose no costs on state, local, or tribal
governments.
H.R. 1167 would amend the Indian Self-Determination and
Education Assistance Act to establish a permanent tribal self-
governance program with the Indian Health Service (IHS). Under
existing demonstration authority, the IHS and tribes enter into
funding agreements whereby a tribe assumes administrative and
programmatic duties that were previously performed by the
federal government. Because the current demonstration authority
does not end until 2006, and because the provisions of the new
permanent program would not be significantly different from
current law, CBO estimates that establishing a permanent
program would have no federal budgetary impact over fiscal
years 1999 to 2004. Under the existing demonstration program,
IHS may select 30 new tribes each year to participate. Under
the bill, the number would be raised to 50. Because in recent
years fewer than 10 new tribes each year have become eligible
to participate, CBO assumes that this change in law would have
no effect.
H.R. 1167 would authorize appropriations for fiscal years
2000 and 2001 for the IHS to conduct a study and report to
Congress on the feasibility of a demonstration project that
would expand self-governance compacts to include programs
operated by agencies of the Department of Health and Human
Services other than the IHS. CBO estimates that this study
would cost less than $250,000.
H.R. 1167 would allow Indian tribes to store their patient
records at Federal Records Centers. CBO assumes that very few
tribes would take advantage of this option and that increased
costs to the Federal Records Centers would be less than
$500,000 in each of fiscal years 2000 through 2004.
The CBO staff contact for this estimate is Dorothy
Rosenbaum. This estimate was approved by Paul N. Van de Water,
Assistant Director for Budget Analysis.
Compliance With Public Law 104-4
This bill contains no unfunded mandates.
Preemption of State, Local or Tribal Law
This bill is not intended to preempt any State, local or
tribal law.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACT
* * * * * * *
TITLE I--INDIAN SELF-DETERMINATION ACT
* * * * * * *
Sec. 102. (a)(1) * * *
* * * * * * *
(e)(1) With respect to any hearing or appeal conducted
pursuant to subsection (b)(3) or any civil action conducted
pursuant to section 110(a), the Secretary shall have the burden
of proof to establish by clearly demonstrating the validity of
the grounds for declining the contract proposal (or portion
thereof).
* * * * * * *
Sec. 105. (a)(1) * * *
* * * * * * *
(k) For purposes of section 201(a) of the Federal Property
and Administrative Services Act of 1949 (40 U.S.C. 481(a))
(relating to Federal sources of supply, including lodging
providers, airlines and other transportation providers), a
tribal organization [carrying out a contract, grant, or
cooperative agreement under this Act shall be deemed an
executive agency when carrying out such contract, grant, or
agreement and the employees of the tribal organization shall be
eligible] or Indian tribe shall be deemed an executive agency
and a part of the Indian Health Service, and the employees of
the tribal organization or the Indian tribe, as the case may
be, shall be eligible to have access to such sources of supply
on the same basis as employees of an executive agency have such
access. At the request of an Indian tribe, the Secretary shall
enter into an agreement for the acquisition, on behalf of the
Indian tribe, of any goods, services, or supplies available to
the Secretary from the General Services Administration or other
Federal agencies that are not directly available to the Indian
tribe under this section or any other Federal law, including
acquisitions from prime vendors. All such acquisitions shall be
undertaken through the most efficient and speedy means
practicable, including electronic ordering arrangements.
* * * * * * *
(o) At the option of a tribe or tribal organization, patient
records may be deemed to be Federal records under the Federal
Records Act of 1950 for the limited purposes of making such
records eligible for storage by Federal Records Centers to the
same extent and in the same manner as other Department of
Health and Human Services patient records. Patient records that
are deemed to be Federal records under the Federal Records Act
of 1950 pursuant to this subsection shall not be considered
Federal records for the purposes of chapter 5 of title 5,
United States Code.
* * * * * * *
[TITLE III--TRIBAL SELF-GOVERNANCE DEMONSTRATION PROJECT
[Sec. 301. The Secretary of the Interior and the Secretary of
Health and Human Services (hereafter in this title referred to
as the ``Secretaries'') each shall, for a period not to exceed
18 years following enactment of this title, conduct a research
and demonstration project to be known as the Tribal Self-
Governance Project according to the provisions of this title.
[Sec. 302. (a) For each fiscal year, the Secretaries shall
select thirty tribes to participate in the demonstration
project, as follows:
[(1) a tribe that successfully completes a Self-
Governance Planning Grant, authorized by Conference
Report 100-498 to accompany H.J. Res. 395, One
Hundredth Congress, first session shall be selected to
participate in the demonstration project; and
[(2) the Secretaries shall select, in such a manner
as to achieve geographic representation, the remaining
tribal participants from the pool of qualified
applicants. In order to be in the pool of qualified
applicants--
[(A) the governing body of the tribe shall
request participation in the demonstration
project;
[(B) such tribe shall have operated two or
more mature contracts; and
[(C) such tribe shall have demonstrated, for
the previous three fiscal years, financial
stability and financial management capability
as evidenced by such tribe having no
significant and material audit exceptions in
the required annual audit of such tribe's self-
determination contracts.
[Sec. 303. (a) The Secretaries is directed to negotiate, and
to enter into, an annual written funding agreement with the
governing body of a participating tribal government that
successfully completes its Self-Governance Planning Grant. Such
annual written funding agreement--
[(1) shall authorize the tribe to plan, conduct,
consolidate, and administer programs, services and
functions of the Department of the Interior and the
Indian Health Service of the Department of Health and
Human Services that are otherwise available to Indian
tribes or Indians, including but not limited to, the
Act of April 16, 1934 (48 Stat. 596), as amended, and
the Act of November 2, 1921 (42 Stat. 208);
[(2) subject to the terms of the written agreement
authorized by this title, shall authorize the tribe to
redesign programs, activities, functions or services
and to reallocate funds for such programs, activities,
functions or services;
[(3) shall not include funds provided pursuant to the
Tribally Controlled Community College Assistance Act
(Public Law 95-471), for elementary and secondary
schools under the Indian School Equalization Formula
pursuant to title XI of the Education Amendments of
1978 (Public Law 95-561, as amended), or for either the
Flathead Agency Irrigation Division or the Flathead
Agency Power Division: Provided, That nothing in this
section shall affect the contractability of such
divisions under section 102 of this Act;
[(4) shall specify the services to be provided, the
functions to be performed, and the responsibilities of
the tribe and the Secretaries pursuant to this
agreement;
[(5) shall specify the authority of the tribe and the
Secretaries, and the procedures to be used, to
reallocate funds or modify budget allocations within
any project year;
[(6) shall, except as provided in paragraphs (1) and
(2), provide for payment by the Secretaries to the
tribe of funds from one or more programs, services,
functions, or activities in an amount equal to that
which the tribe would have been eligible to receive
under contracts and grants under this Act, including
direct program costs and indirect costs, and for any
funds which are specifically related to the provision
by the Secretaries of services and benefits to the
tribe and its members: Provided, however, That funds
for trust services to individual Indians are available
under this written agreement only to the extent that
the same services which would have been provided by the
Secretaries are provided to individual Indians by the
tribe;
[(7) shall not allow the Secretaries to waive, modify
or diminish in any way the trust responsibility of the
United States with respect to Indian tribes and
individual Indians which exists under treaties,
Executive orders, and Acts of Congress;
[(8) shall allow for retrocession of programs or
portions thereof pursuant to section 105(e) of this
Act; and
[(9) shall be submitted by the Secretaries ninety
days in advance of the proposed effective date of the
agreement to each tribe which is served by the agency
which is serving the tribe which is a party to the
funding agreement and to the Congress for review by the
Committee on Indian Affairs of the Senate and the
Committee on Natural Resources of the House of
Representatives.
[(b) For the year for which, and to the extent to which,
funding is provided to a tribe pursuant to this title, such
tribe--
[(1) shall not be entitled to contract with the
Secretaries for such funds under section 102, except
that such tribe shall be eligible for new programs on
the same basis as other tribes; and
[(2) shall be responsible for the administration of
programs, services and activities pursuant to
agreements under this title.
[(c) At the request of the governing body of the tribe and
under the terms of an agreement pursuant to subsection (a), the
Secretaries shall provide funding to such tribe to implement
the agreement.
[(d) For the purpose of section 110 of this Act the term
``contract'' shall also include agreements authorized by this
title except that for the term of the authorized agreements
under this title, the provisions of section 2103 of the Revised
Statutes of the United States (25 U.S.C. 81), and section 16 of
the Act of June 18, 1934 (25 U.S.C. 476), shall not apply to
attorney and other professional contracts by participating
Indian tribal governments operating under the provisions of
this title.
[(e) To the extent feasible, the Secretaries shall interpret
Federal laws and regulations in a manner that will facilitate
the agreements authorized by this title.
[(f) To the extent feasible, the Secretaries shall interpret
Federal laws and regulations in a manner that will facilitate
the inclusion of activities, programs, services, and functions
in the agreements authorized by this title.
[Sec. 304. The Secretaries shall identify, in the President's
annual budget request to the Congress, any funds proposed to be
included in the Tribal Self-Governance Project. The use of
funds pursuant to this title shall be subject to specific
directives or limitations as may be included in applicable
appropriations Acts.
[Sec. 305. The Secretaries shall submit to the Congress a
written report on July 1 and January 1 of each of the five
years following the date of enactment of this title on the
relative costs and benefits of the Tribal Self-Governance
Project. Such report shall be based on mutually determined
baseline measurements jointly developed by the Secretaries and
participating tribes, and shall separately include the views of
the tribes.
[Sec. 306. Nothing in this title shall be construed to limit
or reduce in any way the services, contracts or funds that any
other Indian tribe or tribal organization is eligible to
receive under section 102 or any other applicable Federal law
and the provisions of section 110 of this Act shall be
available to any tribe or Indian organization which alleges
that a funding agreement is in violation of this section.
[Sec. 307. For the purpose of providing planning and
negotiation grants to the ten tribes added by section 3 of the
Tribal Self-Governance Demonstration Project Act to the number
of tribes set forth by section 302 of this Act (as in effect
before the date of enactment of this section), there is
authorized to be appropriated $700,000.
[Sec. 308. (a) The Secretary of Health and Human Services, in
consultation with the Secretary of the Interior and Indian
tribal governments participating in the demonstration project
under this title, shall conduct a study for the purpose of
determining the feasibility of extending the demonstration
project under this title to the activities, programs,
functions, and services of the Indian Health Service. The
Secretary shall report the results of such study, together with
his recommendations, to the Congress within the 12-month period
following the date of the enactment of the Tribal Self-
Governance Demonstration Project Act.
[(b) The Secretary of Health and Human Services may establish
within the Indian Health Service an office of self-governance
to be responsible for coordinating the activities necessary to
carry out the study required under subsection (a).
[Sec. 309. The Secretary of the Interior shall conduct a
study for the purpose of determining the feasibility of
including in the demonstration project under this title those
programs and activities excluded under section 303(a)(3). The
Secretary of the Interior shall report the results of such
study, together with his recommendations, to the Congress
within the 12-month period following the date of the enactment
of the Tribal Self-Governance Demonstration Project Act.
[Sec. 310. For the purposes of providing one year planning
and negotiations grants to the Indian tribes identified by
section 302, with respect to the programs, activities,
functions, or services of the Indian Health Service, there are
authorized to be appropriated such sums as may be necessary to
carry out such purposes. Upon completion of an authorized
planning activity or a comparable planning activity by a tribe,
the Secretary is authorized to negotiate and implement a
Compact of Self-Governance and Annual Funding Agreement with
such tribe.]
* * * * * * *
TITLE V--TRIBAL SELF-GOVERNANCE
SEC. 501. ESTABLISHMENT.
The Secretary of Health and Human Services shall establish
and carry out a program within the Indian Health Service of the
Department of Health and Human Services to be known as the
``Tribal Self-Governance Program'' in accordance with this
title.
SEC. 502. DEFINITIONS.
(a) In General.--For purposes of this title--
(1) the term ``construction project'' means an
organized noncontinuous undertaking to complete a
specific set of predetermined objectives for the
planning, environmental determination, design,
construction, repair, improvement, or expansion of
buildings or facilities, as described in a construction
project agreement. The term ``construction project''
does not mean construction program administration and
activities described in paragraphs (1) through (3) of
section 4(m), which may otherwise be included in a
funding agreement under this title;
(2) the term ``construction project agreement'' means
a negotiated agreement between the Secretary and an
Indian tribe which at a minimum--
(A) establishes project phase start and
completion dates;
(B) defines a specific scope of work and
standards by which it will be accomplished;
(C) identifies the responsibilities of the
Indian tribe and the Secretary;
(D) addresses environmental considerations;
(E) identifies the owner and operations/
maintenance entity of the proposed work;
(F) provides a budget;
(G) provides a payment process; and
(H) establishes the duration of the agreement
based on the time necessary to complete the
specified scope of work, which may be 1 or more
years;
(3) the term ``inherent Federal functions'' means
those Federal functions which cannot legally be
delegated to Indian tribes;
(4) the term ``inter-tribal consortium'' means a
coalition of two or more separate Indian tribes that
join together for the purpose of participating in self-
governance, including, but not limited to, a tribal
organization;
(5) the term ``gross mismanagement'' means a
significant, clear, and convincing violation of
compact, funding agreement, or regulatory, or statutory
requirements applicable to Federal funds transferred to
a tribe by a compact or funding agreement that results
in a significant reduction of funds available for the
programs, services, functions, or activities (or
portions thereof) assumed by an Indian tribe;
(6) the term ``tribal shares'' means an Indian
tribe's portion of all funds and resources that support
secretarial programs, services, functions, and
activities (or portions thereof) that are not required
by the Secretary for performance of inherent Federal
functions;
(7) the term ``Secretary'' means the Secretary of
Health and Human Services; and
(8) the term ``self-governance'' means the program
established pursuant to section 501.
(b) Indian Tribe.--Where an Indian tribe has authorized
another Indian tribe, an inter-tribal consortium, or a tribal
organization to plan for or carry out programs, services,
functions, or activities (or portions thereof) on its behalf
under this title, the authorized Indian tribe, inter-tribal
consortium, or tribal organization shall have the rights and
responsibilities of the authorizing Indian tribe (except as
otherwise provided in the authorizing resolution or in this
title). In such event, the term ``Indian tribe'' as used in
this title shall include such other authorized Indian tribe,
inter-tribal consortium, or tribal organization.
SEC. 503. SELECTION OF PARTICIPATING INDIAN TRIBES.
(a) Continuing Participation.--Each Indian tribe that is
participating in the Tribal Self-Governance Demonstration
Project under title III on the date of enactment of this title
may elect to participate in self-governance under this title
under existing authority as reflected in tribal resolutions.
(b) Additional Participants.--
(1) In addition to those Indian tribes participating
in self-governance under subsection (a), each year an
additional 50 Indian tribes that meet the eligibility
criteria specified in subsection (c) shall be entitled
to participate in self-governance.
(2)(A) An Indian tribe that has withdrawn from
participation in an inter-tribal consortium or tribal
organization, in whole or in part, shall be entitled to
participate in self-governance provided the Indian
tribe meets the eligibility criteria specified in
subsection (c).
(B) If an Indian tribe has withdrawn from
participation in an inter-tribal consortium or tribal
organization, it shall be entitled to its tribal share
of funds supporting those programs, services,
functions, and activities (or portions thereof) that it
will be carrying out under its compact and funding
agreement.
(C) In no event shall the withdrawal of an Indian
tribe from an inter-tribal consortium or tribal
organization affect the eligibility of the inter-tribal
consortium or tribal organization to participate in
self-governance.
(c) Applicant Pool.--The qualified applicant pool for self-
governance shall consist of each Indian tribe that--
(1) successfully completes the planning phase
described in subsection (d);
(2) has requested participation in self-governance by
resolution or other official action by the governing
body (or bodies) of the Indian tribe or tribes to be
served; and
(3) has demonstrated, for the previous 3 fiscal
years, financial stability and financial management
capability.
Evidence that during such years the Indian tribe had no
uncorrected significant and material audit exceptions in the
required annual audit of the Indian tribe's self-determination
contracts or self-governance funding agreements shall be
conclusive evidence of the required stability and capability
for the purposes of this subsection.
(d) Planning Phase.--Each Indian tribe seeking participation
in self-governance shall complete a planning phase. The
planning phase shall be conducted to the satisfaction of the
Indian tribe and shall include--
(1) legal and budgetary research; and
(2) internal tribal government planning and
organizational preparation relating to the
administration of health care programs.
(e) Grants.--Subject to the availability of appropriations,
any Indian tribe meeting the requirements of paragraphs (2) and
(3) of subsection (c) shall be eligible for grants--
(1) to plan for participation in self-governance; and
(2) to negotiate the terms of participation by the
Indian tribe or tribal organization in self-governance,
as set forth in a compact and a funding agreement.
(f) Receipt of Grant Not Required.--Receipt of a grant under
subsection (e) shall not be a requirement of participation in
self-governance.
SEC. 504. COMPACTS.
(a) Compact Required.--The Secretary shall negotiate and
enter into a written compact with each Indian tribe
participating in self-governance in a manner consistent with
the Federal Government's trust responsibility, treaty
obligations, and the government-to-government relationship
between Indian tribes and the United States.
(b) Contents.--Each compact required under subsection (a)
shall set forth the general terms of the government-to-
government relationship between the Indian tribe and the
Secretary, including such terms as the parties intend shall
control year after year. Such compacts may only be amended by
mutual agreement of the parties.
(c) Existing Compacts.--An Indian tribe participating in the
Tribal Self-Governance Demonstration Project under title III on
the date of enactment of this title shall have the option at
any time thereafter to--
(1) retain its Tribal Self-Governance Demonstration
Project compact (in whole or in part) to the extent the
provisions of such compact are not directly contrary to
any express provision of this title, or
(2) negotiate in lieu thereof (in whole or in part) a
new compact in conformity with this title.
(d) Term and Effective Date.--The effective date of a compact
shall be the date of the approval and execution by the Indian
tribe or another date agreed upon by the parties, and shall
remain in effect for so long as permitted by Federal law or
until terminated by mutual written agreement, retrocession, or
reassumption.
SEC. 505. FUNDING AGREEMENTS.
(a) Funding Agreement Required.--The Secretary shall
negotiate and enter into a written funding agreement with each
Indian tribe participating in self-governance in a manner
consistent with the Federal Government's trust responsibility,
treaty obligations, and the government-to-government
relationship between Indian tribes and the United States.
(b) Contents.--Each funding agreement required under
subsection (a) shall, as determined by the Indian tribe,
authorize the Indian tribe to plan, conduct, consolidate,
administer, and receive full tribal share funding, including
tribal shares of Indian Health Service competitive grants
(excluding congressionally earmarked competitive grants), for
all programs, services, functions, and activities (or portions
thereof), that are carried out for the benefit of Indians
because of their status as Indians withoutregard to the agency
or office of the Indian Health Service within which the program,
service, function, or activity (or portion thereof) is performed. Such
programs, services, functions, or activities (or portions thereof)
include all programs, services, functions, activities (or portions
thereof) where Indian tribes or Indians are primary or significant
beneficiaries, administered by the Department of Health and Human
Services through the Indian Health Service and grants (which may be
added to a funding agreement after award of such grants) and all local,
field, service unit, area, regional, and central headquarters or
national office functions administered under the authority of--
(1) the Act of November 2, 1921 (25 U.S.C. 13);
(2) the Act of April 16, 1934 (25 U.S.C. 452 et
seq.);
(3) the Act of August 5, 1954 (68 Stat. 674);
(4) the Indian Health Care Improvement Act (25 U.S.C.
1601 et seq.);
(5) the Indian Alcohol and Substance Abuse Prevention
and Treatment Act of 1986 (25 U.S.C. 2401 et seq.);
(6) any other Act of Congress authorizing agencies of
the Department of Health and Human Services to
administer, carry out, or provide financial assistance
to such programs, functions, or activities (or portions
thereof) described in this section; or
(7) any other Act of Congress authorizing such
programs, functions, or activities (or portions
thereof) under which appropriations are made to
agencies other than agencies within the Department of
Health and Human services when the Secretary
administers such programs, functions, or activities (or
portions thereof).
(c) Inclusion in Compact or Funding Agreement.--Indian tribes
or Indians need not be identified in the authorizing statutefor
a program or element of a program to be eligible for inclusion in a
compact or funding agreement under this title.
(d) Funding Agreement Terms.--Each funding agreement shall
set forth terms that generally identify the programs, services,
functions, and activities (or portions thereof) to be performed
or administered, the general budget category assigned, the
funds to be provided, including those to be provided on a
recurring basis, the time and method of transfer of the funds,
the responsibilities of the Secretary, and any other provisions
to which the Indian tribe and the Secretary agree.
(e) Subsequent Funding Agreements.--Absent notification from
an Indian tribe that is withdrawing or retroceding the
operation of one or more programs, services, functions, or
activities (or portions thereof) identified in a funding
agreement, or unless otherwise agreed to by the parties, each
funding agreement shall remain in full force and effect until a
subsequent funding agreement is executed, and the terms of the
subsequent funding agreement shall be retroactive to the end of
the term of the preceding funding agreement.
(f) Existing Funding Agreements.--Each Indian tribe
participating in the Tribal Self-Governance Demonstration
Project established under title III on the date of enactment of
this title shall have the option at any time thereafter to--
(1) retain its Tribal Self-Governance Demonstration
Project funding agreement (in whole or in part) to the
extent the provisions of such funding agreement are not
directly contrary to any express provision of this
title; or
(2) adopt in lieu thereof (in whole or in part) a new
funding agreement in conformity with this title.
(g) Stable Base Funding.--At the option of an Indian tribe, a
funding agreement may provide for a stable base budget
specifying the recurring funds (including, for purposes of this
provision, funds available under section 106(a) of the Act) to
be transferred to such Indian tribe, for such period as may be
specified in the funding agreement, subject to annual
adjustment only to reflect changes in congressional
appropriations by sub-sub activity excluding earmarks.
SEC. 506. GENERAL PROVISIONS.
(a) Applicability.--The provisions of this section shall
apply to compacts and funding agreements negotiated under this
title and an Indian tribe may, at its option, include
provisions that reflect such requirements in a compact or
funding agreement.
(b) Conflicts of Interest.--Indian tribes participating in
self-governance under this title shall ensure that internal
measures are in place to address conflicts of interest in the
administration of self-governance programs, services,
functions, or activities (or portions thereof).
(c) Audits.--
(1) Single agency audit act.--The provisions of
chapter 75 of title 31, United States Code, requiring a
single agency audit report shall apply to funding
agreements under this title.
(2) Cost principles.--An Indian tribe shall apply
cost principles under the applicable Office of
Management and Budget Circular, except as modified by
section 106 or other provisions of law, or by any
exemptions to applicable Office of Management and
Budget Circulars subsequently granted by Office of
Management and Budget. No other audit or accounting
standards shall be required by the Secretary. Any claim
by the Federal Government against the Indian tribe
relating to funds received under a funding agreement
based on any audit under this subsection shall be
subject to the provisions of section 106(f).
(d) Records.--
(1) In general.--Unless an Indian tribe specifies
otherwise in the compact or funding agreement, records
of the Indian tribe shall not be considered Federal
records for purposes of chapter 5 of title 5, United
States Code.
(2) Recordkeeping system.--The Indian tribe shall
maintain a recordkeeping system, and, after 30 days
advance notice, provide the Secretary with reasonable
access to such records to enable the Department of
Health and Human Services to meet its minimum legal
recordkeeping system requirements under sections 3101
through 3106 of title 44, United States Code.
(e) Redesign and Consolidation.--An Indian tribe may redesign
or consolidate programs, services, functions, and activities
(or portions thereof) included in a funding agreement under
section 505 and reallocate or redirect funds for such programs,
services, functions, and activities (or portions thereof) in
any manner which the Indian tribe deems to be in the best
interest of the health and welfare of the Indian community
being served, only if the redesign or consolidation does not
have the effect of denying eligibility for services to
population groups otherwise eligible to be served under Federal
law.
(f) Retrocession.--An Indian tribe may retrocede, fully or
partially, to the Secretary programs, services, functions, or
activities (or portions thereof) included in the compact or
funding agreement. Unless the Indian tribe rescinds the request
for retrocession, such retrocession will become effective
within the time frame specified by the parties in the compact
or funding agreement. In the absence of such a specification,
such retrocession shall become effective on--
(1) the earlier of--
(A) one year from the date of submission of
such request; or
(B) the date on which the funding agreement
expires; or
(2) such date as may be mutually agreed by the
Secretary and the Indian tribe.
(g) Withdrawal.--
(1) Process.--An Indian tribe may fully or partially
withdraw from a participating inter-tribal consortium
or tribal organization its share of any program,
function, service, or activity (or portions thereof)
included in a compact or funding agreement. Such
withdrawal shall become effective within the time frame
specified in the resolution which authorizes transfer
to the participating tribal organization or inter-
tribal consortium. In the absence of a specific time
frame set forth in the resolution, such withdrawal
shall become effective on--
(A) the earlier of--
(i) one year from the date of
submission of such request; or
(ii) the date on which the funding
agreement expires; or
(B) such date as may be mutually agreed upon
by the Secretary, the withdrawing Indian tribe,
and the participating tribal organization or
inter-tribal consortium that has signed the
compact or funding agreement on behalf of the
withdrawing Indian tribe, inter-tribal
consortium, or tribal organization.
(2) Distribution of funds.--When an Indian tribe or
tribal organization eligible to enter into a self-
determination contract under title I or a compact or
funding agreement under this title fully or partially
withdraws from a participating inter-tribal consortium
or tribal organization, the withdrawing Indian tribe or
tribal organization shall be entitled to its tribal
share of funds supporting those programs, services,
functions, or activities (or portions thereof) which it
will be carrying out under its own self-determination
contract or compact and funding agreement (calculated
on the same basis as the funds were initially allocated
in the funding agreement of the inter-tribal consortium
or tribal organization), and such funds shall be
transferred from the funding agreement of the inter-
tribal consortium or tribal organization, provided that
the provisions of sections 102 and 105(i), as
appropriate, shall apply to such withdrawing Indian
tribe.
(3) Regaining mature contract status.--If an Indian
tribe elects to operate all or some programs, services,
functions, or activities (or portions thereof) carried
out under a compact or funding agreement under this
title through a self-determination contract under title
I, at the option of the Indian tribe, the resulting
self-determination contract shall be a mature self-
determination contract.
(h) Nonduplication.--For the period for which, and to the
extent to which, funding is provided under this title or under
the compact or funding agreement, the Indian tribe shall not be
entitled to contract with the Secretary for such funds under
section 102, except that such Indian tribe shall be eligible
for new programs on the same basis as other Indian tribes.
SEC. 507. PROVISIONS RELATING TO THE SECRETARY.
(a) Mandatory Provisions.--
(1) Health status reports.--Compacts or funding
agreements negotiated between the Secretary and an
Indian tribe shall include a provision that requires
the Indian tribe to report on health status and service
delivery--
(A) to the extent such data is not otherwise
available to the Secretary and specific funds
for this purpose are provided by the Secretary
under the funding agreement; and
(B) if such reporting shall impose minimal
burdens on the participating Indian tribe and
such requirements are promulgated under section
517.
(2) Reassumption--(A) Compacts and funding agreements
negotiated between the Secretary and an Indian tribe
shall include a provision authorizing the Secretary to
reassume operation of a program, service, function, or
activity (or portions thereof) and associated funding
if there is a specific finding relative to that
program, service, function, or activity (or portion
thereof) of--
(i) imminent endangerment of the public
health caused by an act or omission of the
Indian tribe, and the imminent endangerment
arises out of a failure to carry out the
compact or funding agreement; or
(ii) gross mismanagement with respect to
funds transferred to a tribe by a compact or
funding agreement, as determined by the
Secretary in consultation with the Inspector
General, as appropriate.
(B) The Secretary shall not reassume operation of a
program, service, function, or activity (or portions
thereof) unless (i) the Secretary has first provided
written notice and a hearing on the record to the
Indian tribe; and (ii) the Indian tribe has not taken
corrective action to remedy the imminent endangerment
to public health or gross mismanagement.
(C) Notwithstanding subparagraph (B), the Secretary
may, upon written notification to the tribe,
immediately reassume operation of a program, service,
function, or activity (or portion thereof) and
associated funding if (i) the Secretary makes a finding
of imminent substantial and irreparable endangerment of
the public health caused by an act or omission of the
Indian tribe; and (ii) the endangerment arises out of a
failure to carry out the compact or funding agreement.
If the Secretary reassumes operation of a program,
service, function, or activity (or portion thereof)
under this subparagraph, the Secretary shall provide
the tribe with a hearing on the record not later than
10 days after such reassumption.
(D) In any hearing or appeal involving a decision to
reassume operation of a program, service, function, or
activity (or portion thereof), the Secretary shall have
the burden of proof of demonstrating by clear and
convincing evidence the validity of the grounds for the
reassumption.
(b) Final Offer.--In the event the Secretary and a
participating Indian tribe are unable to agree, in whole or in
part, on the terms of a compact or funding agreement (including
funding levels), the Indian tribe may submit a final offer to
the Secretary. Not more than 45 days after such submission, or
within a longer time agreed upon by the Indian tribe, the
Secretary shall review and make a determination with respect to
such offer. In the absence of a timely rejection of the offer,
in whole or in part, made in compliance with subsection (c),
the offer shall be deemed agreed to by the Secretary.
(c) Rejection of Final Offers.--If the Secretary rejects an
offer made under subsection (b) (or one or more provisions or
funding levels in such offer), the Secretary shall provide--
(1) a timely written notification to the Indian tribe
that contains a specific finding that clearly
demonstrates, or that is supported by a controlling
legal authority, that--
(A) the amount of funds proposed in the final
offer exceeds the applicable funding level to
which the Indian tribe is entitled under this
title;
(B) the program, function, service, or
activity (or portion thereof) that is the
subject of the final offer is an inherent
Federal function that cannot legally be
delegated to an Indian tribe;
(C) the Indian tribe cannot carry out the
program, function, service, or activity (or
portion thereof) in a manner that would not
result in significant danger or risk to the
public health; or
(D) the tribe is not eligible to participate
in self-governance under section 503;
(2) technical assistance to overcome the objections
stated in the notification required by paragraph (1);
(3) the Indian tribe with a hearing on the record
with the right to engage in full discovery relevant to
any issue raised in the matter and the opportunity for
appeal on the objections raised, provided that the
Indian tribe may, in lieu of filing such appeal,
directly proceed to initiate an action in a Federal
district court pursuant to section 110(a); and
(4) the Indian tribe with the option of entering into
the severable portions of a final proposed compact or
funding agreement, or provision thereof, (including
lesser funding amount, if any), that the Secretary did
not reject, subject to any additional alterations
necessary to conform the compact or funding agreement
to the severed provisions. If an Indian tribe exercises
the option specified herein, it shall retain the right
to appeal the Secretary's rejection under this section,
and paragraphs (1), (2), and (3) shall only apply to
that portion of the proposed final compact, funding
agreement or provision thereof that was rejected by the
Secretary.
(d) Burden of Proof.--With respect to any hearing or appeal
or civil action conducted pursuant to this section, the
Secretary shall have the burden of demonstrating by clear and
convincing evidence the validity of the grounds for rejecting
the offer (or a provision thereof) made under subsection (b).
(e) Good Faith.--In the negotiation of compacts and funding
agreements the Secretary shall at all times negotiate in good
faith to maximize implementation of the self-governance policy.
The Secretary shall carry out this title in a manner that
maximizes the policy of tribal self-governance, consistent with
section 3.
(f) Savings.--To the extent that programs, functions,
services, or activities (or portions thereof) carried out by
Indian tribes under this title reduce the administrative or
other responsibilities of the Secretary with respect to the
operation of Indian programs and result in savings that have
not otherwise been included in the amount of tribal shares and
other funds determined under section 508(c), the Secretary
shall make such savings available to the Indian tribes, inter-
tribal consortia, or tribal organizations for the provision of
additional services to program beneficiaries in a manner
equitable to directly served, contracted, and compacted
programs.
(g) Trust Responsibility.--The Secretary is prohibited from
waiving, modifying, or diminishing in any way the trust
responsibility of the United States with respect to Indian
tribes and individual Indians that exists under treaties,
Executive orders, other laws, or court decisions.
(h) Decisionmaker.--A decision that constitutes final agency
action and relates to an appeal within the Department of Health
and Human Services conducted under subsection (c) shall be made
either--
(1) by an official of the Department who holds a
position at a higher organizational level within the
Department than the level of the departmental agency in
which the decision that is the subject of the appeal
was made; or
(2) by an administrative judge.
SEC. 508. TRANSFER OF FUNDS.
(a) In General.--Pursuant to the terms of any compact or
funding agreement entered into under this title, the Secretary
shall transfer to the Indian tribe all funds provided for in
the funding agreement, pursuant to subsection (c), and provide
funding for periods covered by joint resolution adopted by
Congress making continuing appropriations, to the extent
permitted by such resolutions. In any instance where a funding
agreement requires an annual transfer of funding to be made at
the beginning of a fiscal year, or requires semiannual or other
periodic transfers of funding to be made commencing at the
beginning of a fiscal year, the first such transfer shall be
made not later than 10 days after the apportionment of such
funds by the Office of Management and Budget to the Department,
unless the funding agreement provides otherwise.
(b) Multiyear Funding.--The Secretary is hereby authorized to
employ, upon tribal request, multiyear funding agreements, and
references in this title to funding agreements shall include
such multiyear agreements.
(c) Amount of Funding.--The Secretary shall provide funds
under a funding agreement under this title in an amount equal
to the amount that the Indian tribe would have been entitled to
receive under self-determination contracts under this Act,
including amounts for direct program costs specified under
section 106(a)(1) and amounts for contract support costs
specified under sections 106(a)(2), (a)(3), (a)(5), and (a)(6),
including any funds that are specifically or functionally
related to the provision by the Secretary of services and
benefits to the Indian tribe or its members, all without regard
to the organizational level within the Department where such
functions are carried out.
(d) Prohibitions.--The Secretary is expressly prohibited
from--
(1) failing or refusing to transfer to an Indian
tribe its full share of any central, headquarters,
regional, area, or service unit office or other funds
due under this Act, except as required by Federal law;
(2) withholding portions of such funds for transfer
over a period of years; and
(3) reducing the amount of funds required herein--
(A) to make funding available for self-
governance monitoring or administration by the
Secretary;
(B) in subsequent years, except pursuant to--
(i) a reduction in appropriations
from the previous fiscal year for the
program or function to be included in a
compact or funding agreement;
(ii) a congressional directive in
legislation or accompanying report;
(iii) a tribal authorization;
(iv) a change in the amount of pass-
through funds subject to the terms of
the funding agreement; or
(v) completion of a project,
activity, or program for which such
funds were provided;
(C) to pay for Federal functions, including
Federal pay costs, Federal employee retirement
benefits, automated data processing, technical
assistance, and monitoring of activities under
this Act; or
(D) to pay for costs of Federal personnel
displaced by self-determination contracts under
this Act or self-governance;
except that such funds may be increased by the Secretary if
necessary to carry out this Act or as provided in section
105(c)(2).
(e) Other Resources.--In the event an Indian tribe elects to
carry out a compact or funding agreement with the use of
Federal personnel, Federal supplies (including supplies
available from Federal warehouse facilities), Federal supply
sources (including lodging, airline transportation, and other
means of transportation including the use of interagency motor
pool vehicles) or other Federal resources (including supplies,
services, and resources available to the Secretary under any
procurement contracts in which the Department is eligible to
participate), the Secretary is authorized to transfer such
personnel, supplies, or resources to the Indian tribe.
(f) Reimbursement to Indian Health Service.--With respect to
functions transferred by the Indian Health Service to an Indian
tribe, the Indian Health Service is authorized to provide goods
and services to the Indian tribe, on a reimbursable basis,
including payment in advance with subsequent adjustment, and
the reimbursements received therefrom, along with the funds
received from the Indian tribe pursuant to this title, may be
credited to the same or subsequent appropriation account which
provided the funding, such amounts to remain available until
expended.
(g) Prompt Payment Act.--Chapter 39 of title 31, United
States Code, shall apply to the transfer of funds due under a
compact or funding agreement authorized under this title.
(h) Interest or Other Income on Transfers.--An Indian tribe
is entitled to retain interest earned on any funds paid under a
compact or funding agreement to carry out governmental or
health purposes and such interest shall not diminish the amount
of funds the Indian tribe is authorized to receive under its
funding agreement in the year the interest is earned or in any
subsequent fiscal year. Funds transferred under this Act shall
be managed using the prudent investment standard.
(i) Carryover of Funds.--All funds paid to an Indian tribe in
accordance with a compact or funding agreement shall remain
available until expended. In the event that an Indian tribe
elects to carry over funding from one year to the next, such
carryover shall not diminish the amount of funds the Indian
tribe is authorized to receive under its funding agreement in
that or any subsequent fiscal year.
(j) Program Income.--All medicare, medicaid, or other program
income earned by an Indian tribe shall be treated as
supplemental funding to that negotiated in the funding
agreement and the Indian tribe may retain all such income and
expend such funds in the current year or in future years except
to the extent that the Indian Health Care Improvement Act (25
U.S.C. 1601 et seq.) provides otherwise for medicare and
medicaid receipts, and such funds shall not result in any
offset or reduction in the amount of funds the Indian tribe is
authorized to receive under its funding agreement in the year
the program income is received or for any subsequent fiscal
year.
(k) Limitation of Costs.--An Indian tribe shall not be
obligated to continue performance that requires an expenditure
of funds in excess of the amount of funds transferred under a
compact or funding agreement. If at any time the Indian tribe
has reason to believe that the total amount provided for a
specific activity in the compact or funding agreement is
insufficient the Indian tribe shall provide reasonable notice
of such insufficiency to the Secretary. If the Secretary does
not increase the amount of funds transferred under the funding
agreement, the Indian tribe may suspend performance of the
activity until such time as additional funds are transferred.
SEC. 509. CONSTRUCTION PROJECTS.
(a) In General.--Indian tribes participating in tribal self-
governance may carry out construction projects under this title
if they elect to assume all Federal responsibilities under the
National Environmental Policy Act of 1969, the Historic
Preservation Act, and related provisions of law that would
apply if the Secretary were to undertake a construction
project, by adopting a resolution (1) designating a certifying
officer to represent the Indian tribe and to assume the status
of a responsible Federal official under such laws, and (2)
accepting the jurisdiction of the Federal court for the purpose
of enforcement of the responsibilities of the responsible
Federal official under such environmental laws.
(b) Negotiations.--Construction project proposals shall be
negotiated pursuant to the statutory process in section 105(m)
and resulting construction project agreements shall be
incorporated into funding agreements as addenda.
(c) Codes and Standards.--The Indian tribe and the Secretary
shall agree upon and specify appropriate buildings codes and
architectural/engineering standards (including health and
safety) which shall be in conformity with nationally recognized
standards for comparable projects.
(d) Responsibility for Completion.--The Indian tribe shall
assume responsibility for the successful completion of the
construction project in accordance with the negotiated
construction project agreement.
(e) Funding.--Funding for construction projects carried out
under this title shall be included in funding agreements as
annual advance payments, with semiannual payments at the option
of the Indian tribe. Annual advance and semiannual payment
amounts shall be determined based on mutually agreeable project
schedules reflecting work to be accomplished within the advance
payment period, work accomplished and funds expended in
previous paymentperiods, and the total prior payments. The
Secretary shall include associated project contingency funds with each
advance payment installment. The Indian tribe shall be responsible for
the management of the contingency funds included in funding agreements.
(f) Approval.--The Secretary shall have at least one
opportunity to approve project planning and design documents
prepared by the Indian tribe in advance of construction of the
facilities specified in the scope of work for each negotiated
construction project agreement or amendment thereof which
results in a significant change in the original scope of work.
The Indian tribe shall provide the Secretary with project
progress and financial reports not less than semiannually. The
Secretary may conduct on-site project oversight visits
semiannually or on an alternate schedule agreed to by the
Secretary and the Indian tribe.
(g) Wages.--All laborers and mechanics employed by
contractors and subcontractors in the construction, alteration,
or repair, including painting or decorating of building or
other facilities in connection with construction projects
undertaken by self-governance Indian tribes under this Act,
shall be paid wages at not less than those prevailing wages on
similar construction in the locality as determined by the
Secretary of Labor in accordance with the Davis-Bacon Act of
March 3, 1931 (46 Stat. 1494). With respect to construction,
alteration, or repair work to which the Act of March 3, 1921,
is applicable under the terms of this section, the Secretary of
Labor shall have the authority and functions set forth in
Reorganization Plan Numbered 14, of 1950, and section 2 of the
Act of June 13, 1934 (48 Stat. 948).
(h) Application of Other Laws.--Unless otherwise agreed to by
the Indian tribe, no provision of the Office of Federal
Procurement Policy Act, the Federal Acquisition Regulations
issued pursuant thereto, or any other law or regulation
pertaining to Federal procurement (including Executive orders)
shall apply to any construction project conducted under this
title.
SEC. 510. FEDERAL PROCUREMENT LAWS AND REGULATIONS.
Notwithstanding any other provision of law, unless expressly
agreed to by the participating Indian tribe, the compacts and
funding agreements entered into under this title shall not be
subject to Federal contracting or cooperative agreement laws
and regulations (including Executive orders and the regulations
relating to procurement issued by the Secretary), except to the
extent that such laws expressly apply to Indian tribes.
SEC. 511. CIVIL ACTIONS.
(a) Contract Defined.--For the purposes of section 110, the
term ``contract'' shall include compacts and funding agreements
entered into under this title.
(b) Applicability of Certain Laws.--Section 2103 of the
Revised Statutes of the United States Code (25 U.S.C. 81) and
section 16 of the Act of June 18, 1934 (25 U.S.C. 476), shall
not apply to attorney and other professional contracts entered
into by Indian tribes participating in self-governance under
this title.
(c) References.--All references in the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450 et
seq.) to section 1 of the Act of June 26, 1936 (25 U.S.C. 81)
are hereby deemed to include section 1 of the Act of July 3,
1952 (25 U.S.C. 82a).
SEC. 512. FACILITATION.
(a) Secretarial Interpretation.--Except as otherwise provided
by law, the Secretary shall interpret all Federal laws,
Executive orders and regulations in a manner that will
facilitate--
(1) the inclusion of programs, services, functions,
and activities (or portions thereof) and funds
associated therewith, in the agreements entered into
under this section;
(2) the implementation of compacts and funding
agreements entered into under this title; and
(3) the achievement of tribal health goals and
objectives.
(b) Regulation Waiver.--
(1) An Indian tribe may submit a written request to
waive application of a regulation promulgated under
this Act for a compact or funding agreement entered
into with the Indian Health Service under this title,
to the Secretary identifying the applicable Federal
regulation under this Act sought to be waived and the
basis for the request.
(2) Not later than 90 days after receipt by the
Secretary of a written request by an Indian tribe to
waive application of a regulation under this Act for a
compact or funding agreement entered into under this
title, the Secretary shall either approve or deny the
requested waiver in writing. A denial may be made only
upon a specific finding by the Secretary that
identified language in the regulation may not be waived
because such waiver is prohibited by Federal law. A
failure to approve or deny a waiver request not later
than 90 days after receipt shall be deemed an approval
of such request. The Secretary's decision shall be
final for the Department.
(c) Access to Federal Property.--In connection with any
compact or funding agreement executed pursuant to this title or
an agreement negotiated under the Tribal Self-Governance
Demonstration Project established under title III, as in effect
before the enactment of the Tribal Self-Governance Amendments
of 1999, upon the request of an Indian tribe, the Secretary--
(1) shall permit an Indian tribe to use existing
school buildings, hospitals, and other facilities and
all equipment therein or appertaining thereto and other
personal property owned by the Government within the
Secretary's jurisdiction under such terms and
conditions as may be agreed upon by the Secretary and
the tribe for their use and maintenance;
(2) may donate to an Indian tribe title to any
personal or real property found to be excess to the
needs of any agency of the Department, or the General
Services Administration, except that--
(A) subject to the provisions of subparagraph
(B), title to property and equipment furnished
by the Federal Government for use in the
performance of the compact or funding agreement
or purchased with funds under any compact or
funding agreement shall, unless otherwise
requested by the Indian tribe, vest in the
appropriate Indian tribe;
(B) if property described in subparagraph (A)
has a value in excess of $5,000 at the time of
retrocession, withdrawal, or reassumption, at
the option of the Secretary upon the
retrocession, withdrawal, or reassumption,
title to such property and equipment shall
revert to the Department of Health and Human
Services; and
(C) all property referred to in subparagraph
(A) shall remain eligible for replacement,
maintenance, and improvement on the same basis
as if title to such property were vested in the
United States; and
(3) shall acquire excess or surplus Government
personal or real property for donation to an Indian
tribe if the Secretary determines the property is
appropriate for use by the Indian tribe for any purpose
for which a compact or funding agreement is authorized
under this title.
(d) Matching or Cost-Participation Requirement.--All funds
provided under compacts, funding agreements, or grants made
pursuant to this Act, shall be treated as non-Federal funds for
purposes of meeting matching or cost participation requirements
under any other Federal or non-Federal program.
(e) State Facilitation.--States are hereby authorized and
encouraged to enact legislation, and to enter into agreements
with Indian tribes to facilitate and supplement the
initiatives, programs, and policies authorized by this title
and other Federal laws benefiting Indians and Indian tribes.
(f) Rules of Construction.--Each provision of this title and
each provision of a compact or funding agreement shall be
liberally construed for the benefit of the Indian tribe
participating in self-governance and any ambiguity shall be
resolved in favor of the Indian tribe.
SEC. 513. BUDGET REQUEST.
(a) In General.--The President shall identify in the annual
budget request submitted to the Congress under section 1105 of
title 31, United States Code, all funds necessary to fully fund
all funding agreements authorized under this title, including
funds specifically identified to fund tribal base budgets. All
funds so appropriated shall be apportioned to the Indian Health
Service. Such funds shall be provided to the Office of Tribal
Self-Governance which shall be responsible for distribution of
all funds provided under section 505. Nothing in this provision
shall be construed to authorize the Indian Health Service to
reduce the amount of funds that a self-governance tribe is
otherwise entitled to receive under its funding agreement or
other applicable law, whether or not such funds are made
available to the Office of Tribal Self-Governance under this
section.
(b) Present Funding; Shortfalls.--In such budget request, the
President shall identify the level of need presently funded and
any shortfall in funding (including direct program and contract
support costs) for each Indian tribe, either directly by the
Secretary, under self-determination contracts, or under
compacts and funding agreements authorized under this title.
SEC. 514. REPORTS.
(a) Annual Report.--Not later than January 1 of each year
after the date of the enactment of this title, the Secretary
shall submit to the Committee on Resources of the House of
Representatives and the Committee on Indian Affairs of the
Senate a written reportregarding the administration of this
title. Such report shall include a detailed analysis of the level of
need being presently funded or unfunded for each Indian tribe, either
directly by the Secretary, under self-determination contracts under
title I, or under compacts and funding agreements authorized under this
Act. In compiling reports pursuant to this section, the Secretary may
not impose any reporting requirements on participating Indian tribes or
tribal organizations, not otherwise provided in this Act.
(b) Contents.--The report shall be compiled from information
contained in funding agreements, annual audit reports, and
Secretarial data regarding the disposition of Federal funds and
shall--
(1) identify the relative costs and benefits of self-
governance;
(2) identify, with particularity, all funds that are
specifically or functionally related to the provision
by the Secretary of services and benefits to self-
governance Indian tribes and their members;
(3) identify the funds transferred to each self-
governance Indian tribe and the corresponding reduction
in the Federal bureaucracy;
(4) identify the funding formula for individual
tribal shares of all headquarters funds, together with
the comments of affected Indian tribes or tribal
organizations, developed under subsection (c);
(5) identify amounts expended in the preceding fiscal
year to carry out inherent Federal functions, including
an identification of those functions by type and
location;
(6) contain a description of the method or methods
(or any revisions thereof) used to determine the
individual tribal share of funds controlled by all
components of the Indian Health Service (including
funds assessed by any other Federal agency) for
inclusion in self-governance compacts or funding
agreements;
(7) prior to being submitted to Congress, be
distributed to the Indian tribes for comment, such
comment period to be for no less than 30 days; and
(8) include the separate views and comments of the
Indian tribes or tribal organizations.
(c) Report on Fund Distribution Method.--Not later than 180
days after the date of enactment of this title, the Secretary
shall, after consultation with Indian tribes, submit a written
report to the Committee on Resources of the House of
Representatives and the Committee on Indian Affairs of the
Senate which describes the method or methods used to determine
the individual tribal share of funds controlled by all
components of the Indian Health Service (including funds
assessed by any other Federal agency) for inclusion in self-
governance compacts or funding agreements.
SEC. 515. DISCLAIMERS.
(a) No Funding Reduction.--Nothing in this title shall be
construed to limit or reduce in any way the funding for any
program, project, or activity serving anIndian tribe under this
or other applicable Federal law. Any Indian tribe that alleges that a
compact or funding agreement is in violation of this section may apply
the provisions of section 110.
(b) Federal Trust and Treaty Responsibilities.--Nothing in
this Act shall be construed to diminish in any way the trust
responsibility of the United States to Indian tribes and
individual Indians that exists under treaties, Executive
orders, or other laws and court decisions.
(c) Tribal Employment.--For purposes of section 2(2) of the
Act of July 5, 1935 (49 Stat. 450, chapter 372) (commonly known
as the National Labor Relations Act), an Indian tribe carrying
out a self-determination contract, compact, annual funding
agreement, grant, or cooperative agreement under this Act shall
not be considered an employer.
(d) Obligations of the United States.--The Indian Health
Service under this Act shall neither bill nor charge those
Indians who may have the economic means to pay for services,
nor require any Indian tribe to do so.
SEC. 516. APPLICATION OF OTHER SECTIONS OF THE ACT.
(a) Mandatory Application.--All provisions of sections 5(b),
6, 7, 102(c) and (d), 104, 105(k) and (l), 106(a) through (k),
and 111 of this Act and section 314 of Public Law 101-512
(coverage under the Federal Tort Claims Act), to the extent not
in conflict with this title, shall apply to compacts and
funding agreements authorized by this title.
(b) Discretionary Application.--At the request of a
participating Indian tribe, any other provision of title I, to
the extent such provision is not in conflict with this title,
shall be made a part of a funding agreement or compact entered
into under this title. The Secretary is obligated to include
such provision at the option of the participating Indian tribe
or tribes. If such provision is incorporated it shall have the
same force and effect as if it were set out in full in this
title. In the event an Indian tribe requests such incorporation
at the negotiation stage of a compact or funding agreement,
such incorporation shall be deemed effective immediately and
shall control the negotiation and resulting compact and funding
agreement.
SEC. 517. REGULATIONS.
(a) In General.--
(1) Not later than 90 days after the date of
enactment of this title, the Secretary shall initiate
procedures under subchapter III of chapter 5 of title
5, United States Code, to negotiate and promulgate such
regulations as are necessary to carry out this title.
(2) Proposed regulations to implement this title
shall be published in the Federal Register by the
Secretary no later than 1 year after the date of
enactment of this title.
(3) The authority to promulgate regulations under
this title shall expire 21 months after the date of
enactment of this title.
(b) Committee.--A negotiated rulemaking committee established
pursuant to section 565 of title 5, United States Code, to
carry out this section shall have as its members only Federal
and tribal government representatives, a majority of whom shall
be nominated by and be representatives of Indian tribes with
funding agreements under this Act, and the Committee shall
confer with, and accommodate participation by, representatives
of Indian tribes,inter-tribal consortia, tribal organizations,
and individual tribal members.
(c) Adaptation of Procedures.--The Secretary shall adapt the
negotiated rulemaking procedures to the unique context of self-
governance and the government-to-government relationship
between the United States and Indian tribes.
(d) Effect.--The lack of promulgated regulations shall not
limit the effect of this title.
(e) Effect of Circulars, Policies, Manuals, Guidances, and
Rules.--Unless expressly agreed to by the participating Indian
tribe in the compact or funding agreement, the participating
Indian tribe shall not be subject to any agency circular,
policy, manual, guidance, or rule adopted by the Indian Health
Service, except for the eligibility provisions of section
105(g).
SEC. 518. APPEALS.
In any appeal (including civil actions) involving decisions
made by the Secretary under this title, the Secretary shall
have the burden of proof of demonstrating by clear and
convincing evidence--
(1) the validity of the grounds for the decision
made; and
(2) the decision is fully consistent with provisions
and policies of this title.
SEC. 519. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as may be
necessary to carry out this title.
TITLE VI--TRIBAL SELF-GOVERNANCE--DEPARTMENT OF HEALTH AND HUMAN
SERVICES
SEC. 601. DEMONSTRATION PROJECT FEASIBILITY.
(a) Study.--The Secretary shall conduct a study to determine
the feasibility a Tribal Self-Governance Demonstration Project
for appropriate programs, services, functions, and activities
(or portions thereof) of the agency.
(b) Considerations.--When conducting the study, the Secretary
shall consider--
(1) the probable effects on specific programs and
program beneficiaries of such a demonstration project;
(2) statutory, regulatory, or other impediments to
implementation of such a demonstration project;
(3) strategies for implementing such a demonstration
project;
(4) probable costs or savings associated with such a
demonstration project;
(5) methods to assure quality and accountability in
such a demonstration project; and
(6) such other issues that may be determined by the
Secretary or developed through consultation pursuant to
section 602.
(c) Report.--Not later than 18 months after the enactment of
this title, the Secretary shall submit a report to the
Committee on Resources of the House of Representatives and the
Committee on Indian Affairs of the Senate. The report shall
contain--
(1) the results of the study;
(2) a list of programs, services, functions, and
activities (or portions thereof) within the agency
which it would be feasible to include in a Tribal Self-
Governance Demonstration Project;
(3) a list of programs, services, functions, and
activities (or portions thereof) included in the list
provided pursuant to paragraph (2) which could be
included in a Tribal Self-Governance Demonstration
Project without amending statutes, or waiving
regulations that the Secretary may not waive;
(4) a list of legislative actions required in order
to include those programs, services, functions, and
activities (or portions thereof) included in the list
provided pursuant to paragraph (2) but not included in
the list provided pursuant to paragraph (3) in a Tribal
Self-Governance Demonstration Project; and
(5) any separate views of tribes and other entities
consulted pursuant to section 602 related to the
information provided pursuant to paragraph (1) through
(4).
SEC. 602. CONSULTATION.
(a) Study Protocol.--
(1) Consultation with indian tribes.--The Secretary
shall consult with Indian tribes to determine a
protocol for consultation under subsection (b) prior to
consultation under such subsection with the other
entities described in such subsection. The protocol
shall require, at a minimum, that--
(A) the government-to-government relationship
with Indian tribes forms the basis for the
consultation process;
(B) the Indian tribes and the Secretary
jointly conduct the consultations required by
this section; and
(C) the consultation process allow for
separate and direct recommendations from the
Indian tribes and other entities described in
subsection (b).
(2) Opportunity for public comment.--In determining
the protocol described in paragraph (1), the Secretary
shall publish the proposed protocol and allow a period
of not less than 30 days for comment by entities
described in subsection (b) and other interested
individuals, and shall take comments received into
account in determining the final protocol.
(b) Conducting Study.--In conducting the study under this
title, the Secretary shall consult with Indian tribes, States,
counties, municipalities, program beneficiaries, and interested
public interest groups, and may consult with other entities as
appropriate.
SEC. 603. DEFINITIONS.
(a) In General.--For purposes of this title, the Secretary
may use definitions provided in title V.
(b) Agency.--For purposes of this title, the term ``agency''
shall mean any agency or other organizational unit of the
Department of Health and Human Services, other than the Indian
Health Service.
SEC. 604. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated for fiscal years 2000
and 2001 such sums as may be necessary to carry out this title.
Such sums shall remain available until expended.
ADDITIONAL VIEWS BY HON. GEORGE MILLER
The nature of Self-Governance is rooted in the inherent
sovereignty of American Indian and Alaska Native tribes. From
the founding of this nation, Indian tribes and Alaska Native
villages have been recognized as ``distinct, independent,
political communities'' exercising powers of self-government,
not by virtue of any delegation of powers from the federal
government, but rather by virtue of their own innate
sovereignty. See Worcester v. Georgia, 31 U.S. (6 Pet.) 515,
559 (1832). See also Santa Clara Pueblo v. Martinez, 436 U.S.
49, 55 (1978). The tribes' sovereignty predates the founding of
the United States and its Constitution and forms the backdrop
against which the United States has continually entered into
relations with Indian tribes and Native villages.
The present model of tribal Self-Governance arose out of
the federal policy of Indian Self-Determination. The modern
Self-Determination era began as Congress and contemporary
Administrations ended the dubious experiment of Termination
which was intended to end the federal trust responsibility to
Native Americans.
The centerpiece of the Termination policy, House Concurrent
Resolution 108, stated that ``Indian Tribes and individual
members thereof, should be freed from Federal supervision and
control and from all disabilities and limitations specially
applicable to Indians.'' H. Con. Res. 108, 83rd Cong., 1st
Sess. (1953). While the intent of this legislation was to free
the Indians from federal rule, it also destroyed all protection
and benefits they received from the government. The same year,
Congress enacted Public Law 280 which further eroded tribal
sovereignty by transferring criminal jurisdiction from the
federal government and the tribes to the state governments.
As a policy, Termination was a disaster. Recognizing this,
President Kennedy campaigned in 1960 promising the Indian
tribes that:
There would be no change in treaty or contractual
relationships without the consent of the tribes
concerned. There would be protection of the Indian land
base, credit assistance, and encouragement of tribal
planning for economic development.
Francis Paul Prucha, The Great Father, 1087 (1984).
Reservations were also included in many of the ``Great
Society'' programs of the late 1960s, bringing a much-needed
infusion of federal dollars onto many reservations. In 1968,
President Lyndon B. Johnson delivered a message to Congress
that stressed:
[A] policy of maximum choice for the American Indian:
a policy expressed programs of self-help, self-
development, self-determination. * * * The greatest
hope for Indian progress lies in the emergence of
Indian leadership and initiative in solving Indian
problems. Indians must have a voice in making the plans
and decisions in programs which are important to their
daily life.
Message from the President, March 6, 1968, Weekly Compilation
of Presidential Documents, vol. IV, No. 10, Wash. D.C., U.S.
Gov. Printing Office.
President Richard Nixon's 1970 ``Special Message on Indian
Affairs'' also called for increased tribal self-determination.
This, then, must be the goal of any new national
policy toward the Indian people: to strengthen the
Indian's sense of autonomy without threatening his
sense of community. We must assure the Indian that he
can assume control of his own life without being
separated involuntarily from the tribal group. And we
must make it clear that Indians can become independent
of Federal control without being cut off from Federal
concern and Federal support. * * *
Special Message to the Congress, Pub. Papers, 564, 567 (1970).
Together, these messages sparked Congress to work on
legislation that laid the foundation for modern federal Indian
policy for the remainder of this century. And so, five years
later, Congress enacted one of the most profound and powerful
pieces of Indian legislation in this Nation's history.
In 1975, Congress passed the Indian Self-Determination and
Education Assistance Act, Pub. L. No. 93-638. This legislation
gave Indian tribes and Alaska Native villages the right to
assume responsibility for the administration of federal
programs which benefitted Indians. In addition to assuming the
authority to make operating and administrative decisions
regarding the way these federal programs would be run, tribe
that chose to enter into Indian Self-Determination Act (or
``638'') contracts were given the right to receive the federal
funds that the agencies--generally the Bureau of Indian Affairs
(BIA) and the Indian Health Service (IHS)--would have
ordinarily received for those programs. Unlike former policy,
the Indian Self-Determination Act did not relieve the
government of their trust responsibilities to the tribes.
Congress enacted the Indian Self-Determination Act believed
it that (1) Indian tribes, having greater knowledge about and a
greater stake in the outcome of these federal programs, would
run BIA and IHS programs better and thus provide better
services to their members, (2) the direct responsibility for
running these programs would enhance and strengthen tribal
governments, and (3) Indian tribes could make more efficient
use of federal dollars than the existing federal bureaucracy,
thus delivering more services than in the past.
However, Indian Self-Determination Act or ``638'' contracts
required volumes of paperwork to be filed as a means to
supervise the tribes' activities. If a tribe wanted to operate
more than oneprogram, it would have to exercise an additional
638 contract which required a separate approval process. Though the Act
was intended to decrease Federal involvement in the daily lives of
reservation Indians, its specific performance and reporting
requirements allowed BIA to remain a pervasive force in Indian affairs.
At the time of its enactment, the 638 contract program did
not allow tribes to move funds between programs to adapt to
changing and unforeseen circumstances during a funding period.
Thus, the tribes' powers to design or adapt programs according
to tribal needs remained restricted.
The inflexibility of 638 contracts also created problems
with cash flow. Payments were made to tribes on a cost-
reimbursement basis, often many months after the tribe might
have incurred major expenses. The tribes' main complaint,
however, was that the 638 contract process made tribal staff
primarily accountable to and measured by, not their own tribal
councils but BIA employees at the Agency, Area and Central
Offices. They had to follow strict federal laws, rules and
regulations that were often of little relevance to day-to-day
existence on an Indian reservation. If trust assets were
involved, the BIA had to concur in any decisions made.
Thus, while the Indian Self-Determination Act was, and is,
still acknowledged as a watershed moment in the history of
tribal self-governance, by the mid-1980's many tribal leaders
agreed that it was time for even greater change. The federal
bureaucracy devoted to 638 program oversight had simply grown
out of control and the percentage of federal dollars allocated
for Indian programs actually spent on the reservation was still
far too small.
To address these concerns, the Indian tribes asked Congress
to consider amendments to the Self-Determination Act. During
the fall of 1987, a series of articles appeared in the Arizona
Republic entitled ``Fraud in Indian Country,'' that detailed a
egregious history of waste and mismanagement within the BIA.
These articles spurred House Appropriations Subcommittee on
Interior and Related Agencies Chairman Sidney Yates (D-IL) to
conduct an oversight hearing on these alleged abuses.
At the hearing, Department of Interior officials proposed
that funds appropriated to the Bureau of Indian Affairs be
turned over to the tribes to let them manage their own affairs
in an attempt to address these charges. But, the officials
testified, by accepting the federal funds, the tribes would
release the federal government from its trust responsibility.
Many disagreed with this quid pro quo, but supported the
concept of removing BIA middlemen from the funding process.
With Chairman Yates' encouragement, tribal representatives met
with the Secretary of the Interior and other Department
officials the very next day to further hash out this concept.
By mid-December of 1987, ten tribes had agreed to test the
Department's proposal. Out of this proposal that the Tribal
Self-Governance Demonstration Project was born.
In 1988 Congress enacted Pub. L. No. 100-472 which created
Title III of the Indian Self-Determination Act which authorized
the Secretary of Interior to negotiate Self-Governance compacts
with up to twenty tribes. These tribes, for the first time,
would be able to ``plan, conduct, consolidate, and administer
programs, services, and functions'' heretofore performed by
Interior officials. The Act required that these programs be
``otherwise available to Indian tribes or Indians,'' but within
these parameters the tribes were authorized to redesign
programs and reallocated funding according to terms negotiated
in the compacts. Tribes would be able to prioritize spending on
a systemic level, dramatically reducing the Federal role in the
tribal decision-making process. But perhaps the biggest
difference between the ``638'' contract process and the Self-
Governance program is that instead of funds coming from
multiple contracts there would be one grant with a single
Annual Funding Agreement.
The original ten tribes that agreed to participate in the
demonstration project were the Confederated Salish and Kootenai
Tribes, Hoopa Tribe, Jamestown S'Klallam Tribe, Lummi Nation,
Mescalero Apache Tribe, Mille Lacs Band of Ojibwe, Quinault
Indian Nation, Red Lake Chippewa Tribe, Rosebud Sioux Tribe,
and Tlingit and Haida Central Council.
In 1991 Congress passed Pub. L. No. 102-184, ``The Tribal
Self-Governance Demonstration Project Act'', which extended the
Project for three more years and increased the number of Tribes
participating to thirty. The bill required the new tribes
participating to complete a one-year planning period before
they could negotiate a Compact and Annual Funding Agreement. In
1991, the Interior Department established the Office of Self-
Governance within the Office of the Assistant Secretary, Indian
Affairs.
The 1991 law also directed the IHS to conduct a feasibility
study to examine the expansion of the Self-Governance project
to IHS programs and services. The law also authorized the
Secretary of Health and Human Services to establish an Office
of Self-Governance in the IHS.
In 1992, Congress amended section 314 of the Indian Health
Care Improvement Act to allow the Secretary of Health and Human
Services to negotiate Self-Governance compacts and annual
funding agreements under Title III of the Indian Self-
Determination Act with Indian tribes. Pub. L. No. 102-573, sec.
814. The Self-Governance Demonstration Project proved to be a
success both in the Interior Department and the Department of
Health and Human Services.
In 1994, Congress responded by passing the ``Tribal Self-
Governance Act of 1994'' as part of the Indian Self-
Determination Act Amendments, Pub. L. No. 103-413. The Tribal
Self-Governance Act, contained in Title IV of the Indian Self-
Determination Act, permanently established the Self-Governance
program within the Department of Interior and thus solidifying
the Federal government goals of negotiating with Indian Tribes
and Alaska Native villages on a government-to-government basis
while retaining the federal trust relationship. The Tribal
Self-Governance Act allowed Self-Governance tribes to compact
all programs and services that tribes could contract under
Title I of the Indian Self-Determination Act. The Act required
an ``orderly transition from Federal domination of programs and
services to provide Indian tribes with meaningful authority to
plan, conduct, redesign, and administer programs, services,
functions, andactivities that meet the needs of the individual
tribal communities.'' The Act also clarified the requirements and
obligations of tribes entering the Self-Governance process.
Tribes entering the Self-Governance program had to meet
four eligibility requirements. First, the tribe (or tribes in
the case of a consortium) must be federally recognized. Second,
the tribe must document, with an official action of the tribal
governing body, a formal request to enter negotiations with the
Department of Interior. In the case of a consortium of tribes,
the governing body of each participating tribe must authorize
participation by an official action of the tribal governing
body. Third, the tribe must demonstrate financial stability and
financial management capability as evidenced by the tribe
having no material audit exceptions in the required annual
audit of the tribe's 638 contracts. Fourth, the tribe must have
successfully completed a planning phase, requiring the
submission of a final planning report which demonstrates that
the tribe has conducted legal and budgetary research and
internal tribal government and organizational planning.
The 1994 Act then authorized the Secretary of Interior to
negotiate annual funding agreements with eligible tribes in a
manner consistent with the federal trust responsibility. The
agreements authorize a tribe to:
* * * plan, conduct, consolidate, and administer
programs, services, functions, and activities, or
portions thereof, administered by the Department of
Interior through the Bureau of Indian Affairs, without
regard to the agency or office of the Bureau of Indian
Affairs within which the program, service, function,
and activity, or portion thereof, is performed,
including funding for agency, area, and central office
functions. * * *
The 1994 Act's inclusion of ``agency, area, and central office
functions,'' on contrast to Title III, means that with each new
Self-Governance tribe, the resources of the various branches of
the BIA delivering services to that tribe will shrink. To
facilitate this transfer, the Act specifically lists all
applicable activities for which tribes and the BIA receive
corresponding funding.
Under the 1994 Act, annual funding agreements include what
the tribe would have received if the sum total of its 638
contracts were added up, in addition to Area and Central Office
funds and other Interior Programs. The process for review and
award of Self-Governance compacts and annual funding agreements
is streamlined when compared to 638 contracts. Once an
agreement is negotiated, the Secretary submits it to the other
Indian tribes served by the BIA and the two Congressional
Committees of jurisdiction. Tribes may obtain their funding in
either annual or semi-annual installments.
The Indian tribes and the Administration agree that it is
now time to take the next logical step forward in the Self-
Governance process and make the Self-Governance program
permanent within the Department of Health and Human Services.
The Tribal Self-Governance Amendments of 1999 establish a
permanent Self-Governance Program within the Department of
Health and Human Services under which American Indian and
Alaska Native tribes may enter into compacts with the Secretary
for the direct operation, control, and redesign of Indian
Health Service (IHS) activities. A limited number of Indian
tribes have had a similar right on a demonstration project
basis since 1992 under Title III of the Indian Self-
Determination and Education Assistance Act. All Indian tribes
have enjoyed a similar but lesser right to contract and operate
individual IHS programs and functions under Title I of the
Indian Self-Determination Act since 1975 (so-called ``638
contracting'').
In brief, the legislation would expand the number of tribes
eligible to participate in Self-Governance, make it a permanent
within the IHS and authorize the Secretary of Health and Human
Services to conduct a feasibility study for the execution of
Self-Governance compacts with Indian tribes for programs
outside of the IHS. The 1998 amendments incorporate a number of
federal contracting laws and regulations that have worked well
for Indian tribes and the Department in the past.
The legislation is modeled on the existing permanent Self-
Governance legislation for Interior Department programs
contained in Title IV of the Indian Self-Determination Act. The
legislation reflects years of negotiations among Indian tribes,
Alaska Native villages, the Indian Health Service, and the
Department of Health and Human Services.
The 1999 amendments give Indian tribes who meet certain
criteria the right to take over the operation of IHS functions,
including the funds necessary to run them. The 1999 amendments
continue the principle focus of the Self-Governance program: to
remove needless and sometimes harmful layers of federal
bureaucracy that dictate Indian affairs. By giving tribes
direct control over federal programs run for their benefit and
making them directly accountable to their members, Congress has
enabled Indian tribes to run programs more efficiently and more
innovatively than federal officials have in the past. And,
allowing tribes to run these programs furthers the
Congressional policy of strengthening and promoting tribal
governments.
Self-Governance recognizes that Indian tribes care for the
health, safety, and welfare of their own members as well as
that of non-Indians who either live on their reservations or
conduct business with the tribes and are thus committed to safe
and fair working conditions and practices.
Sometimes we need to look to the past in order to
understand our proper relationship with Indian tribes. More
than two centuries ago, Congress set forth what should be our
guiding principles. In 1789, Congress passed the Northwest
Ordinance, a set of seven articles intended to govern the
addition of new states to the Union. These articles served as a
compact between the people and the States, and were ``to
forever remain unalterable, unless by common consent.'' Act of
Aug. 7, 1789, ch. 13, 1 Stat. 50, 52. Article Three set forth
the Nation's policy towards Indian tribes:
The utmost good faith shall always be observed
towards the Indians; their land and property shall
never be taken away from them without their consent * *
* but laws founded in justice and humanity shall from
time to time be made, for preventing wrongs being done
to them. * * *
The Founders carefully and wisely chose these principles to
govern the conduct of this Nation in its dealing with American
Indian tribes. Over the years, these principles have often been
forgotten. Self-Government is but one of many ways to honor
these principles.
Two hundred years later, Justice Thurgood Marshall
delivered a unanimous Supreme Court decision in 1983 stating
that,
Moreover, both the tribes and the Federal Government
are firmly committed to the goal of promoting tribal
self-government, a goal embodied in numerous federal
statutes. We have stressed that Congress' objective of
furthering tribal self-government encompasses far more
than encouraging tribal management of disputes between
members, but includes Congress' overriding goal of
encouraging ``tribal self-sufficiency and economic
development''.
New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 334-35,
quoting White Mountain Apache Tribe v. Bracker, 448 U.S. 136,
143 (1980). See also National Farmers Union Insurance Co. v.
Crow Tribe of Indians, 471 U.S. 845, 856 (1985) (concluding
that ``[o]ur cases have often recognized that Congress is
committed to a policy of supporting tribal self-government and
self-determination.'').
If we are to adhere and remain faithful to the principles
that our Founders set forth--the principles of good faith,
consent, justice and humanity--then we must continue to promote
tribal self-government.
George Miller.