§ 450. — Congressional statement of findings.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 25USC450]
TITLE 25--INDIANS
CHAPTER 14--MISCELLANEOUS
SUBCHAPTER II--INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE
Sec. 450. Congressional statement of findings
(a) Findings respecting historical and special legal relationship, and
resultant responsibilities
The Congress, after careful review of the Federal Government's
historical and special legal relationship with, and resulting
responsibilities to, American Indian people, finds that--
(1) the prolonged Federal domination of Indian service programs
has served to retard rather than enhance the progress of Indian
people and their communities by depriving Indians of the full
opportunity to develop leadership skills crucial to the realization
of self-government, and has denied to the Indian people an effective
voice in the planning and implementation of programs for the benefit
of Indians which are responsive to the true needs of Indian
communities; and
(2) the Indian people will never surrender their desire to
control their relationships both among themselves and with non-
Indian governments, organizations, and persons.
(b) Further findings
The Congress further finds that--
(1) true self-determination in any society of people is
dependent upon an educational process which will insure the
development of qualified people to fulfill meaningful leadership
roles;
(2) the Federal responsibility for and assistance to education
of Indian children has not effected the desired level of educational
achievement or created the diverse opportunities and personal
satisfaction which education can and should provide; and
(3) parental and community control of the educational process is
of crucial importance to the Indian people.
(Pub. L. 93-638, Sec. 2, Jan. 4, 1975, 88 Stat. 2203.)
Short Title of 2000 Amendments
Pub. L. 106-568, title VIII, Sec. 801, Dec. 27, 2000, 114 Stat.
2916, provided that: ``This title [amending sections 450l, 458cc, 1407,
and 3207 of this title and sections 5604, 5608, and 5609 of Title 20,
Education, and repealing section 84 of this title and sections 438 and
439 of Title 18, Crimes and Criminal Procedure] may be cited as the
`Native American Laws Technical Corrections Act of 2000'.''
Pub. L. 106-568, title XIII, Sec. 1301, Dec. 27, 2000, 114 Stat.
2936, provided that: ``This title [enacting part F (Sec. 458bbb et seq.)
of this subchapter] may be cited as the `American Indian Education
Foundation Act of 2000'.''
Pub. L. 106-260, Sec. 1, Aug. 18, 2000, 114 Stat. 711, provided
that: ``This Act [enacting part E (Sec. 458aaa et seq.) of this
subchapter, amending sections 450f, 450j, and 450j-1 of this title,
enacting provisions set out as notes under sections 450f and 458aaa of
this title, and repealing provisions set out as a note under section
450f of this title] may be cited as the `Tribal Self-Governance
Amendments of 2000'.''
Short Title of 1994 Amendment
Pub. L. 103-413, Sec. 1, Oct. 25, 1994, 108 Stat. 4250, provided
that: ``This Act [enacting part D (Sec. 458aa et seq.) of this
subchapter and section 450l of this title, amending sections 450b, 450c,
450e, 450f, 450j to 450k, 450m, and 450m-1 of this title, and enacting
provisions set out as notes under this section and section 458aa of this
title] may be cited as the `Indian Self-Determination Act Amendments of
1994'.''
Pub. L. 103-413, title I, Sec. 101, Oct. 25, 1994, 108 Stat. 4250,
provided that: ``This title [enacting section 450l of this title and
amending sections 450b, 450c, 450e, 450f, 450j to 450k, 450m, and 450m-1
of this title] may be cited as the `Indian Self-Determination Contract
Reform Act of 1994'.''
Pub. L. 103-413, title II, Sec. 201, Oct. 25, 1994, 108 Stat. 4270,
provided that: ``This title [enacting part D (Sec. 458aa et seq.) of
this subchapter and provisions set out as notes under section 458aa of
this title] may be cited as the `Tribal Self-Governance Act of 1994'.''
Short Title of 1990 Amendment
Pub. L. 101-644, title II, Sec. 201, Nov. 29, 1990, 104 Stat. 4665,
provided that: ``This title [amending sections 450b, 450c, 450f, 450h,
450j, 450j-1, and 450k of this title and enacting provisions set out as
a note under section 450h of this title] may be cited as the `Indian
Self-Determination and Education Assistance Act Amendments of 1990'.''
Short Title of 1988 Amendment
Pub. L. 100-472, title I, Sec. 101, Oct. 5, 1988, 102 Stat. 2285,
provided that: ``This Act [enacting sections 450j-1 and 450m-1 of this
title, amending sections 13a, 450a to 450c, 450f to 450j, 450k, and 450n
of this title, sections 3371 and 3372 of Title 5, Government
Organization and Employees, sections 2004b and 4762 of Title 42, The
Public Health and Welfare, and section 456 of the Appendix to Title 50,
War and National Defense, transferring section 450l of this title to
section 450c(f) of this title, and enacting provisions set out as notes
under this section and section 450f of this title] may be cited as the
`Indian Self-Determination and Education Assistance Act Amendments of
1988'.''
Short Title
Section 1 of Pub. L. 93-638 provided: ``That this Act [enacting this
subchapter, section 13a of this title, and section 2004b of Title 42,
The Public Health and Welfare, amending section 3371 of Title 5,
Government Organization and Employees, section 4762 of Title 42, and
section 456 of Title 50, Appendix, War and National Defense, and
enacting provisions set out as notes under sections 450f, 455, and 457
of this title] may be cited as the `Indian Self-Determination and
Education Assistance Act'.''
Section 101 of title I of Pub. L. 93-638 provided that: ``This title
[enacting part A (Sec. 450f et seq.) of this subchapter and section
2004b of Title 42, The Public Health and Welfare, and amending section
3371 of Title 5, Government Organization and Employees, section 4762 of
Title 42, and section 456 of the Appendix to Title 50, War and National
Defense] may be cited as the `Indian Self-Determination Act'.''
Section 201 of title II of Pub. L. 93-638 provided that: ``This
title [enacting part C (Sec. 458 et seq.) of this subchapter, sections
455 to 457 of this title, and provisions set out as a note under section
457 of this title] may be cited as the `Indian Education Assistance
Act'.''
Savings Provisions
Pub. L. 100-472, title II, Sec. 210, Oct. 5, 1988, 102 Stat. 2298,
provided that: ``Nothing in this Act [see Short Title of 1988 Amendment
note above] shall be construed as--
``(1) affecting, modifying, diminishing, or otherwise impairing
the sovereign immunity from suit enjoyed by an Indian tribe; or
``(2) authorizing or requiring the termination of any existing
trust responsibility of the United States with respect to Indian
people.''
Severability
Pub. L. 100-472, title II, Sec. 211, Oct. 5, 1988, 102 Stat. 2298,
provided that: ``If any provision of this Act [see Short Title of 1988
Amendment note above] or the application thereof to any Indian tribe,
entity, person or circumstance is held invalid, neither the remainder of
this Act, nor the application of any provisions herein to other Indian
tribes, entities, persons, or circumstances, shall be affected
thereby.''
Executive Order No. 13084
Ex. Ord. No. 13084, May 14, 1998, 63 F.R. 27655, which provided for
agencies to establish regular and meaningful consultation and
collaboration with Indian tribal governments in the development of
regulatory practices on Federal matters that significantly or uniquely
affect their communities, to reduce the imposition of unfunded mandates
upon Indian tribal governments, and to streamline the application
process for and increase the availability of waivers to Indian tribal
governments, was revoked, effective 60 days after Nov. 6, 2000, by Ex.
Ord. No. 13175, Sec. 9(c), Nov. 6, 2000, 65 F.R. 67251, set out below.
Ex. Ord. No. 13175. Consultation and Coordination With Indian Tribal
Governments
Ex. Ord. No. 13175, Nov. 6, 2000, 65 F.R. 67249, provided:
By the authority vested in me as President by the Constitution and
the laws of the United States of America, and in order to establish
regular and meaningful consultation and collaboration with tribal
officials in the development of Federal policies that have tribal
implications, to strengthen the United States government-to-government
relationships with Indian tribes, and to reduce the imposition of
unfunded mandates upon Indian tribes; it is hereby ordered as follows:
Section 1. Definitions. For purposes of this order:
(a) ``Policies that have tribal implications'' refers to
regulations, legislative comments or proposed legislation, and other
policy statements or actions that have substantial direct effects on one
or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes.
(b) ``Indian tribe'' means an Indian or Alaska Native tribe, band,
nation, pueblo, village, or community that the Secretary of the Interior
acknowledges to exist as an Indian tribe pursuant to the Federally
Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a.
(c) ``Agency'' means any authority of the United States that is an
``agency'' under 44 U.S.C. 3502(1), other than those considered to be
independent regulatory agencies, as defined in 44 U.S.C. 3502(5).
(d) ``Tribal officials'' means elected or duly appointed officials
of Indian tribal governments or authorized intertribal organizations.
Sec. 2. Fundamental Principles. In formulating or implementing
policies that have tribal implications, agencies shall be guided by the
following fundamental principles:
(a) The United States has a unique legal relationship with Indian
tribal governments as set forth in the Constitution of the United
States, treaties, statutes, Executive Orders, and court decisions. Since
the formation of the Union, the United States has recognized Indian
tribes as domestic dependent nations under its protection. The Federal
Government has enacted numerous statutes and promulgated numerous
regulations that establish and define a trust relationship with Indian
tribes.
(b) Our Nation, under the law of the United States, in accordance
with treaties, statutes, Executive Orders, and judicial decisions, has
recognized the right of Indian tribes to self-government. As domestic
dependent nations, Indian tribes exercise inherent sovereign powers over
their members and territory. The United States continues to work with
Indian tribes on a government-to-government basis to address issues
concerning Indian tribal self-government, tribal trust resources, and
Indian tribal treaty and other rights.
(c) The United States recognizes the right of Indian tribes to self-
government and supports tribal sovereignty and self-determination.
Sec. 3. Policymaking Criteria. In addition to adhering to the
fundamental principles set forth in section 2, agencies shall adhere, to
the extent permitted by law, to the following criteria when formulating
and implementing policies that have tribal implications:
(a) Agencies shall respect Indian tribal self-government and
sovereignty, honor tribal treaty and other rights, and strive to meet
the responsibilities that arise from the unique legal relationship
between the Federal Government and Indian tribal governments.
(b) With respect to Federal statutes and regulations administered by
Indian tribal governments, the Federal Government shall grant Indian
tribal governments the maximum administrative discretion possible.
(c) When undertaking to formulate and implement policies that have
tribal implications, agencies shall:
(1) encourage Indian tribes to develop their own policies to achieve
program objectives;
(2) where possible, defer to Indian tribes to establish standards;
and
(3) in determining whether to establish Federal standards, consult
with tribal officials as to the need for Federal standards and any
alternatives that would limit the scope of Federal standards or
otherwise preserve the prerogatives and authority of Indian tribes.
Sec. 4. Special Requirements for Legislative Proposals. Agencies
shall not submit to the Congress legislation that would be inconsistent
with the policymaking criteria in Section 3.
Sec. 5. Consultation. (a) Each agency shall have an accountable
process to ensure meaningful and timely input by tribal officials in the
development of regulatory policies that have tribal implications. Within
30 days after the effective date of this order, the head of each agency
shall designate an official with principal responsibility for the
agency's implementation of this order. Within 60 days of the effective
date of this order, the designated official shall submit to the Office
of Management and Budget (OMB) a description of the agency's
consultation process.
(b) To the extent practicable and permitted by law, no agency shall
promulgate any regulation that has tribal implications, that imposes
substantial direct compliance costs on Indian tribal governments, and
that is not required by statute, unless:
(1) funds necessary to pay the direct costs incurred by the Indian
tribal government or the tribe in complying with the regulation are
provided by the Federal Government; or
(2) the agency, prior to the formal promulgation of the regulation,
(A) consulted with tribal officials early in the process of
developing the proposed regulation;
(B) in a separately identified portion of the preamble to the
regulation as it is to be issued in the Federal Register, provides
to the Director of OMB a tribal summary impact statement, which
consists of a description of the extent of the agency's prior
consultation with tribal officials, a summary of the nature of their
concerns and the agency's position supporting the need to issue the
regulation, and a statement of the extent to which the concerns of
tribal officials have been met; and
(C) makes available to the Director of OMB any written
communications submitted to the agency by tribal officials.
(c) To the extent practicable and permitted by law, no agency shall
promulgate any regulation that has tribal implications and that preempts
tribal law unless the agency, prior to the formal promulgation of the
regulation,
(1) consulted with tribal officials early in the process of
developing the proposed regulation;
(2) in a separately identified portion of the preamble to the
regulation as it is to be issued in the Federal Register, provides to
the Director of OMB a tribal summary impact statement, which consists of
a description of the extent of the agency's prior consultation with
tribal officials, a summary of the nature of their concerns and the
agency's position supporting the need to issue the regulation, and a
statement of the extent to which the concerns of tribal officials have
been met; and
(3) makes available to the Director of OMB any written
communications submitted to the agency by tribal officials.
(d) On issues relating to tribal self-government, tribal trust
resources, or Indian tribal treaty and other rights, each agency should
explore and, where appropriate, use consensual mechanisms for developing
regulations, including negotiated rulemaking.
Sec. 6. Increasing Flexibility for Indian Tribal Waivers.
(a) Agencies shall review the processes under which Indian tribes
apply for waivers of statutory and regulatory requirements and take
appropriate steps to streamline those processes.
(b) Each agency shall, to the extent practicable and permitted by
law, consider any application by an Indian tribe for a waiver of
statutory or regulatory requirements in connection with any program
administered by the agency with a general view toward increasing
opportunities for utilizing flexible policy approaches at the Indian
tribal level in cases in which the proposed waiver is consistent with
the applicable Federal policy objectives and is otherwise appropriate.
(c) Each agency shall, to the extent practicable and permitted by
law, render a decision upon a complete application for a waiver within
120 days of receipt of such application by the agency, or as otherwise
provided by law or regulation. If the application for waiver is not
granted, the agency shall provide the applicant with timely written
notice of the decision and the reasons therefor.
(d) This section applies only to statutory or regulatory
requirements that are discretionary and subject to waiver by the agency.
Sec. 7. Accountability.
(a) In transmitting any draft final regulation that has tribal
implications to OMB pursuant to Executive Order 12866 of September 30,
1993 [5 U.S.C. 601 note], each agency shall include a certification from
the official designated to ensure compliance with this order stating
that the requirements of this order have been met in a meaningful and
timely manner.
(b) In transmitting proposed legislation that has tribal
implications to OMB, each agency shall include a certification from the
official designated to ensure compliance with this order that all
relevant requirements of this order have been met.
(c) Within 180 days after the effective date of this order the
Director of OMB and the Assistant to the President for Intergovernmental
Affairs shall confer with tribal officials to ensure that this order is
being properly and effectively implemented.
Sec. 8. Independent Agencies. Independent regulatory agencies are
encouraged to comply with the provisions of this order.
Sec. 9. General Provisions. (a) This order shall supplement but not
supersede the requirements contained in Executive Order 12866
(Regulatory Planning and Review) [5 U.S.C. 601 note], Executive Order
12988 (Civil Justice Reform) [28 U.S.C. 519 note], OMB Circular A-19,
and the Executive Memorandum of April 29, 1994, on Government-to-
Government Relations with Native American Tribal Governments [set out
below].
(b) This order shall complement the consultation and waiver
provisions in sections 6 and 7 of Executive Order 13132 (Federalism) [5
U.S.C. 601 note].
(c) Executive Order 13084 (Consultation and Coordination with Indian
Tribal Governments) is revoked at the time this order takes effect.
(d) This order shall be effective 60 days after the date of this
order.
Sec. 10. Judicial Review. This order is intended only to improve the
internal management of the executive branch, and is not intended to
create any right, benefit, or trust responsibility, substantive or
procedural, enforceable at law by a party against the United States, its
agencies, or any person.
William J. Clinton.
Government-to-Government Relations With Native American Tribal
Governments
Memorandum of President of the United States, Apr. 29, 1994, 59 F.R.
22951, provided:
Memorandum for the Heads of Executive Departments and Agencies
The United States Government has a unique legal relationship with
Native American tribal governments as set forth in the Constitution of
the United States, treaties, statutes, and court decisions. As executive
departments and agencies undertake activities affecting Native American
tribal rights or trust resources, such activities should be implemented
in a knowledgeable, sensitive manner respectful of tribal sovereignty.
Today, as part of an historic meeting, I am outlining principles that
executive departments and agencies, including every component bureau and
office, are to follow in their interactions with Native American tribal
governments. The purpose of these principles is to clarify our
responsibility to ensure that the Federal Government operates within a
government-to-government relationship with federally recognized Native
American tribes. I am strongly committed to building a more effective
day-to-day working relationship reflecting respect for the rights of
self-government due the sovereign tribal governments.
In order to ensure that the rights of sovereign tribal governments
are fully respected, executive branch activities shall be guided by the
following:
(a) The head of each executive department and agency shall be
responsible for ensuring that the department or agency operates within a
government-to-government relationship with federally recognized tribal
governments.
(b) Each executive department and agency shall consult, to the
greatest extent practicable and to the extent permitted by law, with
tribal governments prior to taking actions that affect federally
recognized tribal governments. All such consultations are to be open and
candid so that all interested parties may evaluate for themselves the
potential impact of relevant proposals.
(c) Each executive department and agency shall assess the impact of
Federal Government plans, projects, programs, and activities on tribal
trust resources and assure that tribal government rights and concerns
are considered during the development of such plans, projects, programs,
and activities.
(d) Each executive department and agency shall take appropriate
steps to remove any procedural impediments to working directly and
effectively with tribal governments on activities that affect the trust
property and/or governmental rights of the tribes.
(e) Each executive department and agency shall work cooperatively
with other Federal departments and agencies to enlist their interest and
support in cooperative efforts, where appropriate, to accomplish the
goals of this memorandum.
(f) Each executive department and agency shall apply the
requirements of Executive Orders Nos. 12875 (``Enhancing the
Intergovernmental Partnership'') [former 5 U.S.C. 601 note] and 12866
(``Regulatory Planning and Review'') [5 U.S.C. 601 note] to design
solutions and tailor Federal programs, in appropriate circumstances, to
address specific or unique needs of tribal communities.
The head of each executive department and agency shall ensure that
the department or agency's bureaus and components are fully aware of
this memorandum, through publication or other means, and that they are
in compliance with its requirements.
This memorandum is intended only to improve the internal management
of the executive branch and is not intended to, and does not, create any
right to administrative or judicial review, or any other right or
benefit or trust responsibility, substantive or procedural, enforceable
by a party against the United States, its agencies or instrumentalities,
its officers or employees, or any other person.
The Director of the Office of Management and Budget is authorized
and directed to publish this memorandum in the Federal Register.
William J. Clinton.
