§ 5301. Congressional statement of findings

§ 5301. 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, § 2, Jan. 4, 1975, 88 Stat. 2203.)

Editorial Notes

Codification

Section was formerly classified to section 450 of this title prior to editorial reclassification and renumbering as this section.

Statutory Notes and Related Subsidiaries

Short Title of 2020 Amendment

Pub. L. 116–260, div. DD, § 1, Dec. 27, 2020, 134 Stat. 3008, provided that: “This division [amending section 5363 of this title and repealing in part and omitting in part section 671 of Title 16, Conservation] may be cited as the ‘Montana Water Rights Protection Act’.”

Pub. L. 116–180, § 1(a), Oct. 21, 2020, 134 Stat. 857, provided that: “This Act [enacting sections 5364 to 5377 of this title, amending sections 5304, 5305, 5321, 5324, 5325, 5329, and 5361 to 5363 of this title, repealing sections 5364 to 5368 of this title, and enacting provisions set out as notes under sections 5305 and 5361 of this title] may be cited as the ‘Practical Reforms and Other Goals To Reinforce the Effectiveness of Self-Governance and Self-Determination for Indian Tribes Act of 2019’ or the ‘PROGRESS for Indian Tribes Act’.”

Short Title of 2018 Amendment

Pub. L. 115–404, § 1, Dec. 31, 2018, 132 Stat. 5349, provided that: “This Act [enacting section 5348 of this title] may be cited as the ‘Johnson-O’Malley Supplemental Indian Education Program Modernization Act’.”

Short Title of 2000 Amendment

Pub. L. 106–568, title VIII, § 801, Dec. 27, 2000, 114 Stat. 2916, provided that: “This title [see Tables for classification] may be cited as the ‘Native American Laws Technical Corrections Act of 2000’.”

Pub. L. 106–568, title XIII, § 1301, Dec. 27, 2000, 114 Stat. 2936, provided that: “This title [enacting subchapter VII of this chapter] may be cited as the ‘American Indian Education Foundation Act of 2000’.”

Pub. L. 106–260, § 1, Aug. 18, 2000, 114 Stat. 711, provided that: “This Act [see Tables for classification] may be cited as the ‘Tribal Self-Governance Amendments of 2000’.”

Short Title of 1994 Amendment

Pub. L. 103–413, § 1, Oct. 25, 1994, 108 Stat. 4250, provided that: “This Act [see Tables for classification] may be cited as the ‘Indian Self-Determination Act Amendments of 1994’.”

Pub. L. 103–413, title I, § 101, Oct. 25, 1994, 108 Stat. 4250, provided that: “This title [see Tables for classification] may be cited as the ‘Indian Self-Determination Contract Reform Act of 1994’.”

Pub. L. 103–413, title II, § 201, Oct. 25, 1994, 108 Stat. 4270, provided that: “This title [enacting subchapter IV (§ 5361 et seq.) of this chapter and provisions set out as notes under section 5361 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, § 201, Nov. 29, 1990, 104 Stat. 4665, provided that: “This title [see Tables for classification] 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, § 101, Oct. 5, 1988, 102 Stat. 2285, provided that: “This Act [see Tables for classification] may be cited as the ‘Indian Self-Determination and Education Assistance Act Amendments of 1988’.”

Short Title

Pub. L. 93–638, § 1, Jan. 4, 1975, 88 Stat. 2203, provided: “That this Act [enacting this chapter, section 13a of this title, 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 3806 of Title 50, War and National Defense] may be cited as the ‘Indian Self-Determination and Education Assistance Act’.”

Pub. L. 93–638, title I, § 101, Jan. 4, 1975, 88 Stat. 2206, provided that: “This title [enacting subchapter I (§ 5321 et seq.) of this chapter 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 3806 of Title 50, War and National Defense] may be cited as the ‘Indian Self-Determination Act’.”

Pub. L. 93–638, title II, § 201, Jan. 4, 1975, 88 Stat. 2213, provided that: “This title [enacting subchapter III (§ 5351 et seq.) of this chapter, sections 5345 to 5347 of this title, and provisions set out as a note under section 5347 of this title] may be cited as the ‘Indian Education Assistance Act’.”

Act April 16, 1934, ch. 147, 48 Stat. 596, which enacted sections 5342 to 5348 of this title, is popularly known as the “Johnson-O’Malley Act”.

Savings Provisions

Pub. L. 100–472, title II, § 210, Oct. 5, 1988, 102 Stat. 2298, provided that: “Nothing in this Act [see Tables for classification] 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, § 211, Oct. 5, 1988, 102 Stat. 2298, provided that: “If any provision of this Act [see Tables for classification] 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.”

Consultation With Alaska Native Corporations

Pub. L. 108–199, div. H, § 161, Jan. 23, 2004, 118 Stat. 452, as amended by Pub. L. 108–447, div. H, title V, § 518, Dec. 8, 2004, 118 Stat. 3267, provided that: “The Director of the Office of Management and Budget and all Federal agencies shall hereafter consult with Alaska Native corporations on the same basis as Indian tribes under Executive Order No. 13175 [set out below].”

Executive Documents

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 [now 25 U.S.C. 5130].

(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.