[Congressional Bills 103th Congress] [From the U.S. Government Printing Office] [S. 2036 Introduced in Senate (IS)] 103d CONGRESS 2d Session S. 2036 To specify the terms of contracts entered into by the United States and Indian tribal organizations under the Indian Self-Determination and Education Assistance Act, and for other purposes. _______________________________________________________________________ IN THE SENATE OF THE UNITED STATES April 20 (legislative day, April 11), 1994 Mr. McCain (for himself and Mr. Inouye) introduced the following bill; which was read twice and referred to the Committee on Indian Affairs _______________________________________________________________________ A BILL To specify the terms of contracts entered into by the United States and Indian tribal organizations under the Indian Self-Determination and Education Assistance Act, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the ``Indian Self-Determination Contract Reform Act of 1994''. SEC. 2. CONTRACT SPECIFICATIONS. Section 105 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450j) is amended to read as follows: ``SEC. 105. CONTRACT OR GRANT SPECIFICATIONS. ``Each contract or grant entered into under this Act, except an agreement entered into pursuant to title III (25 U.S.C. 450f note), shall contain, or incorporate by reference, the following provisions, with modifications where indicated and the blanks appropriately filled: ``(a) Authority and Purpose.-- ``(1) Authority.--This agreement, denoted a Contract of Self-Determination (hereinafter referred to as the `Contract'), is entered into by the Secretary of the Interior (or the Secretary of Health and Human Services) (hereinafter referred to as the `Secretary'), for and on behalf of the United States pursuant to the Indian Self-Determination and Education Assistance Act and by the authority of the ______________ tribal government. Unless otherwise provided in this agreement, all of the provisions of the Indian Self-Determination and Education Assistance Act are incorporated herein. ``(2) Purpose.--This Contract shall be liberally construed to transfer the funding, functions, and activities for the following programs from the Federal Government to the ______________ tribal government: (List functions, activities, and programs.) ``(3) Tribal law and forums.--The laws of the ______________ tribal government shall be applied in the execution of this Contract and the powers and decisions of the Tribal Court shall be respected to the extent that Federal law, construed in accordance with the applicable canons of construction and the Indian Self-Determination and Education Assistance Act, is not inconsistent. ``(b) Terms, Provisions and Conditions.-- ``(1) Term.--The term of this Contract shall not exceed 3 years, unless the Secretary and the tribe agree on a longer period pursuant to section 106 of the Indian Self-Determination and Education Assistance Act. The calendar year is the basis for contracts under this Act, unless the Secretary and the tribe agree on a different period. ``(2) Effective date.--This Contract shall become effective upon approval and execution by the tribe and the Secretary, unless otherwise provided by law. ``(3) Funding amount.--Subject to the appropriation of funds by Congress, the Secretary shall make available to the tribe the total amount specified in the annual agreement incorporated by reference in subsection (f)(2). ``(4) Payment.-- ``(A) In general.--Payments shall be made as expeditiously as possible in compliance with applicable Treasury Department regulations and shall include financial arrangements to cover funding during periods under continuing resolutions to the extent permitted by such resolutions. ``(B) Quarterly payments.--To the extent authorized by law, for each fiscal year covered by this Contract, the Secretary shall make available the funds specified for the fiscal year under the annual agreement by paying to the tribe on a quarterly basis one-quarter of the total amount provided for in the annual agreement for that fiscal year, or by using an instrument such as a letter of credit, or other method authorized by law, as may be specified in the annual agreement. To the extent applicable, each quarterly payment shall be made on the first day of each quarter of the fiscal year except for the first quarter, for which the quarterly payment shall be made not later than the date that is 10 calendar days after the date on which the Office of Management and Budget apportions the appropriations for the fiscal year for the programs, services, functions, and activities subject to the Contract. ``(5) Records.--(A) Except for previously provided copies of tribal records that the Secretary demonstrates are clearly required to be maintained as part of the recordkeeping system of the Department of the Interior, tribal records shall not be considered Federal records for purposes of chapter 5 of title 5, United States Code. ``(B) The tribe shall maintain a recordkeeping system, and provide reasonable access to records to the Secretary that permits the Department of the Interior to meet its minimum legal recordkeeping program requirements under chapter 31 of title 44, United States Code. ``(6) Property.--(A) At the request of the tribe, the Secretary shall make available to the tribe reasonably divisible real property, facilities, equipment, and personal property that the Department had previously utilized to provide the programs, services, functions, and activities now consolidated by the tribe pursuant to subsection (c)(1) of this Contract. A mutually agreed upon list specifying the property, facilities, and equipment so made available shall also be prepared and periodically revised. ``(B) Subject to the agreement of the General Services Administration, the Secretary shall delegate to the tribe the authority to acquire such `excess' property as may be appropriate in the judgment of the tribe to support the programs, services, functions, and activities consolidated under subsection (c)(1) of this Contract. The Secretary agrees to make best efforts to assist the tribe in obtaining such confiscated or excess property as may become available to tribes or local governments. Subject to the agreement of the General Services Administration, a screener identification card (General Services Administration form 2946) shall be issued to the tribe not later than the effective date of this Contract. The designated official shall, upon request, assist the tribe in securing the use of the card. ``(C) The tribe shall, upon acquisition of excess United States Government property, provide adequate documentation to the Secretary to facilitate recordation of the property in the Bureau of Indian Affairs Property Inventory. ``(D) The tribe shall determine what capital equipment, leases, rentals, property, or services it shall require to perform its obligations under this subsection, and shall acquire and maintain records of such capital equipment, property rentals, leases, property, or services through tribal procurement procedures. ``(7) Savings.--Notwithstanding any other provision of law, any funds appropriated pursuant to the Act of November 2, 1921 (42 Stat. 208, chapter 115; 25 U.S.C. 13) shall remain available until expended. ``(8) Transportation.-- ``(A) Use of motor vehicles.--Subject to the agreement of the General Services Administration, the Secretary hereby authorizes the tribe to obtain interagency motor pool vehicles and related services, if available, for performance of any activities under this Contract. ``(B) Use of other transportation services.--The Secretary shall make best efforts to obtain the concurrence of the General Services Administration to provide the tribe and its employees with eligibility for services and supplies pursuant to General Services Administration programs and contracts with private entities, including airlines and other transportation carriers. ``(9) Regulatory authority.--The tribe is not required to abide by Federal program guidelines, manuals, or policy directives unless otherwise agreed to by the tribe and the Secretary. ``(10) Disputes.--(A) Obligations of the United States under this Contract shall be considered to be `duties' under section 110 of the Indian Self-Determination and Education Assistance Act. ``(B) Section 110 of the Indian Self-Determination and Education Act shall apply to disputes under this Contract. ``(C) In addition or as an alternative to remedies and procedures prescribed by section 110 of the Indian Self- Determination and Education Assistance Act the parties may jointly-- ``(i) submit disputes under this Contract to third- party mediation, which for purposes of this section means that the Secretary and the tribe nominate a third party who together choose a third party mediator (`third-party' means a person not employed by or significantly involved with either the tribe, the Secretary, or the Department of the Interior); ``(ii) submit the dispute to the Court of the tribe; or ``(iii) submit the dispute to mediation processes provided for under the law of the tribe. ``(D) The Secretary shall accept decisions reached by mediation processes or the tribal court, but shall not be bound by any decision that might be in conflict with the interests of the Indians or the United States. ``(11) Tribal administrative procedures.--Tribal law and tribal forums shall provide for administrative due process with respect to programs, services, functions, and activities that are provided by the tribe pursuant to this Contract and pursuant to the Indian Civil Rights Act of 1968 (25 U.S.C. 1301 et seq.). ``(12) Successor annual agreement.--Negotiations for a successor annual agreement, as provided for in subsection (f)(2), shall begin not later than 120 days prior to the conclusion of the preceding annual agreement. The tribe is hereby assured that future funding of successor annual agreements shall only be reduced pursuant to section 106(b) of the Indian Self-Determination and Education Assistance Act. The Secretary agrees to prepare and supply relevant information, and to promptly comply with any request by the tribe for information reasonably needed to determine the funds that may be available for a successor annual agreement as provided for in a subsection (f)(2) of this Contract. ``(13) Secretarial approval.--(A) Except as provided in subparagraph (B), for the term of the Contract, section 2103 of the Revised Statutes (25 U.S.C. 81) and section 16 of the Act of June 18, 1934 (25 U.S.C. 476), shall not apply to any contract entered into by the tribe in connection with this Contract. ``(B) Each contract entered into by the tribe shall-- ``(i) be in writing; ``(ii) identify the interested parties, their authorities, and purposes; ``(iii) state the work to be performed; and ``(iv) state the basis for any claim, the payments to be made, and the terms of the contract, which shall be fixed. ``(c) Obligation of the Tribe.-- ``(1) Consolidation.--Except as provided in subsection (d)(2), the Tribally Controlled Community College Assistance Act of 1978 (25 U.S.C. 1801 et seq.), and title XI of the Education Amendments of 1978 (25 U.S.C. 2001 et seq.), the tribe shall perform the programs, services, functions, and activities as provided in the annual agreement under subsection (f)(2) of this Contract. ``(2) Amount of funds.--The total amount of funds covered by the Contract provided for in paragraph (1) that the Secretary shall make available to the ______________ Indian tribe shall be determined in an annual agreement between the Secretary and the tribe, which shall be incorporated in its entirety into this Contract and attached as provided in subsection (f)(2). ``(3) Tribal programs.--The tribe agrees to provide the programs, services, functions, and activities identified in the annual agreement. The tribe pledges to practice good faith in upholding its responsibility to provide such programs, services, functions, and activities. ``(4) Trust services for individual indians.--To the extent that the annual agreement endeavors to provide trust services to individual Indians that were formerly provided by the Secretary, the tribe shall maintain at least the same level of service as was previously provided by the Secretary, subject to the availability of appropriated funds for such services. The tribe pledges to practice good faith in upholding its responsibility to provide such service. Trust services for individual Indians means only services that pertain to land or financial management connected to individually held allotments. ``(d) Obligation of the United States.-- ``(1) Trust responsibility.--The United States reaffirms its trust responsibility to the ______________ Indian tribe of the ______________ Indian Reservation to protect and conserve the trust resources of the ______________ Indian tribe and of individual Indians of the ______________ Indian Reservation. Nothing in this Contract is intended to, nor shall be construed, to terminate, waive, modify, or reduce the trust responsibility of the United States to the tribe or individual Indians. The Secretary pledges to practice good faith in upholding said trust responsibility. ``(2) Programs retained.--As specified in the annual agreement, the United States hereby retains the programs, services, functions, and activities with respect to the tribe that are not specially assumed by the tribe in the annual agreement. ``(e) Other Provisions.-- ``(1) Designated officials.--On or before the effective date of this Contract, both the United States and the tribe shall provide each other with a written designation of a senior official as its representative for notices, proposed amendments to the Contract and other purposes for this Contract. ``(2) Indian preference in employment, contracting, and subcontracting.--Tribal law shall govern the provision of Indian preference in employment, contracting, and subcontracting pursuant to this Contract. Section 5 of the Indian Self-Determination and Education Assistance Act shall apply to individuals who leave Federal employment for tribal employment pursuant to this contract. ``(3) Contract modifications or amendment.--To be effective any modifications of this Contract shall be in the form of a written amendment to the Contract, and shall require the written consent of the tribe and the Secretary. ``(4) Officials not to benefit.--No Member of Congress, or resident commissioner, shall be admitted to any share or part of any contract executed pursuant to this Contract, or to any benefit that may arise therefrom; but this provision shall not be construed to extend to any contract under this Contract if made with a corporation for its general benefit. ``(5) Covenant against contingent fees.--The parties warrant that no person or selling agency has been employed or retained to solicit or secure any contract executed pursuant to this Contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the contractor for the purpose of securing business. For breach or violation of this warranty the Government shall have the right to annul any contract without liability or, in its discretion, to deduct from the Contract price or consideration, or otherwise recover, the full amount of such commission, percentage, brokerage, or contingent fee. ``(f) Attachments.-- ``(1) Approval of contract.--The resolution of the ______________ Indian tribe approving this Contract is attached hereto as attachment 1. ``(2) Annual agreement.--The negotiated and duly approved annual agreement with respect to the ______________ Indian tribe which shall only contain terms that identify the programs, services, functions, and activities to be performed, the general budget category assigned, the funds to be provided, the time and method of payment, and a requirement that all modifications or amendments shall be written and signed by both parties, is hereby incorporated in its entirety in this Contract and attached hereto as attachment 2.''. SEC. 3. REGULATIONS. ``(a) In General.--The Secretary of the Interior and the Secretary of Health and Human Services shall not promulgate any regulation relating to grants, contracts, or cooperative agreements entered into pursuant to the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.). ``(b) Existing Regulations.--The provisions of this Act shall supersede any conflicting provisions of law or regulation in existence on the date of enactment of this Act. SEC. 4. REPEAL. ``(a) In General.--Section 107 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450k) is repealed. ``(b) Conforming Amendments.-- ``(1) Section 104(b) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450h(b)) is amending by striking ``, in accordance with regulations adopted pursuant to section 107,''. ``(2) Section 106(h) of such Act (25 U.S.C. 450j(h)) is amended by striking ``and the rules and regulations adopted by the Secretaries of the Interior and Health and Human Services pursuant to section 107''. <all> S 2036 IS----2