Tribal Self-Governance Health Care and Social Services Delivery Effectiveness Evaluation Feasibility Study: Legislative History and Development of Tribal Self-Governance and Contracting. 4.4 Title III - Tribal Self-Governance Demonstration Project


As introduced above, P.L. 100-472 Title III had directed the Secretary of the Interior to conduct a research and demonstration project, not to exceed five years. [83]   In 1992, Title III was amended to also apply to the Secretary of Health and Human Services. [84]    The Secretary of HHS was to select 20 Tribes to participate in the Tribal Self-Governance Demonstration Project [85] covering health services.  The selection of Tribes was to achieve a diverse geographic representation.  A Tribe that had successfully completed a planning grant and operated two or more mature contracts could request to participate.  The applicant Tribe also needed to demonstrate financial stability and financial management capability over three fiscal years.  The absence of any significant or material exceptions in required annual audits of tribal self-determination contracts was considered evidence of financial stability and capability [86] for the purpose of contract appeals.

The Tribal Self-Governance Demonstration Project directed the Secretaries to negotiate and enter into written annual funding agreements with each of the participating tribal governments.  Annual funding agreements were to:

1.       Authorize Tribes to plan, conduct, consolidate, and administer programs, services and functions authorized under the Johnson O’Malley and Snyder Acts;

2.       Authorize Tribes to redesign programs, activities, functions or services and to reallocate funds their funds;

3.       Exclude funds under the Tribally Controlled Community College Assistance Act and the Flathead Agency Power Division;

4.       Specify the services to be provided, the functions to be performed, and the responsibilities of the Tribe and the Secretary under the Agreement;

5.       Specify the authority of the Tribe and the Secretary, and the procedures to be used to reallocate funds or modify budget allocations within any project year;

6.       Provide for payment 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 the Act, including direct program costs and indirect costs, and specifically related funds; provided that funds for trust services to individual Indians were available under the written agreement only to the same extent that the same services which would have been provided are provided to individual Indians by the Tribe;

7.       Prohibit the Secretary from waiving, modifying or diminishing the trust responsibility;

8.       Authorize retrocession of programs or portions of programs; and

9.       Provide that the Secretary submit the Agreement to each Tribe and Congressional committees.

Tribes that were selected to participate in the Demonstration Project could not enter into a Section 102 contract with the Secretary for the same programs and funds that were a part of the project.  Tribes were responsible for administration of the demonstration projects.  The Secretary was obligated to provide funding for the Annual Funding Agreements entered into by him.  The term “contract” was to apply to Annual Funding Agreements for the purpose of contract appeals.  Federal laws were to be interpreted in a manner that would facilitate the agreements. [87]

Funds for demonstration projects were to be separately identified in the President’s budget request.  Demonstration projects were also subject to directives contained in appropriation acts. [88]   The Secretary was required to submit semi-annual reports to Congress on the costs and benefits of the Tribal Self-Governance Project.  Mutually determined baseline measures were to be used and tribal views included in the report. [89]   Finally, although Title III demonstration was added for the Department of the Interior, nothing in Title III was to limit or reduce services, contracts, or funds that other Tribes would otherwise receive or be available to them. [90]   Title III did not affect tribal sovereign immunity to suit, nor terminate any existing trust responsibility.  “Severability” language was also added. [91]   

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