H.R. 4347: Department of the Interior Tribal Self-Governance Act

H.R. 4347

Department of the Interior Tribal Self-Governance Act

Date
September 22, 2010 (111th Congress, 2nd Session)

Staff Contact
Communications

Floor Situation

The House is scheduled to consider H.R. 4347, on Wednesday, September 22, 2010, under a suspension of the rules, requiring a two-thirds majority vote for passage.  H.R. 4347 was introduced on December 16, 2009, by Rep. Dan Boren (D-OK) and referred to the Committee on Natural Resources, which held a mark-up and reported the bill, as amended, by voice vote on July 22, 2010.

Bill Summary

H.R. 4347 would amend the Indian Self-Determination and Education Assistance Act (ISDEAA) related to Tribal Self-Governance Programs, and would allow more tribal governmental organization to carry out activities which would otherwise be assumed by the Department of Interior.  Under the program, tribal governmental organization would have access to funds which would otherwise be spent for Indian services by the federal government, while applicable federal departments would carry out oversight and certain administrative responsibilities.

 

TITLE I—INDIAN SELF-DETERMINATION

The bill would define “self-determination contract” as a contract between a tribe and the appropriate Secretary for the planning of programs and services that would otherwise be provided by the federal government.  Under the legislation, contracts entered into by a self-governing tribe would not be considered to be procurement contracts, and would not be subject to any federal procurement law, including regulations.

Under the legislation, in any appeal regarding a decision made by a federal Department with jurisdiction, the Secretary would have the burden of proof that the decision was valid.  The bill would also require Departments to negotiate any decisions with tribes in good faith.

H.R. 4347 would stipulate that if an Indian tribe can demonstrate for three fiscal years, its financial stability and financial management capability as evidenced by the Indian tribe having no material audit exceptions in the required annual audit of the self-determination contracts of the Indian tribe, then the Indian tribe would be able to redesign or consolidate programs and services in their funding agreement.  The Indian tribe could reallocate or redirect funds for the programs and services in any manner that the Indian tribe determines to be in the best interest of the health and welfare of the Indian community being served.

The bill would add a new category of expense for which tribal governing bodies could receive funding.  The bill would also allow the tribe to receive at least 50 percent funding for expenses incurred by the governing body of a tribe for their programs, functions, services, and activities. 

 

TITLE II—TRIBAL SELF-GOVERNANCE

H.R. 4347 would require the Secretary of Interior to establish a new Tribal Self-Governance Program within the Department of Interior.  The program would authorize Indian tribes to assume responsibilities for certain programs, functions, and services or activities that would otherwise be carried out by the federal government.

Under the legislation, the Secretary would be authorized to select up to 50 new tribes to per year to participate in the program.  If each Indian tribe requests, two or more otherwise eligible Indian tribes may be treated as a single Indian tribe for the purpose of participating in self-governance.  To be eligible for participation, tribes would be required to demonstrate that they are financially stable for three fiscal years prior to the date of requesting participation.  Tribes also would have to complete the “planning phase,” which would include performing legal and budgetary research and internal tribal government planning and preparation.  In addition, Indian tribes meeting these requirements would be eligible for federal grants to plan their participation in the self-governance programs.

The bill would require the Secretary to negotiate and enter into a written compact with tribes participating in the program.  The bill would allow tribes to retain existing compacts, in whole or in part, or negotiate new compacts.

H.R. 4347 would require the Secretary to negotiate funding agreements with the governing body of participating tribes in a manner consistent with the trust responsibility of the Federal Government, treaty obligations, and the government-to-government relationship between Indian tribes and the United States.  The funding agreement would authorize the tribe to plan, administer and receive full tribal share funding for all programs currently carried out by the Bureau of Indian Affairs (BIA), the Office of the Assistant Secretary of Indian Affairs, the Office of Special Trustee, and the Interior Department.  Funding agreements would still be subject to competitive bidding procedures, and the bill would prohibit funding agreements in which non-Indians have an incidental or legally identifiable interest.  In addition, the funding agreements must specify the services, functions and responsibilities of the agreement's participants.

Under the legislation, the Secretary of Interior would be authorized to resume federal governance of a tribe after providing written notice and a hearing for the tribe.  Following the written notice and hearing, the tribe would have to display a lack of action to correct any stipulated mismanagement before federal governance would resume.

H.R. 4347 would provide that when an Indian tribe is granted self-governance, its records would not be considered federal records.  However, the tribe would be required to keep a record keeping system and provide the Department of Interior with reasonable records.

Under the bill, Indian tribes would be authorized to carry out construction projects and assume some federal responsibilities under the National Environmental Policy Act.  The bill would also require Indian tribes to adhere to the applicable federal, state, local and tribal building codes, architectural standards, and engineering standards.  The bill would also require the Indian tribes use only qualified architects and engineers who are licensed to practice in the state in which the facility is being constructed.  The bill would also require that the Indian tribe assume full responsibility for constructions project and that the funding agreement stipulate the approximate start and completion date.

The bill would allow Indian tribes participating in the program to request a waiver from a specific federal law or regulation.  The Secretary of Interior would be authorized to deny a waiver request only if there is a specific reason for doing so in the regulation.

Finally, H.R. 4347 would authorize the appropriation of “such sums as may be necessary” to carry out the provisions of the bill.

Background

According to the Indian Health Service, tribal self-Governance “is fundamentally designed to provide Tribal governments with more control and decision-making authority over the federal financial resources provided for the benefit of Indian people.”  Under self-determination and self-governance programs, tribes exercise their sovereignty in making decisions about tribal contracts and services with minimal federal intrusion and involvement.  Through the programs, tribes receive funding for services that would otherwise have been spent by the Bureau of Indian Affairs, the Office of Special Trustee, and the Interior Department.  Tribes then use the funds to enter into their own agreements for services. 

According to House Report 111-603, in 1988, Congress enacted P.L. 100-472, which established Title III of the Indian Self-Determination and Education Assistance Act (ISDEAA).  The legislation authorized the Secretary of the Interior to negotiate self-governance compacts with 20 Indian tribes on a demonstration basis.  According to the Committee’s report, “For the first time, tribes were authorized to plan, administer, and consolidate programs and services that had always been administered by DOI.  The programs compacted were those that were ‘otherwise available to Indian tribes or Indians.’  The new compacts provided for a single Annual Funding Agreement, which would guarantee funding in one grant instead of funds coming from multiple contracts.”  Under the demonstration program, tribes were granted the authority to design the programs to suit the needs of their individual members.  H.R. 4347 authorizes more Indian tribes to enter into self-governance compacts to perform whole programs, oftentimes several programs, which are currently performed by the federal government.

Cost

According to CBO, H.R. 4347 would cost $5 million over the 2011-2015 period to pay for the Department of Interior’s increased administrative responsibilities because more tribes would participate in the self-governance program, and the agency would be subject to new requirements.