### §5361. Definitions

In this subchapter:

#### (1) Compact

The term "compact" means a self-governance compact entered into under section 5364 of this title.

#### (2) Construction program; construction project

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 5363 of this title.

#### (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 for a program administered by an Indian Tribe under a compact or funding agreement.

#### (6) Inherent Federal function

The term "inherent Federal function" means a Federal function that may not legally be delegated to an Indian Tribe.

#### (7) Non-BIA program

The term "non-BIA program" means all or a portion of a program, function, service, or activity that is administered by any bureau, service, office, or agency of the Department of the Interior other than—

(A) the Bureau of Indian Affairs;

(B) the Office of the Assistant Secretary for Indian Affairs; or

(C) the Office of the Special Trustee for American Indians.

#### (8) Program

The term "program" means any program, function, service, or activity (or portion thereof) within the Department that is included in a funding agreement.

#### (9) Secretary

The term "Secretary" means the Secretary of the Interior.

#### (10) Self-determination contract

The term "self-determination contract" means a self-determination contract entered into under section 5321 of this title.

#### (11) Self-governance

The term "self-governance" means the Tribal Self-Governance Program established under section 5362 of this title.

#### (12) Tribal share

The term "Tribal share" means the portion of all funds and resources of an Indian Tribe that—

(A) support any program within the Bureau of Indian Affairs, the Office of the Special Trustee for American Indians, or the Office of the Assistant Secretary for Indian Affairs; and

(B) are not required by the Secretary for the performance of an inherent Federal function.

#### (13) Tribal water rights settlement

The term "Tribal water rights settlement" means any settlement, compact, or other agreement expressly ratified or approved by an Act of Congress that—

(A) includes an Indian Tribe and the United States as parties; and

(B) quantifies or otherwise defines any water right of the Indian Tribe.

(Pub. L. 93–638, title IV, §401, as added Pub. L. 103–413, title II, §204, Oct. 25, 1994, 108 Stat. 4271; Pub. L. 116–180, title I, §101(b), Oct. 21, 2020, 134 Stat. 858.)

#### **Editorial Notes**

#### Codification

Section was formerly classified to section 458aa of this title prior to editorial reclassification and renumbering as this section.

#### Amendments

2020—Pub. L. 116–180 amended section generally. Prior to amendment, section related to establishment of a Tribal Self-Governance program. See section 5362 of this title.

#### **Statutory Notes and Related Subsidiaries**

#### Short Title

For short title of this subchapter as the "Tribal Self-Governance Act of 1994", see section 201 of Pub. L. 103–413, set out as a Short Title of 1994 Amendment note under section 5301 of this title.

#### Construction of 2020 Amendment

Pub. L. 116–180, title I, §101(a), Oct. 21, 2020, 134 Stat. 857, provided that: "Nothing in this Act [see Short Title of 2020 Amendment note set out under section 5301 of this title], or the amendments made by this Act, shall be construed—

"(1) to modify, limit, expand, or otherwise affect—

"(A) the authority of the Secretary of the Interior, as provided for under the Indian Self-Determination and Education Assistance Act [25 U.S.C. 5301 et seq.] (as in effect on the day before the date of enactment of this Act [Oct. 21, 2020]), regarding—

"(i) the inclusion of any non-BIA program (as defined in section 401 of the Indian Self-Determination and Education Assistance Act [25 U.S.C. 5361]) in a self-determination contract or funding agreement under section 403(c) of such Act [25 U.S.C. 5363(c)] (as so in effect); or

"(ii) the implementation of any contract or agreement described in clause (i) that is in effect on the day described in subparagraph (A);

"(B) the meaning, application, or effect of any Tribal water rights settlement, including the performance required of a party thereto or any payment or funding obligation thereunder;

"(C) the authority, jurisdiction, or responsibility of a State to manage, control, or regulate fish and wildlife under State law (including regulations) on land or water in the State, including Federal public land;

"(D) except for the authority provided to the Secretary as described in subparagraph (A), the applicability or effect of any Federal law related to the protection or management of fish or wildlife; or

"(E) any treaty-reserved right or other right of any Indian Tribe as recognized by any other means, including treaties or agreements with the United States, Executive orders, statutes, regulations, or case law; or

"(2) to authorize any provision of a contract or agreement that is not consistent with the terms of a Tribal water rights settlement."

#### Application of Other Provisions

Pub. L. 116–180, title II, §201(d), Oct. 21, 2020, 134 Stat. 879, provided that: "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 (25 U.S.C. 5304, 5305, 5306, 5307, 5321(c), 5323, 5324(a)(1), 5324(f), 5331, and 5332) and section 314 of the Department of the Interior and Related Agencies Appropriations Act, 1991 (Public Law 101–512; 104 Stat. 1959) [25 U.S.C. 5321 note], apply to compacts and funding agreements entered into under title IV of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5361 et seq.)."

#### Congressional Statement of Findings

Pub. L. 103–413, title II, §202, Oct. 25, 1994, 108 Stat. 4270, provided that: "Congress finds that—

"(1) the tribal right of self-government flows from the inherent sovereignty of Indian tribes and nations;

"(2) the United States recognizes a special government-to-government relationship with Indian tribes, including the right of the tribes to self-governance, as reflected in the Constitution, treaties, Federal statutes, and the course of dealings of the United States with Indian tribes;

"(3) although progress has been made, the Federal bureaucracy, with its centralized rules and regulations, has eroded tribal self-governance and dominates tribal affairs;

"(4) the Tribal Self-Governance Demonstration Project [see Pub. L. 93–638, title III, as added by Pub. L. 100–472, title II, §209, Oct. 5, 1988, 102 Stat. 2296, formerly set out as a note under former 25 U.S.C. 450f] was designed to improve and perpetuate the government-to-government relationship between Indian tribes and the United States and to strengthen tribal control over Federal funding and program management; and

"(5) Congress has reviewed the results of the Tribal Self-Governance Demonstration Project and finds that—

"(A) transferring control to tribal governments, upon tribal request, over funding and decisionmaking for Federal programs, services, functions, and activities, or portions thereof, is an effective way to implement the Federal policy of government-to-government relations with Indian tribes; and

"(B) transferring control to tribal governments, upon tribal request, over funding and decisionmaking for Federal programs, services, functions, and activities strengthens the Federal policy of Indian self-determination."

#### Congressional Declaration of Policy

Pub. L. 103–413, title II, §203, Oct. 25, 1994, 108 Stat. 4271, provided that: "It is the policy of this title [enacting this subchapter] to permanently establish and implement tribal self-governance—

"(1) to enable the United States to maintain and improve its unique and continuing relationship with, and responsibility to, Indian tribes;

"(2) to permit each Indian tribe to choose the extent of the participation of such tribe in self-governance;

"(3) to coexist with the provisions of the Indian Self-Determination Act [title I of Pub. L. 93–638, see Short Title note set out under section 5301 of this title] relating to the provision of Indian services by designated Federal agencies;

"(4) to ensure the continuation of the trust responsibility of the United States to Indian tribes and Indian individuals;

"(5) to permit an orderly transition from Federal domination of programs and services to provide Indian tribes with meaningful authority to plan, conduct, redesign, and administer programs, services, functions, and activities that meet the needs of the individual tribal communities; and

"(6) to provide for an orderly transition through a planned and measurable parallel reduction in the Federal bureaucracy."