Page 179 TITLE 25—INDIANS § 458cc

(3) has demonstrated, for the previous three

fiscal years, financial stability and financial

management capability as evidenced by the

tribe having no material audit exceptions in

the required annual audit of the self-determination contracts of the tribe.

(d) Planning phase

Each Indian tribe seeking to begin participation in Self-Governance shall complete a planning phase in accordance with this subsection.

The tribe shall be eligible for a grant to plan

and negotiate participation in Self-Governance.

The planning phase shall include—

(1) legal and budgetary research; and

(2) internal tribal government planning and

organizational preparation.

(Pub. L. 93–638, title IV, §402, as added Pub. L.

103–413, title II, §204, Oct. 25, 1994, 108 Stat. 4272;

amended Pub. L. 104–208, div. A, title I, §101(d)

[title I, §117], Sept. 30, 1996, 110 Stat. 3009–181,

3009–201.)

REFERENCES IN TEXT

Title III, referred to in subsec. (a), means title III of

Pub. L. 93–638, as added by Pub. L. 100–472, title II, §209,

Oct. 5, 1988, 102 Stat. 2296, which is set out as a note

under section 450f of this title.

AMENDMENTS

1996—Subsec. (b)(1). Pub. L. 104–208 amended par. (1)

generally. Prior to amendment, par. (1) read as follows:

‘‘In addition to those Indian tribes participating in

Self-Governance under subsection (a) of this section,

the Secretary, acting through the Director of the Office

of Self-Governance, may select up to 20 new tribes per

year from the applicant pool described in subsection (c)

of this section to participate in Self-Governance.’’

§ 458cc. Funding agreements

(a) Authorization

The Secretary shall negotiate and enter into

an annual written funding agreement with the

governing body of each participating tribal government in a manner consistent with the Federal Government’s laws and trust relationship to

and responsibility for the Indian people.

(b) Contents

Each funding agreement shall—

(1) authorize the tribe to plan, conduct, consolidate, and administer programs, services,

functions, and activities, or portions thereof,

administered by the Department of the Interior through the Bureau of Indian Affairs,

without regard to the agency or office of the

Bureau of Indian Affairs within which the program, service, function, and activity, or portion thereof, is performed, including funding

for agency, area, and central office functions

in accordance with subsection (g)(3) of this

section, and including any program, service,

function, and activity, or portion thereof, administered under the authority of—

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

et seq.);

(B) section 13 of this title; and

(C) programs, services, functions, and activities or portions thereof administered by

the Secretary of the Interior that are otherwise available to Indian tribes or Indians for

which appropriations are made to agencies

other than the Department of the Interior;

(2) subject to such terms as may be negotiated, authorize the tribe to plan, conduct,

consolidate, and administer programs, services, functions, and activities, or portions

thereof, administered by the Department of

the Interior, other than through the Bureau of

Indian Affairs, that are otherwise available to

Indian tribes or Indians, as identified in section 458ee(c) of this title, except that nothing

in this subsection may be construed to provide

any tribe with a preference with respect to the

opportunity of the tribe to administer programs, services, functions, and activities, or

portions thereof, unless such preference is

otherwise provided for by law;

(3) subject to the terms of the agreement,

authorize the tribe to redesign or consolidate

programs, services, functions, and activities,

or portions thereof, and reallocate funds for

such programs, services, functions, and activities, or portions thereof, except that, with respect to the reallocation, consolidation, and

redesign of programs described in paragraph

(2), a joint agreement between the Secretary

and the tribe shall be required;

(4) prohibit the inclusion of funds provided—

(A) pursuant to the Tribally Controlled

Community College Assistance Act of 1978

(25 U.S.C. 1801 et seq.);

(B) for elementary and secondary schools

under the formula developed pursuant to

section 2008 of this title; and

(C) the Flathead Agency Irrigation Division or the Flathead Agency Power Division,

except that nothing in this section shall affect the contract authority of such divisions

under section 450f of this title;

(5) specify the services to be provided, the

functions to be performed, and the responsibilities of the tribe and the Secretary pursuant

to the agreement;

(6) authorize the tribe and the Secretary to

reallocate funds or modify budget allocations

within any year, and specify the procedures to

be used;

(7) allow for retrocession of programs or portions of programs pursuant to section 450j(e) of

this title;

(8) provide that, for the year for which, and

to the extent to which, funding is provided to

a tribe under this section, the tribe—

(A) shall not be entitled to contract with

the Secretary for such funds under section

450f of this title, except that such tribe shall

be eligible for new programs on the same

basis as other tribes; and

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

under this section; and

(9) prohibit the Secretary from waiving,

modifying, or diminishing in any way the

trust responsibility of the United States with

respect to Indian tribes and individual Indians

that exists under treaties, Executive orders,

and other laws.

(c) Additional activities

Each funding agreement negotiated pursuant

to subsections (a) and (b) of this section may, in
§ 458cc TITLE 25—INDIANS Page 180

accordance to such additional terms as the parties deem appropriate, also include other programs, services, functions, and activities, or

portions thereof, administered by the Secretary

of the Interior which are of special geographic,

historical, or cultural significance to the participating Indian tribe requesting a compact.

(d) Provisions relating to Secretary

Funding agreements negotiated between the

Secretary and an Indian tribe shall include provisions—

(1) to monitor the performance of trust functions by the tribe through the annual trust

evaluation, and

(2) for the Secretary to reassume a program,

service, function, or activity, or portions

thereof, if there is a finding of imminent jeopardy to a physical trust asset, natural resources, or public health and safety.

(e) Construction projects

(1) Regarding construction programs or

projects, the Secretary and Indian tribes may

negotiate for the inclusion of specific provisions

of the Office of Federal Procurement and Policy

Act [41 U.S.C. 401 et seq.] and Federal acquisition regulations in any funding agreement entered into under this subchapter. Absent a negotiated agreement, such provisions and regulatory requirements shall not apply.

(2) In all construction projects performed pursuant to this part, the Secretary shall ensure

that proper health and safety standards are provided for in the funding agreements.

(f) Submission for review

Not later than 90 days before the proposed effective date of an agreement entered into under

this section, the Secretary shall submit a copy

of such agreement to—

(1) each Indian tribe that is served by the

Agency that is serving the tribe that is a

party to the funding agreement;

(2) the Committee on Indian Affairs of the

Senate; and

(3) the Subcommittee on Native American

Affairs of the Committee on Natural Resources of the House of Representatives.

(g) Payment

(1) At the request of the governing body of the

tribe and under the terms of an agreement entered into under this section, the Secretary

shall provide funding to the tribe to carry out

the agreement.

(2) The funding agreements authorized by this

part and title III of this Act shall provide for advance payments to the tribes in the form of annual or semi-annual installments at the discretion of the tribes.

(3) Subject to paragraph (4) of this subsection

and paragraphs (1) through (3) of subsection (b)

of this section, the Secretary shall provide funds

to the tribe under an agreement under this part

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

subchapter, including amounts for direct program and contract support costs and, in addition, any funds that are specifically or functionally related to the provision by the Secretary of

services and benefits to the tribe or its members, without regard to the organization level

within the Department where such functions are

carried out.

(4) Funds for trust services to individual Indians shall be available under an agreement entered into under this section only to the extent

that the same services that would have been

provided by the Secretary are provided to individual Indians by the tribe.

(h) Civil actions

(1) Except as provided in paragraph (2), for the

purposes of section 450m–1 of this title, the term

‘‘contract’’ shall include agreements entered

into under this part.

(2) For the period that an agreement entered

into under this part is in effect, the provisions

of section 81 of this title, and section 476 of this

title, shall not apply to attorney and other professional contracts by Indian tribal governments

participating in Self-Governance under this

part.

(i) Facilitation

(1) Except as otherwise provided by law, the

Secretary shall interpret each Federal law and

regulation in a manner that will facilitate—

(A) the inclusion of programs, services, functions, and activities in the agreements entered

into under this section; and

(B) the implementation of agreements entered into under this section.

(2)(A) A tribe may submit a written request

for a waiver to the Secretary identifying the

regulation sought to be waived and the basis for

the request.

(B) Not later than 60 days after receipt by the

Secretary of a written request by a tribe to

waive application of a Federal regulation for an

agreement entered into under this section, the

Secretary shall either approve or deny the requested waiver in writing to the tribe. A denial

may be made only upon a specific finding by the

Secretary that identified language in the regulation may not be waived because such waiver is

prohibited by Federal law. The Secretary’s decision shall be final for the Department.

(j) Funds

All funds provided under funding agreements

entered into pursuant to this subchapter, and all

funds provided under contracts or grants made

pursuant to this subchapter, shall be treated as

non-Federal funds for purposes of meeting

matching requirements under any other Federal

law.

(k) Disclaimer

Nothing in this section is intended or shall be

construed to expand or alter existing statutory

authorities in the Secretary so as to authorize

the Secretary to enter into any agreement

under subsection (b)(2) of this section and section 458ee(c)(1) of this title 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
Page 181 TITLE 25—INDIANS § 458ee

a program to be included in a compact under

subsection (b)(2) of this section.

(l) Incorporate self-determination provisions

At the option of a participating tribe or tribes,

any or all provisions of part A of this subchapter

shall be made part of an agreement entered into

under title III of this Act or this part. 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 part.

(Pub. L. 93–638, title IV, §403, as added Pub. L.

103–413, title II, §204, Oct. 25, 1994, 108 Stat. 4272;

amended Pub. L. 104–109, §19, Feb. 12, 1996, 110

Stat. 766.)

REFERENCES IN TEXT

Act of April 16, 1934, referred to in subsec. (b)(1)(A), is

act Apr. 16, 1934, ch. 147, 48 Stat. 596, as amended, popularly known as the Johnson-O’Malley Act, which is

classified generally to section 452 et seq. of this title.

For complete classification of this Act to the Code, see

Short Title note set out under section 452 of this title

and Tables.

The Tribally Controlled Community College Assistance Act of 1978, referred to in subsec. (b)(4)(A), is Pub.

L. 95–471, Oct. 17, 1978, 92 Stat. 1325, as amended, which

is classified principally to chapter 20 (§1801 et seq.) of

this title. For complete classification of this Act to the

Code, see Short Title note set out under section 1801 of

this title and Tables.

The Office of Federal Procurement Policy Act, referred to in subsec. (e)(1), is Pub. L. 93–400, Aug. 30, 1974,

88 Stat. 796, as amended, which is classified principally

to chapter 7 (§401 et seq.) of Title 41, Public Contracts.

For complete classification of this Act to the Code, see

Short Title note set out under section 401 of Title 41

and Tables.

This subchapter, referred to in subsecs. (e)(1), (g)(3),

and (j), was in the original ‘‘this Act’’, meaning Pub. L.

93–638, Jan. 4, 1975, 88 Stat. 2203, as amended, known as

the Indian Self-Determination and Education Assistance Act, which is classified principally to this subchapter (§450 et seq.). For complete classification of

this Act to the Code, see Short Title note set out under

section 450 of this title and Tables.

Title III of this Act, referred to in subsecs. (g)(2) and

(l), is title III of Pub. L. 93–638, as added by Pub. L.

100–472, title II, §209, Oct. 5, 1988, 102 Stat. 2296, which

is set out as a note under section 450f of this title.

Part A of this subchapter, referred to in subsec. (l),

was in the original ‘‘title I of this Act’’, meaning title

I of Pub. L. 93–638, known as the Indian Self-Determination Act, which is classified principally to part A (§450f

et seq.) of this subchapter. For complete classification

of title I to the Code, see Short Title note set out under

section 450 of this title and Tables.

AMENDMENTS

1996—Subsec. (l). Pub. L. 104–109 added subsec. (l).

CHANGE OF NAME

Committee on Natural Resources of House of Representatives treated as referring to Committee on Resources of House of Representatives by section 1(a) of

Pub. L. 104–14, set out as a note preceding section 21 of

Title 2, The Congress.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 458ee of this

title.

§ 458dd. Budget request

The Secretary shall identify, in the annual

budget request of the President to the Congress

under section 1105 of title 31 any funds proposed

to be included in agreements authorized under

this part.

(Pub. L. 93–638, title IV, §404, as added Pub. L.

103–413, title II, §204, Oct. 25, 1994, 108 Stat. 4275.)

§ 458ee. Reports

(a) Requirement

The Secretary shall submit to Congress a written report on January 1 of each year following

October 25, 1994, regarding the administration of

this part.

(b) Contents

The report shall—

(1) identify the relative costs and benefits of

Self-Governance;

(2) identify, with particularity, all funds

that are specifically or functionally related to

the provision by the Secretary of services and

benefits to Self-Governance tribes and their

members;

(3) identify the funds transferred to each

Self-Governance tribe and the corresponding

reduction in the Federal bureaucracy;

(4) include the separate views of the tribes;

and

(5) include the funding formula for individual tribal shares of Central Office funds, together with the comments of affected Indian

tribes, developed under subsection (d) of this

section.

(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 part, the Secretary shall—

(A) review all programs, services, functions,

and activities, or portions thereof, administered by the Department of the Interior, other

than through the Bureau of Indian Affairs,

without regard to the agency or office concerned; and

(B) not later than 90 days after October 25,

1994, 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 SelfGovernance under this part, are eligible for inclusion in such agreements at the request of a

participating Indian tribe.

(2) The Secretary shall establish programmatic targets, after consultation with

tribes participating in Self-Governance under

this part, 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 458cc of this title.

(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

part. 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.