[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''.
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