Notes on 25 U.S.C. § 450 : US Code - Notes

Search Notes on 25 U.S.C. § 450 : US Code - Notes

(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."
CONSULTATION WITH ALASKA NATIVE CORPORATIONS
Pub. L. 108-199, div. H, Sec. 161, Jan. 23, 2004, 118 Stat. 452,
as amended by Pub. L. 108-447, div. H, title V, Sec. 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 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.