[House Report 111-603]
[From the U.S. Government Publishing Office]
111th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 111-603
======================================================================
DEPARTMENT OF THE INTERIOR TRIBAL SELF-GOVERNANCE ACT OF 2010
_______
September 16, 2010.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Rahall, from the Committee on Natural Resources, submitted the
following
R E P O R T
[To accompany H.R. 4347]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred the
bill (H.R. 4347) to amend the Indian Self-Determination and
Education Assistance Act to provide further self-governance by
Indian tribes, and for other purposes, having considered the
same, report favorably thereon with an amendment and recommend
that the bill as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Department of the
Interior Tribal Self-Governance Act of 2010''.
(b) Table of Contents.--The table of contents of this Act is as
follows:
Sec. 1. Short title; table of contents.
TITLE I--INDIAN SELF-DETERMINATION
Sec. 101. Definitions; reporting and audit requirements; application of
provisions.
Sec. 102. Contracts by Secretary of Interior.
Sec. 103. Administrative provisions.
Sec. 104. Contract funding and indirect costs.
Sec. 105. Contract or grant specifications.
TITLE II--TRIBAL SELF-GOVERNANCE
Sec. 201. Tribal self-governance.
TITLE I--INDIAN SELF-DETERMINATION
SEC. 101. DEFINITIONS; REPORTING AND AUDIT REQUIREMENTS; APPLICATION OF
PROVISIONS.
(a) Definitions.--Section 4 of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450b) is amended by striking
subsection (j) and inserting the following:
``(j) `self-determination contract' means a contract entered
into (or a grant or cooperative agreement used under section 9)
under title I between a tribal organization and the appropriate
Secretary for the planning, conduct, and administration of
programs or services that are otherwise provided to Indian
tribes and members of Indian tribes pursuant to Federal law,
subject to the condition that, except as provided in section
105(a)(3), no contract entered into (or grant or cooperative
agreement used under section 9) under title I shall be--
``(1) considered to be a procurement contract; or
``(2) subject to any Federal procurement law (including
regulations);''.
(b) Reporting and Audit Requirements.--Section 5(b) of the Indian
Self-Determination and Education Assistance Act (25 U.S.C. 450c(b)) is
amended by striking ``after completion of the project or undertaking
referred to in the preceding subsection of this section'' and inserting
``after the date on which a report is submitted to the Secretary under
subsection (a)''.
(c) Application of Other Provisions.--Sections 4, 5, 6, 7, 102(c),
104, 105(a)(1), 105(f), 110 and 111 of the Indian Self-Determination
and Education Assistance Act, as amended (25 U.S.C. 450 et seq.)
(Public Law 93-638, as amended, 88 Stat. 2203) and section 314 of the
Department of the Interior and Related Agencies Appropriations Act,
1991 (Public Law 101-512; 104 Stat. 1959), apply to compacts and
funding agreements entered into under title IV.
SEC. 102. CONTRACTS BY SECRETARY OF INTERIOR.
Section 102 of the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 450f) is amended--
(1) in subsection (c)(2), by striking ``economic
enterprises'' and all that follows through ``except that'' and
inserting ``economic enterprises (as defined in section 3 of
the Indian Financing Act of 1974 (25 U.S.C. 1452)), except
that'';
(2) by striking subsection (e) and inserting the following:
``(e) Appeals.--In any appeal (including civil actions) involving
decisions made by the Secretary under this title, the Secretary shall
have the burden of proof of demonstrating, by a preponderance of the
evidence--
``(1) the validity of the grounds for the decision made; and
``(2) that the decision is fully consistent with the
provisions and policies of this title.''; and
(3) by adding at the end the following:
``(f) Good Faith Requirement.--In the negotiation of compacts and
funding agreements, the Secretary shall at all times negotiate in good
faith to maximize implementation of the self-governance policy. The
Secretary shall carry out this title in a manner that maximizes the
policy of tribal self-governance, in a manner consistent with the
purposes specified in section 3 of the Tribal Self-Governance
Amendments of 2000 (Public Law 106-260; 25 U.S.C. 458aaa note).''.
SEC. 103. ADMINISTRATIVE PROVISIONS.
Section 105 of the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 450j) is amended--
(1) in subsection (b) in the first sentence, by striking
``pursuant to'' and all that follows through ``of this Act''
and inserting ``pursuant to sections 102 and 103'';
(2) by striking subsection (j) and inserting the following:
``(j) Redesign and Consolidation.--If an Indian tribe can
demonstrate, for the previous three fiscal years, the financial
stability and financial management capability as evidenced by the
Indian tribe having no material audit exceptions in the required annual
audit of the self-determination contracts of the Indian tribe, then the
Indian tribe may redesign or consolidate programs, services, functions,
and activities (or portions thereof) included in a funding agreement
under this title and reallocate or redirect funds for such programs,
services, functions, and activities (or portions thereof) that are
eligible to be included in Consolidated Tribal Government Programs in
any manner that the Indian tribe determines to be in the best interest
of the health and welfare of the Indian community being served, only if
the redesign or consolidation does not have the effect of denying
eligibility for services to population groups otherwise eligible to be
served under applicable Federal law.''; and
(3) by adding at the end the following:
``(p) Interpretation by Secretary.--Except as otherwise provided by
law, the Secretary shall interpret all Federal laws (including
regulations) and Executive orders in a manner that facilitates, to the
maximum extent practicable--
``(1) the inclusion in self-determination contracts and
funding agreements of--
``(A) applicable programs, services, functions, and
activities (or portions thereof); and
``(B) funds associated with those programs, services,
functions, and activities;
``(2) the implementation of self-determination contracts and
funding agreements; and
``(3) the achievement of tribal health objectives.''.
SEC. 104. CONTRACT FUNDING AND INDIRECT COSTS.
Section 106(a)(3)(A) of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450j-1(a)(3)(A)) is amended--
(1) in clause (i), by striking ``, and'' at the end and
inserting a semicolon;
(2) in clause (ii), by striking ``expense related to the
overhead incurred'' and inserting in lieu thereof ``expenses
incurred by the governing body of the Indian tribe or tribal
organization and overhead incurred'';
(3) in clause (ii), by striking the comma at the end and
inserting ``; and''; and
(4) by inserting after clause (ii) the following:
``(iii) not less than 50 percent of the expenses incurred by
the governing body of a Indian tribe or tribal organization
relating to a Federal program, function, service, or activity
pursuant to the contract (which expenses shall be considered to
be reasonable and allowable without documentation for the
purpose of this paragraph), except that in the case of a Indian
tribe or tribal organization which derives all or substantially
all of its program revenue from other governments or
organizations, not less than 100 percent of such expenses shall
be considered to be reasonable and allowable without
documentation.''.
SEC. 105. CONTRACT OR GRANT SPECIFICATIONS.
Section 108 of the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 450l) is amended--
(1) in subsection (a)(2), by inserting ``subject to
subsections (a) and (b) of section 102,'' before ``contain'';
and
(2) in subsection (f)(2)(A)(ii) of the model agreement
contained in subsection (c), by inserting ``subject to
subsections (a) and (b) of section 102 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450f),''
before ``such other provisions''.
TITLE II--TRIBAL SELF-GOVERNANCE
SEC. 201. TRIBAL SELF-GOVERNANCE.
Title IV of the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 450 et seq.) is amended to read as follows:
``TITLE IV--TRIBAL SELF-GOVERNANCE
``SEC. 401. DEFINITIONS.
``In this title:
``(1) Compact.--The term `compact' means a self-governance
compact entered into under section 404.
``(2) Construction program.--The term `construction program'
or `construction project' means a tribal undertaking relating
to the administration, planning, environmental determination,
design, construction, repair, improvement, or expansion of
roads, bridges, buildings, structures, systems, or other
facilities for purposes of housing, law enforcement, detention,
sanitation, water supply, education, administration, community,
health, irrigation, agriculture, conservation, flood control,
transportation, or port facilities, or for other tribal
purposes.
``(3) Department.--The term `Department' means the Department
of the Interior.
``(4) Funding agreement.--The term `funding agreement' means
a funding agreement entered into under section 405.
``(5) Gross mismanagement.--The term `gross mismanagement'
means a significant violation, shown by a preponderance of the
evidence, of a compact, funding agreement, or statutory or
regulatory requirement applicable to Federal funds--
``(A) for a program administered by an Indian tribe;
or
``(B) under a compact or funding agreement that
results in a significant reduction of funds available
for the programs assumed by an Indian tribe.
``(6) Program.--The term `program' means any program,
function, service, or activity (or portion thereof) within the
Department of the Interior that is included in a funding
agreement.
``(7) Inherent federal function.--The term `inherent Federal
function' means a Federal function that may not legally be
delegated to an Indian tribe.
``(8) Secretary.--The term `Secretary' means the Secretary of
the Interior.
``(9) Self-governance.--The term `self-governance' means the
program of self-governance established under section 402.
``(10) Tribal share.--The term `tribal share' means an Indian
tribe's portion of all funds and resources that support any
program within the Bureau of Indian Affairs, the Office of
Special Trustee, and the Office of the Assistant Secretary for
Indian Affairs and that are not required by the Secretary for
the performance of an inherent Federal function.
``SEC. 402. ESTABLISHMENT.
``The Secretary shall carry out a program within the Department to be
known as the `Tribal Self-Governance Program'.
``SEC. 403. SELECTION OF PARTICIPATING INDIAN TRIBES.
``(a) In General.--
``(1) Participants.--
``(A) The Secretary, acting through the Director of
the Office of Self-Governance, may select up to 50 new
Indian tribes per year from those eligible under
subsection (b) to participate in self-governance.
``(B) If each Indian tribe requests, two or more
otherwise eligible Indian tribes may be treated as a
single Indian tribe for the purpose of participating in
self-governance.
``(2) Other authorized indian tribe or tribal organization.--
If an Indian tribe authorizes another Indian tribe or a tribal
organization to plan for or carry out a program on its behalf
under this title, the authorized Indian tribe or tribal
organization shall have the rights and responsibilities of the
authorizing Indian tribe (except as otherwise provided in the
authorizing resolution).
``(3) Joint participation.--Two or more Indian tribes that
are not otherwise eligible under subsection (b) may be treated
as a single Indian tribe for the purpose of participating in
self-governance as a tribal organization if--
``(A) each Indian tribe so requests; and
``(B) the tribal organization itself or at least one
of the Indian tribes participating in the tribal
organization is eligible under subsection (b).
``(4) Tribal withdrawal from a tribal organization.--
``(A) In general.--An Indian tribe that withdraws
from participation in a tribal organization, in whole
or in part, shall be entitled to participate in self-
governance if the Indian tribe is eligible under
subsection (b).
``(B) Effect of withdrawal.--If an Indian tribe
withdraws from participation in a tribal organization,
the Indian tribe shall be entitled to its tribal share
of funds and resources supporting the programs that the
Indian tribe is entitled to carry out under the compact
and funding agreement of the Indian tribe.
``(C) Participation in self-governance.--The
withdrawal of an Indian tribe from a tribal
organization shall not affect the eligibility of the
tribal organization to participate in self-governance
on behalf of one or more other Indian tribes provided
that the tribal organization still qualifies under
subsection (b).
``(D) Withdrawal process.--
``(i) In general.--An Indian tribe may, by
tribal resolution, fully or partially withdraw
its tribal share of any program in a funding
agreement from a participating tribal
organization. The Indian tribe shall provide a
copy of the tribal resolution to the Secretary.
``(ii) Effective date.--
``(I) In general.--A withdrawal under
clause (i) shall become effective on
the date specified in the tribal
resolution and that is mutually agreed
upon by the Secretary, the withdrawing
Indian tribe, and the tribal
organization that signed the compact
and funding agreement on behalf of the
withdrawing Indian tribe or tribal
organization.
``(II) No specified date.--In the
absence of a date specified in the
resolution, the withdrawal shall become
effective on--
``(aa) the earlier of--
``(AA) 1 year after
the date of submission
of the request; or
``(BB) the date on
which the funding
agreement expires; or
``(bb) such date as may be
mutually agreed upon by the
Secretary, the withdrawing
Indian tribe, and the tribal
organization that signed the
compact and funding agreement
on behalf of the withdrawing
Indian tribe or tribal
organization.
``(E) Distribution of funds.--If an Indian tribe or
tribal organization eligible to enter into a self-
determination contract under title I or a compact or
funding agreement under this title fully or partially
withdraws from a participating tribal organization, the
withdrawing Indian tribe--
``(i) may elect to enter a self-determination
contract or compact, in which case--
``(I) the withdrawing Indian tribe or
tribal organization shall be entitled
to its tribal share of unexpended funds
and resources supporting the programs
that the Indian tribe will be carrying
out under its own self-determination
contract or compact and funding
agreement (calculated on the same basis
as the funds were initially allocated
to the funding agreement of the tribal
organization); and
``(II) the funds referred to in
subclause (I) shall be withdrawn by the
Secretary from the funding agreement of
the tribal organization and transferred
to the withdrawing Indian tribe, on the
condition that the provisions of
sections 102 and 105(i), as
appropriate, shall apply to the
withdrawing Indian tribe; or
``(ii) may elect not to enter a self-
determination contract or compact, in which
case all funds not obligated by the tribal
organization associated with the withdrawing
Indian tribe's returned programs, less close-
out costs, shall be returned by the tribal
organization to the Secretary for operation of
the programs included in the withdrawal.
``(F) Return to mature contract status.--If an Indian
tribe elects to operate all or some programs carried
out under a compact or funding agreement under this
title through a self-determination contract under title
I, at the option of the Indian tribe, the resulting
self-determination contract shall be a mature self-
determination contract as long as the Indian tribe
meets the requirements set forth in section 4(h) of
this Act.
``(b) Eligibility.--To be eligible to participate in self-governance,
an Indian tribe shall--
``(1) successfully complete the planning phase described in
subsection (c);
``(2) request participation in self-governance by resolution
or other official action by the tribal governing body; and
``(3) demonstrate, for the 3 fiscal years preceding the date
on which the Indian tribe requests participation, financial
stability and financial management capability as evidenced by
the Indian tribe having no uncorrected significant and material
audit exceptions in the required annual audit of its self-
determination or self-governance agreements with any Federal
agency.
``(c) Planning Phase.--
``(1) In general.--An Indian tribe seeking to begin
participation in self-governance shall complete a planning
phase in accordance with this subsection.
``(2) Activities.--The planning phase--
``(A) shall be conducted to the satisfaction of the
Indian tribe; and
``(B) shall include--
``(i) legal and budgetary research; and
``(ii) internal tribal government planning
and organizational preparation.
``(d) Grants.--
``(1) In general.--Subject to the availability of
appropriations, an Indian tribe or tribal organization that
meets the requirements of paragraphs (2) and (3) of subsection
(b) shall be eligible for grants--
``(A) to plan for participation in self-governance;
and
``(B) to negotiate the terms of participation by the
Indian tribe or tribal organization in self-governance,
as set forth in a compact and a funding agreement.
``(2) Receipt of grant not required.--Receipt of a grant
under paragraph (1) shall not be a requirement of participation
in self-governance.
``SEC. 404. COMPACTS.
``(a) In General.--The Secretary shall negotiate and enter into a
written compact with each Indian tribe participating in self-governance
in a manner consistent with the trust responsibility of the Federal
Government, treaty obligations, and the government-to-government
relationship between Indian tribes and the United States.
``(b) Contents.--A compact under subsection (a) shall--
``(1) specify and affirm the general terms of the government-
to-government relationship between the Indian tribe and the
Secretary; and
``(2) include such terms as the parties intend shall control
during the term of the compact.
``(c) Amendment.--A compact under subsection (a) may be amended only
by agreement of the parties.
``(d) Effective Date.--The effective date of a compact under
subsection (a) shall be--
``(1) the date of the execution of the compact by the
parties; or
``(2) another date agreed upon by the parties.
``(e) Duration.--A compact under subsection (a) shall remain in
effect for so long as permitted by Federal law or until termination by
written agreement, retrocession, or reassumption.
``(f) Existing Compacts.--An Indian tribe participating in self-
governance under this title, as in effect on the date of the enactment
of the Department of the Interior Tribal Self-Governance Act of 2010,
shall have the option at any time after that date--
``(1) to retain its negotiated compact (in whole or in part)
to the extent that the provisions of the compact are not
directly contrary to any express provision of this title; or
``(2) to negotiate a new compact in a manner consistent with
this title.
``SEC. 405. FUNDING AGREEMENTS.
``(a) In General.--The Secretary shall negotiate and enter into a
written funding agreement with the governing body of an Indian tribe or
tribal organization in a manner consistent with the trust
responsibility of the Federal Government, treaty obligations, and the
government-to-government relationship between Indian tribes and the
United States.
``(b) Included Programs.--
``(1) Bureau of indian affairs and office of special
trustee.--
``(A) In general.--A funding agreement shall, as
determined by the Indian tribe, authorize the Indian
tribe to plan, conduct, consolidate, administer, and
receive full tribal share funding for all programs
carried out by the Bureau of Indian Affairs, the Office
of the Assistant Secretary for Indian Affairs, and the
Office of Special Trustee, without regard to the agency
or office within which the program is performed
(including funding for agency, area, and central office
functions in accordance with subsection 409(c)), that--
``(i) are provided for in the Act of April
16, 1934 (25 U.S.C. 452 et seq.);
``(ii) the Secretary administers for the
benefit of Indians under the Act of November 2,
1921 (25 U.S.C. 13), or any subsequent Act;
``(iii) the Secretary administers for the
benefit of Indians with appropriations made to
agencies other than the Department of the
Interior; or
``(iv) are provided for the benefit of
Indians because of their status as Indians.
``(B) Inclusions.--Programs described in subparagraph
(A) shall include all programs with respect to which
Indian tribes or Indians are primary or significant
beneficiaries.
``(2) Discretionary programs of special significance.--A
funding agreement under subsection (a) may, in accordance with
such additional terms as the parties consider to be
appropriate, include programs, services, functions, and
activities (or portions thereof), administered by the
Secretary, in addition to programs described in paragraphs (1)
and (3), that are of special geographic, historical, or
cultural significance to the Indian tribe. Such agreements,
including the additional terms, shall be governed by the
provisions of this title, except that, subject to the
discretion of the Secretary--
``(A) the Indian tribe may have reallocation,
consolidation, and redesign authority over any program
assumed under this paragraph (2);
``(B) the Secretary may reassume any program and
associated funding assumed under this paragraph (2)
upon a specific finding by the Secretary of a gross
violation by the Indian tribe of the terms of the
funding agreement;
``(C) the Secretary may require special terms and
conditions regarding a construction program or project
assumed under this paragraph (2) notwithstanding the
provisions of section 408;
``(D) all Federal regulations that otherwise govern
the operation of any program assumed under this
paragraph (2) apply to the Indian tribe unless a
specific regulation is waived by the Secretary under
the procedures set forth in section 410(b)(2), which
waiver request may be denied upon a specific finding by
the Secretary that the waiver is prohibited by Federal
law or is inconsistent with the express provisions of
the funding agreement; and
``(E) a stable base budget, as described in paragraph
(7), may be provided for any program assumed under this
paragraph (2).
``(3) Programs otherwise available.--A funding agreement
shall, as determined by the Indian tribe, authorize the Indian
tribe to plan, conduct, consolidate, administer, and receive
full tribal share funding for any program administered by the
Department of the Interior other than through the Bureau of
Indian Affairs, the Office of the Assistant Secretary for
Indian Affairs, or the Office of the Special Trustee, that is
otherwise available to Indian tribes or Indians under section
102 of this Act.
``(4) Competitive bidding.--Nothing in this section--
``(A) supersedes any express statutory requirement
for competitive bidding; or
``(B) prohibits the inclusion in a funding agreement
of a program in which non-Indians have an incidental or
legally identifiable interest.
``(5) Excluded funding.--A funding agreement shall not
authorize an Indian tribe to plan, conduct, administer, or
receive tribal share funding under any program that--
``(A) is provided under the Tribally Controlled
College or University Assistance Act of 1978 (25 U.S.C.
1801 et seq.); and
``(B) is provided for elementary and secondary
schools under the formula developed under section 1127
of the Education Amendments of 1978 (25 U.S.C. 2007).
``(6) Services, functions, and responsibilities.--A funding
agreement shall specify--
``(A) the services to be provided under the funding
agreement;
``(B) the functions to be performed under the funding
agreement; and
``(C) the responsibilities of the Indian tribe and
the Secretary under the funding agreement.
``(7) Base budget.--A funding agreement pursuant to
subsections (b)(1) and (b)(3) shall, at the option of the
Indian tribe, provide for a stable base budget specifying the
recurring funds (including funds available under section
106(a)) to be transferred to the Indian tribe, for such period
as the Indian tribe specifies in the funding agreement, subject
to annual adjustment only to reflect changes in congressional
appropriations. Upon agreement by the Secretary, a funding
agreement under subsection (b)(2) may also provide for a stable
base budget subject to the terms of this provision.
``(8) No waiver of trust responsibility.--A funding agreement
shall prohibit the Secretary from waiving, modifying, or
diminishing in any way the trust responsibility of the United
States with respect to Indian tribes and individual Indians
that exists under treaties, Executive orders, court decisions,
and other laws.
``(c) Amendment.--The Secretary shall not revise, amend, or require
additional terms in a new or subsequent funding agreement without the
consent of the Indian tribe, unless such terms are required by Federal
law.
``(d) Effective Date.--A funding agreement shall become effective on
the date specified in the funding agreement.
``(e) Existing and Subsequent Funding Agreements.--
``(1) Subsequent funding agreements.--Absent notification
from an Indian tribe that it is withdrawing or retroceding the
operation of one or more programs identified in a funding
agreement under subsections (b)(1) or (b)(3), or unless
otherwise agreed to by the parties to the funding agreement--
``(A) a funding agreement shall remain in full force
and effect until a subsequent funding agreement is
executed, with funding paid annually for each fiscal
year the agreement is in effect or by the nature of any
noncontinuing program, services, functions, or
activities contained in a funding agreement; and
``(B) the term of the subsequent funding agreement
shall be retroactive to the end of the term of the
preceding funding agreement for the purposes of
calculating the amount of funding to which the Indian
tribe is entitled.
``(2) Disputes.--Disputes over the implementation of
paragraph (1)(A) shall be subject to section 407(c).
``(3) Existing funding agreements.--An Indian tribe that was
participating in self-governance under this title on the date
of enactment of the Department of the Interior Tribal Self-
Governance Act of 2010 shall have the option at any time after
that date--
``(A) to retain its existing funding agreement (in
whole or in part) to the extent that the provisions of
that funding agreement are not directly contrary to any
express provision of this title; or
``(B) to negotiate a new funding agreement in a
manner consistent with this title.
``(4) Multiyear funding agreements.--An Indian tribe may, at
the discretion of the Indian tribe, negotiate with the
Secretary for a funding agreement with a term that exceeds one
year.
``SEC. 406. GENERAL PROVISIONS.
``(a) Applicability.--An Indian tribe and the Secretary shall include
in any compact or funding agreement provisions that reflect the
requirements of this title.
``(b) Conflicts of Interest.--An Indian tribe participating in self-
governance shall ensure that internal measures are in place to address,
pursuant to tribal law and procedures, conflicts of interest in the
administration of programs.
``(c) Audits.--
``(1) Single agency audit act.--Chapter 75 of title 31,
United States Code, shall apply to a funding agreement under
this title.
``(2) Cost principles.--An Indian tribe shall apply cost
principles under the applicable Office of Management and Budget
circular, except as modified by--
``(A) any provision of law, including section 106 of
this Act; or
``(B) any exemptions to applicable Office of
Management and Budget circulars subsequently granted by
the Office of Management and Budget.
``(3) Federal claims.--Any claim by the Federal Government
against the Indian tribe relating to funds received under a
funding agreement based on any audit under this subsection
shall be subject to the provisions of section 106(f).
``(d) Redesign and Consolidation.--An Indian tribe may redesign or
consolidate programs or reallocate funds for programs in any manner
that the Indian tribe deems to be in the best interest of the Indian
community being served, so long as the redesign or consolidation does
not have the effect of denying eligibility for services to population
groups otherwise eligible to be served under applicable Federal law,
except that, with respect to the reallocation, consolidation, and
redesign of programs described in section 405(b)(2), a joint agreement
between the Secretary and the Indian tribe shall be required.
``(e) Retrocession.--
``(1) In general.--An Indian tribe may fully or partially
retrocede to the Secretary any program under a compact or
funding agreement.
``(2) Effective date.--
``(A) Agreement.--Unless the Indian tribe rescinds
the request for retrocession, such retrocession shall
become effective on the date specified by the parties
in the compact or funding agreement.
``(B) No agreement.--In the absence of a
specification of an effective date in the compact or
funding agreement, the retrocession shall become
effective on--
``(i) the earlier of--
``(I) one year after the date of
submission of such request; or
``(II) the date on which the funding
agreement expires; or
``(ii) such date as may be mutually agreed
upon by the Secretary and the Indian tribe.
``(f) Nonduplication.--A funding agreement shall provide that, for
the period for which, and to the extent to which, funding is provided
to an Indian tribe under this title, the Indian tribe--
``(1) shall not be entitled to contract with the Secretary
for funds under section 102, except that such Indian tribe
shall be eligible for new programs on the same basis as other
Indian tribes; and
``(2) shall be responsible for the administration of programs
in accordance with the compact or funding agreement.
``(g) Records.--
``(1) In general.--Unless an Indian tribe specifies otherwise
in the compact or funding agreement, records of an Indian tribe
shall not be considered Federal records for purposes of chapter
5 of title 5, United States Code.
``(2) Recordkeeping system.--An Indian tribe shall--
``(A) maintain a recordkeeping system; and
``(B) on 30 days' notice, provide the Secretary with
reasonable access to the records to enable the
Department to meet the requirements of sections 3101
through 3106 of title 44, United States Code.
``SEC. 407. PROVISIONS RELATED TO THE SECRETARY.
``(a) Trust Evaluations.--A funding agreement shall include a
provision to monitor the performance of trust functions by the Indian
tribe through the annual trust evaluation.
``(b) Reassumption.--
``(1) In general.--A compact or funding agreement shall
include provisions for the Secretary to reassume a program and
associated funding if there is a specific finding relating to
that program of--
``(A) imminent jeopardy to a trust asset, natural
resources, or public health and safety that--
``(i) is caused by an act or omission of the
Indian tribe; and
``(ii) arises out of a failure to carry out
the compact or funding agreement; or
``(B) gross mismanagement with respect to funds
transferred to an Indian tribe under a compact or
funding agreement, as determined by the Secretary in
consultation with the Inspector General, as
appropriate.
``(2) Prohibition.--The Secretary shall not reassume
operation of a program in whole or part unless--
``(A) the Secretary first provides written notice and
a hearing on the record to the Indian tribe; and
``(B) the Indian tribe does not take corrective
action to remedy the mismanagement of the funds or
programs, or the imminent jeopardy to a trust asset,
natural resource, or public health and safety.
``(3) Exception.--
``(A) In general.--Notwithstanding paragraph (2), the
Secretary may, on written notice to the Indian tribe,
immediately reassume operation of a program if--
``(i) the Secretary makes a finding of both
imminent and substantial jeopardy and
irreparable harm to a trust asset, a natural
resource, or the public health and safety
caused by an act or omission of the Indian
tribe; and
``(ii) the imminent and substantial jeopardy,
and irreparable harm to the trust asset,
natural resource, or public health and safety
arises out of a failure by the Indian tribe to
carry out the terms of its compact or funding
agreement.
``(B) Reassumption.--If the Secretary reassumes
operation of a program under subparagraph (A), the
Secretary shall provide the Indian tribe with a hearing
on the record not later than 10 days after the date of
reassumption.
``(c) Inability to Agree on Compact or Funding Agreement.--
``(1) Final offer.--If the Secretary and a participating
Indian tribe are unable to agree, in whole or in part, on the
terms of a compact or funding agreement (including funding
levels), the Indian tribe may submit a final offer to the
Secretary.
``(2) Determination.--Not more than 45 days after the date of
submission of a final offer, or as otherwise agreed to by the
Indian tribe, the Secretary shall review and make a
determination with respect to the final offer.
``(3) No timely determination.--If the Secretary fails to
make a determination with respect to a final offer within the
time specified in paragraph (2), the Secretary shall be deemed
to have agreed to the offer.
``(4) Rejection of final offer.--
``(A) In general.--If the Secretary rejects a final
offer (or one or more provisions or funding levels in a
final offer), the Secretary shall--
``(i) provide timely written notification to
the Indian tribe that contains a specific
finding that clearly demonstrates, or that is
supported by a controlling legal authority,
that--
``(I) the amount of funds proposed in
the final offer exceeds the applicable
funding level to which the Indian tribe
is entitled under this title because it
would reduce the funds that any other
Indian tribe or tribal organization is
entitled to receive under Federal law;
``(II) the program that is the
subject of the final offer is an
inherent Federal function or is subject
to the discretion of the Secretary
under section 405(b)(2);
``(III) the Indian tribe cannot carry
out the program in a manner that would
not result in significant danger or
risk to the public health;
``(IV) the Indian tribe is not
eligible to participate in self-
governance under section 403(b); or
``(V) the funding agreement would
violate Federal statute or regulation;
``(ii) provide technical assistance to
overcome the objections stated in the
notification required by clause (i);
``(iii) provide the Indian tribe with a
hearing on the record with the right to engage
in full discovery relevant to any issue raised
in the matter and the opportunity for appeal on
the objections raised (except that the Indian
tribe may, in lieu of filing such appeal,
directly proceed to initiate an action in a
Federal district court under section 110(a));
and
``(iv) provide the Indian tribe the option of
entering into the severable portions of a final
proposed compact or funding agreement
(including a lesser funding amount, if any),
that the Secretary did not reject, subject to
any additional alterations necessary to conform
the compact or funding agreement to the severed
provisions.
``(B) Effect of exercising certain option.--If an
Indian tribe exercises the option specified in
subparagraph (A)(iv)--
``(i) the Indian tribe shall retain the right
to appeal the rejection by the Secretary under
this section; and
``(ii) clauses (i), (ii), and (iii) of
subparagraph (A) shall apply only to the
portion of the proposed final compact or
funding agreement that was rejected by the
Secretary.
``(d) Burden of Proof.--In any administrative hearing or appeal or
civil action brought under this section, the Secretary shall have the
burden of demonstrating by a preponderance of the evidence the validity
of the grounds for rejecting a final offer made under subsection (c) or
the grounds for a reassumption under subsection (b).
``(e) Good Faith.--
``(1) In general.--In the negotiation of compacts and funding
agreements, the Secretary shall at all times negotiate in good
faith to maximize implementation of the self-governance policy.
``(2) Policy.--The Secretary shall carry out this title in a
manner that maximizes the policy of tribal self-governance.
``(f) Savings.--To the extent that programs carried out for the
benefit of Indian tribes and tribal organizations under this title
reduce the administrative or other responsibilities of the Secretary
with respect to the operation of Indian programs and result in savings
that have not otherwise been included in the amount of tribal shares
and other funds determined under section 409(c), except for programs
entered into funding agreements under section 405(b)(2), the Secretary
shall make such savings available to the Indian tribes or tribal
organizations for the provision of additional services to program
beneficiaries in a manner equitable to directly served, contracted, and
compacted programs. For any savings generated as a result of the
assumption of a program by an Indian tribe under section 405(b)(2),
such savings shall be made available to that Indian tribe.
``(g) Trust Responsibility.--The Secretary may not waive, modify, or
diminish in any way the trust responsibility of the United States with
respect to Indian tribes and individual Indians that exists under
treaties, Executive orders, other laws, or court decisions.
``(h) Decisionmaker.--A decision that constitutes final agency action
and relates to an appeal within the Department conducted under
subsection (c)(4) may be made--
``(1) by an official of the Department who holds a position
at a higher organizational level within the Department than the
level of the departmental agency in which the decision that is
the subject of the appeal was made; or
``(2) by an administrative law judge.
``(i) Rules of Construction.--Each provision of this title and each
provision of a compact or funding agreement shall be liberally
construed for the benefit of the Indian tribe participating in self-
governance, and any ambiguity shall be resolved in favor of the Indian
tribe.
``SEC. 408. CONSTRUCTION PROGRAMS AND PROJECTS.
``(a) In General.--Indian tribes participating in tribal self-
governance may carry out construction projects under this title.
``(b) Tribal Option to Carry Out Certain Federal Environmental
Activities.--In carrying out a construction project under this title,
an Indian tribe may, subject to the Secretary's agreement, elect to
assume some Federal responsibilities under the National Environmental
Policy Act of 1969 (42 U.S.C. 4321 et seq.), the National Historic
Preservation Act (16 U.S.C. 470 et seq.), and related provisions of law
and regulations that would apply if the Secretary were to undertake a
construction project, by adopting a resolution--
``(1) designating a certifying tribal officer to represent
the Indian tribe and to assume the status of a responsible
Federal official under such laws; and
``(2) accepting the jurisdiction of the Federal courts for
the purpose of enforcing the responsibilities of the certifying
tribal officer assuming the status of a responsible Federal
official under such laws.
``(c) Savings Clause.--Notwithstanding subsection (b), nothing in
this Act authorizes the Secretary to include in any compact or funding
agreement duties of the Secretary under the National Environmental
Policy Act, the National Historic Preservation Act, and other related
provisions of law that are inherent Federal functions.
``(d) Codes and Standards.--In carrying out a construction project
under this title, an Indian tribe shall--
``(1) adhere to applicable Federal, State, local, and tribal
building codes architectural and engineering standards and
applicable Federal guidelines regarding design, space, and
operational standards, appropriate for the particular project;
and
``(2) use only architects and engineers who are licensed to
practice in the State in which the facility will be built and
who certify--
``(A) that they are qualified to perform the work
required by the specific construction involved; and
``(B) upon completion of design, that the plans and
specifications meet or exceed the applicable
construction and safety codes.
``(e) Tribal Accountability.--
``(1) In carrying out a construction project under this
title, an Indian tribe shall assume responsibility for the
successful completion of the construction project and of a
facility that is usable for the purpose for which it was
funded.
``(2) For each construction project carried out by an Indian
tribe under this title, the Indian tribe and the Secretary
shall negotiate a provision to be included in the funding
agreement that identifies--
``(A) the approximate start and completion dates for
the project, which may extend over a period of one or
more years;
``(B) a general description of the project, including
the scope of work, references to design criteria, and
other terms and conditions;
``(C) the responsibilities of the Indian tribe and
the Secretary for the project;
``(D) how project-related environmental
considerations will be addressed;
``(E) the amount of funds provided for the project;
``(F) the obligations of the Indian tribe to comply
with the codes referenced in subsection (c)(1) and
applicable Federal laws, statutes, and regulations;
``(G) the agreement of the parties over who will bear
any additional costs necessary to meet changes in
scope, or errors or omissions in design and
construction; and
``(H) the agreement of the Secretary to issue a
certificate of occupancy, if requested by the Indian
tribes, based upon the review and verification by the
Secretary, to his or her satisfaction, that the Indian
tribe has secured upon completion the review and
approval of the plans and specifications, sufficiency
of design, life safety, and code compliance by
qualified, licensed, and independent architects and
engineers.
``(f) Funding.--Funding appropriated for construction projects
carried out under this title shall be included in funding agreements as
annual or semiannual advance payments at the option of the Indian
tribe. The Secretary shall include all associated project contingency
funds with each advance payment. The Indian tribe shall be responsible
for the management of such contingency funds.
``(g) Negotiations.--At the option of the Indian tribe, construction
project funding proposals shall be negotiated pursuant to the statutory
process in section 450j(m) of title 25 and any resulting construction
project agreement shall be incorporated into the funding agreement as
addenda.
``(h) Federal Review and Verification.--The Secretary shall have at
least one opportunity to review and verify, to the satisfaction of the
Secretary, that project planning and design documents prepared by the
Indian tribe in advance of initial construction are in conformity with
the obligations of the Indian tribe under subsection (c) and, before
they are implemented, at least one opportunity to review and verify to
the satisfaction of the Secretary that subsequent document amendments
which result in a significant change in construction are in conformity
with the obligations of the Indian tribe under subsection (c). The
Indian tribe shall provide the Secretary with project progress and
financial reports not less than semiannually. The Secretary may conduct
onsite project oversight visits semiannually or on an alternate
schedule agreed to by the Secretary and the Indian tribe.
``(i) Application of Other Laws.--Unless otherwise agreed to by the
Indian tribe, no provision of the Office of Federal Procurement Policy
Act (41 U.S.C. 401 et seq.), the Federal Acquisition Regulations issued
pursuant thereto, or any other law or regulation pertaining to Federal
procurement (including Executive orders) shall apply to any
construction program or project carried out under this title.
``(j) Future Funding.--Upon completion of a facility constructed
under this title, the Secretary shall include the facility among those
eligible for annual operation and maintenance funding support
comparable to that provided for similar facilities funded by the
Department as annual appropriations are available and to the extent
that the facility size and complexity and other factors do not exceed
the funding formula criteria for comparable buildings.
``SEC. 409. PAYMENT.
``(a) In General.--At the request of the governing body of the Indian
tribe and under the terms of an agreement, the Secretary shall provide
funding to the Indian tribe to carry out the funding agreement.
``(b) Advance Annual Payment.--At the option of the Indian tribe, a
funding agreement shall provide for an advance annual payment to an
Indian tribe.
``(c) Amount.--
``(1) In general.--Subject to subsection (e) and sections 405
and 406, the Secretary shall provide funds to the Indian tribe
under a funding agreement for programs in an amount that is
equal to the amount that the Indian tribe would have been
entitled to receive under contracts and grants under this Act
(including amounts for direct program and contract support
costs and, in addition, any funds that are specifically or
functionally related to the provision by the Secretary of
services and benefits to the Indian tribe or its members)
without regard to the organization level within the Department
in which the programs are carried out.
``(2) Savings clause.--Nothing in this section shall be
construed to reduce funds of or provided to another Indian
tribe.
``(d) Timing.--Pursuant to the terms of any compact or funding
agreement entered into under this part, the Secretary shall transfer to
the Indian tribe all funds provided for in the funding agreement,
pursuant to subsection (c), and provide funding for periods covered by
joint resolution adopted by Congress making continuing appropriations,
to the extent permitted by such resolution. Within 12 months from the
date of enactment of this bill, in any instance where a funding
agreement requires an annual transfer of funding to be made at the
beginning of a fiscal year, or requires semiannual or other periodic
transfers of funding to be made commencing at the beginning of a fiscal
year, the first such transfer shall be made not later than 10 days
after the apportionment of such funds by the Office of Management and
Budget to the Department, unless the funding agreement provides
otherwise.
``(e) Availability.--Funds for trust services to individual Indians
shall be available under a funding agreement only to the extent that
the same services that would have been provided by the Secretary are
provided to individual Indians by the Indian tribe.
``(f) Multiyear Funding.--A funding agreement may provide for
multiyear funding.
``(g) Limitations on Authority of the Secretary.--The Secretary shall
not--
``(1) fail to transfer to an Indian tribe its full share of
any central, headquarters, regional, area, or service unit
office or other funds due under this title for programs
eligible under section 405(b)(1) or (b)(3), except as required
by Federal law;
``(2) withhold any portion of such funds for transfer over a
period of years; or
``(3) reduce the amount of funds required under this title--
``(A) to make funding available for self-governance
monitoring or administration by the Secretary;
``(B) in subsequent years, except as necessary as a
result of--
``(i) a reduction in appropriations from the
previous fiscal year for the program to be
included in a compact or funding agreement;
``(ii) a congressional directive in
legislation or an accompanying report;
``(iii) a tribal authorization;
``(iv) a change in the amount of pass-through
funds subject to the terms of the funding
agreement; or
``(v) completion of an activity under a
program for which the funds were provided;
``(C) to pay for Federal functions, including--
``(i) Federal pay costs;
``(ii) Federal employee retirement benefits;
``(iii) automated data processing;
``(iv) technical assistance; and
``(v) monitoring of activities under this
title; or
``(D) to pay for costs of Federal personnel displaced
by self-determination contracts under this Act or self-
governance under this title.
``(h) Federal Resources.--If an Indian tribe elects to carry out a
compact or funding agreement with the use of Federal personnel, Federal
supplies (including supplies available from Federal warehouse
facilities), Federal supply sources (including lodging, airline
transportation, and other means of transportation including the use of
interagency motor pool vehicles), or other Federal resources (including
supplies, services, and resources available to the Secretary under any
procurement contracts in which the Department is eligible to
participate), the Secretary shall, as soon as practicable, transfer
such personnel, or acquire such supplies, or resources to the Indian
tribe under this title.
``(i) Prompt Payment Act.--Chapter 39 of title 31, United States
Code, shall apply to the transfer of funds due under a compact or
funding agreement authorized under this title.
``(j) Interest or Other Income.--
``(1) In general.--An Indian tribe may retain interest or
income earned on any funds paid under a compact or funding
agreement to carry out governmental purposes.
``(2) No effect on other amounts.--The retention of interest
or income under paragraph (1) shall not diminish the amount of
funds an Indian tribe is entitled to receive under a funding
agreement in the year the interest or income is earned or in
any subsequent fiscal year.
``(3) Investment standard.--Funds transferred under this
title shall be managed by the Indian tribe using the prudent
investment standard, provided that the Secretary shall not be
liable for any investment losses of funds managed by the Indian
tribe which are not otherwise guaranteed or insured by the
Federal Government.
``(k) Carryover of Funds.--
``(1) In general.--Notwithstanding any provision of an Act of
appropriation, all funds paid to an Indian tribe in accordance
with a compact or funding agreement shall remain available
until expended.
``(2) Effect of carryover.--If an Indian tribe elects to
carry over funding from 1 year to the next, the carryover shall
not diminish the amount of funds the Indian tribe is entitled
to receive under a funding agreement in that fiscal year or any
subsequent fiscal year.
``(l) Limitation of Costs.--
``(1) In general.--An Indian tribe shall not be obligated to
continue performance that requires an expenditure of funds in
excess of the amount of funds transferred under a compact or
funding agreement.
``(2) Notice of insufficiency.--If at any time the Indian
tribe has reason to believe that the total amount provided for
a specific activity under a compact or funding agreement is
insufficient, the Indian tribe shall provide reasonable notice
of such insufficiency to the Secretary.
``(3) Suspension of performance.--If, after notice under
paragraph (2), the Secretary does not increase the amount of
funds transferred under the funding agreement, the Indian tribe
may suspend performance of the activity until such time as
additional funds are transferred.
``(m) Distribution of Funds.--The Office of Self-Governance shall be
responsible for distribution of all Bureau of Indian Affairs funds
provided under this title unless otherwise agreed by the parties.
``SEC. 410. FACILITATION.
``(a) In General.--Except as otherwise provided by law, the Secretary
shall interpret each Federal law and regulation in a manner that
facilitates--
``(1) the inclusion of programs in funding agreements; and
``(2) the implementation of funding agreements.
``(b) Regulation Waiver.--
``(1) Request.--An Indian tribe may submit a written request
for a waiver to the Secretary identifying the specific text in
regulation sought to be waived and the basis for the request.
``(2) Determination by the secretary.--Not later than 120
days after receipt by the Secretary of a request under
paragraph (1), the Secretary shall approve or deny the
requested waiver in writing to the Indian tribe.
``(3) Ground for denial.--The Secretary may deny a request
under paragraph (1)--
``(A) for a program eligible under sections 405(b)(1)
and 405(b)(3) only upon a specific finding by the
Secretary that the identified text in the regulation
may not be waived because such a waiver is prohibited
by Federal law; and
``(B) for a program eligible under section 405(b)(2),
on a specific finding by the Secretary that the
identified text in the regulation may not be waived
because such a waiver is prohibited under Federal law.
``(4) Failure to make determination.--If the Secretary fails
to approve or deny a waiver request within the time required
under paragraph (2), the Secretary shall be deemed to have
approved the request.
``(5) Finality.--The Secretary's decision shall be final for
the Department.
``SEC. 411. DISCLAIMERS.
``Nothing in this title expands or alters any statutory authority of
the Secretary so as to authorize the Secretary to enter into any
agreement under section 405--
``(1) with respect to an inherent Federal function;
``(2) in a case in which the law establishing a program
explicitly prohibits the type of participation sought by the
Indian tribe (without regard to whether one or more Indian
tribes are identified in the authorizing law); or
``(3) which limits or reduces in any way the services,
contracts, or funds that any other Indian tribe or tribal
organization is eligible to receive under section 102 or any
other applicable Federal law.
``SEC. 412. DISCRETIONARY APPLICATION OF OTHER SECTIONS.
``(a) In General.--At the option of a participating Indian tribe or
Indian tribes, any of the provisions of title I shall be incorporated
in any Department compact or funding agreement.
``(b) Effect.--Each incorporated provision--
``(1) shall have the same force and effect as if set out in
full in this title; and
``(2) shall be deemed to supplement or replace any related
provision in this title and to apply to any agency otherwise
governed by this title.
``(c) Effective Date.--If an Indian tribe requests incorporation at
the negotiation stage of a compact or funding agreement, the
incorporation--
``(1) shall be deemed effective immediately; and
``(2) shall control the negotiation and resulting compact and
funding agreement.
``SEC. 413. FUNDING NEEDS.
``(a) Requirement of Annual Budget Request.--
``(1) In general.--The President shall identify in a report
to accompany the annual budget request submitted to Congress
under section 1105 of title 31, United States Code, all amounts
necessary to fully fund all funding agreements entered into
under this Act.
``(2) Duty of secretary.--The Secretary shall identify in a
report which accompanies each budget request the amount of
funds that are sufficient for planning and negotiation grants
and sufficient to cover any shortfall in funding identified
under subsection (b).
``(3) Rule of construction.--Nothing in this subsection
authorizes the Secretary to reduce the amount of funds that an
Indian tribe is otherwise entitled to receive under a funding
agreement or other applicable law.
``(b) Present Funding; Shortfalls.--In each report identified in
subsection (a), the Secretary shall identify the level of need
presently funded and any shortfall in funding (including direct program
costs, tribal shares, and contract support costs) for each Indian
tribe, either directly by the Secretary, under self-determination
contracts, or under compacts and funding agreements. The first report
identified in subsection (a) shall be limited to the Bureau of Indian
Affairs agency office and shall be due on February 1, 2012. The next
report due on February 1, 2013, shall include all funding at the Bureau
of Indian Affairs agency and regional offices. The next report due on
February 1, 2014, and all subsequent reports, shall include all funding
at the Bureau of Indian Affairs agency, regional, and central offices,
the Office of the Assistant Secretary for Indian Affairs, and the
Office of the Special Trustee.
``SEC. 414. REPORTS.
``(a) In General.--
``(1) Requirement.--On February 1 of each year, the Secretary
shall submit to Congress a report regarding the administration
of this title.
``(2) Analysis.--A report under paragraph (1) shall include a
detailed analysis of tribal unmet need for each Indian tribe,
whether the Indian tribe is served directly by the Secretary,
under self-determination contracts under title I, or under
compacts and funding agreements authorized under this title.
``(3) No additional reporting requirements.--In preparing
reports under paragraph (1), the Secretary may not impose any
reporting requirements on participating Indian tribes not
otherwise provided by this title.
``(b) Contents.--The report under subsection (a)(1) shall--
``(1) be compiled from information contained in funding
agreements, annual audit reports, and data of the Secretary
regarding the disposition of Federal funds;
``(2) identify--
``(A) the relative costs and benefits of self-
governance;
``(B) with particularity, all funds that are
specifically or functionally related to the provision
by the Secretary of services and benefits to self-
governance Indian tribes and members of Indian tribes;
``(C) the funds transferred to each Indian tribe and
the corresponding reduction in the Federal employees
and workload;
``(D) the funding formula for individual tribal
shares of all Central Office funds, together with the
comments of affected Indian tribes, developed under
subsection (d); and
``(E) amounts expended in the preceding fiscal year
to carry out inherent Federal functions, including an
identification of inherent Federal functions;
``(3) contain a description of the methods used to determine
the individual tribal share of funds controlled by all
components of the Department (including funds assessed by any
other Federal agency) for inclusion in compacts or funding
agreements;
``(4) before being submitted to Congress, be distributed to
the Indian tribes for comment (with a comment period of no less
than 30 days); and
``(5) include the separate views and comments of each Indian
tribe or tribal organization.
``(c) Report on Non-BIA, Non-OST Programs.--
``(1) In general.--In order to optimize opportunities for
Indian tribes participating in self-governance under this
title, the Secretary shall--
``(A) review all programs administered by the
Department, other than through the Bureau of Indian
Affairs, the Office of the Assistant Secretary for
Indian Affairs, or the Office of Special Trustee,
without regard to the agency or office concerned; and
``(B) not later than January 1 of each year, submit
to Congress--
``(i) a list of all such programs that the
Secretary determines, with the concurrence of
Indian tribes participating in self-governance
under this title, are eligible to be included
in a funding agreement at the request of a
participating Indian tribe; and
``(ii) a list of all such programs for which
Indian tribes have requested to include in a
funding agreement under section 405(b)(2) or
405(b)(3), indicating whether each request was
granted or denied, and stating the grounds for
any denial.
``(2) Programmatic targets.--The Secretary shall establish
programmatic targets, after consultation with Indian tribes
participating in self-governance, to encourage bureaus of the
Department to ensure that a significant portion of the programs
identified in paragraph (1) are included in funding agreements.
``(3) Publication.--The lists and targets under paragraphs
(1) and (2) shall be published in the Federal Register and made
available to any Indian tribe participating in self-governance.
``(4) Annual review.--
``(A) In general.--The Secretary shall annually
review and publish in the Federal Register, after
consultation with Indian tribes participating in self-
governance, revised lists and programmatic targets.
``(B) Contents.--The revised lists and programmatic
targets shall include all programs that were eligible
for contracting in the original list published in the
Federal Register in 1995, except for programs
specifically determined not to be contractible as a
matter of law.
``(d) Report on Central Office Funds.--Not later than February 1,
2012, the Secretary shall, in consultation with Indian tribes, develop
a funding formula to determine the individual tribal share of funds
controlled by the Central Office of the Bureau of Indian Affairs and
the Office of the Special Trustee and the Office of the Assistant
Secretary for Indian Affairs for inclusion in the compacts.
``SEC. 415. REGULATIONS.
``(a) In General.--
``(1) Promulgation.--Not later than 90 days after the date of
the enactment of the Department of the Interior Tribal Self-
Governance Act of 2009, the Secretary shall initiate procedures
under subchapter III of chapter 5 of title 5, United States
Code, to negotiate and promulgate such regulations as are
necessary to carry out the amendments made by this title.
``(2) Publication of proposed regulations.--Proposed
regulations to implement the amendments shall be published in
the Federal Register not later than 18 months after the date of
the enactment of this title.
``(3) Expiration of authority.--The authority to promulgate
regulations under paragraph (1) shall expire on the date that
is 24 months after the date of the enactment of this title.
``(b) Committee.--
``(1) Membership.--A negotiated rulemaking committee
established pursuant to section 565 of title 5, United States
Code, to carry out this section shall have as its members only
Federal and tribal government representatives.
``(2) Lead agency.--Among the Federal representatives, the
Office of Self-Governance shall be the lead agency for the
Department.
``(c) Adaptation of Procedures.--The Secretary shall adapt the
negotiated rulemaking procedures to the unique context of self-
governance and the government-to-government relationship between the
United States and Indian tribes.
``(d) Effect.--
``(1) Repeal.--The Secretary is authorized to repeal any
regulation inconsistent with the provisions of this Act.
``(2) Conflicting provisions.--The provisions of this title
shall supersede any conflicting provisions of law (including
any conflicting regulations).
``(3) Effectiveness without regard to regulations.--The lack
of promulgated regulations on an issue shall not limit the
effect or the implementation of this title.
``SEC. 416. EFFECT OF CIRCULARS, POLICIES, MANUALS, GUIDANCES, AND
RULES.
``Unless expressly agreed to by a participating Indian tribe in the
compact or funding agreement, the participating Indian tribe shall not
be subject to any agency circular, policy, manual, guidance, or rule
adopted by the Department, except for--
``(1) the eligibility provisions of section 105(g); and
``(2) regulations promulgated under section 415.
``SEC. 417. APPEALS.
``In any administrative appeal or civil action for judicial review of
any decision made by the Secretary under this title, the Secretary
shall have the burden of proof of demonstrating by a preponderance of
the evidence--
``(1) the validity of the grounds for the decision; and
``(2) the consistency of the decision with the provisions and
policies of this title.
``SEC. 418. AUTHORIZATION OF APPROPRIATIONS.
``There are authorized to be appropriated such sums as may be
necessary to carry out this title.''.
Purpose of the Bill
The purpose of H.R. 4347 is to amend the Indian Self-
Determination and Education Assistance Act to provide further
self-governance by Indian tribes, and for other purposes.
Background and Need for Legislation
Indian tribes and Alaska Native villages are ``distinct,
independent, political communities'' exercising powers of self-
government, not by virtue of any delegation of powers from the
federal government, but rather by virtue of their own innate
sovereignty. Tribal sovereignty predates the founding of the
United States and the United States Constitution, and is the
foundation from which the United States has continued its
relationship with Indian tribes.
ISDEAA (P.L. 93-638)
After acknowledging the failure of policies attempting to
assimilate Indians and terminating the government-to-government
relationship between the United States and Indian tribes, the
United States in the early 1960s began expressing a policy of
self-determination for Indian tribes. This was further realized
in 1975 when Congress enacted the Indian Self-Determination and
Education Assistance Act. This Act authorized Indian tribes and
Alaska Native villages to enter into contracts (often referred
to as ``638 contracts'') with the Bureau of Indian Affairs
(BIA) and the IHS to receive funds and manage individual
programs heretofore managed by the agency. The Act did so while
retaining the United States' trust responsibility to Indian
tribes.
While the 638 contract program was seen as a good first
step, it had several problems. Many long-time employees of the
agencies were hesitant to give up authority, placing several
obstacles in the way and requiring large amounts of paperwork
from contracting Indian tribes. In addition, the program did
not permit funds to be moved between programs to address
unforeseen needs. The two biggest problems were attributed to
the fact that the federal agency remained involved in many low-
level decisions and that payments were made to the tribes on a
cost-reimbursement basis.
1988 ISDEAA Amendments (P.L. 100-472)
In 1988, Congress enacted P.L. 100-472 establishing Title
III of the ISDEAA, which authorized the Secretary of the
Interior to negotiate self-governance compacts with 20 Indian
tribes on a demonstration basis. For the first time, tribes
were authorized to plan, administer, and consolidate programs
and services that had always been administered by DOI. The
programs compacted were those that were ``otherwise available
to Indian tribes or Indians.'' The new compacts provided for a
single Annual Funding Agreement, which would guarantee funding
in one grant instead of funds coming from multiple contracts.
In addition, tribes had the authority to design the programs to
best meet the needs of their members.
1991 ISDEAA Amendments (P.L. 102-184)
Continuing the program, in 1991, Congress enacted P.L. 102-
184 to expand the Title III program as well as the number of
Indian tribes eligible to enter into self-governance compacts
with DOI. Further, the Act directed IHS to study the
feasibility of allowing self-governance compacts for IHS
programs.
In 1992, Congress amended section 314 of the Indian Health
Care Improvement Act to authorize the Secretary of Health and
Human Services to enter into self-governance compacts with
Indian tribes pursuant to Title III of the ISDEAA.
1994 ISDEAA Amendments (P.L. 103-413)
Congress enacted P.L. 103-413 in 1994, establishing Title
IV of the ISDEAA. Title IV made permanent the self-governance
program within the BIA and directed the Secretary of the
Interior to negotiate annual funding agreements with Indian
tribes in a manner consistent with the federal trust
responsibility. In response to DOI's failure to promulgate
regulations to that date, the Act included negotiated rule-
making between Indian tribes and DOI. Certain non-BIA programs
were made eligible for compacting and the number of tribes
eligible to participate in the self-governance program was
again expanded.
2000 ISDEAA Amendments (P.L. 106-260)
In 2000, Congress enacted P.L. 106-260, which made the
self-governance program within IHS permanent, and once again
expanded the number of eligible tribes. It made several
changes, such as adding definitions, identifying mandatory and
prohibited terms and conditions of compacts, funding
agreements, and construction projects, and requiring studies
and reports. Several of these changes are included in H.R. 4347
in order to make the DOI self-governance program consistent
with the IHS self-governance program.
Economic Development
In 2004, the Government Accountability Office (GAO)
prepared a report on Indian economic development. As part of
the report, GAO looked at the impact the self-governance
program had on tribal economic development. Although GAO did
not look for a direct causal relationship between the self-
governance program and economic development, GAO noted that
tribes that engaged in self-governance had greater gains in
employment levels from 1990 to 2000 compared to tribes that
participated less in the program. They also noted that self-
governance tribes experienced positive growth in employment
levels and per capita income.
Some tribal representatives have indicated that
participation in the self-governance program provided other
benefits, such as developing specific skills, which could be
used in other tribal activities. Additionally, by having the
ability to design their own programs, some tribes were able to
exercise greater control and flexibility in the use of funds to
set their own priorities.
H.R. 4347
H.R. 4347 would amend Title I and Title IV of the Indian
Self-Determination and Education Assistance Act (ISDEAA) (25
U.S.C. Sec. 450 et seq.). Title I authorizes and sets forth
criteria for the contracting program within the Department of
the Interior and the Department of Health and Human Services
while Title IV authorizes and sets forth criteria for the self-
governance program at the Department of the Interior (DOI).
Pursuant to the Title I self-determination contracting
program, Indian tribes enter into contracts to perform certain
functions and activities currently performed by the federal
government. The programs eligible for contracting are limited
to programs that are authorized under specified laws or that
are for the benefit of Indian tribes. This bill would amend
Title I to make technical changes and to allow tribes to become
familiar with some aspects of self-governance without requiring
them to enter into self-governance compacts and undertaking the
broader array of activities and duties required under Title IV.
Similarly, Title IV authorizes Indian tribes to enter into
self-governance compacts to perform whole programs, oftentimes
several programs, which are currently performed by the federal
government. Under both Title I and Title IV, the tribes act as
if they are stepping into the shoes of the federal government
when performing activities and administering programs. The
Secretary of the Interior monitors the performance of trust
functions and has the authority to reassume the activity or
program in certain situations. Finally, this bill would amend
Title IV to make the self-governance program at DOI consistent
with Title V, which authorizes and sets forth criteria for the
self-governance program at the Indian Health Service (IHS).
Committee Action
H.R. 4347 was introduced on December 16, 2009, by Rep. Dan
Boren (D-OK), cosponsored by Rep. Tim Walz (D-MN). The bill was
referred to the Committee on Natural Resources. On June 9,
2010, the Committee held a hearing on this legislation.
On July 22, 2010, the Committee met to consider the bill.
Rep. Boren offered an amendment in the nature of a substitute
that would address the major concerns identified by DOI in
their testimony at the June 9, 2010 hearing. The amendment in
the nature of a substitute was adopted by voice vote. The bill,
as amended, was then ordered favorably reported to the House of
Representatives by voice vote.
Section-by-Section Analysis
Section 1. Short title; Table of Contents
Section 1 provides that this Act may be cited as the
``Department of the Interior Tribal Self-Governance Act of
2010,'' and provides the table of contents.
Title I--Indian Self-Determination
Section 101. Definitions; reporting and audit requirements;
application of provisions
Section 101 amends the Indian Self-Determination and
Education Assistance Act (ISDEAA) (25 U.S.C. 450) to include
the definition of ``self-determination contract.'' This section
also revises the provision to say that: (1) no contract shall
be considered to be a procurement contract, and (2) no contract
shall be subject to any federal procurement law, including
regulations. Construction contracts under Section 105(a)(3) are
excepted because that provision allows the parties to agree to
make certain procurement provisions applicable. The section
further provides that certain sections of ISDEAA and the
Department of the Interior and Related Agencies Appropriations
Act, 1991 (Public Law 101-512) apply to certain compacts and
Funding Agreements (FAs). The Committee's intent is to conform
Title IV administration and authority to existing practice
under a similar provision in Title V adopted by Congress in
2000.
Section 102. Contracts by the Secretary of the Interior
Section 102 amends the ISDEAA to simplify a reference to
the Indian Financing Act of 1974. This section also sets forth
a ``preponderance of the evidence'' standard, and would require
that decisions be consistent with the provisions and policies
of ISDEAA. The section strikes existing language that requires
that decisions that constitute final agency action and relate
to an appeal of a refusal of request to contract be made either
by a certain level of official within the Department of the
Interior (DOI) or the Department of Health and Human Services
or by an administrative judge. In addition, this section
requires the Secretary of the Interior (Secretary) to negotiate
compacts and FAs in good faith.
Section 103. Administrative provisions
Section 103 makes a minor correction to Section 105 of
ISDEAA by substituting a reference to Sections 102 and 103 (as
opposed to 450f and 450h of Title 25). The section also
provides an Indian tribe meeting certain requirements with the
opportunity to redesign or consolidate certain programs,
services, functions, and activities. Further, this section
would require the Secretary to interpret all federal laws and
Executive Orders in a manner that benefits tribes and
facilitates inclusion of programs, functions, services, and
activities (PFSA) in self-determination contracts and FAs;
implementation of self-determination contracts and FAs; and
achievement of tribal objectives.
Section 104. Contract funding and indirect costs
Section 104 adds a category of expenses that are eligible
costs for the purposes of receiving funding and would codify a
recent decision by the Office of Management and Budget and DOI
on documentation requirements. Under the change, eligible costs
would include not less than 50% of the expenses incurred by the
governing body of a tribe or tribal organization relating to a
PFSA pursuant to the contract, or, in the case of a tribe or
tribal organization which derives all or substantially all of
its program revenue from other governments or organizations,
not less than 100% of such expenses. Furthermore, such expenses
of a tribal governing body shall be treated as reasonable and
allowable without burdensome documentation requirements,
because they are presumed to be related to the administration
of federal responsibilities assumed by the tribal governing
body.
Section 105. Contract or grant specifications
Section 105 clarifies that provisions in the model
statutory agreement allowing the parties to agree to additional
contract and FA terms do not make inapplicable the provisions
in Section 102 of ISDEAA requiring proposals and declinations.
Title II--Tribal Self-Governance
Section 201. Tribal self-governance.
Section 201 amends ISDEAA to include a revised Title IV--
Tribal Self-Governance.
Title IV--Tribal Self-Governance
Section 401. Definitions
Section 401 provides definitions for key terms included in
this title.
Section 402. Establishment
Section 402 directs the Secretary to establish the Tribal
Self-Governance Program (Program).
Section 403. Selection of participating Indian tribes
Section 403 sets forth the terms of eligibility for
participation in self-governance. An otherwise ineligible
tribal organization is eligible to participate in self-
governance as a single entity upon each tribe's request when at
least one member tribe is eligible. It also sets forth
procedures for a tribe to withdraw from a tribal organization,
in whole or in part, as well as provisions for distributing
funds to a withdrawing tribe. To be eligible to participate in
self-governance, a tribe must successfully complete a planning
phase; request participation in self-governance by resolution
or other official action by the tribal governing body; and
demonstrate, for the previous three fiscal years, financial
stability and financial management capability as evidenced by
the tribe having no uncorrected significant and material audit
exceptions in the required annual audit of its agreements with
any federal agency. Tribes are eligible to receive grants for
planning to participate, or negotiating the terms of
participation, in the Program.
Section 404. Compacts
Section 404 directs the Secretary to negotiate and enter
into a written compact with tribes participating in the
Program. Tribes may retain existing compacts, in whole or in
part, or negotiate new compacts.
Section 405. Funding agreements
Section 405 directs the Secretary to negotiate and enter
into a FA with the governing body of an Indian tribe or tribal
organization. It clarifies that a FA authorizes a tribe, at its
option, to plan, conduct, consolidate, administer and receive
full tribal share funding for all PFSAs of the Bureau of Indian
Affairs (BIA), the Office of the Assistant Secretary for Indian
Affairs (AS-IA), and the Office of the Special Trustee (OST). A
FA may include PFSAs administered by the Secretary that are of
special geographic, historical, or cultural significance to the
tribe. However, for discretionary programs of special
significance, the Secretary has discretion with respect to
reallocation and consolidation, reassumption, terms and
conditions regarding construction, and applicable regulations.
In addition, this section provides the Secretary the discretion
to reassume any program and associated funding upon certain
findings.
The section also provides that a FA shall authorize a
tribe, at its option, to plan, conduct, consolidate,
administer, and receive full tribal share funding for any
program administered by DOI other than through the BIA, AS-IA,
and OST, that is otherwise available to tribes or Indians under
Section 102 of ISDEAA. With regard to discretionary programs of
special significance, nothing in this section overrides the
requirement in a FA for competitive bidding or bars the
inclusion in a FA of a program where tribes have an interest. A
tribe has discretion to include in its FA, with respect to BIA,
AS-IA, OST, and programs otherwise available, a provision for a
stable budget specifying recurring funds. For discretionary
programs of special significance, a FA may provide for a stable
base budget upon agreement by the Secretary. Absent tribal
consent, the Secretary cannot amend the terms of a FA. This
section also provides tribes with existing FAs more options
with respect to subsequent FAs and negotiating multi-year FAs.
Section 406. General provisions
Section 406 provides that a tribe include in its FA or
compact internal measures to address conflicts of interest. In
addition, the Single Agency Audit Act applies to FAs and a
tribe must comply with applicable Office of Management and
Budget cost principles. This section gives tribes discretion to
redesign and consolidate programs or reallocate funds so long
as neither denies services to eligible Indians. With respect to
discretionary programs of special significance, however,
reallocation, consolidation, and redesign are only allowed when
the Secretary and the tribe enter into a joint agreement.
Tribal records are not subject to the Administrative Procedures
Act, unless a tribe specifies otherwise in a FA or a compact. A
tribe must provide the Secretary with reasonable access to its
records with at least 30 days notice.
Section 407. Provisions related to the Secretary
Section 407 provides that a FA include a provision to
monitor the performance of trust functions by the Indian tribe.
A compact or a FA shall include provisions for the Secretary to
reassume a program and associated funding upon certain
findings. It requires the Secretary to provide notice, a
hearing, and an opportunity for a tribe to take corrective
action before reassuming a program. The Secretary must make a
specific finding of imminent jeopardy to a trust asset, natural
resources, or public health and safety; or gross mismanagement
(under a preponderance of the evidence standard), to reassume a
program and associated funding. However, there are
circumstances under which the Secretary may, on written notice
to the tribe, immediately reassume operation of a program.
This section further provides that if the Secretary and a
participating Indian tribe are unable to agree on the terms of
a compact or funding agreement, the Indian tribe may submit a
final offer to the Secretary. It further provides the
Secretary's criteria and procedures for considering a tribe's
final offer. The Secretary bears the burden to prove by a
preponderance of the evidence the validity of the grounds for
rejecting a final offer or reassuming a program.
In addition, this section provides that the Secretary shall
negotiate in good faith and may not waive, modify, or diminish
the trust responsibility. Further, the Secretary must make
savings available to a tribe for the provision of additional
services to tribal beneficiaries. Finally, Section 407 requires
that Title IV compacts and FAs be construed for the benefit of
tribes and any ambiguities be resolved in favor of tribes.
Section 408. Construction programs and projects
Section 408 provides that Indian tribes participating in
tribal self-governance may carry out construction projects
under Title IV and sets forth the responsibilities and
procedures of tribes undertaking these construction projects.
Tribes may, subject to the Secretary's agreement, choose to
carry out certain federal responsibilities under the National
Environmental Policy Act, the National Historic Preservation
Act, and related federal laws that are applicable if the
Secretary undertakes a construction project. Further, tribes
must adhere to building codes and standards in carrying out a
construction project, and must be accountable for successful
completion of a project. This section provides that funding for
construction projects must be included in FAs as annual or
semi-annual advance payments. Section 408 provides the
Secretary with at least one opportunity to review and approve a
tribe's project planning and design documents. Finally, federal
laws pertaining to procurement do not apply to a construction
program or project absent tribal consent.
Section 409. Payment
Section 409 authorizes multi-year FAs. It directs the
Secretary to transfer tribal shares and resources to a tribe in
a timely fashion. The Secretary may not reduce funding from
year to year unless one of five narrowly defined exceptions
applies. A tribe may carry over funding, interest, or income
from year to year without diminishing its future entitlements.
A tribe need not continue to perform a compact or a FA with
insufficient funds and may suspend its performance (after
providing reasonable notice of such insufficiency to the
Secretary) until funds are adequate.
Section 410. Facilitation
Section 410 requires the Secretary to interpret federal
laws in a manner that facilitates the implementation of, and
the inclusion of programs in, FAs. It provides that an Indian
tribe may submit a written request for a waiver of federal
regulations to the Secretary. The Secretary must approve a
tribe's request for a waiver if the waiver is not prohibited by
statute. In addition, if the request is not approved or denied
within 120 days, the waiver request is deemed approved.
Section 411. Disclaimers
Section 411 provides that Title IV neither expands nor
alters the Secretary's statutory authority to enter into any FA
with respect to an inherent federal function, in instances
where a statute prohibits a tribe's participation in a program,
or when the FA would limit or reduce services, contracts, or
funds that any other tribe is eligible to receive under federal
law.
Section 412. Discretionary application of other sections
Section 412 provides a tribe with the discretion to
incorporate any provision of Title I into a compact or a FA.
Section 413. Funding needs
Section 413 requires the President to identify in a report
to accompany the annual budget request submitted to Congress
all amounts necessary to fully fund all FAs entered into under
this Act. In addition, the Secretary shall identify in a report
accompanying each budget request the amount of funds that are
sufficient for planning and negotiation grants and sufficient
to cover any shortfall in certain funding including direct
program costs, tribal shares, and contract support costs.
Section 414. Reports
Section 414 requires the Secretary to submit an annual
report to Congress regarding the administration of Title IV.
This report is to include an analysis of unmet tribal needs,
whether the tribe is served directly by the Secretary or under
compacts and funding agreements. In addition, the Secretary may
not impose any reporting requirements on participating tribes
other than those provided for in Title IV. It provides that the
reports be compiled from certain documents and identifies
particular areas of interest. It further requires that reports
include a description of methodologies used to determine
individual tribal shares. Reports must be distributed to tribes
for comment prior to submission.
This section also requires the Secretary to submit an
annual report to Congress on non-BIA and non-OST programs.
Section 414 requires that the Secretary, in consultation with
tribes, develop a funding formula to determine the individual
tribal share of funds controlled by the Central Office of BIA,
OST, and AS-IA for inclusion in compacts. The Committee intends
this requirement to reverse a trend in recent years in which
the Department has removed PFSAs from negotiation into tribal
shares by unilaterally shifting them to offices and
administrative levels under reorganization plans that purport
to put them out of reach of tribal negotiation.
Section 415. Regulations
Section 415 requires negotiated rulemaking and the
publication of proposed implementing regulations in the Federal
Register. It sets forth the membership criteria for the
negotiated rulemaking committee. This section further
authorizes the Secretary to repeal any regulation inconsistent
with the provisions of this Act. Finally, it provides that the
lack of promulgated regulations shall not limit the effect or
implementation of this title. The Committee intends the
negotiated rulemaking to be conducted only with tribal
government representatives, consistent with the unique
government-to-government relationship between tribes and the
United States.
Section 416. Effect of circulars, policies, manuals,
guidance, and rules
Section 416 provides that except for the eligibility
provisions of section 105(g) and regulations of section 415 of
the ISDEAA, a tribe is not subject to any agency circular,
policy, manual, or guidance absent the tribe's consent.
Section 417. Appeals
Section 417 provides that the Secretary has the burden to
prove by a preponderance of the evidence the validity of
grounds for his decisions, as well as their consistency with
Title IV requirements and policies.
Section 418. Authorization of appropriations
Section 418 authorizes the appropriation of such sums as
may be necessary to carry out Title IV.
Committee Oversight Findings and Recommendations
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
Constitutional Authority Statement
Article I, section 8 of the Constitution of the United
States grants Congress the authority to enact this bill.
Compliance With House Rule XIII
1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(3)(B)
of that rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
2. Congressional Budget Act. As required by clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, this
bill does not contain any new budget authority, spending
authority, credit authority, or an increase or decrease in
revenues or tax expenditures.
3. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill is to amend the Indian Self-
Determination and Education Assistance Act to provide further
self-governance by Indian tribes, and for other purposes.
4. Congressional Budget Office Cost Estimate. Under clause
3(c)(3) of rule XIII of the Rules of the House of
Representatives and section 403 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for this bill from the Director of the Congressional Budget
Office:
H.R. 4347--Department of the Interior Tribal Self-Governance Act of
2010
Summary: H.R. 4347 would amend certain provisions of the
Indian Self-Determination and Education Assistance Act related
to the Tribal Self-Governance Program. That program authorizes
Indian tribes to assume responsibilities for certain programs,
functions, and services or activities that would otherwise be
carried out by the federal government. Based on information
from the Department of the Interior (DOI), CBO estimates that
implementing the legislation would cost $5 million over the
2011-2015 period. Enacting H.R. 4347 would not affect direct
spending or revenues; therefore, pay-as-you-go procedures do
not apply.
H.R. 4347 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would impose no costs on state, local, or tribal
governments.
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 4347 is shown in the following table.
The costs of this legislation fall within budget function 450
(community and regional development).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------------
2011 2012 2013 2014 2015 2011-2015
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level................................ 1 1 1 1 1 5
Estimated Outlays............................................ 1 1 1 1 1 5
----------------------------------------------------------------------------------------------------------------
Basis of estimate: For this estimate, CBO assumes that the
legislation will be enacted near the end of 2010 and that the
necessary amounts will be appropriated for each fiscal year.
H.R. 4347 would amend current law related to DOI's Tribal
Self-Governance Program. The bill would modify eligibility
requirements for tribes participating in the program and would
establish new guidelines for administering the program. Based
on information provided by DOI, CBO expects that implementing
the legislation would increase the agency's administrative
responsibilities because more tribes would participate in the
self-governance program and the agency would be subject to new
requirements. Assuming appropriation of the necessary amounts,
CBO estimates that implementing the legislation would cost $1
million a year over the 2011-2015 period. DOI would use those
funds to hire additional staff and to make technical upgrades
to computer equipment to carry out the administrative
activities required under the bill.
Pay-as-you-go considerations: None.
Intergovernmental and private-sector impact: H.R. 4347
contains no intergovernmental or private-sector mandates as
defined in UMRA and would impose no costs on state, local, or
tribal governments. Many of the changes made by this
legislation would benefit the tribes that participate in self-
governance compacts with the Department of the Interior.
Estimate prepared by: Federal Costs: Jeff LaFave; Impact on
State, Local, and Tribal Governments: Melissa Merrell; Impact
on the Private Sector: Marin Randall.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Compliance With Public Law 104-4
This bill contains no unfunded mandates.
Earmark Statement
H.R. 4347 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of rule XXI.
Preemption of State, Local or Tribal Law
This bill is not intended to preempt any State, local or
tribal law.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACT
* * * * * * *
Sec. 4. For purposes of this Act, the term--
(a) * * *
* * * * * * *
[(j) ``self-determination contract'' means a contract
(or grant or cooperative agreement utilized under
section 9 of this Act) entered into under title I of
this Act between a tribal organization and the
appropriate Secretary for the planning, conduct and
administration of programs or services which are
otherwise provided to Indian tribes and their members
pursuant to Federal law: Provided, That except as
provided the last proviso in section 105(a) of this
Act, no contract (or grant or cooperative agreement
utilized under section 9 of this Act) entered into
under title I of this Act shall be construed to be a
procurement contract;]
(j) ``self-determination contract'' means a contract
entered into (or a grant or cooperative agreement used
under section 9) under title I between a tribal
organization and the appropriate Secretary for the
planning, conduct, and administration of programs or
services that are otherwise provided to Indian tribes
and members of Indian tribes pursuant to Federal law,
subject to the condition that, except as provided in
section 105(a)(3), no contract entered into (or grant
or cooperative agreement used under section 9) under
title I shall be--
(1) considered to be a procurement contract;
or
(2) subject to any Federal procurement law
(including regulations);
* * * * * * *
REPORTING AND AUDIT REQUIREMENTS
Sec. 5. (a) * * *
(b) The Comptroller General and the appropriate Secretary, or
any of their duly authorized representatives, shall, until the
expiration of three years [after completion of the project or
undertaking referred to in the preceding subsection of this
section] after the date on which a report is submitted to the
Secretary under subsection (a), have access (for the purpose of
audit and examination) to any books, documents, papers, and
records of such recipients which in the opinion of the
Comptroller General or the appropriate Secretary may be related
or pertinent to the grants, contracts, subcontracts, subgrants,
or other arrangements referred to in the preceding subsection.
* * * * * * *
TITLE I--INDIAN SELF-DETERMINATION ACT
* * * * * * *
CONTRACTS BY THE SECRETARY OF THE INTERIOR
Sec. 102. (a) * * *
* * * * * * *
(c)(1) * * *
(2) In obtaining or providing such coverage, the Secretary
shall, to the greatest extent practicable, give a perference to
coverage underwritten by Indian-owned [economic enterprises as
defined in section 3 of the Indian Financing Act of 1974 (88
Stat. 77; 25 U.S.C. 1451 et seq.), except that] economic
enterprises (as defined in section 3 of the Indian Financing
Act of 1974 (25 U.S.C. 1452)), except that, for the purposes of
this subsection, such enterprises may include non-profit
corporations.
* * * * * * *
[(e)(1) With respect to any hearing or appeal conducted
pursuant to subsection (b)(3) or any civil action conducted
pursuant to section 110(a), the Secretary shall have the burden
of proof to establish by clearly demonstrating the validity of
the grounds for declining the contract proposal (or portion
thereof).
[(2) Notwithstanding any other provision of law, a decision
by an official of the Department of the Interior or the
Department of Health and Human Services, as appropriate
(referred to in this paragraph as the ``Department'') that
constitutes final agency action and that relates to an appeal
within the Department that is conducted under subsection (b)(3)
shall be made either--
[(A) by an official of the Department who holds a
position at a higher organizational level within the
Department than the level of the departmental agency
(such as the Indian Health Service or the Bureau of
Indian Affairs) in which the decision that is the
subject of the appeal was made; or
[(B) by an administrative judge.]
(e) Appeals.--In any appeal (including civil actions)
involving decisions made by the Secretary under this title, the
Secretary shall have the burden of proof of demonstrating, by a
preponderance of the evidence--
(1) the validity of the grounds for the decision
made; and
(2) that the decision is fully consistent with the
provisions and policies of this title.
(f) Good Faith Requirement.--In the negotiation of compacts
and funding agreements, the Secretary shall at all times
negotiate in good faith to maximize implementation of the self-
governance policy. The Secretary shall carry out this title in
a manner that maximizes the policy of tribal self-governance,
in a manner consistent with the purposes specified in section 3
of the Tribal Self-Governance Amendments of 2000 (Public Law
106-260; 25 U.S.C. 458aaa note).
* * * * * * *
ADMINISTRATIVE PROVISIONS
Sec. 105. (a) * * *
(b) Payments of any grants or under any contracts [pursuant
to Sections 102 and 103 of this Act] pursuant to sections 102
and 103 may be made in advance or by way of reimbursement and
in such installments and on such conditions as the appropriate
Secretary deems necessary to carry out the purposes of this
title. The transfer of funds shall be scheduled consistent with
program requirements and applicable Treasury regulations, so as
to minimize the time elapsing between the transfer of such
funds from the United States Treasury and the disbursement
thereof by the tribal organization, whether such disbursement
occurs prior to or subsequent to such transfer of funds. Tribal
organizations shall not be held accountable for interest earned
on such funds, pending their disbursement by such organization.
* * * * * * *
[(j) Upon providing notice to the Secretary, a tribal
organization that carries out a nonconstruction self-
determination contract may propose a redesign of a program,
activity, function, or service carried out by the tribal
organization under the contract, including any nonstatutory
program standard, in such manner as to best meet the local
geographic, demographic, economic, cultural, health, and
institutional needs of the Indian people and tribes served
under the contract. The Secretary shall evaluate any proposal
to redesign any program, activity, function, or service
provided under the contract. With respect to declining to
approve a redesigned program, activity, function, or service
under this subsection, the Secretary shall apply the criteria
and procedures set forth in section 102.]
(j) Redesign and Consolidation.--If an Indian tribe can
demonstrate, for the previous three fiscal years, the financial
stability and financial management capability as evidenced by
the Indian tribe having no material audit exceptions in the
required annual audit of the self-determination contracts of
the Indian tribe, then the Indian tribe may redesign or
consolidate programs, services, functions, and activities (or
portions thereof) included in a funding agreement under this
title and reallocate or redirect funds for such programs,
services, functions, and activities (or portions thereof) that
are eligible to be included in Consolidated Tribal Government
Programs in any manner that the Indian tribe determines to be
in the best interest of the health and welfare of the Indian
community being served, only if the redesign or consolidation
does not have the effect of denying eligibility for services to
population groups otherwise eligible to be served under
applicable Federal law.
* * * * * * *
(p) Interpretation by Secretary.--Except as otherwise
provided by law, the Secretary shall interpret all Federal laws
(including regulations) and Executive orders in a manner that
facilitates, to the maximum extent practicable--
(1) the inclusion in self-determination contracts and
funding agreements of--
(A) applicable programs, services, functions,
and activities (or portions thereof); and
(B) funds associated with those programs,
services, functions, and activities;
(2) the implementation of self-determination
contracts and funding agreements; and
(3) the achievement of tribal health objectives.
Sec. 106. (a)(1) * * *
* * * * * * *
(3)(A) The contract support costs that are eligible costs for
the purposes of receiving funding under this Act shall include
the costs of reimbursing each tribal contractor for reasonable
and allowable costs of--
(i) direct program expenses for the operation of the
Federal program that is the subject of the contract[,
and];
(ii) any additional administrative or other [expense
related to the overhead incurred] expenses incurred by
the governing body of the Indian tribe or tribal
organization and overhead incurred by the tribal
contractor in connection with the operation of the
Federal program, function, service, or activity
pursuant to the contract[,]; and
(iii) not less than 50 percent of the expenses
incurred by the governing body of a Indian tribe or
tribal organization relating to a Federal program,
function, service, or activity pursuant to the contract
(which expenses shall be considered to be reasonable
and allowable without documentation for the purpose of
this paragraph), except that in the case of a Indian
tribe or tribal organization which derives all or
substantially all of its program revenue from other
governments or organizations, not less than 100 percent
of such expenses shall be considered to be reasonable
and allowable without documentation.
* * * * * * *
SEC. 108. CONTRACT OR GRANT SPECIFICATIONS.
(a) Each self-determination contract entered into under this
Act shall--
(1) * * *
(2) subject to subsections (a) and (b) of section
102, contain such other provisions as are agreed to by
the parties.
* * * * * * *
(c) The model agreement referred to in subsection (a)(1)
reads as follows:
``SECTION 1. AGREEMENT BETWEEN THE SECRETARY AND THE __ TRIBAL
GOVERNMENT.
``(a) * * *
* * * * * * *
``(f) Attachments.--
``(1) * * *
``(2) Annual funding agreement.--
``(A) In general.--The annual funding
agreement under this Contract shall only
contain--
``(i) * * *
``(ii) subject to subsections (a) and
(b) of section 102 of the Indian Self-
Determination and Education Assistance
Act (25 U.S.C. 450f), such other
provisions, including a brief
description of the programs, services,
functions, and activities to be
performed (including those supported by
financial resources other than those
provided by the Secretary), to which
the parties agree.
* * * * * * *
[TITLE IV--TRIBAL SELF-GOVERNANCE
[SEC. 401. ESTABLISHMENT.
[The Secretary of the Interior (hereinafter in this title
referred to as the ``Secretary'') shall establish and carry out
a program within the Department of the Interior to be known as
Tribal Self-Governance (hereinafter in this title referred to
as ``Self-Governance'') in accordance with this title.
[SEC. 402. SELECTION OF PARTICIPATING INDIAN TRIBES.
[(a) Continuing Participation.--Each Indian tribe that is
participating in the Tribal Self-Governance Demonstration
Project at the Department of the Interior under title III on
the date of enactment of this title shall thereafter
participate in Self-Governance under this title and cease
participation in the Tribal Self-Governance Demonstration
Project under title III with respect to the Department of the
Interior.
[(b) Additional Participants.--(1) In addition to those
Indian tribes participating in self-governance under subsection
(a) of this section, the Secretary, acting through the Director
of the Office of Self-Governance, may select up to 50 new
tribes per year from the applicant pool described in subsection
(c) of this section to participate in self-governance.
[(2) If each tribe requests, two or more otherwise eligible
Indian tribes may be treated as a single Indian tribe for the
purpose of participating in Self-Governance as a consortium.
[(c) Applicant Pool.--The qualified applicant pool for Self-
Governance shall consist of each tribe that--
[(1) successfully completes the planning phase
described in subsection (d);
[(2) has requested participation in Self-Governance
by resolution or other official action by the tribal
governing body; and
[(3) has demonstrated, for the previous three fiscal
years, financial stability and financial management
capability as evidenced by the tribe having no material
audit exceptions in the required annual audit of the
self-determination contracts of the tribe.
[(d) Planning Phase.--Each Indian tribe seeking to begin
participation in Self-Governance shall complete a planning
phase in accordance with this subsection. The tribe shall be
eligible for a grant to plan and negotiate participation in
Self-Governance. The planning phase shall include--
[(1) legal and budgetary research; and
[(2) internal tribal government planning and
organizational preparation.
[SEC. 403. FUNDING AGREEMENTS.
[(a) Authorization.--The Secretary shall negotiate and enter
into an annual written funding agreement with the governing
body of each participating tribal government in a manner
consistent with the Federal Government's laws and trust
relationship to and responsibility for the Indian people.
[(b) Contents.--Each funding agreement shall--
[(1) authorize the tribe to plan, conduct,
consolidate, and administer programs, services,
functions, and activities, or portions thereof,
administered by the Department of the Interior through
the Bureau of Indian Affairs, without regard to the
agency or office of the Bureau of Indian Affairs within
which the program, service, function, and activity, or
portion thereof, is performed, including funding for
agency, area, and central office functions in
accordance with subsection (g)(3), and including any
program, service, function, and activity, or portion
thereof, administered under the authority of--
[(A) the Act of April 16, 1934 (25 U.S.C. 452
et seq.);
[(B) the Act of November 2, 1921 (25 U.S.C.
13); and
[(C) programs, services, functions, and
activities or portions thereof administered by
the Secretary of the Interior that are
otherwise available to Indian tribes or Indians
for which appropriations are made to agencies
other than the Department of the Interior;
[(2) subject to such terms as may be negotiated,
authorize the tribe to plan, conduct, consolidate, and
administer programs, services, functions, and
activities, or portions thereof, administered by the
Department of the Interior, other than through the
Bureau of Indian Affairs, that are otherwise available
to Indian tribes or Indians, as identified in section
405(c), except that 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 for by law;
[(3) subject to the terms of the agreement, authorize
the tribe to redesign or consolidate programs,
services, functions, and activities, or portions
thereof, and reallocate funds for such programs,
services, functions, and activities, or portions
thereof, except that, with respect to the reallocation,
consolidation, and redesign of programs described in
paragraph (2), a joint agreement between the Secretary
and the tribe shall be required;
[(4) prohibit the inclusion of funds provided--
[(A) pursuant to the Tribally Controlled
Colleges and Universities Assistance Act of
1978 (25 U.S.C. 1801 et seq.);
[(B) for elementary and secondary schools
under the formula developed pursuant to section
1128 of the Education Amendments of 1978 (25
U.S.C. 2008); and
[(C) the Flathead Agency Irrigation Division
or the Flathead Agency Power Division, except
that nothing in this section shall affect the
contract authority of such divisions under
section 102;
[(5) specify the services to be provided, the
functions to be performed, and the responsibilities of
the tribe and the Secretary pursuant to the agreement;
[(6) authorize the tribe and the Secretary to
reallocate funds or modify budget allocations within
any year, and specify the procedures to be used;
[(7) allow for retrocession of programs or portions
of programs pursuant to section 105(e);
[(8) provide that, for the year for which, and to the
extent to which, funding is provided to a tribe under
this section, the tribe--
[(A) shall not be entitled to contract with
the Secretary for such funds under section 102,
except that such tribe shall be eligible for
new programs on the same basis as other tribes;
and
[(B) shall be responsible for the
administration of programs, services,
functions, and activities pursuant to
agreements entered into under this section; and
[(9) prohibit the Secretary from waiving, modifying,
or diminishing in any way the trust responsibility of
the United States with respect to Indian tribes and
individual Indians that exists under treaties,
Executive orders, and other laws.
[(c) Additional Activities.--Each funding agreement
negotiated pursuant to subsections (a) and (b) may, in
accordance to such additional terms as the parties deem
appropriate, also include other programs, services, functions,
and activities, or portions thereof, administered by the
Secretary of the Interior which are of special geographic,
historical, or cultural significance to the participating
Indian tribe requesting a compact.
[(d) Provisions Relating to the Secretary.--Funding
agreements negotiated between the Secretary and an Indian tribe
shall include provisions--
[(1) to monitor the performance of trust functions by
the tribe through the annual trust evaluation, and
[(2) for the Secretary to reassume a program,
service, function, or activity, or portions thereof, if
there is a finding of imminent jeopardy to a physical
trust asset, natural resources, or public health and
safety.
[(e) Construction Projects.--(1) Regarding construction
programs or projects, the Secretary and Indian tribes may
negotiate for the inclusion of specific provisions of the
Office of Federal Procurement and Policy Act and Federal
acquisition regulations in any funding agreement entered into
under this Act. Absent a negotiated agreement, such provisions
and regulatory requirements shall not apply.
[(2) In all construction projects performed pursuant to this
title, the Secretary shall ensure that proper health and safety
standards are provided for in the funding agreements.
[(f) Submission for Review.--Not later than 90 days before
the proposed effective date of an agreement entered into under
this section, the Secretary shall submit a copy of such
agreement to--
[(1) each Indian tribe that is served by the Agency
that is serving the tribe that is a party to the
funding agreement;
[(2) the Committee on Indian Affairs of the Senate;
and
[(3) the Subcommittee on Native American Affairs of
the Committee on Natural Resources of the House of
Representatives.
[(g) Payment.--(1) At the request of the governing body of
the tribe and under the terms of an agreement entered into
under this section, the Secretary shall provide funding to the
tribe to carry out the agreement.
[(2) The funding agreements authorized by this title and
title III of this Act shall provide for advance payments to the
tribes in the form of annual or semi-annual installments at the
discretion of the tribes.
[(3) Subject to paragraph (4) of this subsection and
paragraphs (1) through (3) of subsection (b), the Secretary
shall provide funds to the tribe under an agreement under this
title for programs, services, functions, and activities, or
portions thereof, in an amount equal to the amount that the
tribe would have been eligible to receive under contracts and
grants under this Act, including amounts for direct program and
contract support costs and, in addition, any funds that are
specifically or functionally related to the provision by the
Secretary of services and benefits to the tribe or its members,
without regard to the organization level within the Department
where such functions are carried out.
[(4) Funds for trust services to individual Indians shall be
available under an agreement entered into under this section
only to the extent that the same services that would have been
provided by the Secretary are provided to individual Indians by
the tribe.
[(h) Civil Actions.--(1) Except as provided in paragraph (2),
for the purposes of section 110, the term ``contract'' shall
include agreements entered into under this title.
[(2) For the period that an agreement entered into under this
title is in effect, the provisions of section 2103 of the
Revised Statutes of the United States (25 U.S.C. 81), section
16 of the Act of June 18, 1934 (25 U.S.C. 476), and the Act of
July 3, 1952 (25 U.S.C. 82a), shall not apply to attorney and
other professional contracts by Indian tribal governments
participating in Self-Governance under this title.
[(i) Facilitation.--(1) Except as otherwise provided by law,
the Secretary shall interpret each Federal law and regulation
in a manner that will facilitate--
[(A) the inclusion of programs, services, functions,
and activities in the agreements entered into under
this section; and
[(B) the implementation of agreements entered into
under this section.
[(2)(A) A tribe may submit a written request for a waiver to
the Secretary identifying the regulation sought to be waived
and the basis for the request.
[(B) Not later than 60 days after receipt by the Secretary of
a written request by a tribe to waive application of a Federal
regulation for an agreement entered into under this section,
the Secretary shall either approve or deny the requested waiver
in writing to the tribe. A denial may be made only upon a
specific finding by the Secretary that identified language in
the regulation may not be waived because such waiver is
prohibited by Federal law. The Secretary's decision shall be
final for the Department.
[(j) Funds.--All funds provided under funding agreements
entered into pursuant to this Act, and all funds provided under
contracts or grants made pursuant to this Act, shall be treated
as non-Federal funds for purposes of meeting matching
requirements under any other Federal law.
[(k) Disclaimer.--Nothing in this section is intended or
shall be construed to expand or alter existing statutory
authorities in the Secretary so as to authorize the Secretary
to enter into any agreement under sections 403(b)(2) and
405(c)(1) with respect to functions that are inherently Federal
or where the statute establishing the existing program does not
authorize the type of participation sought by the tribe:
Provided, however an Indian tribe or tribes need not be
identified in the authorizing statute in order for a program or
element of a program to be included in a compact under section
403(b)(2).
[(l) Incorporate Self-Determination Provisions.--At the
option of a participating tribe or tribes, any or all
provisions of title I of this Act shall be made part of an
agreement entered into under title III of this Act or this
title. The Secretary is obligated to include such provisions at
the option of the participating tribe or tribes. If such
provision is incorporated it shall have the same force and
effect as if set out in full in title III or this title.
[SEC. 404. BUDGET REQUEST.
[The Secretary shall identify, in the annual budget request
of the President to the Congress under section 1105 of title
31, United States Code, any funds proposed to be included in
agreements authorized under this title.
[SEC. 405. REPORTS.
[(a) Requirement.--The Secretary shall submit to Congress a
written report on January 1 of each year following the date of
enactment of this title regarding the administration of this
title.
[(b) Contents.--The report shall--
[(1) identify the relative costs and benefits of
Self-Governance;
[(2) identify, with particularity, all funds that are
specifically or functionally related to the provision
by the Secretary of services and benefits to Self-
Governance tribes and their members;
[(3) identify the funds transferred to each Self-
Governance tribe and the corresponding reduction in the
Federal bureaucracy;
[(4) include the separate views of the tribes; and
[(5) include the funding formula for individual
tribal shares of Central Office funds, together with
the comments of affected Indian tribes, developed under
subsection (d).
[(c) Report on Non-BIA Programs.--(1) In order to optimize
opportunities for including non-Bureau of Indian Affairs
programs, services, functions, and activities, or portions
thereof, in agreements with tribes participating in Self-
Governance under this title, the Secretary shall--
[(A) review all programs, services, functions, and
activities, or portions thereof, administered by the
Department of the Interior, other than through the
Bureau of Indian Affairs, without regard to the agency
or office concerned; and
[(B) not later than 90 days after the date of
enactment of this title, provide to the appropriate
committees of Congress a listing of all such programs,
services, functions, and activities, or portions
thereof, that the Secretary determines, with the
concurrence of tribes participating in Self-Governance
under this title, are eligible for inclusion in such
agreements at the request of a participating Indian
tribe.
[(2) The Secretary shall establish programmatic targets,
after consultation with tribes participating in Self-Governance
under this title, to encourage bureaus of the Department to
assure that a significant portion of such programs, services,
functions, and activities are actually included in the
agreements negotiated under section 403.
[(3) The listing and targets under paragraphs (1) and (2)
shall be published in the Federal Register and be made
available to any Indian tribe participating in Self-Governance
under this title. The list shall be published before January 1,
1995, and annually thereafter by January 1 preceding the fiscal
year in which the targets are to be met.
[(4) Thereafter, the Secretary shall annually review and
publish in the Federal Register, after consultation with tribes
participating in Self-Governance under this title, a revised
listing and programmatic targets.
[(d) Report on Central Office Funds.--Within 90 days after
the date of the enactment of this title, the Secretary shall,
in consultation with Indian tribes, develop a funding formula
to determine the individual tribal share of funds controlled by
the Central Office of the Bureau of Indian Affairs for
inclusion in the Self-Governance compacts. The Secretary shall
include such formula in the annual report submitted to the
Congress under subsection (b), together with the views of the
affected Indian tribes.
[SEC. 406. DISCLAIMERS.
[(a) Other Services, Contracts, and Funds.--Nothing in this
title shall be construed to limit or reduce in any way the
services, contracts, or funds that any other Indian tribe or
tribal organization is eligible to receive under section 102 or
any other applicable Federal law.
[(b) Federal Trust Responsibilities.--Nothing in this Act
shall be construed to diminish the Federal trust responsibility
to Indian tribes, individual Indians, or Indians with trust
allotments.
[(c) Application of Other Sections of Act.--All provisions of
sections 6, 102(c), 104, 105(f), 110, and 111 of this Act shall
apply to agreements provided under this title.
[SEC. 407. REGULATIONS.
[(a) In General.--Not later than 90 days after the date of
enactment of this title, at the request of a majority of the
Indian tribes with agreements under this title, the Secretary
shall initiate procedures under subchapter III of chapter 5 of
title 5, United States Code, to negotiate and promulgate such
regulations as are necessary to carry out this title.
[(b) Committee.--A negotiated rulemaking committee
established pursuant to section 565 of title 5, United States
Code, to carry out this section shall have as its members only
Federal and tribal government representatives, a majority of
whom shall be representatives of Indian tribes with agreements
under this title.
[(c) Adaptation of Procedures.--The Secretary shall adapt the
negotiated rulemaking procedures to the unique context of Self-
Governance and the government-to-government relationship
between the United States and the Indian tribes.
[(d) Effect.--The lack of promulgated regulations shall not
limit the effect of this title.
[SEC. 408. AUTHORIZATION OF APPROPRIATIONS.
[There are authorized to be appropriated such sums as may be
necessary to carry out this title.]
TITLE IV--TRIBAL SELF-GOVERNANCE
SEC. 401. DEFINITIONS.
In this title:
(1) Compact.--The term ``compact'' means a self-
governance compact entered into under section 404.
(2) Construction program.--The term ``construction
program'' or ``construction project'' means a tribal
undertaking relating to the administration, planning,
environmental determination, design, construction,
repair, improvement, or expansion of roads, bridges,
buildings, structures, systems, or other facilities for
purposes of housing, law enforcement, detention,
sanitation, water supply, education, administration,
community, health, irrigation, agriculture,
conservation, flood control, transportation, or port
facilities, or for other tribal purposes.
(3) Department.--The term ``Department'' means the
Department of the Interior.
(4) Funding agreement.--The term ``funding
agreement'' means a funding agreement entered into
under section 405.
(5) Gross mismanagement.--The term ``gross
mismanagement'' means a significant violation, shown by
a preponderance of the evidence, of a compact, funding
agreement, or statutory or regulatory requirement
applicable to Federal funds--
(A) for a program administered by an Indian
tribe; or
(B) under a compact or funding agreement that
results in a significant reduction of funds
available for the programs assumed by an Indian
tribe.
(6) Program.--The term ``program'' means any program,
function, service, or activity (or portion thereof)
within the Department of the Interior that is included
in a funding agreement.
(7) Inherent federal function.--The term ``inherent
Federal function'' means a Federal function that may
not legally be delegated to an Indian tribe.
(8) Secretary.--The term ``Secretary'' means the
Secretary of the Interior.
(9) Self-governance.--The term ``self-governance''
means the program of self-governance established under
section 402.
(10) Tribal share.--The term ``tribal share'' means
an Indian tribe's portion of all funds and resources
that support any program within the Bureau of Indian
Affairs, the Office of Special Trustee, and the Office
of the Assistant Secretary for Indian Affairs and that
are not required by the Secretary for the performance
of an inherent Federal function.
SEC. 402. ESTABLISHMENT.
The Secretary shall carry out a program within the Department
to be known as the ``Tribal Self-Governance Program''.
SEC. 403. SELECTION OF PARTICIPATING INDIAN TRIBES.
(a) In General.--
(1) Participants.--
(A) The Secretary, acting through the
Director of the Office of Self-Governance, may
select up to 50 new Indian tribes per year from
those eligible under subsection (b) to
participate in self-governance.
(B) If each Indian tribe requests, two or
more otherwise eligible Indian tribes may be
treated as a single Indian tribe for the
purpose of participating in self-governance.
(2) Other authorized indian tribe or tribal
organization.--If an Indian tribe authorizes another
Indian tribe or a tribal organization to plan for or
carry out a program on its behalf under this title, the
authorized Indian tribe or tribal organization shall
have the rights and responsibilities of the authorizing
Indian tribe (except as otherwise provided in the
authorizing resolution).
(3) Joint participation.--Two or more Indian tribes
that are not otherwise eligible under subsection (b)
may be treated as a single Indian tribe for the purpose
of participating in self-governance as a tribal
organization if--
(A) each Indian tribe so requests; and
(B) the tribal organization itself or at
least one of the Indian tribes participating in
the tribal organization is eligible under
subsection (b).
(4) Tribal withdrawal from a tribal organization.--
(A) In general.--An Indian tribe that
withdraws from participation in a tribal
organization, in whole or in part, shall be
entitled to participate in self-governance if
the Indian tribe is eligible under subsection
(b).
(B) Effect of withdrawal.--If an Indian tribe
withdraws from participation in a tribal
organization, the Indian tribe shall be
entitled to its tribal share of funds and
resources supporting the programs that the
Indian tribe is entitled to carry out under the
compact and funding agreement of the Indian
tribe.
(C) Participation in self-governance.--The
withdrawal of an Indian tribe from a tribal
organization shall not affect the eligibility
of the tribal organization to participate in
self-governance on behalf of one or more other
Indian tribes provided that the tribal
organization still qualifies under subsection
(b).
(D) Withdrawal process.--
(i) In general.--An Indian tribe may,
by tribal resolution, fully or
partially withdraw its tribal share of
any program in a funding agreement from
a participating tribal organization.
The Indian tribe shall provide a copy
of the tribal resolution to the
Secretary.
(ii) Effective date.--
(I) In general.--A withdrawal
under clause (i) shall become
effective on the date specified
in the tribal resolution and
that is mutually agreed upon by
the Secretary, the withdrawing
Indian tribe, and the tribal
organization that signed the
compact and funding agreement
on behalf of the withdrawing
Indian tribe or tribal
organization.
(II) No specified date.--In
the absence of a date specified
in the resolution, the
withdrawal shall become
effective on--
(aa) the earlier of--
(AA) 1 year
after the date
of submission
of the request;
or
(BB) the date
on which the
funding
agreement
expires; or
(bb) such date as may
be mutually agreed upon
by the Secretary, the
withdrawing Indian
tribe, and the tribal
organization that
signed the compact and
funding agreement on
behalf of the
withdrawing Indian
tribe or tribal
organization.
(E) Distribution of funds.--If an Indian
tribe or tribal organization eligible to enter
into a self-determination contract under title
I or a compact or funding agreement under this
title fully or partially withdraws from a
participating tribal organization, the
withdrawing Indian tribe--
(i) may elect to enter a self-
determination contract or compact, in
which case--
(I) the withdrawing Indian
tribe or tribal organization
shall be entitled to its tribal
share of unexpended funds and
resources supporting the
programs that the Indian tribe
will be carrying out under its
own self-determination contract
or compact and funding
agreement (calculated on the
same basis as the funds were
initially allocated to the
funding agreement of the tribal
organization); and
(II) the funds referred to in
subclause (I) shall be
withdrawn by the Secretary from
the funding agreement of the
tribal organization and
transferred to the withdrawing
Indian tribe, on the condition
that the provisions of sections
102 and 105(i), as appropriate,
shall apply to the withdrawing
Indian tribe; or
(ii) may elect not to enter a self-
determination contract or compact, in
which case all funds not obligated by
the tribal organization associated with
the withdrawing Indian tribe's returned
programs, less close-out costs, shall
be returned by the tribal organization
to the Secretary for operation of the
programs included in the withdrawal.
(F) Return to mature contract status.--If an
Indian tribe elects to operate all or some
programs carried out under a compact or funding
agreement under this title through a self-
determination contract under title I, at the
option of the Indian tribe, the resulting self-
determination contract shall be a mature self-
determination contract as long as the Indian
tribe meets the requirements set forth in
section 4(h) of this Act.
(b) Eligibility.--To be eligible to participate in self-
governance, an Indian tribe shall--
(1) successfully complete the planning phase
described in subsection (c);
(2) request participation in self-governance by
resolution or other official action by the tribal
governing body; and
(3) demonstrate, for the 3 fiscal years preceding the
date on which the Indian tribe requests participation,
financial stability and financial management capability
as evidenced by the Indian tribe having no uncorrected
significant and material audit exceptions in the
required annual audit of its self-determination or
self-governance agreements with any Federal agency.
(c) Planning Phase.--
(1) In general.--An Indian tribe seeking to begin
participation in self-governance shall complete a
planning phase in accordance with this subsection.
(2) Activities.--The planning phase--
(A) shall be conducted to the satisfaction of
the Indian tribe; and
(B) shall include--
(i) legal and budgetary research; and
(ii) internal tribal government
planning and organizational
preparation.
(d) Grants.--
(1) In general.--Subject to the availability of
appropriations, an Indian tribe or tribal organization
that meets the requirements of paragraphs (2) and (3)
of subsection (b) shall be eligible for grants--
(A) to plan for participation in self-
governance; and
(B) to negotiate the terms of participation
by the Indian tribe or tribal organization in
self-governance, as set forth in a compact and
a funding agreement.
(2) Receipt of grant not required.--Receipt of a
grant under paragraph (1) shall not be a requirement of
participation in self-governance.
SEC. 404. COMPACTS.
(a) In General.--The Secretary shall negotiate and enter into
a written compact with each Indian tribe participating in self-
governance in a manner consistent with the trust responsibility
of the Federal Government, treaty obligations, and the
government-to-government relationship between Indian tribes and
the United States.
(b) Contents.--A compact under subsection (a) shall--
(1) specify and affirm the general terms of the
government-to-government relationship between the
Indian tribe and the Secretary; and
(2) include such terms as the parties intend shall
control during the term of the compact.
(c) Amendment.--A compact under subsection (a) may be amended
only by agreement of the parties.
(d) Effective Date.--The effective date of a compact under
subsection (a) shall be--
(1) the date of the execution of the compact by the
parties; or
(2) another date agreed upon by the parties.
(e) Duration.--A compact under subsection (a) shall remain in
effect for so long as permitted by Federal law or until
termination by written agreement, retrocession, or
reassumption.
(f) Existing Compacts.--An Indian tribe participating in
self-governance under this title, as in effect on the date of
the enactment of the Department of the Interior Tribal Self-
Governance Act of 2010, shall have the option at any time after
that date--
(1) to retain its negotiated compact (in whole or in
part) to the extent that the provisions of the compact
are not directly contrary to any express provision of
this title; or
(2) to negotiate a new compact in a manner consistent
with this title.
SEC. 405. FUNDING AGREEMENTS.
(a) In General.--The Secretary shall negotiate and enter into
a written funding agreement with the governing body of an
Indian tribe or tribal organization in a manner consistent with
the trust responsibility of the Federal Government, treaty
obligations, and the government-to-government relationship
between Indian tribes and the United States.
(b) Included Programs.--
(1) Bureau of indian affairs and office of special
trustee.--
(A) In general.--A funding agreement shall,
as determined by the Indian tribe, authorize
the Indian tribe to plan, conduct, consolidate,
administer, and receive full tribal share
funding for all programs carried out by the
Bureau of Indian Affairs, the Office of the
Assistant Secretary for Indian Affairs, and the
Office of Special Trustee, without regard to
the agency or office within which the program
is performed (including funding for agency,
area, and central office functions in
accordance with subsection 409(c)), that--
(i) are provided for in the Act of
April 16, 1934 (25 U.S.C. 452 et seq.);
(ii) the Secretary administers for
the benefit of Indians under the Act of
November 2, 1921 (25 U.S.C. 13), or any
subsequent Act;
(iii) the Secretary administers for
the benefit of Indians with
appropriations made to agencies other
than the Department of the Interior; or
(iv) are provided for the benefit of
Indians because of their status as
Indians.
(B) Inclusions.--Programs described in
subparagraph (A) shall include all programs
with respect to which Indian tribes or Indians
are primary or significant beneficiaries.
(2) Discretionary programs of special significance.--
A funding agreement under subsection (a) may, in
accordance with such additional terms as the parties
consider to be appropriate, include programs, services,
functions, and activities (or portions thereof),
administered by the Secretary, in addition to programs
described in paragraphs (1) and (3), that are of
special geographic, historical, or cultural
significance to the Indian tribe. Such agreements,
including the additional terms, shall be governed by
the provisions of this title, except that, subject to
the discretion of the Secretary--
(A) the Indian tribe may have reallocation,
consolidation, and redesign authority over any
program assumed under this paragraph (2);
(B) the Secretary may reassume any program
and associated funding assumed under this
paragraph (2) upon a specific finding by the
Secretary of a gross violation by the Indian
tribe of the terms of the funding agreement;
(C) the Secretary may require special terms
and conditions regarding a construction program
or project assumed under this paragraph (2)
notwithstanding the provisions of section 408;
(D) all Federal regulations that otherwise
govern the operation of any program assumed
under this paragraph (2) apply to the Indian
tribe unless a specific regulation is waived by
the Secretary under the procedures set forth in
section 410(b)(2), which waiver request may be
denied upon a specific finding by the Secretary
that the waiver is prohibited by Federal law or
is inconsistent with the express provisions of
the funding agreement; and
(E) a stable base budget, as described in
paragraph (7), may be provided for any program
assumed under this paragraph (2).
(3) Programs otherwise available.--A funding
agreement shall, as determined by the Indian tribe,
authorize the Indian tribe to plan, conduct,
consolidate, administer, and receive full tribal share
funding for any program administered by the Department
of the Interior other than through the Bureau of Indian
Affairs, the Office of the Assistant Secretary for
Indian Affairs, or the Office of the Special Trustee,
that is otherwise available to Indian tribes or Indians
under section 102 of this Act.
(4) Competitive bidding.--Nothing in this section--
(A) supersedes any express statutory
requirement for competitive bidding; or
(B) prohibits the inclusion in a funding
agreement of a program in which non-Indians
have an incidental or legally identifiable
interest.
(5) Excluded funding.--A funding agreement shall not
authorize an Indian tribe to plan, conduct, administer,
or receive tribal share funding under any program
that--
(A) is provided under the Tribally Controlled
College or University Assistance Act of 1978
(25 U.S.C. 1801 et seq.); and
(B) is provided for elementary and secondary
schools under the formula developed under
section 1127 of the Education Amendments of
1978 (25 U.S.C. 2007).
(6) Services, functions, and responsibilities.--A
funding agreement shall specify--
(A) the services to be provided under the
funding agreement;
(B) the functions to be performed under the
funding agreement; and
(C) the responsibilities of the Indian tribe
and the Secretary under the funding agreement.
(7) Base budget.--A funding agreement pursuant to
subsections (b)(1) and (b)(3) shall, at the option of
the Indian tribe, provide for a stable base budget
specifying the recurring funds (including funds
available under section 106(a)) to be transferred to
the Indian tribe, for such period as the Indian tribe
specifies in the funding agreement, subject to annual
adjustment only to reflect changes in congressional
appropriations. Upon agreement by the Secretary, a
funding agreement under subsection (b)(2) may also
provide for a stable base budget subject to the terms
of this provision.
(8) No waiver of trust responsibility.--A funding
agreement shall prohibit the Secretary from waiving,
modifying, or diminishing in any way the trust
responsibility of the United States with respect to
Indian tribes and individual Indians that exists under
treaties, Executive orders, court decisions, and other
laws.
(c) Amendment.--The Secretary shall not revise, amend, or
require additional terms in a new or subsequent funding
agreement without the consent of the Indian tribe, unless such
terms are required by Federal law.
(d) Effective Date.--A funding agreement shall become
effective on the date specified in the funding agreement.
(e) Existing and Subsequent Funding Agreements.--
(1) Subsequent funding agreements.--Absent
notification from an Indian tribe that it is
withdrawing or retroceding the operation of one or more
programs identified in a funding agreement under
subsections (b)(1) or (b)(3), or unless otherwise
agreed to by the parties to the funding agreement--
(A) a funding agreement shall remain in full
force and effect until a subsequent funding
agreement is executed, with funding paid
annually for each fiscal year the agreement is
in effect or by the nature of any noncontinuing
program, services, functions, or activities
contained in a funding agreement; and
(B) the term of the subsequent funding
agreement shall be retroactive to the end of
the term of the preceding funding agreement for
the purposes of calculating the amount of
funding to which the Indian tribe is entitled.
(2) Disputes.--Disputes over the implementation of
paragraph (1)(A) shall be subject to section 407(c).
(3) Existing funding agreements.--An Indian tribe
that was participating in self-governance under this
title on the date of enactment of the Department of the
Interior Tribal Self-Governance Act of 2010 shall have
the option at any time after that date--
(A) to retain its existing funding agreement
(in whole or in part) to the extent that the
provisions of that funding agreement are not
directly contrary to any express provision of
this title; or
(B) to negotiate a new funding agreement in a
manner consistent with this title.
(4) Multiyear funding agreements.--An Indian tribe
may, at the discretion of the Indian tribe, negotiate
with the Secretary for a funding agreement with a term
that exceeds one year.
SEC. 406. GENERAL PROVISIONS.
(a) Applicability.--An Indian tribe and the Secretary shall
include in any compact or funding agreement provisions that
reflect the requirements of this title.
(b) Conflicts of Interest.--An Indian tribe participating in
self-governance shall ensure that internal measures are in
place to address, pursuant to tribal law and procedures,
conflicts of interest in the administration of programs.
(c) Audits.--
(1) Single agency audit act.--Chapter 75 of title 31,
United States Code, shall apply to a funding agreement
under this title.
(2) Cost principles.--An Indian tribe shall apply
cost principles under the applicable Office of
Management and Budget circular, except as modified by--
(A) any provision of law, including section
106 of this Act; or
(B) any exemptions to applicable Office of
Management and Budget circulars subsequently
granted by the Office of Management and Budget.
(3) Federal claims.--Any claim by the Federal
Government against the Indian tribe relating to funds
received under a funding agreement based on any audit
under this subsection shall be subject to the
provisions of section 106(f).
(d) Redesign and Consolidation.--An Indian tribe may redesign
or consolidate programs or reallocate funds for programs in any
manner that the Indian tribe deems to be in the best interest
of the Indian community being served, so long as the redesign
or consolidation does not have the effect of denying
eligibility for services to population groups otherwise
eligible to be served under applicable Federal law, except
that, with respect to the reallocation, consolidation, and
redesign of programs described in section 405(b)(2), a joint
agreement between the Secretary and the Indian tribe shall be
required.
(e) Retrocession.--
(1) In general.--An Indian tribe may fully or
partially retrocede to the Secretary any program under
a compact or funding agreement.
(2) Effective date.--
(A) Agreement.--Unless the Indian tribe
rescinds the request for retrocession, such
retrocession shall become effective on the date
specified by the parties in the compact or
funding agreement.
(B) No agreement.--In the absence of a
specification of an effective date in the
compact or funding agreement, the retrocession
shall become effective on--
(i) the earlier of--
(I) one year after the date
of submission of such request;
or
(II) the date on which the
funding agreement expires; or
(ii) such date as may be mutually
agreed upon by the Secretary and the
Indian tribe.
(f) Nonduplication.--A funding agreement shall provide that,
for the period for which, and to the extent to which, funding
is provided to an Indian tribe under this title, the Indian
tribe--
(1) shall not be entitled to contract with the
Secretary for funds under section 102, except that such
Indian tribe shall be eligible for new programs on the
same basis as other Indian tribes; and
(2) shall be responsible for the administration of
programs in accordance with the compact or funding
agreement.
(g) Records.--
(1) In general.--Unless an Indian tribe specifies
otherwise in the compact or funding agreement, records
of an Indian tribe shall not be considered Federal
records for purposes of chapter 5 of title 5, United
States Code.
(2) Recordkeeping system.--An Indian tribe shall--
(A) maintain a recordkeeping system; and
(B) on 30 days-- notice, provide the
Secretary with reasonable access to the records
to enable the Department to meet the
requirements of sections 3101 through 3106 of
title 44, United States Code.
SEC. 407. PROVISIONS RELATED TO THE SECRETARY.
(a) Trust Evaluations.--A funding agreement shall include a
provision to monitor the performance of trust functions by the
Indian tribe through the annual trust evaluation.
(b) Reassumption.--
(1) In general.--A compact or funding agreement shall
include provisions for the Secretary to reassume a
program and associated funding if there is a specific
finding relating to that program of--
(A) imminent jeopardy to a trust asset,
natural resources, or public health and safety
that--
(i) is caused by an act or omission
of the Indian tribe; and
(ii) arises out of a failure to carry
out the compact or funding agreement;
or
(B) gross mismanagement with respect to funds
transferred to an Indian tribe under a compact
or funding agreement, as determined by the
Secretary in consultation with the Inspector
General, as appropriate.
(2) Prohibition.--The Secretary shall not reassume
operation of a program in whole or part unless--
(A) the Secretary first provides written
notice and a hearing on the record to the
Indian tribe; and
(B) the Indian tribe does not take corrective
action to remedy the mismanagement of the funds
or programs, or the imminent jeopardy to a
trust asset, natural resource, or public health
and safety.
(3) Exception.--
(A) In general.--Notwithstanding paragraph
(2), the Secretary may, on written notice to
the Indian tribe, immediately reassume
operation of a program if--
(i) the Secretary makes a finding of
both imminent and substantial jeopardy
and irreparable harm to a trust asset,
a natural resource, or the public
health and safety caused by an act or
omission of the Indian tribe; and
(ii) the imminent and substantial
jeopardy, and irreparable harm to the
trust asset, natural resource, or
public health and safety arises out of
a failure by the Indian tribe to carry
out the terms of its compact or funding
agreement.
(B) Reassumption.--If the Secretary reassumes
operation of a program under subparagraph (A),
the Secretary shall provide the Indian tribe
with a hearing on the record not later than 10
days after the date of reassumption.
(c) Inability to Agree on Compact or Funding Agreement.--
(1) Final offer.--If the Secretary and a
participating Indian tribe are unable to agree, in
whole or in part, on the terms of a compact or funding
agreement (including funding levels), the Indian tribe
may submit a final offer to the Secretary.
(2) Determination.--Not more than 45 days after the
date of submission of a final offer, or as otherwise
agreed to by the Indian tribe, the Secretary shall
review and make a determination with respect to the
final offer.
(3) No timely determination.--If the Secretary fails
to make a determination with respect to a final offer
within the time specified in paragraph (2), the
Secretary shall be deemed to have agreed to the offer.
(4) Rejection of final offer.--
(A) In general.--If the Secretary rejects a
final offer (or one or more provisions or
funding levels in a final offer), the Secretary
shall--
(i) provide timely written
notification to the Indian tribe that
contains a specific finding that
clearly demonstrates, or that is
supported by a controlling legal
authority, that--
(I) the amount of funds
proposed in the final offer
exceeds the applicable funding
level to which the Indian tribe
is entitled under this title
because it would reduce the
funds that any other Indian
tribe or tribal organization is
entitled to receive under
Federal law;
(II) the program that is the
subject of the final offer is
an inherent Federal function or
is subject to the discretion of
the Secretary under section
405(b)(2);
(III) the Indian tribe cannot
carry out the program in a
manner that would not result in
significant danger or risk to
the public health;
(IV) the Indian tribe is not
eligible to participate in
self-governance under section
403(b); or
(V) the funding agreement
would violate Federal statute
or regulation;
(ii) provide technical assistance to
overcome the objections stated in the
notification required by clause (i);
(iii) provide the Indian tribe with a
hearing on the record with the right to
engage in full discovery relevant to
any issue raised in the matter and the
opportunity for appeal on the
objections raised (except that the
Indian tribe may, in lieu of filing
such appeal, directly proceed to
initiate an action in a Federal
district court under section 110(a));
and
(iv) provide the Indian tribe the
option of entering into the severable
portions of a final proposed compact or
funding agreement (including a lesser
funding amount, if any), that the
Secretary did not reject, subject to
any additional alterations necessary to
conform the compact or funding
agreement to the severed provisions.
(B) Effect of exercising certain option.--If
an Indian tribe exercises the option specified
in subparagraph (A)(iv)--
(i) the Indian tribe shall retain the
right to appeal the rejection by the
Secretary under this section; and
(ii) clauses (i), (ii), and (iii) of
subparagraph (A) shall apply only to
the portion of the proposed final
compact or funding agreement that was
rejected by the Secretary.
(d) Burden of Proof.--In any administrative hearing or appeal
or civil action brought under this section, the Secretary shall
have the burden of demonstrating by a preponderance of the
evidence the validity of the grounds for rejecting a final
offer made under subsection (c) or the grounds for a
reassumption under subsection (b).
(e) Good Faith.--
(1) In general.--In the negotiation of compacts and
funding agreements, the Secretary shall at all times
negotiate in good faith to maximize implementation of
the self-governance policy.
(2) Policy.--The Secretary shall carry out this title
in a manner that maximizes the policy of tribal self-
governance.
(f) Savings.--To the extent that programs carried out for the
benefit of Indian tribes and tribal organizations under this
title reduce the administrative or other responsibilities of
the Secretary with respect to the operation of Indian programs
and result in savings that have not otherwise been included in
the amount of tribal shares and other funds determined under
section 409(c), except for programs entered into funding
agreements under section 405(b)(2), the Secretary shall make
such savings available to the Indian tribes or tribal
organizations for the provision of additional services to
program beneficiaries in a manner equitable to directly served,
contracted, and compacted programs. For any savings generated
as a result of the assumption of a program by an Indian tribe
under section 405(b)(2), such savings shall be made available
to that Indian tribe.
(g) Trust Responsibility.--The Secretary may not waive,
modify, or diminish in any way the trust responsibility of the
United States with respect to Indian tribes and individual
Indians that exists under treaties, Executive orders, other
laws, or court decisions.
(h) Decisionmaker.--A decision that constitutes final agency
action and relates to an appeal within the Department conducted
under subsection (c)(4) may be made--
(1) by an official of the Department who holds a
position at a higher organizational level within the
Department than the level of the departmental agency in
which the decision that is the subject of the appeal
was made; or
(2) by an administrative law judge.
(i) Rules of Construction.--Each provision of this title and
each provision of a compact or funding agreement shall be
liberally construed for the benefit of the Indian tribe
participating in self-governance, and any ambiguity shall be
resolved in favor of the Indian tribe.
SEC. 408. CONSTRUCTION PROGRAMS AND PROJECTS.
(a) In General.--Indian tribes participating in tribal self-
governance may carry out construction projects under this
title.
(b) Tribal Option to Carry Out Certain Federal Environmental
Activities.--In carrying out a construction project under this
title, an Indian tribe may, subject to the Secretary's
agreement, elect to assume some Federal responsibilities under
the National Environmental Policy Act of 1969 (42 U.S.C. 4321
et seq.), the National Historic Preservation Act (16 U.S.C. 470
et seq.), and related provisions of law and regulations that
would apply if the Secretary were to undertake a construction
project, by adopting a resolution--
(1) designating a certifying tribal officer to
represent the Indian tribe and to assume the status of
a responsible Federal official under such laws; and
(2) accepting the jurisdiction of the Federal courts
for the purpose of enforcing the responsibilities of
the certifying tribal officer assuming the status of a
responsible Federal official under such laws.
(c) Savings Clause.--Notwithstanding subsection (b), nothing
in this Act authorizes the Secretary to include in any compact
or funding agreement duties of the Secretary under the National
Environmental Policy Act, the National Historic Preservation
Act, and other related provisions of law that are inherent
Federal functions.
(d) Codes and Standards.--In carrying out a construction
project under this title, an Indian tribe shall--
(1) adhere to applicable Federal, State, local, and
tribal building codes architectural and engineering
standards and applicable Federal guidelines regarding
design, space, and operational standards, appropriate
for the particular project; and
(2) use only architects and engineers who are
licensed to practice in the State in which the facility
will be built and who certify--
(A) that they are qualified to perform the
work required by the specific construction
involved; and
(B) upon completion of design, that the plans
and specifications meet or exceed the
applicable construction and safety codes.
(e) Tribal Accountability.--
(1) In carrying out a construction project under this
title, an Indian tribe shall assume responsibility for
the successful completion of the construction project
and of a facility that is usable for the purpose for
which it was funded.
(2) For each construction project carried out by an
Indian tribe under this title, the Indian tribe and the
Secretary shall negotiate a provision to be included in
the funding agreement that identifies--
(A) the approximate start and completion
dates for the project, which may extend over a
period of one or more years;
(B) a general description of the project,
including the scope of work, references to
design criteria, and other terms and
conditions;
(C) the responsibilities of the Indian tribe
and the Secretary for the project;
(D) how project-related environmental
considerations will be addressed;
(E) the amount of funds provided for the
project;
(F) the obligations of the Indian tribe to
comply with the codes referenced in subsection
(c)(1) and applicable Federal laws, statutes,
and regulations;
(G) the agreement of the parties over who
will bear any additional costs necessary to
meet changes in scope, or errors or omissions
in design and construction; and
(H) the agreement of the Secretary to issue a
certificate of occupancy, if requested by the
Indian tribes, based upon the review and
verification by the Secretary, to his or her
satisfaction, that the Indian tribe has secured
upon completion the review and approval of the
plans and specifications, sufficiency of
design, life safety, and code compliance by
qualified, licensed, and independent architects
and engineers.
(f) Funding.--Funding appropriated for construction projects
carried out under this title shall be included in funding
agreements as annual or semiannual advance payments at the
option of the Indian tribe. The Secretary shall include all
associated project contingency funds with each advance payment.
The Indian tribe shall be responsible for the management of
such contingency funds.
(g) Negotiations.--At the option of the Indian tribe,
construction project funding proposals shall be negotiated
pursuant to the statutory process in section 450j(m) of title
25 and any resulting construction project agreement shall be
incorporated into the funding agreement as addenda.
(h) Federal Review and Verification.--The Secretary shall
have at least one opportunity to review and verify, to the
satisfaction of the Secretary, that project planning and design
documents prepared by the Indian tribe in advance of initial
construction are in conformity with the obligations of the
Indian tribe under subsection (c) and, before they are
implemented, at least one opportunity to review and verify to
the satisfaction of the Secretary that subsequent document
amendments which result in a significant change in construction
are in conformity with the obligations of the Indian tribe
under subsection (c). The Indian tribe shall provide the
Secretary with project progress and financial reports not less
than semiannually. The Secretary may conduct onsite project
oversight visits semiannually or on an alternate schedule
agreed to by the Secretary and the Indian tribe.
(i) Application of Other Laws.--Unless otherwise agreed to by
the Indian tribe, no provision of the Office of Federal
Procurement Policy Act (41 U.S.C. 401 et seq.), the Federal
Acquisition Regulations issued pursuant thereto, or any other
law or regulation pertaining to Federal procurement (including
Executive orders) shall apply to any construction program or
project carried out under this title.
(j) Future Funding.--Upon completion of a facility
constructed under this title, the Secretary shall include the
facility among those eligible for annual operation and
maintenance funding support comparable to that provided for
similar facilities funded by the Department as annual
appropriations are available and to the extent that the
facility size and complexity and other factors do not exceed
the funding formula criteria for comparable buildings.
SEC. 409. PAYMENT.
(a) In General.--At the request of the governing body of the
Indian tribe and under the terms of an agreement, the Secretary
shall provide funding to the Indian tribe to carry out the
funding agreement.
(b) Advance Annual Payment.--At the option of the Indian
tribe, a funding agreement shall provide for an advance annual
payment to an Indian tribe.
(c) Amount.--
(1) In general.--Subject to subsection (e) and
sections 405 and 406, the Secretary shall provide funds
to the Indian tribe under a funding agreement for
programs in an amount that is equal to the amount that
the Indian tribe would have been entitled to receive
under contracts and grants under this Act (including
amounts for direct program and contract support costs
and, in addition, any funds that are specifically or
functionally related to the provision by the Secretary
of services and benefits to the Indian tribe or its
members) without regard to the organization level
within the Department in which the programs are carried
out.
(2) Savings clause.--Nothing in this section shall be
construed to reduce funds of or provided to another
Indian tribe.
(d) Timing.--Pursuant to the terms of any compact or funding
agreement entered into under this part, the Secretary shall
transfer to the Indian tribe all funds provided for in the
funding agreement, pursuant to subsection (c), and provide
funding for periods covered by joint resolution adopted by
Congress making continuing appropriations, to the extent
permitted by such resolution. Within 12 months from the date of
enactment of this bill, in any instance where a funding
agreement requires an annual transfer of funding to be made at
the beginning of a fiscal year, or requires semiannual or other
periodic transfers of funding to be made commencing at the
beginning of a fiscal year, the first such transfer shall be
made not later than 10 days after the apportionment of such
funds by the Office of Management and Budget to the Department,
unless the funding agreement provides otherwise.
(e) Availability.--Funds for trust services to individual
Indians shall be available under a funding agreement only to
the extent that the same services that would have been provided
by the Secretary are provided to individual Indians by the
Indian tribe.
(f) Multiyear Funding.--A funding agreement may provide for
multiyear funding.
(g) Limitations on Authority of the Secretary.--The Secretary
shall not--
(1) fail to transfer to an Indian tribe its full
share of any central, headquarters, regional, area, or
service unit office or other funds due under this title
for programs eligible under section 405(b)(1) or
(b)(3), except as required by Federal law;
(2) withhold any portion of such funds for transfer
over a period of years; or
(3) reduce the amount of funds required under this
title--
(A) to make funding available for self-
governance monitoring or administration by the
Secretary;
(B) in subsequent years, except as necessary
as a result of--
(i) a reduction in appropriations
from the previous fiscal year for the
program to be included in a compact or
funding agreement;
(ii) a congressional directive in
legislation or an accompanying report;
(iii) a tribal authorization;
(iv) a change in the amount of pass-
through funds subject to the terms of
the funding agreement; or
(v) completion of an activity under a
program for which the funds were
provided;
(C) to pay for Federal functions, including--
(i) Federal pay costs;
(ii) Federal employee retirement
benefits;
(iii) automated data processing;
(iv) technical assistance; and
(v) monitoring of activities under
this title; or
(D) to pay for costs of Federal personnel
displaced by self-determination contracts under
this Act or self-governance under this title.
(h) Federal Resources.--If an Indian tribe elects to carry
out a compact or funding agreement with the use of Federal
personnel, Federal supplies (including supplies available from
Federal warehouse facilities), Federal supply sources
(including lodging, airline transportation, and other means of
transportation including the use of interagency motor pool
vehicles), or other Federal resources (including supplies,
services, and resources available to the Secretary under any
procurement contracts in which the Department is eligible to
participate), the Secretary shall, as soon as practicable,
transfer such personnel, or acquire such supplies, or resources
to the Indian tribe under this title.
(i) Prompt Payment Act.--Chapter 39 of title 31, United
States Code, shall apply to the transfer of funds due under a
compact or funding agreement authorized under this title.
(j) Interest or Other Income.--
(1) In general.--An Indian tribe may retain interest
or income earned on any funds paid under a compact or
funding agreement to carry out governmental purposes.
(2) No effect on other amounts.--The retention of
interest or income under paragraph (1) shall not
diminish the amount of funds an Indian tribe is
entitled to receive under a funding agreement in the
year the interest or income is earned or in any
subsequent fiscal year.
(3) Investment standard.--Funds transferred under
this title shall be managed by the Indian tribe using
the prudent investment standard, provided that the
Secretary shall not be liable for any investment losses
of funds managed by the Indian tribe which are not
otherwise guaranteed or insured by the Federal
Government.
(k) Carryover of Funds.--
(1) In general.--Notwithstanding any provision of an
Act of appropriation, all funds paid to an Indian tribe
in accordance with a compact or funding agreement shall
remain available until expended.
(2) Effect of carryover.--If an Indian tribe elects
to carry over funding from 1 year to the next, the
carryover shall not diminish the amount of funds the
Indian tribe is entitled to receive under a funding
agreement in that fiscal year or any subsequent fiscal
year.
(l) Limitation of Costs.--
(1) In general.--An Indian tribe shall not be
obligated to continue performance that requires an
expenditure of funds in excess of the amount of funds
transferred under a compact or funding agreement.
(2) Notice of insufficiency.--If at any time the
Indian tribe has reason to believe that the total
amount provided for a specific activity under a compact
or funding agreement is insufficient, the Indian tribe
shall provide reasonable notice of such insufficiency
to the Secretary.
(3) Suspension of performance.--If, after notice
under paragraph (2), the Secretary does not increase
the amount of funds transferred under the funding
agreement, the Indian tribe may suspend performance of
the activity until such time as additional funds are
transferred.
(m) Distribution of Funds.--The Office of Self-Governance
shall be responsible for distribution of all Bureau of Indian
Affairs funds provided under this title unless otherwise agreed
by the parties.
SEC. 410. FACILITATION.
(a) In General.--Except as otherwise provided by law, the
Secretary shall interpret each Federal law and regulation in a
manner that facilitates--
(1) the inclusion of programs in funding agreements;
and
(2) the implementation of funding agreements.
(b) Regulation Waiver.--
(1) Request.--An Indian tribe may submit a written
request for a waiver to the Secretary identifying the
specific text in regulation sought to be waived and the
basis for the request.
(2) Determination by the secretary.--Not later than
120 days after receipt by the Secretary of a request
under paragraph (1), the Secretary shall approve or
deny the requested waiver in writing to the Indian
tribe.
(3) Ground for denial.--The Secretary may deny a
request under paragraph (1)--
(A) for a program eligible under sections
405(b)(1) and 405(b)(3) only upon a specific
finding by the Secretary that the identified
text in the regulation may not be waived
because such a waiver is prohibited by Federal
law; and
(B) for a program eligible under section
405(b)(2), on a specific finding by the
Secretary that the identified text in the
regulation may not be waived because such a
waiver is prohibited under Federal law.
(4) Failure to make determination.--If the Secretary
fails to approve or deny a waiver request within the
time required under paragraph (2), the Secretary shall
be deemed to have approved the request.
(5) Finality.--The Secretary's decision shall be
final for the Department.
SEC. 411. DISCLAIMERS.
Nothing in this title expands or alters any statutory
authority of the Secretary so as to authorize the Secretary to
enter into any agreement under section 405--
(1) with respect to an inherent Federal function;
(2) in a case in which the law establishing a program
explicitly prohibits the type of participation sought
by the Indian tribe (without regard to whether one or
more Indian tribes are identified in the authorizing
law); or
(3) which limits or reduces in any way the services,
contracts, or funds that any other Indian tribe or
tribal organization is eligible to receive under
section 102 or any other applicable Federal law.
SEC. 412. DISCRETIONARY APPLICATION OF OTHER SECTIONS.
(a) In General.--At the option of a participating Indian
tribe or Indian tribes, any of the provisions of title I shall
be incorporated in any Department compact or funding agreement.
(b) Effect.--Each incorporated provision--
(1) shall have the same force and effect as if set
out in full in this title; and
(2) shall be deemed to supplement or replace any
related provision in this title and to apply to any
agency otherwise governed by this title.
(c) Effective Date.--If an Indian tribe requests
incorporation at the negotiation stage of a compact or funding
agreement, the incorporation--
(1) shall be deemed effective immediately; and
(2) shall control the negotiation and resulting
compact and funding agreement.
SEC. 413. FUNDING NEEDS.
(a) Requirement of Annual Budget Request.--
(1) In general.--The President shall identify in a
report to accompany the annual budget request submitted
to Congress under section 1105 of title 31, United
States Code, all amounts necessary to fully fund all
funding agreements entered into under this Act.
(2) Duty of secretary.--The Secretary shall identify
in a report which accompanies each budget request the
amount of funds that are sufficient for planning and
negotiation grants and sufficient to cover any
shortfall in funding identified under subsection (b).
(3) Rule of construction.--Nothing in this subsection
authorizes the Secretary to reduce the amount of funds
that an Indian tribe is otherwise entitled to receive
under a funding agreement or other applicable law.
(b) Present Funding; Shortfalls.--In each report identified
in subsection (a), the Secretary shall identify the level of
need presently funded and any shortfall in funding (including
direct program costs, tribal shares, and contract support
costs) for each Indian tribe, either directly by the Secretary,
under self-determination contracts, or under compacts and
funding agreements. The first report identified in subsection
(a) shall be limited to the Bureau of Indian Affairs agency
office and shall be due on February 1, 2012. The next report
due on February 1, 2013, shall include all funding at the
Bureau of Indian Affairs agency and regional offices. The next
report due on February 1, 2014, and all subsequent reports,
shall include all funding at the Bureau of Indian Affairs
agency, regional, and central offices, the Office of the
Assistant Secretary for Indian Affairs, and the Office of the
Special Trustee.
SEC. 414. REPORTS.
(a) In General.--
(1) Requirement.--On February 1 of each year, the
Secretary shall submit to Congress a report regarding
the administration of this title.
(2) Analysis.--A report under paragraph (1) shall
include a detailed analysis of tribal unmet need for
each Indian tribe, whether the Indian tribe is served
directly by the Secretary, under self-determination
contracts under title I, or under compacts and funding
agreements authorized under this title.
(3) No additional reporting requirements.--In
preparing reports under paragraph (1), the Secretary
may not impose any reporting requirements on
participating Indian tribes not otherwise provided by
this title.
(b) Contents.--The report under subsection (a)(1) shall--
(1) be compiled from information contained in funding
agreements, annual audit reports, and data of the
Secretary regarding the disposition of Federal funds;
(2) identify--
(A) the relative costs and benefits of self-
governance;
(B) with particularity, all funds that are
specifically or functionally related to the
provision by the Secretary of services and
benefits to self-governance Indian tribes and
members of Indian tribes;
(C) the funds transferred to each Indian
tribe and the corresponding reduction in the
Federal employees and workload;
(D) the funding formula for individual tribal
shares of all Central Office funds, together
with the comments of affected Indian tribes,
developed under subsection (d); and
(E) amounts expended in the preceding fiscal
year to carry out inherent Federal functions,
including an identification of inherent Federal
functions;
(3) contain a description of the methods used to
determine the individual tribal share of funds
controlled by all components of the Department
(including funds assessed by any other Federal agency)
for inclusion in compacts or funding agreements;
(4) before being submitted to Congress, be
distributed to the Indian tribes for comment (with a
comment period of no less than 30 days); and
(5) include the separate views and comments of each
Indian tribe or tribal organization.
(c) Report on Non-BIA, Non-OST Programs.--
(1) In general.--In order to optimize opportunities
for Indian tribes participating in self-governance
under this title, the Secretary shall--
(A) review all programs administered by the
Department, other than through the Bureau of
Indian Affairs, the Office of the Assistant
Secretary for Indian Affairs, or the Office of
Special Trustee, without regard to the agency
or office concerned; and
(B) not later than January 1 of each year,
submit to Congress--
(i) a list of all such programs that
the Secretary determines, with the
concurrence of Indian tribes
participating in self-governance under
this title, are eligible to be included
in a funding agreement at the request
of a participating Indian tribe; and
(ii) a list of all such programs for
which Indian tribes have requested to
include in a funding agreement under
section 405(b)(2) or 405(b)(3),
indicating whether each request was
granted or denied, and stating the
grounds for any denial.
(2) Programmatic targets.--The Secretary shall
establish programmatic targets, after consultation with
Indian tribes participating in self-governance, to
encourage bureaus of the Department to ensure that a
significant portion of the programs identified in
paragraph (1) are included in funding agreements.
(3) Publication.--The lists and targets under
paragraphs (1) and (2) shall be published in the
Federal Register and made available to any Indian tribe
participating in self-governance.
(4) Annual review.--
(A) In general.--The Secretary shall annually
review and publish in the Federal Register,
after consultation with Indian tribes
participating in self-governance, revised lists
and programmatic targets.
(B) Contents.--The revised lists and
programmatic targets shall include all programs
that were eligible for contracting in the
original list published in the Federal Register
in 1995, except for programs specifically
determined not to be contractible as a matter
of law.
(d) Report on Central Office Funds.--Not later than February
1, 2012, the Secretary shall, in consultation with Indian
tribes, develop a funding formula to determine the individual
tribal share of funds controlled by the Central Office of the
Bureau of Indian Affairs and the Office of the Special Trustee
and the Office of the Assistant Secretary for Indian Affairs
for inclusion in the compacts.
SEC. 415. REGULATIONS.
(a) In General.--
(1) Promulgation.--Not later than 90 days after the
date of the enactment of the Department of the Interior
Tribal Self-Governance Act of 2009, the Secretary shall
initiate procedures under subchapter III of chapter 5
of title 5, United States Code, to negotiate and
promulgate such regulations as are necessary to carry
out the amendments made by this title.
(2) Publication of proposed regulations.--Proposed
regulations to implement the amendments shall be
published in the Federal Register not later than 18
months after the date of the enactment of this title.
(3) Expiration of authority.--The authority to
promulgate regulations under paragraph (1) shall expire
on the date that is 24 months after the date of the
enactment of this title.
(b) Committee.--
(1) Membership.--A negotiated rulemaking committee
established pursuant to section 565 of title 5, United
States Code, to carry out this section shall have as
its members only Federal and tribal government
representatives.
(2) Lead agency.--Among the Federal representatives,
the Office of Self-Governance shall be the lead agency
for the Department.
(c) Adaptation of Procedures.--The Secretary shall adapt the
negotiated rulemaking procedures to the unique context of self-
governance and the government-to-government relationship
between the United States and Indian tribes.
(d) Effect.--
(1) Repeal.--The Secretary is authorized to repeal
any regulation inconsistent with the provisions of this
Act.
(2) Conflicting provisions.--The provisions of this
title shall supersede any conflicting provisions of law
(including any conflicting regulations).
(3) Effectiveness without regard to regulations.--The
lack of promulgated regulations on an issue shall not
limit the effect or the implementation of this title.
SEC. 416. EFFECT OF CIRCULARS, POLICIES, MANUALS, GUIDANCES, AND RULES.
Unless expressly agreed to by a participating Indian tribe in
the compact or funding agreement, the participating Indian
tribe shall not be subject to any agency circular, policy,
manual, guidance, or rule adopted by the Department, except
for--
(1) the eligibility provisions of section 105(g); and
(2) regulations promulgated under section 415.
SEC. 417. APPEALS.
In any administrative appeal or civil action for judicial
review of any decision made by the Secretary under this title,
the Secretary shall have the burden of proof of demonstrating
by a preponderance of the evidence--
(1) the validity of the grounds for the decision; and
(2) the consistency of the decision with the
provisions and policies of this title.
SEC. 418. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as may be
necessary to carry out this title.