39–010 

Calendar No. 804

108TH CONGRESS REPORT " SENATE ! 2d Session 108–413

AMENDING THE INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACT TO PROVIDE FURTHER SELFGOVERNANCE BY INDIAN TRIBES 

NOVEMBER 16, 2004.—Ordered to be printed 

Mr. CAMPBELL, from the Committee on Indian Affairs, 

submitted the following 

R E P O R T 

[To accompany S. 1715] 

The Committee on Indian Affairs, to which was referred the bill 

(S. 1715) to amend the Indian Self-Determination and Education 

Assistance Act to provide for further self-governance by Indian 

tribes, having considered the same, reports favorably thereon with 

amendments and recommends that the bill as amended do pass. 

PURPOSE

The primary purpose of S. 1715, the Department of the Interior 

Tribal Self-Governance Act of 2004, is to clarify and expand the 

provisions of the Indian Self-Determination and Education Assistance Act of 1975, Pub. L. 93–638 (the ‘‘ISDEAA’’), applicable to the 

Department of the Interior (‘‘DoI’’). This legislation is necessary to 

make amendments to the ISDEAA so that participating Indian 

tribes may better govern themselves and serve their members. 

BACKGROUND

A. History of Tribal Self-Governance 

In 1970 President Nixon issued his famous ‘‘Special Message to 

Congress on Indian Affairs’’, July 8, 1970, and laid out the rationales for a new, more enlightened Federal Indian policy: Indian SelfDetermination. He stated in part that:

This, then, must be the goal of any new national policy 

toward the Indian people: to strengthen the Indian’s sense 

of autonomy without threatening his sense of community. 

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We must assure the Indian that he can assume control of 

his own life without being separated involuntarily from the 

tribal group. And we must make it clear that Indians can 

become independent of Federal control without being cut 

off from Federal concern and Federal support. * * *

In my judgment, it should be up to the Indian tribe to 

determine whether it is willing and able to assume administrative responsibility for a service program which is presently administered by a Federal agency.

With the passage of the ISDEAA in 1975, Congress reaffirmed 

President Nixon’s policy shift and began the transition from the 

Federal domination of programs and services for the benefit of Indians and for the first time authorized the Indian tribes to design 

and implement these programs and services in a manner that is 

more responsive to the specific needs of their members. In the 30 

years since the enactment of the ISDEAA, every succeeding Congress and Administration have sought to strengthen and expand 

Indian Self Determination. 

In 1984 Congress significantly strengthened the ISDEAA when it 

enacted Pub. L. 98–250, which provided, in part, for an exemption 

from the Federal Grant and Cooperative Agreement Act of 1977, 

Pub. L. 95–224, for contracts and cooperative agreements under the 

ISDEAA. Significant amendments were made again in 1988, when 

Congress enacted Pub. L. 100–472, which amended the ISDEAA 

and created a Self-Governance Demonstration Project within the 

Department of Health and Human Services. 

In 1994 Congress enacted the Tribal Self-Governance Act, Pub. 

L. 103–413, building on the success of the original ISDEAA and 

made Self-Governance compacts permanent for the Department of 

Interior. The Tribal Self-Governance Act provides compacting 

tribes the flexibility to re-design programs and re-allocate funds 

among the various DoI programs they choose to operate. 

The hallmarks of Self Governance are tribal-specific program design, implementation flexibility and expansion of services by compacting tribes and the Act has enabled these tribes to achieve significant benefits in terms of service quality enhancement and development of administrative acumen. 

B. S. 1715, The Department of Interior Tribal Self Governance Act 

of 2004 

The Department of Interior Tribal Self Governance Act of 2004, 

(S. 1715) will expand the provisions of the Tribal Self Governance 

Act that are applicable to the DoI. The legislation is integral to the 

steady progress and success of Self Governance for Indian tribes, 

as there are many Bureau of Indian Affairs (‘‘BIA’’) and non-BIA 

programs within the DoI that affect the ability of Indian tribes to 

better serve their members. 

It is the Committee’s intention in amending the ISDEAA through 

S. 1715 to address identified statutory obstacles hindering the efforts of Self Governance tribes seeking to compact programs and 

services provided by agencies other than the BIA. It is also the 

Committee’s intention to ensure that the provisions of Title IV—including construction and transportation projects—are comparable 

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and consistent with the provisions of Title V, as amended by Pub. 

L. 106–260. 

The process of developing amendments to Title IV of the ISDEAA 

began shortly after passage of Pub. L. 106–260 in 2000. For over 

three years, a team of tribal leaders and technical advisors developed and refined proposed amendments. The team consulted with 

the BIA to the maximum extent possible to derive solutions to existing problems acceptable to the agency, and consistent with that 

agency’s statutory and trust responsibilities to Indian tribes. The 

product of these discussions and consultations were presented to 

the Committee for consideration to resolve existing statutory problems within Title IV of the ISDEAA. 

On October 3, 2003, Senator Campbell, for himself and for Senator Inouye, introduced S. 1715 to address the identified statutory 

problems in implementing Title IV of the ISDEAA. The bill, as introduced, reflected in substantial part the multi-year consultations 

between the BIA and tribes with regard to ways to improve the 

ISDEAA as it applies to the DoI.

On May 12, 2004, the Committee held a legislative hearing on 

S. 1715. Witnesses at the hearing included the Assistant SecretaryIndian Affairs, on behalf of the DoI, various Indian tribes and tribal organizations, and a recognized Indian Tribal Self Governance 

expert. 

All of the witnesses concurred that the basic purposes of S. 1715 

were desirable. The Assistant Secretary-Indian Affairs indicated 

specific concerns of the DoI regarding re-assumption standards, the 

definition of ‘‘inherent Federal function’’, and limits placed on the 

Secretary’s discretion to decide on the eligibility of programs. These 

concerns prevented the DoI from supporting the bill at the time of 

the hearing. The tribal witnesses were uniformly supportive of the 

bill as introduced. 

On June 16, at a business meeting duly noticed, the Committee 

adopted amendments to S. 1715, and, as amended, reported the bill 

to the full Senate, with a favorable recommendation that the bill 

do pass. 

SUMMARY OF MAJOR PROVISIONS

1. Overview 

The purpose in amending Pub. L. 93–638 through S. 1715 is to 

reaffirm the original intent of the ISDEAA, and strengthen and expand the Federal policy of Tribal Self Governance. S. 1715 extends 

the benefits realized by tribes and the Federal government from 

‘‘Indian-only’’ programs and services to include non-BIA programs 

within the DoI for which, in the Secretary’s discretion, a compacting or contracting tribe has a special geographic, historical or 

cultural interest. The bill also amends Title IV of the ISDEAA to 

make it more consistent with current Title V of the ISDEAA. It is 

the Committee’s intent that S. 1715 be broadly interpreted to accomplish these purposes. 

2. Definitions 

S. 1715 adds new definitions to the ISDEAA, such as ‘‘construction project,’’ ‘‘tribal share,’’ ‘‘inherent Federal functions,’’ and 

‘‘gross mismanagement’’. 

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Construction Project: S. 1715 adds a new definition of ‘‘construction project’’, which refers to a specific project or undertaking pursuant to a construction program compacted under Title IV. 

Gross Mismanagement: The term ‘‘gross mismanagement’’ is defined to provide a legal standard for re-assumption by the Secretary under new Section 407(b). ‘‘Gross mismanagewment’’ is defined as a significant, clear, and convincing violation of compact, 

funding agreement, regulatory or statutory requirements related to 

the transfer of Self-Governance funds to the tribe that results in 

a significant reduction of funds to the tribe’s Self-Governance program. 

The Committee believes that the inclusion of a definition of 

‘‘gross mismanagement’’ is an appropriate performance standard, 

and failure to meet that standard is appropriate ground for re-assumption. This definition is narrowly tailored and is intended by 

the Committee to require a high degree of proof by the Secretary. 

The Committee is well aware of tribal concerns and agrees that the 

inclusion of this performance standard must not be utilized by the 

Secretary in such a manner as to needlessly impose monitoring and 

auditing requirements that hinder the efficient operation of tribal 

programs. Requiring intrusive and over-burdensome monitoring 

and auditing activities are antithetical to the goals of Self-Governance and the intent of the Committee. 

Inherent Federal Function: S. 1715 adds a new definition for ‘‘inherent Federal function’’, and defines such to be functions which 

cannot be legally delegated to Indian tribes. ‘‘Inherent Federal 

functions’’ are those which the Executive Branch cannot by law delegate to other branches of governments, or non-governmental entities. The Committee’s definition is consistent with the Department 

of the Interior Solicitor’s Memorandum of May 17, 1996 entitled 

‘‘Inherently Federal Functions under the Tribal Self-Governance 

Act of 1994.’’ 

At the May 12 hearing, the DoI requested that the Committee 

provide further clarification to the DoI and tribes by defining exactly which Federal functions are ‘‘inherent’’ and thus subject to 

the United States’ ‘‘trust responsibility.’’ The Committee declined to 

further specify what DoI functions and responsibilities are inherent 

or trigger the trust responsibility and, instead, the Committee’s 

definition is expressly intended to provide flexibility so as to allow 

the Secretary and the tribes to come to agreement on which functions are inherently Federal on a case-by-case basis. 

Tribal Share: S. 1715 adds a new definition for ‘‘Tribal Share’’, 

which are defined as residual funds ‘‘that support secretarial included programs that are not required by the Secretary for the performance of inherent Federal functions.’’ All funds appropriated 

under the Indian Self Determination and Education Assistance Act 

are either tribal shares or agency residual funds necessary for the 

performance of inherent Federal functions. 

3. Removal of Annual Cap on New Tribes Eligible for Compacts 

One of the most important provisions in S. 1715 is contained in 

new section 403 which removes the annual cap on new tribes entering Self Governance compacts. Instead, any tribe meeting the eligibility requirements can participate. It the Committee’s belief that 

this provision is both substantively and symbolically important as 

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a benchmark in the Federal and tribal relationship. Removing artificial barriers, such as annual caps on the number of new tribes 

that can enter Self Governance compacts, is indicative of the joint 

maturation and mutual capacity of the DoI and tribes to enter into 

government-to-government agreements under the Act. 

4. Funding Agreements Expanded 

Current section 403 is renumbered section 405 and is amended 

to expand authority for a tribe to include within annual funding 

agreements programs within or outside of the BIA or Office of Special Trustee that are provided for in the Act of April 16, 1934, the 

Johnson-O’Malley Act (25 U.S.C. 452, et seq.), the Act of November 

2, 1921, the Snyder Act (25 U.S.C. 13), or that the Secretary administers for the benefit of Indians with appropriations made to 

agencies other than the DoI, or are provided for the benefit of Indians because of their status as Indians. 

These programs specifically include all programs with respect to 

which Indians are the primary or significant beneficiaries. The 

Committee believes, and expressly intends, that the DoI should, in 

keeping with its trust responsibilities, give special consideration to 

including these programs within annual funding agreements. 

New section 405 also contains new authority whereby a funding 

agreement may, in the Secretary’s discretion, contain programs 

within any agency of DoI that are of a special geographic, historical, or cultural significance to the Indian tribes. It is the specific 

intent of the Committee that the DoI give special consideration, appropriate under the circumstances, including the Secretary’s trust 

responsibility and in keeping with the significance to the requesting tribe, to including these programs within annual funding agreements. 

These two provisions are central to S. 1715 and the continued advancement of Tribal Self Governance. The Committee believes that 

Federal programs of which Indians are the primary or significant 

beneficiary, substantially impact the daily lives of Indian tribes 

and Indian peoples, regardless of whether the word ‘‘Indian’’ appears in the program title or mission statement. Therefore, it is the 

intent of the Committee that these provisions be broadly and liberally interpreted to fully effectuate the policy of Tribal Self Governance. The Committee further strongly urges the Secretary to 

work with the tribes to develop funding agreements that fully implement this policy. 

To allay concerns that these new authorities given to the DoI 

may conflict with other statutory provisions, section 405 contains 

a disclaimer which provides that nothing in the section is to be construed as overriding any express statutory requirement for competitive bidding, or as prohibiting the inclusion in a funding agreement of a program in which non-Indians have an incidental or legally identifiable interest. In addition, certain programs are specifically ineligible for inclusion in funding agreements. 

The last provision in section 405 is intended to improve the effectiveness of existing and subsequent funding agreements by providing that funding agreements remain in full force and effect until 

a new funding agreement is executed, and further providing for the 

negotiation of multi-year funding agreements. 

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5. Expanded Accountability 

Section 406 provides for expanded accountability provisions, including development of measures for conflict of interest, greater 

specificity in application of the Federal Single Agency Audit Act, 

application of cost principles, and maintenance of more detailed 

record-keeping systems. It is the Committee’s belief that the extraordinary success of the Tribal Self Governance policy is largely 

based on principles of good governance, and that these provisions 

are in keeping with those principles. It is the intent of the Committee that these provisions be interpreted by the DoI in a manner 

that continues to encourage good governance practices by the tribes 

and the Federal government, and that will continue to foster a mutually respectful government to government relationship. The Committee specifically disavows any intent or interpretation of these 

provisions that would impose unnecessary bureaucratic burdens on 

Self Governance tribes. 

6. Duties of the Secretary Specified 

Section 407 specifies the duties of the Secretary in more detail 

than under the current law. Included within these duties is an expansion of the procedures and standards for re-assumption of a 

program by the Secretary. Important among those procedures, is 

the inclusion of new language providing tribes an opportunity to 

take corrective action and obviate the need for re-assumption. 

During the May 12, 2004, hearing, the Assistant Secretary-Indian Affairs testified that the language of S. 1715, as introduced, 

for ‘‘immediate re-assumption’’ placed too high a hurdle for the DoI 

to fulfill its trust responsibilities. Therefore, at the business meeting at which S. 1715 was approved, an amendment was offered 

which provided that ‘‘immediate re-assumption’’ is appropriate in 

cases of ‘‘imminent, substantial and irreparable harm’’ to a physical 

trust asset, natural resource or public health and safety. The DoI 

also indicated at the May 12, 2004, hearing that such amended language would satisfy the DoI’s concerns regarding its trust responsibilities. 

Section 407 also contains new provisions detailing procedures for 

resolution of non-agreement between a tribe and the Secretary on 

compacts or funding agreements. The grounds for denial of a compact or funding agreement are strictly circumscribed to those listed 

in paragraph (c)(4) of section 407. Additionally, due to the significant impact of these programs on the tribal communities served, 

strict time lines are provided so that decisions can be made in a 

timely manner. 

The role of the Secretary is central to the successful implementation of the Tribal Self Governance policy. It is the Committee’s intent that all of the provisions of section 407 be interpreted liberally 

by the Secretary, consistent with the trust responsibility, to most 

effectively implement the overall purposes of the Tribal Self Governance policy. 

7. Compact Requirements Detailed 

Construction projects are currently addressed in Section 403(e). 

New section 408 provides significantly greater detail than the current provisions, as to the requirements of compacts involving construction programs, and the constructions projects developed purVerDate jul 14 2003 20:50 Nov 30, 2004 Jkt 039010 PO 00000 Frm 00006 Fmt 6659 Sfmt 6602 E:\HR\OC\SR413.XXX SR413
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suant to those programs. This section authorizes construction programs, and the associated projects, to be compacted similar to any 

other program or service eligible under Title IV. 

Section 408 elaborates and clarifies the responsibilities and procedures for tribes undertaking construction projects under Title IV. 

Specifically, provision is made for the Secretary and a tribe to negotiate in detail the duties of the tribe with regard to construction 

projects and the standards and laws applicable to construction 

projects and agreements. 

As part of the tribal construction program, Federal responsibilities under the National Environmental Protection Act, 42 U.S.C. 

4321 et seq., and the National Historic Preservation Act, 16 U.S.C. 

§ 470 et seq., except for inherent Federal functions, are eligible for 

inclusion in annual funding agreements. 

8. Payment Procedures 

New section 409 describes in more detail the payment procedures 

for funding a compact or funding agreement, such as new time limitations on apportionment of funds to tribes. Limitations are also 

placed on the Secretary for transferring, withholding, and reducing 

payment of funds, and for payment of Federal functions. 

Section 409 provides additional authority for the Secretary to approve multi-year funding agreements. It also provides that tribes 

may carry over unexpended funds into subsequent fiscal years, 

without diminishing the entitlement for funding in that or any subsequent year. 

It is the Committee’s intent that all of the provisions of section 

409 be interpreted liberally by the Secretary, consistent with the 

trust responsibility, to most effectively implement the overall purposes of the Tribal Self Governance policy. 

9. Amendments Made to S. 1715 as Introduced 

During the business meeting at which S. 1715 was approved by 

the Committee, several amendments to the bill as introduced were 

adopted. The primary amendments are as follows: 

1. Section 1, setting forth the name of the bill as enacted, ‘‘the 

Department of Interior Tribal Self Governance Act of 2003’’, was 

amended to read ‘‘the Department of Interior Tribal Self-Governance Act of 2004’’. Further amendments were made throughout the 

bill to conform to this change. 

2. Subsection 415(c) provides for a report to be submitted to Congress on ‘‘January 1, 2004’’. This date was amended to read ‘‘January 1, 2005’’. Similarly, subsection 415(d) provides for the development of a report by the Secretary not later than ‘‘January 1, 2004’’. 

That date was amended to read ‘‘January 1, 2005’’. 

3. Subparagraph (3) of subsection 407(b), dealing with standards 

for ‘‘immediate re-assumption’’ of programs or services by the Secretary, originally required that the Secretary find both ‘‘imminent 

and substantial jeopardy’’ and ‘‘irreparable harm’’ before ‘‘immediate re-assumption’’. 

In the Secretary’s opinion, this drafting error would not have afforded the Department the ability to fulfill its trust responsibility 

to protect tribal trust assets or the public health and safety. The 

provision was amended to provide that ‘‘immediate re-assumption’’ 

is appropriate in cases of ‘‘imminent, substantial and irreparable 

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harm’’ to a physical trust asset, natural resource or public health 

and safety. 

LEGISLATIVE HISTORY

S. 1715 was introduced on October 3, 2003, by Senator Campbell 

for himself and for Senator Inouye, and was referred to the Committee on Indian Affairs. 

On May 12, 2004, the Committee held a legislative hearing on 

S. 1715. Witnesses at the hearing included the Assistant SecretaryIndian Affairs, on behalf of the DoI, various Indian tribes and tribal organizations, and a recognized Indian Tribal Self Governance 

expert. All of the tribes and tribal organizations, and the Self Governance expert testified strongly in favor of S. 1715. The DoI expressed some minor concerns with the bill, which prevented it from 

fully supporting the bill at that time. These concerns were partially 

addressed in amendments to the bill. 

On June 16, at a business meeting duly noticed, the Committee 

adopted amendments to S. 1715, and, as amended, passed the bill 

for consideration by the full Senate, with a favorable recommendation that the Senate pass the bill.

SECTION-BY-SECTION ANALYSIS

Sec. 401. Definitions 

Definitions are added, such as ‘‘construction project,’’ ‘‘tribal 

share,’’ ‘‘inherent Federal functions,’’ and ‘‘gross mismanagement’’. 

Sec. 402. Establishment 

Authorizes the Secretary of the Interior (DoI) to establish a 

‘‘Tribal Self Governance Program’’. 

Sec. 403. Selection of Participating Indian Tribes 

Section 403 expands the number of tribes eligible to participate 

in self-governance. Tribal withdrawal procedures from a consortium have been added and tribes are made eligible for planning 

grants. 

Sec. 404. Compacts 

Section 404 requires the Secretary to negotiate and enter compacts with participating tribes, and authorizes tribes with existing 

compacts to retain the current compact, in whole or in part, or to 

negotiate a new compact. 

Sec. 405. Funding Agreements 

Section 405 expands the DoI programs which tribes may include 

in Funding Agreements (FA) to encompass non-BIA programs, 

services, functions and activities. The new authority to compact 

does not override any statutory requirement for competitive bidding. Each FA specifies the services, functions, and responsibilities 

of each of the parties. Each FA may, at the tribe’s option, provide 

for a stable budget specifying recurring funds. The section also provides tribes with existing FAs more options with subsequent FAs, 

and allows for the negotiation of multi-year FAs. 

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Sec. 406. General Provisions 

This section would require compacting tribes to have measures 

in place to avoid conflicts of interest, to have audit reports and 

makes it easier for tribes to consolidate or redesign programs and 

reallocate funds by eliminating the need for joint agreement with 

Secretary for such reconfiguration. Tribal records also would not be 

subject to the Freedom of Information Act or the Administrative 

Procedures Act.

Sec. 407. Provisions Related to the Secretary 

Section 407 would (1) provide tribes with notice and opportunity 

to correct problems before the Secretary can reassume a program, 

(2) limit the grounds on which the Secretary can reject a tribe’s 

final offer, (3) place the burden of proof on the Secretary to show 

the validity of rejecting an offer or re-assumption of a program, and 

(4) require liberal interpretation of compacts and FAs for the benefit of tribes. 

Sec. 408. Construction Programs and Projects 

This section clarifies responsibilities and procedures for tribes 

undertaking construction projects under Title IV, including compliance with building codes, reporting requirements, prevailing wage 

laws, the National Environmental Policy Act, and other applicable 

federal laws. 

Sec. 409. Payment 

Section 409 clarifies a number of payment issues, authorizes 

multi-year FAs, and allows tribes to carry over unexpended funds 

without reducing their entitlement in the next year. 

Sec. 410. Civil Actions 

This section includes FAs within the definition of ‘‘contract’’, and 

provides that tribes do not have to obtain Secretarial approval to 

hire attorneys or other professionals. 

Sec. 411. Facilitation 

This section requires the Secretary to interpret Federal laws in 

a manner that facilitates inclusion of programs and implementation of FAs. It also provides for waivers of regulations, unless such 

a waiver would be prohibited by statute. 

Sec. 412. Disclaimers 

Section 412 provides that nothing in Title IV will be construed 

to authorize the Secretary to enter into a FA with respect to inherent Federal functions, if a statute prohibits participation in a program by a non-federal entity, or negatively impacts another tribe. 

Sec. 413. Application of Other Sections of the Act 

Section 413 would provide tribes with the option of incorporating 

into Title IV compacts any provisions of Title I or V.

Sec. 414. Budget Request 

This section would revise the budget request process so that the 

President identifies all funds necessary to fully fund FAs authorVerDate jul 14 2003 20:50 Nov 30, 2004 Jkt 039010 PO 00000 Frm 00009 Fmt 6659 Sfmt 6602 E:\HR\OC\SR413.XXX SR413
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ized by Title IV, and Secretary must ensure the request includes 

funds for planning and negotiation grants and identified shortfalls. 

Sec. 415. Reports 

This section makes more specific the required contents of the 

Secretary’s annual Title IV report, including unmet needs, methodologies and amount spent on inherent federal functions, and requires an annual report on non-BIA programs, services, and funding agreements eligible for compacting. Reporting would occur with 

tribal consultation. 

Sec. 416. Regulations 

This section repeals the current 25 C.F.R. Part 1000, requires 

publication of proposed rules in Federal Register, and specifies negotiated rule-making to be conducted by Federal and tribal representatives. The Office of Self-Governance shall be lead agency for 

DoI. 

Sec. 417. Effect of Circulars, Policies, Manuals, Guidances, and 

Rules 

This section provides that, unless expressly agreed to by the 

tribe, it is not bound by any internal agency policies, except for the 

eligibility provision of § 105(g) and regulations promulgated under 

§ 416. 

Sec. 418. Appeals 

This section provides that on any appeal, the Secretary must 

show proof, by clear and convincing evidence, the validity of the 

grounds for a decision made and to show that decision is consistent 

with the policies of this title. 

Sec. 419. Authorization of Appropriations 

This section authorizes appropriations to carry out this title. 

COMMITTEE RECOMMENDATION AND TABULATION OF VOTE

On June 16, 2004, the Committee, in an open business session, 

considered S. 1715 and approved amendments to the bill, and ordered S. 1715, as amended, favorably reported to the full Senate 

with a recommendation that the bill do pass. 

COST AND BUDGETARY CONSIDERATIONS

The cost estimate for S. 1715 as calculated by the Congressional 

Budget Office, is set forth below:

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, November 10, 2004. 

Hon. BEN NIGHTHORSE CAMPBELL, 

Chairman, Committee on Indian Affairs, 

U.S. Senate, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 1715, the Department of the 

Interior Tribal Self-Governance Act of 2004. 

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If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Mike Waters. 

Sincerely, 

ELIZABETH M. ROBINSON

(For Douglas Holtz-Eakin, Director). 

Enclosure. 

S. 1715—Department of the Interior Tribal Self-Governance Act of 

2004

Summary: S. 1715 would amend title IV of the Indian Self-Determination and Education Assistance Act (ISDEA) to make it more 

consistent with the provisions of title V of the act. Under ISDEA, 

tribes enter into agreements with federal agencies to administer 

federal programs that benefit the tribes. Title IV of ISDEA generally is concerned with agreements between tribes and agencies of 

the Department of the Interior, while title V of the act governs 

agreements between tribes and the Department of Health and 

Human Services. Significant provisions would: • Remove the current program participation limit of 50 new 

tribes per year; 

• Expand self-governance funding agreements to include 

non-BIA programs; 

• Clarify the circumstances under which the Secretary of the 

Interior may resume administration of programs; and 

• Establish a rulemaking committee of federal and tribal 

representatives to replace existing regulations implementing 

title IV. 

Based on information from the Bureau of Indian Affairs (BIA), 

CBO expects that implementing most provisions of the bill would 

have no significant budgetary impact. One provision, however, 

would require that funds retained by BIA for project management 

and oversight of highway construction projects that are carried out 

by tribes under self-governance agreements be used for project 

costs. Based on information from BIA, CBO estimates that the 

agency would need about $15 million a year to continue its management responsibilities for the highway program. Assuming appropriation of the necessary funds, CBO estimates that implementing the bill would cost $73 million over the 2005–2009 period. 

Enacting S. 1715 would not affect direct spending or revenues.

S. 1715 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. 

Many of the changes made by this legislation would benefit tribes 

that participate in self-governance compacts with the Department 

of the Interior. 

Estimated cost to the Federal Government: The estimated budgetary impact of S. 1715 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 

2005 2006 2007 2008 2009

CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Program Management & Oversight for Indian Reservation Roads Program: 

Estimated Authorization Level ...................................................................... 14 15 15 15 16

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By fiscal year, in millions of dollars 

2005 2006 2007 2008 2009

Estimated Outlays ......................................................................................... 13 15 15 15 16

Basis of estimate: CBO estimates that implementing S. 1715 

would cost $73 million over the five-year period, subject to the appropriation of the necessary amounts. For this estimate, CBO assumes that S. 1715 will be enacted near the beginning of fiscal 

year 2005 and that outlays will follow historical patterns of similar 

programs. 

Annual appropriation acts for the Department of the Interior 

have authorized the BIA to withhold up to 6 percent of the 

amounts available for road construction under the Indian Reservation Roads (IRR) program for management and oversight activities. 

Section 408 of S. 1715 would authorize all funds available to the 

IRR program to be used for road projects. Based on information 

from BIA, CBO estimates that the agency would need about $15 

million a year to continue its management and oversight responsibilities under the bill to fill the gap that would be created by devoting all IRR construction funds to road projects. 

Intergovernmental and private-section impact: S. 1715 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 

tribes that participate in self-governance compacts with the Department of the Interior. 

Estimate prepared by: Federal Costs: Mike Waters. Impact on 

State, Local, and Tribal Governments: Marjorie Miller. Impact on 

the Private Sector: Karen Raupp. 

Estimate approved by: Peter H. Fontaine, Deputy Assistant Director for Budget Analysis. 

REGULATORY AND PAPERWORK IMPACT STATEMENT

Paragraph 11(b) of rule XXVI of the Standing Rules of the Senate requires that each report accompanying a bill to evaluate the 

regulatory and paperwork impact that would be incurred in carrying out the bill. The Committee has concluded that S. 1715 will 

reduce regulatory or paperwork requirements and impacts. 

EXECUTIVE COMMUNICATIONS

The Committee has received no communications from the Executive Branch regarding S. 1715.

CHANGES IN EXISTING LAW

In compliance with subsection 12 of rule XXVI of the Standing 

Rules of the Senate, changes in existing law made by the bill S. 

1715, as ordered 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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Public Law 93–638 

AN ACT To provide maximum Indian participation in the Government and education of the Indian People; to provide for the full participation of Indian Tribes 

in programs and services conducted by the Federal Government for Indians and 

to encourage the development of human resources of the Indian people; to establish a program of assistance to upgrade Indian education; to support the right of 

Indian citizens to control their own education activities; and for other purposes 

Be it enacted by the Senate and House of Representatives of the 

United States in Congress assembled, 

* * * * * * *

TITLE IV—TRIBAL SELF-GOVERNANCE 

SEC. 401. øESTABLISHMENT¿ DEFINITIONS. 

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.¿

In this title: 

(1) COMPACT.—The term ‘‘compact’’ means a compact under 

section 404. 

(2) CONSTRUCTION PROGRAM.—The term ‘‘construction program’’ means a tribal undertaking to complete any or all included programs 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) CONSTRUCTION PROJECT.—The term ‘‘construction project’’ 

means a tribal undertaking that constructs 1 or more 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. 

(4) DEPARTMENT.—The term ‘‘Department’’ means the Department of the Interior. 

(5) FUNDING AGREEMENT.—The term ‘‘funding agreement’’ 

means a funding agreement under section 405(b). 

(6) GROSS MISMANAGEMENT.—The term ‘‘gross mismanagement’’ means a significant violation, shown by clear and convincing evidence, of a compact, funding agreement, or statutory 

or regulatory requirement applicable to Federal funds transferred to an Indian tribe by a compact or funding agreement 

that results in a significant reduction of funds being made 

available for the included programs assumed by an Indian 

tribe. 

(7) INCLUDED PROGRAM.—The term ‘‘included program’’ 

means a program that is eligible for inclusion under a funding 

14

agreement (including any portion of such a program and any 

function, service, or activity performed under such a program). 

(8) INDIAN TRIBE.—The term ‘‘Indian tribe’’, in a case in 

which an Indian tribe authorizes another Indian tribe, an intertribal consortium, or a tribal organization to plan for or carry 

out an included program on its behalf in accordance with section 403(a)(3), includes the other authorized Indian tribe, intertribal consortium, or tribal organization. 

(9) INHERENT FEDERAL FUNCTION.—The term ‘‘inherent Federal function’’ means a Federal function that cannot legally be 

delegated to an Indian tribe. 

(10) INTER-TRIBAL CONSORTIUM.— (A) IN GENERAL.—The term ‘‘inter-tribal consortium’’ 

means a coalition of 2 more separate Indian tribes that join 

together for the purpose of participating in self-governance. 

(B) INCLUSION.—The term ‘‘inter-tribal organization’’ includes a tribal organization. 

(11) SECRETARY.—The term ‘‘Secretary’’ means the Secretary 

of the Interior. 

(12) SELF-GOVERNANCE.—The term ‘‘self-governance’’ means 

the program of self-governance established under section 402. 

(13) TRIBAL SHARE.—The term ‘‘tribal share’’ means an Indian tribe’s portion of all funds and resources that support secretarial included programs that are not required by the Secretary for the performance of inherent Federal functions.

SEC. 402. øSELECTION OF PARTICIPATING INDIAN TRIBES¿ ESTABLISHMENT. 

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.—

ø(1) In addition to those Indian tribes participating in selfgovernance 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 selfgovernance. 

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. 

15

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.¿

The Secretary shall carry out a program within the Department to 

be known as the ‘‘Tribal Self-Governance Program’’. 

SEC. 403. øFUNDING AGREEMENTS¿ SELECTION OF PARTICIPATING INDIAN TRIBES. 

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 

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— 

16

ø(A) pursuant to the Tribally Controlled Community College Assistance Act of 1978 1 (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— 

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. 

17

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. 

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), and section 16 of the Act 

of June 18, 1934 (25 U.S.C. 476), 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. 

18

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 

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.¿

ƒ(a) IN GENERAL.— ƒ(1) CONTINUING PARTICIPATION.—An Indian tribe that was 

participating in the Tribal Self-Governance Demonstration 

Project at the Department under title III on October 25, 1994, 

may elect to participate in self-governance under this title. 

(2) ADDITIONAL PARTICIPANTS.— (A) IN GENERAL.—In addition to Indian tribes participating in self-governance under paragraph (1), an Indian 

tribe that meets the eligibility criteria specified in subsection (b) shall be entitled to participate in self-governance. 

(B) NO LIMITATION.—The Secretary shall not limit the 

number of additional Indian tribes to be selected each year 

from among Indian tribes that are eligible under subsection 

1(b). 

(3) OTHER AUTHORIZED INDIAN TRIBE, INTER-TRIBAL CONSORTIUM, OR TRIBAL GOVERNMENT.—If an Indian tribe authorizes 

another Indian tribe, an inter-tribal consortium, or a tribal organization to plan for or carry out an included program on its 

behalf under this title, the authorized Indian tribe, inter-tribal 

consortium, or tribal organization shall have the rights and responsibilities of the authorizing Indian tribe (except as otherwise provided in the authorizing resolution). 

(4) JOINT PARTICIPATION.—Two or more Indian tribes that 

are not otherwise eligible under subsection (b) may be treated 

19

as a single Indian tribe for the purpose of participating in selfgovernance as a consortium if—

(A) if each Indian tribe so requests; and 

(B) the consortium itself is eligible under subsection (b). 

(5) TRIBAL WITHDRAWAL FROM A CONSORTIUM.— (A) IN GENERAL.—An Indian tribe that withdraws from 

participation in an inter-tribal consortium or 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 an inter-tribal consortium or 

tribal organization, the Indian tribe shall be entitled to its 

tribal share of funds and resources supporting the included 

programs that the Indian tribe will be carrying out under 

the compact and funding agreement of the Indian tribe. 

(C) PARTICIPATION IN SELF-GOVERNANCE.—The withdrawal of an Indian tribe from an inter-tribal consortium 

or tribal organization shall not affect the eligibility of the 

inter-tribal consortium or tribal organization to participate 

in self-governance on behalf of 1 or more other Indian 

tribes. 

(D) WITHDRAWAL PROCESS.— (i) IN GENERAL.—An Indian tribe may fully or partially withdraw from a participating inter-tribal consortium or tribal organization its tribal share of any 

included program that is included in a compact or 

funding agreement. 

(ii) EFFECTIVE DATE.—

(I) IN GENERAL.—A withdrawal under clause (I) 

shall become effective on the date specified in the 

resolution that authorizes transfer to the participating tribal organization or inter-tribal consortium. 

(II) NO SPECIFIED DATE.—In the absence of a 

date specified in the resolution, the withdrawal 

shall become effective on—

(aa) the earlier of—

(AA) 1 year after the date of submission 

of the request; or 

(BB) the date on which the funding 

agreement expires; or 

(bb) such date as may be agreed on by the 

Secretary, the withdrawing Indian tribe, and 

the tribal organization or inter-tribal consortium that signed the compact or funding 

agreement on behalf of the withdrawing Indian tribe, inter-tribal consortium, 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 

inter-tribal consortium or tribal organization, the withdrawing Indian tribe—

20

(i) may elect to enter into 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 

funds and resources supporting the included 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 inter-tribal consortium or tribal organization); and 

(II) the funds referred to in subclause (I) shall be 

withdrawn by the Secretary from the funding 

agreement of the inter-tribal consortium or tribal 

organization and transferred to the withdrawing 

Indian tribe, on the condition that sections 102 

and 105(I), as appropriate, shall apply to the withdrawing Indian tribe; or 

(ii) may elect not to enter into a self-determination 

contract or compact, in which case all funds not obligated by the inter-tribal consortium associated with the 

withdrawing Indian tribe’s returned included programs, less closeout costs, shall be returned by the 

inter-tribal consortium to the Secretary for operation of 

the included programs included in the withdrawal. 

(F) RETURN TO MATURE CONTRACT STATUS.—If an Indian 

tribe elects to operate all or some included 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. 

(b) ELIGIBILITY.—To be eligible to participate in self-governance, 

an Indian tribe shall— 

(1) 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’s 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 participate 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.— 

21

(1) IN GENERAL.—Subject to the availability of appropriations, an Indian tribe 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. [BUDGET REQUEST] COMPACTS. 

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.¿

(a) IN GENERAL.—The Secretary shall negotiate and enter into a 

written compact with an Indian tribe participating in self-governance in a manner that is consistent with the trust responsibility of 

the Federal Government, treaty obligations, and the government-togovernment relationship between Indian tribes and the United 

States. 

(b) CONTENTS.—A compact under subsection (a) shall— 

(1) specify 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 year 

after year. 

(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 Indian 

tribe; or 

(2) another date agreed to by the parties. 

(e) DURATION.—A compact under subsection (a) shall remain in 

effect for so long as permitted by Federal law or until terminated 

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 enactment of 

the Department of the Interior Tribal Self-Governance Act of 2004, 

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. øREPORTS¿ FUNDING AGREEMNTS. 

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 

22

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 (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 

a significant portion of such programs, services, functions, and activities 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 ffairs 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.¿

(a) IN GENERAL.—The Secretary shall negotiate and enter into a 

written funding agreement with the governing body of an Indian 

tribe in a manner that is consistent with the trust responsibility of 

the Federal Government, treaty obligations, and the government-togovernment relationship between Indian tribes and the United 

States. 

23

(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 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 section 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) OTHER AGENCIES.—A funding agreement under subsection 

(a) 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 

Secretary outside the Bureau of Indian Affairs, 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), to the extent that the included programs are within the scope of paragraph (1). 

(3) DISCRETIONARY PROGRAMS.—A funding agreement under 

subsection (a) may, in accordance with such additional terms 

as the parties consider to be appropriate, include programs administered by the Secretary, in addition to programs described 

in paragraphs (1) and (2), that are of special geographical, historical, or cultural significance to the Indian tribe. 

(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 Community 

College Assistance Act of 1978 (25 U.S.C. 1801 et seq.); 

(B) is provided for elementary and secondary schools 

under the formula developed under section 1128 of the 

Education Amendments of 1978 (25 U.S.C. 2008); and 

24

(C) is provided for the Flathead Agency Irrigation Division or the Flathead Agency Power Division (except that 

nothing in this section affects the contract authority of the 

Flathead Agency Irrigation Division or the Flathead Agency Power Division under section 102). 

(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 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. 

(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. 

(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 is withdrawing or retroceding the operation of 1 or more included programs identified in a funding 

agreement, or unless otherwise agreed to by the parties to the 

funding agreement— 

(A) a funding agreement shall remain in effect until a 

subsequent funding agreement is executed; and 

(B) the term of the subsequent funding agreement shall 

be retroactive to the end of the term of the preceding funding agreement. 

(2) 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 2004 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. 

25

(3) 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 1 year.

SEC. 406. øDISCLAIMERS¿ GENERAL PROVISIONS.

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 1 6, 102(c), 104, 105(f), 110, and 111 of this Act shall apply 

to agreements provided under this title.¿

(a) APPLICABILITY.—An Indian tribe may 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 included 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) section 106 of this Act or any other provision of law; 

or 

(B) any exemptions to applicable Office of Management 

and Budget circulars granted by the Office of Management 

and Budget. 

(3) FEDERAL CLAIMS.—Any claim by the Federal Government 

against an Indian tribe relating to funds received under a funding agreement based on an audit under this subsection shall be 

subject to section 106(f). 

(d) REDESIGN AND CONSOLIDATION.—An Indian tribe may redesign or consolidate included programs or reallocate funds for included programs in any manner that the Indian tribe determines 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. 

(e) RETROCESSION.—

(1) IN GENERAL.—An Indian tribe may fully or partially retrocede to the Secretary any included program under a compact or 

funding agreement. 

(2) EFFECTIVE DATE.— 

(A) AGREEMENT.—Unless the Indian tribe rescinds a request for retrocession, the retrocession shall become effective 

on the date specified by the parties in the compact or funding agreement. 

26

(B) NO AGREEMENT.—In the absence of such a specification, the retrocession shall become effective on— 

(i) the earlier of— 

(I) the date that is 1 year after the date of submission of the request; or 

(II) the date on which the funding agreement expires; or 

(ii) such date as may be agreed on 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 enter into a contract with the Secretary for funds under section 102, except that the Indian tribe 

shall be eligible for new included programs on the same basis 

as other Indian tribes; and 

(2) shall be responsible for the administration of included 

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 treated as agency 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. øREGULATIONS¿ PROVISIONS RELATING TO THE SECRETARY. 

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.¿

(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 an included proVerDate jul 14 2003 20:50 Nov 30, 2004 Jkt 039010 PO 00000 Frm 00026 Fmt 6659 Sfmt 6603 E:\HR\OC\SR413.XXX SR413
27

gram and associated funding if there is a specific finding relating to that included program of— 

(A) imminent jeopardy to a physical trust asset, natural 

resource, 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 by 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 an included program 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 gross mismanagement or the imminent jeopardy to 

a physical trust asset, natural resource, or public health 

and safety. 

(3) EXCEPTION.— 

(A) IN GENERAL.—Notwithstanding subparagraph (2), the 

Secretary may, on written notice to the Indian tribe, immediately reassume operation of an included program if—

(i) the Secretary makes a finding of imminent, substantial, and irreparable harm to a physical 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, substantial, and irreparable harm 

to the physical trust asset, natural resource, or public 

health and safety arises out of a failure by the Indian 

tribe to carry out its compact or funding agreement. 

(B) REASSUMPTION.—If the Secretary reassumes operation of an included 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.— 

28

(A) IN GENERAL.—If the Secretary rejects a final offer (or 

1 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; 

(II) the included program that is the subject of 

the final offer is an inherent Federal function; 

(III) the Indian tribe cannot carry out the included program in a manner that would not result 

in significant danger or risk to the public health; 

or 

(IV) the Indian tribe is not eligible to participate 

in self governance under section 403(b); 

(ii) provide technical assistance to overcome the objections stated in the notification required by clause (I); 

(iii) provide the Indian tribe 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 an appeal, directly proceed 

to bring a civil action in United States 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 (1), (ii), and (iii) of that subparagraph 

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 clear and convincing 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 Act in a manner that maximizes the policy of tribal self-governance. 

29

(f) SAVINGS.—To the extent that included programs carried out by 

Indian tribes 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), the Secretary shall make such savings available to the Indian tribes, inter-tribal consortia, or tribal organizations for the provision of additional services to program beneficiaries in a manner equitable to directly served, contracted, and 

included programs. 

(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 brought 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) RULE 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. øAUTHORIZATION OF APPROPRIATIONS¿ CONSTRUCTION 

PROGRAMS AND CONSTRUCTION PROJECTS. 

øThere are authorized to be appropriated such sums as may be 

necessary to carry out this title.¿

(a) IN GENERAL.—An Indian tribe participating in self-governance 

may carry out a construction program or construction project under 

this title in the same manner as the Indian tribe carries out other 

included programs under this title, consistent with the provisions of 

all applicable Federal laws. 

(b) FEDERAL FUNCTIONS.—An Indian tribe participating in selfgovernance may, in carrying out construction projects under this 

title, elect to assume all 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 that would apply if the Secretary were to carry out 

a construction project, by adopting a resolution— 

(1) designating a certifying officer to represent the Indian 

tribe and to assume the status of a responsible Federal official 

under those laws; and 

(2) accepting the jurisdiction of the Federal courts for the purpose of enforcement of the responsibilities of the responsible 

Federal official under applicable environmental law. 

(c) NEGOTIATIONS.— 

(1) IN GENERAL.—In accordance with all applicable Federal 

laws, a construction program or construction project shall be 

treated in the same manner and be subject to all provisions of 

this Act as are all other tribal assumptions of included programs under this Act. 

30

(2) CONSTRUCTION PROJECTS.—A provision shall be included 

in the funding agreement that, for each construction project—

(A) states the approximate start and completion dates of 

the construction project, which may extend for 1 or more 

years; 

(B) provides a general description of the construction 

project; 

(C) states the responsibilities of the Indian tribe and the 

Secretary with respect to the construction project; 

(D) describes— 

(i) the ways in which the Indian tribe will address 

project-related environmental considerations; and 

(ii) the standards by which the Indian tribe will accomplish the construction project; and 

(E) the amount of funds provided for the construction 

project. 

(d) CODES AND STANDARDS; TRIBAL ASSURANCES.—A funding 

agreement shall contain a certification by the Indian tribe that the 

Indian tribe will establish and enforce procedures designed to ensure that all construction-related included programs carried out 

through the funding agreement adhere to building codes and other 

codes and architectural and engineering standards (including public health and safety standards) identified by the Indian tribe in the 

funding agreement, which codes and standards shall be in conformity with nationally recognized standards for comparable 

projects in comparable locations. 

(e) RESPONSIBILITY FOR COMPLETION.—The Indian tribe shall assume responsibility for the successful completion of a construction 

project in accordance with the funding agreement. 

(f) FUNDING.— 

(1) IN GENERAL.—At the option of an Indian tribe, full funding for a construction program or construction project carried 

out under this title shall be included in a funding agreement 

as an annual advance payment. 

(2) ENTITLEMENT.—Notwithstanding the annual advance 

payment provisions or any other provision of law, an Indian 

tribe shall be entitled to receive in its initial funding agreement 

all funds made available to the Secretary for multiyear construction programs and projects carried out under this title. 

(3) CONTINGENCY FUNDS.—The Secretary shall include associated project contingency funds in an advance payment described in paragraph (1), and the Indian tribe shall be responsible for the management of the contingency funds included in 

the funding agreement. 

(4) REALLOCATION OF SAVINGS.— 

(A) IN GENERAL.—Notwithstanding any other provision of 

an annual Act of appropriation or other Federal law, an 

Indian tribe may reallocate any financial savings realized 

by the Indian tribe arising from efficiencies in the design, 

construction, or any other aspect of a construction program 

or construction project. 

(B) PURPOSES.—A reallocation under subparagraph (A) 

shall be for construction-related activity purposes generally 

similar to those for which the funds were appropriated and 

31

distributed to the Indian tribe under the funding agreement. 

(g) APPROVAL.— 

(1) IN GENERAL.—If the planning and design documents for 

a construction project are prepared by an Indian tribe in a 

manner that is consistent with the certification given by the Indian tribe as required under subsection (d), approval by the 

Secretary of a funding agreement providing for the assumption 

of the construction project shall be deemed to be an approval by 

the Secretary of the construction project planning and design 

documents. 

(2) REPORTS.—The Indian tribe shall provide the Secretary 

with construction project progress and financial reports not less 

than semiannually. 

(3) INSPECTIONS.—The Secretary may conduct onsite project 

inspections at a construction project semiannually or on an alternate schedule agreed to by the Secretary and the Indian 

tribe. 

(h) WAGES.— 

(1) IN GENERAL.—All laborers and mechanics employed by a 

contractor or subcontractor in the construction, alteration, or repair (including painting and decorating) of a building or other 

facility in connection with a construction project funded by the 

United States under this title shall be paid wages at not less 

than the amounts of wages prevailing on similar construction 

in the locality as determined by the Secretary of Labor in accordance with subchapter IV of chapter 31 of title 40, United 

States Code. 

(2) AUTHORITY.—With respect to construction, alteration, or 

repair work to which that subchapter is applicable under this 

subsection, the Secretary of Labor shall have the authority and 

functions specified in the Reorganization Plan numbered 14, of 

1950. 

(3) APPLICABILITY OF SUBSECTION.—Notwithstanding any 

other provision of law, this subsection does not apply to any 

portion of a construction project carried out under this Act— 

(A) that is funded from a non-Federal source, regardless 

of whether the non-Federal funds are included with Federal 

funds for administrative convenience; or 

(B) that is performed by a laborer or mechanic employed 

directly by an Indian tribe or tribal organization. 

(4) APPLICABILITY OF TRIBAL LAW.—This subsection does not 

apply to a compact or funding agreement if the compact, selfdetermination contract, or funding agreement is otherwise covered by a law (including a regulation) adopted by an Indian 

tribe that requires the payment of not less than prevailing 

wages, as determined by the Indian tribe. 

(i) APPLICABILITY OF OTHER LAW.—Unless otherwise agreed to by 

the Indian tribe, no provision of the Office of Federal Procurement 

Policy Act (41 U.S.C. 401 21 et seq.), the Federal Acquisition Regulation, or any other law or regulation pertaining to Federal procurement (including Executive orders) shall apply to any construction 

program or project conducted under this title. 

32

SEC. 409. PAYMENT. 

(a) IN GENERAL.—At the request of the governing body of the Indian tribe and under the terms of a funding 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.—Subject to subsection (e) and sections 405 and 406 

of this title, the Secretary shall provide funds to the Indian tribe 

under a funding agreement for included programs in the 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 Federal agency in which the included programs are carried out. 

(d) TIMING.—Unless the funding agreement provides otherwise, 

the transfer of funds shall be made not later than 10 days after the 

apportionment of funds by the Office of Management and Budget to 

the Department. 

(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 

mul tiyear funding. 

(g) LIMITATION 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 Act, 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 Act— 

(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 an included 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; 

33

(iv) technical assistance; and 

(v) monitoring of activities under this Act; or 

(D) to pay for costs of Federal personnel displaced by selfdetermination contracts under this Act or self-governance. 

(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 acquire and transfer such 

personnel, supplies, or resources to the Indian tribe. 

(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 Act. 

(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 that an Indian tribe is entitled to receive under a funding agreement in the year in which the interest or income is 

earned or in any subsequent fiscal year. 

(3) INVESTMENT STANDARD.—Funds transferred under this 

title shall be managed using the prudent investment standard. 

(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 that 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 an 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 the insufficiency to the Secretary. 

(3) SUSPENSION OF PERFORMANCE—If 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. 

34

SEC. 410. CIVIL ACTIONS. 

(A) INCLUSION AS CONTRACT.—Except as provided in subsection (b), 

for the purposes of section 110, the term ‘contract’ shall include 

a funding agreement. 

(b) CONTRACTS WITH PROFESSIONALS.—For the period during 

which a funding agreement is in effect, section 2103 of the Revised 

Statutes (25 U.S.C. 81), and section 16 of the Act of June 18, 1934 

(25 U.S.C. 476) shall not apply to a contract between an attorney 

or other professional and an Indian tribe. 

SEC. 411. FACILITATION. 

(a) IN GENERAL.—Except as otherwise provided by law, the Secretary shall interpret each Federal law (including a regulation) in 

a manner that facilitates— 

(1) the inclusion of included 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 60 

days after the date of 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 

for a waiver only on 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. 

(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. 412. DISCLAIMERS. 

Nothing in this title expands or alters any statutory authority of 

the Secretary so as to authorize the Secretary to enter into any funding agreement under section 405(b)(2) or 415 (c)(1)— 

(1) with respect to an inherent Federal function; 

(2) in a case in which the statute establishing a program does 

not authorize the type of participation sought by the Indian 

tribe (without regard to whether 1 or more Indian tribes are 

identified in the authorizing statute); or 

(3) 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. 413. APPLICABILITY OF OTHER PROVISIONS. 

(a) MANDATORY APPLICATION.—Sections 5(d), 6, 102(c), 104, 

105(f), 110, and 111 apply to compacts and funding agreements 

under this title. 

(b) DISCRETIONARY APPLICATION.— 

35

(1) IN GENERAL.—At the option of a participating Indian 

tribe, any or all of the provisions of title I or title V shall be 

incorporated in a compact or funding agreement. 

(2) EFFECT.—Each incorporated provision— 

(A) shall have the same effect as if the provision were set 

out in full in this title; and 

(B) shall be deemed to supplement or replace any related 

provision in this title and to apply to any agency otherwise 

governed by this title. 

(3) EFFECTIVE DATE.—If an Indian tribe requests incorporation at the negotiation stage of a compact or funding agreement, 

the incorporation— 

(A) shall be effective immediately; and 

(B) shall control the negotiation and resulting compact 

and funding agreement. 

SEC. 414. BUDGET REQUEST. 

(a) REQUIREMENT OF ANNUAL BUDGET REQUEST.— 

(1) IN GENERAL—The President shall identify in the annual 

budget request submitted to Congress under section 1105 of title 

31, United States Code, all funds necessary to fully fund all 

funding agreements authorized under this title. 

(2) DUTY OF SECRETARY.—The Secretary shall ensure that 

there are included, in each budget request, requests for funds 

in amounts that are sufficient for planning and negotiation 

grants and sufficient to cover any shortfall in funding identified 

under subsection (b). 

(3) TIMING.—All funds included within funding agreements 

shall be provided to the Office of Self-Governance not later than 

15 days after the date on which funds are apportioned to the 

Department. 

(4) DISTRIBUTION OF FUNDS.—The Office of Self-Governance 

shall be responsible for distribution of all funds provided under 

this title. 

(5) 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 all budget requests, the 

President 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 of Interior, under self-determination contracts, or 

under compacts and funding agreements. 

SEC. 415. REPORTS. 

(a) IN GENERAL.— 

(1) REQUIREMENT.—On January 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, either directly by the Secretary, under self-determination contracts under title I, or under compacts and funding agreements 

authorized under this subchapter. 

36

(3) NO ADDITIONAL REPORTING REQUIREMENTS.—In preparing 

reports under paragraph (1), the Secretary may not impose any 

reporting requirement on participating Indian tribes not otherwise provided for by this Act. 

(b) CONTENTS.—A report under subsection (a) 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 bureaucracy; 

(D) the funding formula for individual tribal shares of 

all Central Office funds, 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 by type and location; 

(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 not less 

than 30 days); and 

(5) include the separate views and Indian tribe or tribal organization. 

(c) REPORT ON NON-BIA PROGRAMS.— 

(1) IN GENERAL.—In order to optimize comments of each opportunities for -52 including non-Bureau of Indian Affairs included programs in agreements with Indian tribes participating 

in self governance under this title, the Secretary shall— 

(A) review all included programs administered by the Department, other than through the Bureau of Indian Affairs, 

without regard to the agency or office concerned; 

(B) not later than January 1, 2005, submit to Congress— 

(i) a list of all such included programs that the Secretary determines, with the concurrence of Indian 

tribes participating in self-governance, are eligible to be 

included in a funding agreement at the request of a 

participating Indian tribe; and 

(ii) a list of all such included programs for which Indian tribes have requested to include in a funding 

agreement under section 405(b)(3) due to the special geographic, historical, or cultural significance to the Indian tribe, 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 

37

Department to ensure that a significant portion of those included programs are included in funding agreements. 

(3) PUBLICATION.—The lists 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. 

(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 included programs that were eligible 

for contracting in the original list published in the Federal 

Register in 1995, except for included programs specifically 

determined not to be contractible as a matter of law. 

(d) REPORT ON CENTRAL OFFICE FUNDS.—Not later than January 

1, 2005, 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. 

SEC. 416. 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 2004, 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 that Act. 

(2) PUBLICATION OF PROPOSED REGULATIONS.—Proposed regulations to implement the amendments shall be published in the 

Federal Register not later than 1 year after the date of enactment of that Act. 

(3) EXPIRATION OF AUTHORITY.—The authority to promulgate 

regulations under paragraph (1) shall expire on the date that 

is 18 months after the date of enactment of that Act. 

(b) COMMITTEE.— (1) MEMBERSHIP.—A negotiated rulemaking committee established under 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 of the Interior. 

(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.—All regulatory provisions under part 1000 of 

title 25, Code of Federal Regulations, are repealed on the date 

of enactment of the Department of the Interior Tribal Self-Governance Act of 2004. 

(2) EFFECTIVENESS WITHOUT REGARD TO REGULATIONS.—The 

lack of promulgated regulations shall not limit the effect of this 

Act. 

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(3) INTERIM PROVISION.— Notwithstanding this subsection, 

any regulation under part 1000 of title 25, Code of Federal Regulations, shall remain in effect, at an Indian tribe’s option, in 

implementing compacts until regulations are promulgated. 

SEC. 417. EFFECT OF CIRCULARS, POLICIES, MANUALS, GUIDANCES, 

AND RULES. 

Unless expressly agreed to by a participating Indian tribe in a 

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 416.11. 

SEC. 418. 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 clear and convincing 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. 419. AUTHORIZATION OF APPROPRIATIONS. 

There are authorized to be appropriated such sums as are necessary to carry out this title.

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