List of Programs Eligible for Inclusion in Fiscal Year 2008 Funding Agreements to be Negotiated with Self-Governance Tribes

AGENCY:

Bureau of Reclamation, Interior.

ACTION:

Notice.

SUMMARY:

This notice lists programs or portions of programs that are eligible for inclusion in Fiscal Year 2008 funding agreements with self-governance tribes and lists programmatic targets pursuant to section 405(c)(4) of the Tribal Self-Governance Act.

DATES:

This notice expires on September 30, 2008.

ADDRESSES:

Inquiries or comments regarding this notice may be directed to Mr. Richard Ives, Director, Native American and International Affairs Office, Bureau of Reclamation (96-43200), 1849 C Street, NW., Mail Stop 7060-MIB, Washington, DC 20240; telephone 202-513-0625; fax 202-513-0311.

SUPPLEMENTARY INFORMATION:

I. Background

Title II of the Indian Self-Determination Act Amendments of 1994 (Pub. L. 103-413, the “Tribal Self-Governance Act” or the “Act”) instituted a permanent self-governance program at the Department of the Interior (DOI). Under the self-governance program certain programs, services, functions, and activities, or portions thereof, in DOI bureaus other than the Bureau of Indian Affairs (BIA) are eligible to be planned, conducted, consolidated, and administered by a self-governance tribal government.

Under section 405(c) of the Act, the Secretary of the Interior is required to publish annually: (1) A list of non-BIA programs, services, functions, and activities, or portions thereof, that are eligible for inclusion in agreements negotiated under the self-governance program; and (2) programmatic targets for these bureaus.

Under the Act, two categories of non-BIA programs are eligible for self-governance funding agreements:

(1) Under section 403(b)(2) of the Act, any non-BIA program, service, function or activity that is administered by DOI that is “otherwise available to Indian tribes or Indians,” can be administered by a tribal government through a self-governance funding agreement. The Department interprets this provision to authorize the inclusion of programs eligible for self-determination contracts under Title I of the Indian Self-Determination and Education Assistance Act (Pub. L. 93-638, as amended). Section 403(b)(2) also specifies “nothing in this subsection may be construed to provide any tribe with a preference with respect to the opportunity of the tribe to administer programs, services, functions and activities, or portions thereof, unless such preference is otherwise provided by law.”

(2) Under section 403(c) of the Act, the Secretary may include other programs, services, functions, and activities or portions thereof that are of “special geographic, historical, or cultural significance” to a self-governance tribe.

Under section 403(k) of the Act, funding agreements cannot include programs, services, functions, or activities that are inherently Federal or where the statute establishing the existing program does not authorize the type of participation sought by the tribe. However, a tribe (or tribes) need not be identified in the authorizing statutes in order for a program or element to be included in a self-governance funding agreement. While general legal and policy guidance regarding what constitutes an inherently Federal function exists, we will determine whether a specific function is inherently Federal on a case-by-case basis considering the totality of circumstances.

II. Eligible non-BIA Programs of the Bureau of Reclamation.

The mission of the Bureau of Reclamation (Reclamation) is to manage, develop, and protect water and related resources in an environmentally and economically sound manner in the interest of the American public. To this end, most of the Reclamation's activities involve the construction, operation and maintenance, and management of water resources projects and associated facilities, as well as research and development related to its responsibilities. Reclamation water resources projects provide water for municipal, residential, agricultural, and industrial water supplies; hydroelectric power generation; flood control; outdoor recreation; and enhancement of fish and wildlife habitats.

Components of the following water resource projects listed below may be eligible for inclusion in a self-governance funding agreement. This list was developed with consideration of the proximity of identified self-governance tribes to Reclamation projects.

1. Klamath Project, California and Oregon.

2. Trinity River Fishery, California.

3. Central Arizona Project, Arizona and New Mexico.

4. Rocky Boy's/North Central Montana Regional Water System, Montana.

5. Indian Water Rights Settlement Projects, as Congressionally authorized.

Reclamation also has some programs (e.g., drought relief) under which funding may be provided for specific tribal projects which qualify under the applicable program criteria, subject to available funding. When such projects are for the benefit of self-governance tribes, the projects, or portions thereof, may be eligible for inclusion in self-governance funding agreements.

Upon the request of a self-governance tribe, Reclamation will also consider for inclusion in funding agreements, other programs or activities which Reclamation determines to be eligible under Section 403(b)(2) or 403(c) of the Act.

III. Programmatic Targets

During Fiscal Year 2008, upon request of a self-governance tribe, Reclamation will negotiate funding agreements for its eligible programs beyond those already negotiated.