### §5381. Definitions

#### (a) In general

In this subchapter:

#### (1) Construction project

The term "construction project"—

(A) means an organized noncontinuous undertaking to complete a specific set of predetermined objectives for the planning, environmental determination, design, construction, repair, improvement, or expansion of buildings or facilities, as described in a construction project agreement; and

(B) does not include construction program administration and activities described in paragraphs (1) through (3) of section 5304(m) of this title, that may otherwise be included in a funding agreement under this subchapter.

#### (2) Construction project agreement

The term "construction project agreement" means a negotiated agreement between the Secretary and an Indian tribe, that at a minimum—

(A) establishes project phase start and completion dates;

(B) defines a specific scope of work and standards by which it will be accomplished;

(C) identifies the responsibilities of the Indian tribe and the Secretary;

(D) addresses environmental considerations;

(E) identifies the owner and operations and maintenance entity of the proposed work;

(F) provides a budget;

(G) provides a payment process; and

(H) establishes the duration of the agreement based on the time necessary to complete the specified scope of work, which may be 1 or more years.

#### (3) Gross mismanagement

The term "gross mismanagement" means a significant, clear, and convincing violation of a compact, funding agreement, or regulatory, or statutory requirements applicable to Federal funds transferred to an Indian tribe by a compact or funding agreement that results in a significant reduction of funds available for the programs, services, functions, or activities (or portions thereof) assumed by an Indian tribe.

#### (4) Inherent Federal functions

The term "inherent Federal functions" means those Federal functions which cannot legally be delegated to Indian tribes.

#### (5) Inter-tribal consortium

The term "inter-tribal consortium" means a coalition of two 1 more separate Indian tribes that join together for the purpose of participating in self-governance, including tribal organizations.

#### (6) Secretary

The term "Secretary" means the Secretary of Health and Human Services.

#### (7) Self-governance

The term "self-governance" means the program of self-governance established under section 5382 of this title.

#### (8) Tribal share

The term "tribal share" means an Indian tribe's portion of all funds and resources that support secretarial programs, services, functions, and activities (or portions thereof) that are not required by the Secretary for performance of inherent Federal functions.

#### (b) Indian tribe

In any case in which an Indian tribe has authorized another Indian tribe, an inter-tribal consortium, or a tribal organization to plan for or carry out programs, services, functions, or activities (or portions thereof) on its behalf under this subchapter, the authorized Indian tribe, inter-tribal consortium, or tribal organization shall have the rights and responsibilities of the authorizing Indian tribe (except as otherwise provided in the authorizing resolution or in this subchapter). In such event, the term "Indian tribe" as used in this subchapter shall include such other authorized Indian tribe, inter-tribal consortium, or tribal organization.

(Pub. L. 93–638, title V, §501, as added Pub. L. 106–260, §4, Aug. 18, 2000, 114 Stat. 712.)

#### **Editorial Notes**

#### Codification

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

Another section 501 of Pub. L. 93–638 was renumbered section 801 and is classified to section 5421 of this title.

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

#### Effective Date

Pub. L. 106–260, §13, Aug. 18, 2000, 114 Stat. 734, provided that: "Except as otherwise provided, the provisions of this Act [enacting this subchapter, amending sections 5321, 5324, and 5325 of this title, enacting provisions set out as notes under this section and sections 5301 and 5321 of this title, and repealing provisions set out as a note under former section 450f of this title] shall take effect on the date of the enactment of this Act [Aug. 18, 2000]."

#### Findings

Pub. L. 106–260, §2, Aug. 18, 2000, 114 Stat. 711, 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 Indian 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, established under title III of the Indian Self-Determination and Education Assistance Act ([Pub. L. 93–638, former] 25 U.S.C. 450f note) 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;

"(5) although the Federal Government has made considerable strides in improving Indian health care, it has failed to fully meet its trust responsibilities and to satisfy its obligations to the Indian tribes under treaties and other laws; and

"(6) Congress has reviewed the results of the Tribal Self-Governance Demonstration Project and finds that transferring full control and funding to tribal governments, upon tribal request, over decision making for Federal programs, services, functions, and activities (or portions thereof)—

"(A) is an appropriate and effective means of implementing the Federal policy of government-to-government relations with Indian tribes; and

"(B) strengthens the Federal policy of Indian self-determination."

#### Declaration of Policy

Pub. L. 106–260, §3, Aug. 18, 2000, 114 Stat. 712, provided that: "It is the policy of Congress—

"(1) to permanently establish and implement tribal self-governance within the Department of Health and Human Services;

"(2) to call for full cooperation from the Department of Health and Human Services and its constituent agencies in the implementation of tribal self-governance—

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

"(B) to permit each Indian tribe to choose the extent of its participation in self-governance in accordance with the provisions of the Indian Self-Determination and Education Assistance Act [25 U.S.C. 5301 et seq.] relating to the provision of Federal services to Indian tribes;

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

"(D) to affirm and enable the United States to fulfill its obligations to the Indian tribes under treaties and other laws;

"(E) to strengthen the government-to-government relationship between the United States and Indian tribes through direct and meaningful consultation with all tribes;

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

"(G) to provide for a measurable parallel reduction in the Federal bureaucracy as programs, services, functions, and activities (or portion thereof) are assumed by Indian tribes;

"(H) to encourage the Secretary to identify all programs, services, functions, and activities (or portions thereof) of the Department of Health and Human Services that may be managed by an Indian tribe under this Act [see Short Title of 2000 Amendments note set out under section 5301 of this title] and to assist Indian tribes in assuming responsibility for such programs, services, functions, and activities (or portions thereof); and

"(I) to provide Indian tribes with the earliest opportunity to administer programs, services, functions, and activities (or portions thereof) from throughout the Department of Health and Human Services."

1 So in original. Probably should be followed by "or".