89–006 

111TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 111–603 

DEPARTMENT OF THE INTERIOR TRIBAL SELFGOVERNANCE 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. 


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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: 


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‘‘(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 

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‘‘(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— 


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‘‘(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 closeout 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 


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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 

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‘‘(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 


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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. 


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‘‘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 


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‘‘(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 


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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. 


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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; 


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‘‘(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. 


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‘‘(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 


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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.— 


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‘‘(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 SelfGovernance 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-togovernment 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 relaVerDate Mar 15 2010 08:56 Sep 17, 2010 Jkt 089006 PO 00000 Frm 00016 Fmt 6659 Sfmt 6602 E:\HR\OC\HR603.XXX HR603

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tionship 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. 


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2000 ISDEAA Amendments (P.L. 106–260) 

In 2000, Congress enacted P.L. 106–260, which made the selfgovernance 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 selfgovernance 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 SelfDetermination and Education Assistance Act (ISDEAA) (25 U.S.C. 

§ 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. 


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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 addiVerDate Mar 15 2010 08:56 Sep 17, 2010 Jkt 089006 PO 00000 Frm 00019 Fmt 6659 Sfmt 6602 E:\HR\OC\HR603.XXX HR603

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tion, 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). 


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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 selfgovernance, 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. 


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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 

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tion 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 


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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-togovernment 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. 


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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 


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By fiscal year, in millions of dollars— 

2011 2012 2013 2014 2015 2011–2015 

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 SelfGovernance 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): 


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INDIAN SELF-DETERMINATION AND EDUCATION 

ASSISTANCE ACT 

* * * * * * * 

SEC. 4. For purposes of this Act, the term— 

(a) * * * 

* * * * * * * 

ø(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 øafter 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) * * * 

* * * * * * * 


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(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 øeconomic 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. 

* * * * * * * 

ø(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). 

ø(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— 

ø(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 

ø(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 øpursuant 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 


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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. 

* * * * * * * 

ø(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 


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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 contractø, and¿; 

(ii) any additional administrative or other øexpense 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 contractø,¿; 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 ll 

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. 

* * * * * * * 


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øTITLE IV—TRIBAL SELF-GOVERNANCE 

øSEC. 401. ESTABLISHMENT. 

øThe 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. 

øSEC. 402. SELECTION OF PARTICIPATING INDIAN TRIBES. 

ø(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. 

ø(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. 

ø(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. 

ø(c) APPLICANT POOL.—The qualified applicant pool for Self-Governance shall consist of each tribe that— 

ø(1) successfully completes the planning phase described in 

subsection (d); 

ø(2) has requested participation in Self-Governance by resolution or other official action by the tribal governing body; and 

ø(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. 

ø(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— 

ø(1) legal and budgetary research; and 

ø(2) internal tribal government planning and organizational 

preparation. 

øSEC. 403. FUNDING AGREEMENTS. 

ø(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. 

ø(b) CONTENTS.—Each funding agreement shall— 

ø(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 


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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— 

ø(A) the Act of April 16, 1934 (25 U.S.C. 452 et seq.); 

ø(B) the Act of November 2, 1921 (25 U.S.C. 13); and 

ø(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; 

ø(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; 

ø(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; 

ø(4) prohibit the inclusion of funds provided— 

ø(A) pursuant to the Tribally Controlled Colleges and 

Universities Assistance Act of 1978 (25 U.S.C. 1801 et 

seq.); 

ø(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 

ø(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; 

ø(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; 

ø(6) authorize the tribe and the Secretary to reallocate funds 

or modify budget allocations within any year, and specify the 

procedures to be used; 

ø(7) allow for retrocession of programs or portions of programs pursuant to section 105(e); 

ø(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— 


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ø(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 

ø(B) shall be responsible for the administration of programs, services, functions, and activities pursuant to 

agreements entered into under this section; and 

ø(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. 

ø(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. 

ø(d) PROVISIONS RELATING TO THE SECRETARY.—Funding agreements negotiated between the Secretary and an Indian tribe shall 

include provisions— 

ø(1) to monitor the performance of trust functions by the 

tribe through the annual trust evaluation, and 

ø(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. 

ø(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. 

ø(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. 

ø(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— 

ø(1) each Indian tribe that is served by the Agency that is 

serving the tribe that is a party to the funding agreement; 

ø(2) the Committee on Indian Affairs of the Senate; and 

ø(3) the Subcommittee on Native American Affairs of the 

Committee on Natural Resources of the House of Representatives. 

ø(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. 

ø(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. 


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ø(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. 

ø(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. 

ø(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. 

ø(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. 

ø(i) FACILITATION.—(1) Except as otherwise provided by law, the 

Secretary shall interpret each Federal law and regulation in a 

manner that will facilitate— 

ø(A) the inclusion of programs, services, functions, and activities in the agreements entered into under this section; and 

ø(B) the implementation of agreements entered into under 

this section. 

ø(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. 

ø(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. 

ø(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 nonFederal funds for purposes of meeting matching requirements 

under any other Federal law. 

ø(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 


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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). 

ø(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. 

øSEC. 404. BUDGET REQUEST. 

øThe 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. 

øSEC. 405. REPORTS. 

ø(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. 

ø(b) CONTENTS.—The report shall— 

ø(1) identify the relative costs and benefits of Self-Governance; 

ø(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; 

ø(3) identify the funds transferred to each Self-Governance 

tribe and the corresponding reduction in the Federal bureaucracy; 

ø(4) include the separate views of the tribes; and 

ø(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). 

ø(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— 

ø(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 

ø(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. 

ø(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 

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tivities are actually included in the agreements negotiated under 

section 403. 

ø(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. 

ø(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. 

ø(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. 

øSEC. 406. DISCLAIMERS. 

ø(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. 

ø(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. 

ø(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. 

øSEC. 407. REGULATIONS. 

ø(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. 

ø(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. 

ø(c) ADAPTATION OF PROCEDURES.—The Secretary shall adapt the 

negotiated rulemaking procedures to the unique context of SelfGovernance and the government-to-government relationship between the United States and the Indian tribes. 

ø(d) EFFECT.—The lack of promulgated regulations shall not 

limit the effect of this title. 

øSEC. 408. AUTHORIZATION OF APPROPRIATIONS. 

øThere are authorized to be appropriated such sums as may be 

necessary to carry out this title.¿ 


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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. 


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(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 ORGANIZA- TION.—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 selfgovernance 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 


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(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 closeout 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 

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dian 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-togovernment 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 selfgovernance 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 


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(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 


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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. 


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(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.— 


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(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.— 


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(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. 


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(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. 


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(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. 


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(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; 


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(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. 


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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— 


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(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 selfdetermination 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 diVerDate Mar 15 2010 08:56 Sep 17, 2010 Jkt 089006 PO 00000 Frm 00051 Fmt 6659 Sfmt 6603 E:\HR\OC\HR603.XXX HR603

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minish 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. 


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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 BuVerDate Mar 15 2010 08:56 Sep 17, 2010 Jkt 089006 PO 00000 Frm 00053 Fmt 6659 Sfmt 6603 E:\HR\OC\HR603.XXX HR603

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reau 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 


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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.— 


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(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. 

Æ 


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