`[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4842 Enrolled Bill (ENR)]

        H.R.4842

                       One Hundred Third Congress

                                 of the

                        United States of America


                          AT THE SECOND SESSION

          Begun and held at the City of Washington on Tuesday,
 the twenty-fifth day of January, one thousand nine hundred and ninety-
                                  four


                                 An Act

  
 
  To specify the terms of contracts entered into by the United States 
and Indian tribal organizations under the Indian Self-Determination and 
Education Assistance Act and to provide for tribal Self-Governance, and 
for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Indian Self-Determination Act 
Amendments of 1994''.

            TITLE I--INDIAN SELF-DETERMINATION ACT CONTRACTS

SEC. 101. SHORT TITLE.

    This title may be cited as the ``Indian Self-Determination Contract 
Reform Act of 1994''.

SEC. 102. GENERAL AMENDMENTS.

    The Indian Self-Determination and Education Assistance Act (25 
U.S.C. 450 et seq.) is amended--
        (1) in section 4--
            (A) in subsection (g), by striking ``indirect costs rate'' 
        and inserting ``indirect cost rate'';
            (B) by striking ``and'' at the end of subsection (k);
            (C) by striking the period at the end of subsection (l) and 
        inserting ``; and''; and
            (D) by adding at the end the following new subsection:
    ``(m) `construction contract' means a fixed-price or cost-
reimbursement self-determination contract for a construction project, 
except that such term does not include any contract--
        ``(1) that is limited to providing planning services and 
    construction management services (or a combination of such 
    services);
        ``(2) for the Housing Improvement Program or roads maintenance 
    program of the Bureau of Indian Affairs administered by the 
    Secretary of the Interior; or
        ``(3) for the health facility maintenance and improvement 
    program administered by the Secretary of Health and Human 
    Services.'';
        (2) by striking subsection (f) of section 5 and inserting the 
    following new subsection:
    ``(f)(1) For each fiscal year during which an Indian tribal 
organization receives or expends funds pursuant to a contract entered 
into, or grant made, under this Act, the tribal organization that 
requested such contract or grant shall submit to the appropriate 
Secretary a single-agency audit report required by chapter 75 of title 
31, United States Code.
    ``(2) In addition to submitting a single-agency audit report 
pursuant to paragraph (1), a tribal organization referred to in such 
paragraph shall submit such additional information concerning the 
conduct of the program, function, service, or activity carried out 
pursuant to the contract or grant that is the subject of the report as 
the tribal organization may negotiate with the Secretary.
    ``(3) Any disagreement over reporting requirements shall be subject 
to the declination criteria and procedures set forth in section 102.'';
        (3) in section 7(a), by striking ``of subcontractors'' and 
    inserting in lieu thereof ``or subcontractors (excluding tribes and 
    tribal organizations)'';
        (4) at the end of section 7, add the following new subsection:
    ``(c) Notwithstanding subsections (a) and (b), with respect to any 
self-determination contract, or portion of a self-determination 
contract, that is intended to benefit one tribe, the tribal employment 
or contract preference laws adopted by such tribe shall govern with 
respect to the administration of the contract or portion of the 
contract.'';
        (5) at the end of section 102(a)(1), add the following new 
    flush sentence:
``The programs, functions, services, or activities that are contracted 
under this paragraph shall include administrative functions of the 
Department of the Interior and the Department of Health and Human 
Services (whichever is applicable) that support the delivery of 
services to Indians, including those administrative activities 
supportive of, but not included as part of, the service delivery 
programs described in this paragraph that are otherwise contractable. 
The administrative functions referred to in the preceding sentence 
shall be contractable without regard to the organizational level within 
the Department that carries out such functions.'';
        (6) in section 102(a)--
            (A) in paragraph (2)--
                (i) in the first sentence, by inserting ``, or a 
            proposal to amend or renew a self-determination contract,'' 
            before ``to the Secretary for review'';
                (ii) in the second sentence--

                    (I) by striking ``The'' and inserting ``Subject to 
                the provisions of paragraph (4), the'';
                    (II) by inserting ``and award the contract'' after 
                ``approve the proposal'';
                    (III) by striking ``, within sixty days of receipt 
                of the proposal,''; and
                    (IV) by striking ``a specific finding is made 
                that'' and inserting ``the Secretary provides written 
                notification to the applicant that contains a specific 
                finding that clearly demonstrates that, or that is 
                supported by a controlling legal authority that'';

                (iii) in subparagraph (B), by striking ``or'' after the 
            semicolon;
                (iv) in subparagraph (C), by striking the period at the 
            end and inserting a semicolon;
                (v) by adding at the end the following new 
            subparagraphs:
            ``(D) the amount of funds proposed under the contract is in 
        excess of the applicable funding level for the contract, as 
        determined under section 106(a); or
            ``(E) the program, function, service, or activity (or 
        portion thereof) that is the subject of the proposal is beyond 
        the scope of programs, functions, services, or activities 
        covered under paragraph (1) because the proposal includes 
        activities that cannot lawfully be carried out by the 
        contractor.''; and
                (vi) by adding at the end of the paragraph the 
            following new flush material:
``Notwithstanding any other provision of law, the Secretary may extend 
or otherwise alter the 90-day period specified in the second sentence 
of this subsection, if before the expiration of such period, the 
Secretary obtains the voluntary and express written consent of the 
tribe or tribal organization to extend or otherwise alter such period. 
The contractor shall include in the proposal of the contractor the 
standards under which the tribal organization will operate the 
contracted program, service, function, or activity, including in the 
area of construction, provisions regarding the use of licensed and 
qualified architects, applicable health and safety standards, adherence 
to applicable Federal, State, local, or tribal building codes and 
engineering standards. The standards referred to in the preceding 
sentence shall ensure structural integrity, accountability of funds, 
adequate competition for subcontracting under tribal or other 
applicable law, the commencement, performance, and completion of the 
contract, adherence to project plans and specifications (including any 
applicable Federal construction guidelines and manuals), the use of 
proper materials and workmanship, necessary inspection and testing, and 
changes, modifications, stop work, and termination of the work when 
warranted.''; and
            (B) by adding at the end the following new paragraph:
    ``(4) The Secretary shall approve any severable portion of a 
contract proposal that does not support a declination finding described 
in paragraph (2). If the Secretary determines under such paragraph that 
a contract proposal--
        ``(A) proposes in part to plan, conduct, or administer a 
    program, function, service, or activity that is beyond the scope of 
    programs covered under paragraph (1), or
        ``(B) proposes a level of funding that is in excess of the 
    applicable level determined under section 106(a),
subject to any alteration in the scope of the proposal that the 
Secretary and the tribal organization agree to, the Secretary shall, as 
appropriate, approve such portion of the program, function, service, or 
activity as is authorized under paragraph (1) or approve a level of 
funding authorized under section 106(a). If a tribal organization 
elects to carry out a severable portion of a contract proposal pursuant 
to this paragraph, subsection (b) shall only apply to the portion of 
the contract that is declined by the Secretary pursuant to this 
subsection.'';
        (7) in section 102(b)(3)--
            (A) by inserting after ``record'' the following: ``with the 
        right to engage in full discovery relevant to any issue raised 
        in the matter''; and
            (B) by inserting before the period the following: ``, 
        except that the tribe or tribal organization may, in lieu of 
        filing such appeal, exercise the option to initiate an action 
        in a Federal district court and proceed directly to such court 
        pursuant to section 110(a)'';
        (8) in section 102(d), by striking ``as provided in section 
    2671 of title 28)'' and inserting ``as provided in section 2671 of 
    title 28, United States Code, and including an individual who 
    provides health care services pursuant to a personal services 
    contract with a tribal organization for the provision of services 
    in any facility owned, operated, or constructed under the 
    jurisdiction of the Indian Health Service)'';
        (9) by adding at the end of section 102 the following new 
    subsection:
    ``(e)(1) With respect to any hearing or appeal conducted pursuant 
to subsection (b)(3), the Secretary shall have the burden of proof to 
establish by clearly demonstrating the validity of the grounds for 
declining the contract proposal (or portion thereof).
    ``(2) Notwithstanding any other provision of law, a decision by an 
official of the Department of the Interior or the Department of Health 
and Human Services, as appropriate (referred to in this paragraph as 
the `Department') that constitutes final agency action and that relates 
to an appeal within the Department that is conducted under subsection 
(b)(3) shall be made either--
        ``(A) by an official of the Department who holds a position at 
    a higher organizational level within the Department than the level 
    of the departmental agency (such as the Indian Health Service or 
    the Bureau of Indian Affairs) in which the decision that is the 
    subject of the appeal was made; or
        ``(B) by an administrative judge.'';
        (10) by striking subsection (a) of section 105 and inserting 
    the following new subsection:
    ``(a)(1) Notwithstanding any other provision of law, subject to 
paragraph (3), the contracts and cooperative agreements entered into 
with tribal organizations pursuant to section 102 shall not be subject 
to Federal contracting or cooperative agreement laws (including any 
regulations), except to the extent that such laws expressly apply to 
Indian tribes.
    ``(2) Program standards applicable to a nonconstruction self-
determination contract shall be set forth in the contract proposal and 
the final contract of the tribe or tribal organization.
    ``(3)(A) With respect to a construction contract (or a subcontract 
of such a construction contract), the provisions of the Office of 
Federal Procurement Policy Act (41 U.S.C. 401 et seq.) and the 
regulations relating to acquisitions promulgated under such Act shall 
apply only to the extent that the application of such provision to the 
construction contract (or subcontract) is--
        ``(i) necessary to ensure that the contract may be carried out 
    in a satisfactory manner;
        ``(ii) directly related to the construction activity; and
        ``(iii) not inconsistent with this Act.
    ``(B) A list of the Federal requirements that meet the requirements 
of clauses (i) through (iii) of subparagraph (A) shall be included in 
an attachment to the contract pursuant to negotiations between the 
Secretary and the tribal organization.
    ``(C)(i) Except as provided in subparagraph (B), no Federal law 
listed in clause (ii) or any other provision of Federal law (including 
an Executive order) relating to acquisition by the Federal Government 
shall apply to a construction contract that a tribe or tribal 
organization enters into under this Act, unless expressly provided in 
such law.
    ``(ii) The laws listed in this paragraph are as follows:
        ``(I) The Federal Property and Administrative Services Act of 
    1949 (40 U.S.C. 471 et seq.).
        ``(II) Section 3709 of the Revised Statutes.
        ``(III) Section 9(c) of the Act of Aug. 2, 1946 (60 Stat. 809, 
    chapter 744).
        ``(IV) Title III of the Federal Property and Administrative 
    Services Act of 1949 (63 Stat. 393 et seq., chapter 288).
        ``(V) Section 13 of the Act of Oct. 3, 1944 (58 Stat. 770; 
    chapter 479).
        ``(VI) Chapters 21, 25, 27, 29, and 31 of title 44, United 
    States Code.
        ``(VII) Section 2 of the Act of June 13, 1934 (48 Stat 948, 
    chapter 483).
        ``(VIII) Sections 1 through 12 of the Act of June 30, 1936 (49 
    Stat. 2036 et seq. chapter 881).
        ``(IX) The Service Control Act of 1965 (41 U.S.C. 351 et seq.).
        ``(X) The Small Business Act (15 U.S.C. 631 et seq.).
        ``(XI) Executive Order Nos. 12138, 11246, 11701 and 11758.'';
        (11) by striking subsection (e) and inserting the following new 
    subsection:
    ``(e) If an Indian tribe, or a tribal organization authorized by a 
tribe, requests retrocession of the appropriate Secretary for any 
contract or portion of a contract entered into pursuant to this Act, 
unless the tribe or tribal organization rescinds the request for 
retrocession, such retrocession shall become effective on--
        ``(1) the earlier of--
            ``(A) the date that is 1 year after the date the Indian 
        tribe or tribal organization submits such request; or
            ``(B) the date on which the contract expires; or
        ``(2) such date as may be mutually agreed by the Secretary and 
    the Indian tribe.'';
        (12) by striking paragraph (2) of section 105(f) and inserting 
    the following new paragraph:
        ``(2) donate to an Indian tribe or tribal organization title to 
    any personal or real property found to be excess to the needs of 
    the Bureau of Indian Affairs, the Indian Health Service, or the 
    General Services Administration, except that--
            ``(A) subject to the provisions of subparagraph (B), title 
        to property and equipment furnished by the Federal Government 
        for use in the performance of the contract or purchased with 
        funds under any self-determination contract or grant agreement 
        shall, unless otherwise requested by the tribe or tribal 
        organization, vest in the appropriate tribe or tribal 
        organization;
            ``(B) if property described in subparagraph (A) has a value 
        in excess of $5,000 at the time of the retrocession, 
        rescission, or termination of the self-determination contract 
        or grant agreement, at the option of the Secretary, upon the 
        retrocession, rescission, or termination, title to such 
        property and equipment shall revert to the Department of the 
        Interior or the Department of Health and Human Services, as 
        appropriate; and
            ``(C) all property referred to in subparagraph (A) shall 
        remain eligible for replacement on the same basis as if title 
        to such property were vested in the United States; and'';
        (13) by adding at the end of section 105 the following new 
    subsections:
    ``(i)(1) If a self-determination contract requires the Secretary to 
divide the administration of a program that has previously been 
administered for the benefit of a greater number of tribes than are 
represented by the tribal organization that is a party to the contract, 
the Secretary shall take such action as may be necessary to ensure that 
services are provided to the tribes not served by a self-determination 
contract, including program redesign in consultation with the tribal 
organization and all affected tribes.
    ``(2) Nothing in this title shall be construed to limit or reduce 
in any way the funding for any program, project, or activity serving a 
tribe under this or other applicable Federal law. Any tribe or tribal 
organization that alleges that a self-determination contract is in 
violation of this section may apply the provisions of section 110.
    ``(j) Upon providing notice to the Secretary, a tribal organization 
that carries out a nonconstruction self-determination contract may 
propose a redesign of a program, activity, function, or service carried 
out by the tribal organization under the contract, including any 
nonstatutory program standard, in such manner as to best meet the local 
geographic, demographic, economic, cultural, health, and institutional 
needs of the Indian people and tribes served under the contract. The 
Secretary shall evaluate any proposal to redesign any program, 
activity, function, or service provided under the contract. With 
respect to declining to approve a redesigned program, activity, 
function, or service under this subsection, the Secretary shall apply 
the criteria and procedures set forth in section 102.
    ``(k) For purposes of section 201(a) of the Federal Property and 
Administrative Services Act of 1949 (40 U.S.C. 481(a)) (relating to 
Federal sources of supply, including lodging providers, airlines and 
other transportation providers), a tribal organization carrying out a 
contract, grant, or cooperative agreement under this Act shall be 
deemed an executive agency when carrying out such contract, grant, or 
agreement and the employees of the tribal organization shall be 
eligible to have access to such sources of supply on the same basis as 
employees of an executive agency have such access.
    ``(l)(1) Upon the request of an Indian tribe or tribal 
organization, the Secretary shall enter into a lease with the Indian 
tribe or tribal organization that holds title to, a leasehold interest 
in, or a trust interest in, a facility used by the Indian tribe or 
tribal organization for the administration and delivery of services 
under this Act.
    ``(2) The Secretary shall compensate each Indian tribe or tribal 
organization that enters into a lease under paragraph (1) for the use 
of the facility leased for the purposes specified in such paragraph. 
Such compensation may include rent, depreciation based on the useful 
life of the facility, principal and interest paid or accrued, operation 
and maintenance expenses, and such other reasonable expenses that the 
Secretary determines, by regulation, to be allowable.
    ``(m)(1) Each construction contract requested, approved, or awarded 
under this Act shall be subject to--
        ``(A) except as otherwise provided in this Act, the provisions 
    of this Act, other than sections 102(a)(2), 106(l), 108 and 109; 
    and
        ``(B) section 314 of the Department of the Interior and Related 
    Agencies Appropriations Act, 1991 (104 Stat. 1959).
    ``(2) In providing technical assistance to tribes and tribal 
organizations in the development of construction contract proposals, 
the Secretary shall provide, not later than 30 days after receiving a 
request from a tribe or tribal organization, all information available 
to the Secretary regarding the construction project, including 
construction drawings, maps, engineering reports, design reports, plans 
of requirements, cost estimates, environmental assessments or 
environmental impact reports, and archaeological reports.
    ``(3) Prior to finalizing a construction contract proposal pursuant 
to section 102(a), and upon request of the tribe or tribal organization 
that submits the proposal, the Secretary shall provide for a 
precontract negotiation phase in the development of a contract 
proposal. Such phase shall include, at a minimum, the following 
elements:
        ``(A) The provision of technical assistance pursuant to section 
    103 and paragraph (2).
        ``(B) A joint scoping session between the Secretary and the 
    tribe or tribal organization to review all plans, specifications, 
    engineering reports, cost estimates, and other information 
    available to the parties, for the purpose of identifying all areas 
    of agreement and disagreement.
        ``(C) An opportunity for the Secretary to revise the plans, 
    designs, or cost estimates of the Secretary in response to concerns 
    raised, or information provided by, the tribe or tribal 
    organization.
        ``(D) A negotiation session during which the Secretary and the 
    tribe or tribal organization shall seek to develop a mutually 
    agreeable contract proposal.
        ``(E) Upon the request of the tribe or tribal organization, the 
    use of an alternative dispute resolution mechanism to seek 
    resolution of all remaining areas of disagreement pursuant to the 
    dispute resolution provisions under subchapter IV of chapter 5 of 
    title 5, United States Code.
        ``(F) The submission to the Secretary by the tribe or tribal 
    organization of a final contract proposal pursuant to section 
    102(a).
    ``(4)(A) Subject to subparagraph (B), in funding a fixed-price 
construction contract pursuant to section 106(a), the Secretary shall 
provide for the following:
        ``(i) The reasonable costs to the tribe or tribal organization 
    for general administration incurred in connection with the project 
    that is the subject of the contract.
        ``(ii) The ability of the contractor that carries out the 
    construction contract to make a reasonable profit, taking into 
    consideration the risks associated with carrying out the contract 
    and other relevant considerations.
    ``(B) In establishing a contract budget for a construction project, 
the Secretary shall not be required to separately identify the 
components described in clauses (i) and (ii) of subparagraph (A).
    ``(C) The total amount awarded under a construction contract shall 
reflect an overall fair and reasonable price to the parties, including 
the following costs:
        ``(i) The reasonable costs to the tribal organization of 
    performing the contract, taking into consideration the terms of the 
    contract and the requirements of this Act and any other applicable 
    law.
        ``(ii) The costs of preparing the contract proposal and 
    supporting cost data.
        ``(iii) The costs associated with auditing the general and 
    administrative costs of the tribal organization associated with the 
    management of the construction contract.
        ``(iv) In the case of a fixed-price contract, a fair profit 
    determined by taking into consideration the relevant risks and 
    local market conditions.
        ``(v) If the Secretary and the tribe or tribal organization are 
    unable to develop a mutually agreeable construction contract 
    proposal pursuant to the procedures set forth in this subsection, 
    the tribe or tribal organization may submit a final contract 
    proposal to the Secretary. Not later than 30 days after receiving 
    such final contract proposal, the Secretary shall approve the 
    contract proposal and award the contract, unless, during such 
    period the Secretary declines the proposal pursuant to sections 
    102(a)(2) and 102(b) of section 102 (including providing 
    opportunity for an appeal pursuant to section 102(b)).
    ``(n) Notwithstanding any other provision of law, the rental rates 
for housing provided to an employee by the Federal Government in Alaska 
pursuant to a self-determination contract shall be determined on the 
basis of--
        ``(1) the reasonable value of the quarters and facilities (as 
    such terms are defined under section 5911 of title 5, United States 
    Code) to such employee, and
        ``(2) the circumstances under which such quarters and 
    facilities are provided to such employee,
as based on the cost of comparable private rental housing in the 
nearest established community with a year-round population of 1,500 or 
more individuals.'';
        (14) in section 106(a)--
            (A) in paragraph (1), by inserting before the period at the 
        end the following: ``, without regard to any organizational 
        level within the Department of the Interior or the Department 
        of Health and Human Services, as appropriate, at which the 
        program, function, service, or activity or portion thereof, 
        including supportive administrative functions that are 
        otherwise contractable, is operated'';
            (B) in paragraph (2), by inserting after ``consist of'' the 
        following: ``an amount for''; and
            (C) by striking paragraph (3) and inserting the following 
        new paragraphs:
    ``(3)(A) The contract support costs that are eligible costs for the 
purposes of receiving funding under this Act shall include the costs of 
reimbursing each tribal contractor for reasonable and allowable costs 
of--
        ``(i) direct program expenses for the operation of the Federal 
    program that is the subject of the contract, and
        ``(ii) any additional administrative or other expense related 
    to the overhead incurred by the tribal contractor in connection 
    with the operation of the Federal program, function, service, or 
    activity pursuant to the contract,
except that such funding shall not duplicate any funding provided under 
section 106(a)(1).
    ``(B) On an annual basis, during such period as a tribe or tribal 
organization operates a Federal program, function, service, or activity 
pursuant to a contract entered into under this Act, the tribe or tribal 
organization shall have the option to negotiate with the Secretary the 
amount of funds that the tribe or tribal organization is entitled to 
receive under such contract pursuant to this paragraph.
    ``(4) For each fiscal year during which a self-determination 
contract is in effect, any savings attributable to the operation of a 
Federal program, function, service, or activity under a self-
determination contract by a tribe or tribal organization (including a 
cost reimbursement construction contract) shall--
        ``(A) be used to provide additional services or benefits under 
    the contract; or
        ``(B) be expended by the tribe or tribal organization in the 
    succeeding fiscal year, as provided in section 8.
    ``(5) Subject to paragraph (6), during the initial year that a 
self-determination contract is in effect, the amount required to be 
paid under paragraph (2) shall include startup costs consisting of the 
reasonable costs that have been incurred or will be incurred on a one-
time basis pursuant to the contract necessary--
        ``(A) to plan, prepare for, and assume operation of the 
    program, function, service, or activity that is the subject of the 
    contract; and
        ``(B) to ensure compliance with the terms of the contract and 
    prudent management.
    ``(6) Costs incurred before the initial year that a self-
determination contract is in effect may not be included in the amount 
required to be paid under paragraph (2) if the Secretary does not 
receive a written notification of the nature and extent of the costs 
prior to the date on which such costs are incurred.'';
        (15) in section 106(c)--
            (A) by striking ``March 15'' and inserting ``May 15'';
            (B) in paragraphs (1) and (2), by striking ``indirect 
        costs'' each place it appears and inserting ``contract support 
        costs'';
            (C) in paragraph (4), by striking ``and'' at the end;
            (D) in paragraph (5), by striking the period at the end and 
        inserting ``; and''; and
            (E) by adding at the end the following new paragraph:
        ``(6) an accounting of any deficiency of funds needed to 
    maintain the preexisting level of services to any tribes affected 
    by contracting activities under this Act, and a statement of the 
    amount of funds needed for transitional purposes to enable 
    contractors to convert from a Federal fiscal year accounting cycle 
    to a different accounting cycle, as authorized by section 
    105(d).'';
        (16) in section 106(f), by inserting immediately after the 
    second sentence the following new sentence: ``For the purpose of 
    determining the 365-day period specified in this paragraph, an 
    audit report shall be deemed to have been received on the date of 
    actual receipt by the Secretary, if, within 60 days after receiving 
    the report, the Secretary does not give notice of a determination 
    by the Secretary to reject the single-agency report as insufficient 
    due to noncompliance with chapter 75 of title 31, United States 
    Code, or noncompliance with any other applicable law.'';
        (17) by striking subsection (g) of section 106 and inserting 
    the following new subsection:
    ``(g) Upon the approval of a self-determination contract, the 
Secretary shall add to the contract the full amount of funds to which 
the contractor is entitled under section 106(a), subject to adjustments 
for each subsequent year that such tribe or tribal organization 
administers a Federal program, function, service, or activity under 
such contract.'';
        (18) by striking subsection (i) of section 106 and inserting 
    the following new subsection:
    ``(i) On an annual basis, the Secretary shall consult with, and 
solicit the participation of, Indian tribes and tribal organizations in 
the development of the budget for the Indian Health Service and the 
Bureau of Indian Affairs (including participation of Indian tribes and 
tribal organizations in formulating annual budget requests that the 
Secretary submits to the President for submission to Congress pursuant 
to section 1105 of title 31, United States Code).''; and
        (19) by adding at the end of section 106 the following new 
    subsections:
    ``(j) Notwithstanding any other provision of law, a tribal 
organization may use funds provided under a self-determination contract 
to meet matching or cost participation requirements under other Federal 
and non-Federal programs.
    ``(k) Without intending any limitation, a tribal organization may, 
without the approval of the Secretary, expend funds provided under a 
self-determination contract for the following purposes, to the extent 
that the expenditure of the funds is supportive of a contracted 
program:
        ``(1) Depreciation and use allowances not otherwise 
    specifically prohibited by law, including the depreciation of 
    facilities owned by the tribe or tribal organization.
        ``(2) Publication and printing costs.
        ``(3) Building, realty, and facilities costs, including rental 
    costs or mortgage expenses.
        ``(4) Automated data processing and similar equipment or 
    services.
        ``(5) Costs for capital assets and repairs.
        ``(6) Management studies.
        ``(7) Professional services, other than services provided in 
    connection with judicial proceedings by or against the United 
    States.
        ``(8) Insurance and indemnification, including insurance 
    covering the risk of loss of or damage to property used in 
    connection with the contract without regard to the ownership of 
    such property.
        ``(9) Costs incurred to raise funds or contributions from non-
    Federal sources for the purpose of furthering the goals and 
    objectives of the self-determination contract.
        ``(10) Interest expenses paid on capital expenditures such as 
    buildings, building renovation, or acquisition or fabrication of 
    capital equipment, and interest expenses on loans necessitated due 
    to delays by the Secretary in providing funds under a contract.
        ``(11) Expenses of a governing body of a tribal organization 
    that are attributable to the management or operation of programs 
    under this Act.
        ``(12) Costs associated with the management of pension funds, 
    self-insurance funds, and other funds of the tribal organization 
    that provide for participation by the Federal Government.
    ``(l)(1) The Secretary may only suspend, withhold, or delay the 
payment of funds for a period of 30 days beginning on the date the 
Secretary makes a determination under this paragraph to a tribal 
organization under a self-determination contract, if the Secretary 
determines that the tribal organization has failed to substantially 
carry out the contract without good cause. In any such case, the 
Secretary shall provide the tribal organization with reasonable advance 
written notice, technical assistance (subject to available resources) 
to assist the tribal organization, a hearing on the record not later 
than 10 days after the date of such determination or such later date as 
the tribal organization shall approve, and promptly release any funds 
withheld upon subsequent compliance.
    ``(2) With respect to any hearing or appeal conducted pursuant to 
this subsection, the Secretary shall have the burden of proof to 
establish by clearly demonstrating the validity of the grounds for 
suspending, withholding, or delaying payment of funds.
    ``(m) The program income earned by a tribal organization in the 
course of carrying out a self-determination contract--
        ``(1) shall be used by the tribal organization to further the 
    general purposes of the contract; and
        ``(2) shall not be a basis for reducing the amount of funds 
    otherwise obligated to the contract.
    ``(n) To the extent that programs, functions, services, or 
activities carried out by tribal organizations pursuant to contracts 
entered into under this Act 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 contract funds determined under subsection 
(a), the Secretary shall make such savings available for the provision 
of additional services to program beneficiaries, either directly or 
through contractors, in a manner equitable to both direct and 
contracted programs.
    ``(o) Notwithstanding any other provision of law (including any 
regulation), a tribal organization that carries out a self-
determination contract may, with respect to allocations within the 
approved budget of the contract, rebudget to meet contract 
requirements, if such rebudgeting would not have an adverse effect on 
the performance of the contract.''.

SEC. 103. CONTRACT SPECIFICATIONS.

    The Indian Self-Determination Education Assistance Act (25 U.S.C. 
450 et seq.) is amended by inserting after section 107 the following 
new section:

``SEC. 108. CONTRACT OR GRANT SPECIFICATIONS.

    ``(a) Each self-determination contract entered into under this Act 
shall--
        ``(1) contain, or incorporate by reference, the provisions of 
    the model agreement described in subsection (c) (with modifications 
    where indicated and the blanks appropriately filled in), and
        ``(2) contain such other provisions as are agreed to by the 
    parties.
    ``(b) Notwithstanding any other provision of law, the Secretary may 
make payments pursuant to section 1(b)(6) of such model agreement. As 
provided in section 1(b)(7) of the model agreement, the records of the 
tribal government or tribal organization specified in such section 
shall not be considered Federal records for purposes of chapter 5 of 
title 5, United States Code.
    ``(c) The model agreement referred to in subsection (a)(1) reads as 
follows:
    ```SECTION 1. AGREEMENT BETWEEN THE SECRETARY AND THE ____ TRIBAL 
      GOVERNMENT.
    ```(a) Authority and Purpose.--
        ```(1) Authority.--This agreement, denoted a Self-Determination 
    Contract (referred to in this agreement as the ``Contract''), is 
    entered into by the Secretary of the Interior or the Secretary of 
    Health and Human Services (referred to in this agreement as the 
    ``Secretary''), for and on behalf of the United States pursuant to 
    title I of the Indian Self-Determination and Education Assistance 
    Act (25 U.S.C. 450 et seq.) and by the authority of the ____ tribal 
    government or tribal organization (referred to in this agreement as 
    the ``Contractor''). The provisions of title I of the Indian Self-
    Determination and Education Assistance Act (25 U.S.C. 450 et seq.) 
    are incorporated in this agreement.
        ```(2) Purpose.--Each provision of the Indian Self-
    Determination and Education Assistance Act (25 U.S.C. 450 et seq.) 
    and each provision of this Contract shall be liberally construed 
    for the benefit of the Contractor to transfer the funding and the 
    following related functions, services, activities, and programs (or 
    portions thereof), that are otherwise contractable under section 
    102(a) of such Act, including all related administrative functions, 
    from the Federal Government to the Contractor: (List functions, 
    services, activities, and programs).
    ```(b) Terms, Provisions, and Conditions.--
        ```(1) Term.--Pursuant to section 105(c)(1) of the Indian Self-
    Determination and Education Assistance Act (25 U.S.C. 450j(c)(1)), 
    the term of this contract shall be ____ years. Pursuant to section 
    105(d)(1) of such Act (25 U.S.C. 450j(d)), upon the election by the 
    Contractor, the period of this Contract shall be determined on the 
    basis of a calendar year, unless the Secretary and the Contractor 
    agree on a different period in the annual funding agreement 
    incorporated by reference in subsection (f)(2).
        ```(2) Effective date.--This Contract shall become effective 
    upon the date of the approval and execution by the Contractor and 
    the Secretary, unless the Contractor and the Secretary agree on an 
    effective date other than the date specified in this paragraph.
        ```(3) Program standard.--The Contractor agrees to administer 
    the program, services, functions and activities (or portions 
    thereof) listed in subsection (a)(2) of the Contract in conformity 
    with the following standards: (list standards).
        ```(4) Funding amount.--Subject to the availability of 
    appropriations, the Secretary shall make available to the 
    Contractor the total amount specified in the annual funding 
    agreement incorporated by reference in subsection (f)(2). Such 
    amount shall not be less than the applicable amount determined 
    pursuant to section 106(a) of the Indian Self-Determination and 
    Education Assistance Act (25 U.S.C. 450j-1).
        ```(5) Limitation of costs.--The Contractor shall not be 
    obligated to continue performance that requires an expenditure of 
    funds in excess of the amount of funds awarded under this Contract. 
    If, at any time, the Contractor has reason to believe that the 
    total amount required for performance of this Contract or a 
    specific activity conducted under this Contract would be greater 
    than the amount of funds awarded under this Contract, the 
    Contractor shall provide reasonable notice to the appropriate 
    Secretary. If the appropriate Secretary does not take such action 
    as may be necessary to increase the amount of funds awarded under 
    this Contract, the Contractor may suspend performance of the 
    Contract until such time as additional funds are awarded.
        ```(6) Payment.--
            ```(A) In general.--Payments to the Contractor under this 
        Contract shall--
                ```(i) be made as expeditiously as practicable; and
                ```(ii) include financial arrangements to cover funding 
            during periods covered by joint resolutions adopted by 
            Congress making continuing appropriations, to the extent 
            permitted by such resolutions.
            ```(B) Quarterly, semiannual, lump-sum, and other methods 
        of payment.--
                ```(i) In general.--Pursuant to section 108(b) of the 
            Indian Self-Determination and Education Assistance Act, and 
            notwithstanding any other provision of law, for each fiscal 
            year covered by this Contract, the Secretary shall make 
            available to the Contractor the funds specified for the 
            fiscal year under the annual funding agreement incorporated 
            by reference pursuant to subsection (f)(2) by paying to the 
            Contractor, on a quarterly basis, one-quarter of the total 
            amount provided for in the annual funding agreement for 
            that fiscal year, in a lump-sum payment or as semiannual 
            payments, or any other method of payment authorized by law, 
            in accordance with such method as may be requested by the 
            Contractor and specified in the annual funding agreement.
                ```(ii) Method of quarterly payment.--If quarterly 
            payments are specified in the annual funding agreement 
            incorporated by reference pursuant to subsection (f)(2), 
            each quarterly payment made pursuant to clause (i) shall be 
            made on the first day of each quarter of the fiscal year, 
            except that in any case in which the Contract year 
            coincides with the Federal fiscal year, payment for the 
            first quarter shall be made not later than the date that is 
            10 calendar days after the date on which the Office of 
            Management and Budget apportions the appropriations for the 
            fiscal year for the programs, services, functions, and 
            activities subject to this Contract.
                ```(iii) Applicability.--Chapter 39 of title 31, United 
            States Code, shall apply to the payment of funds due under 
            this Contract and the annual funding agreement referred to 
            in clause (i).
        ```(7) Records and monitoring.--
            ```(A) In general.--Except for previously provided copies 
        of tribal records that the Secretary demonstrates are clearly 
        required to be maintained as part of the recordkeeping system 
        of the Department of the Interior or the Department of Health 
        and Human Services (or both), records of the Contractor shall 
        not be considered Federal records for purposes of chapter 5 of 
        title 5, United States Code.
            ```(B) Recordkeeping system.--The Contractor shall maintain 
        a recordkeeping system and, upon reasonable advance request, 
        provide reasonable access to such records to the Secretary.
            ```(C) Responsibilities of contractor.--The Contractor 
        shall be responsible for managing the day-to-day operations 
        conducted under this Contract and for monitoring activities 
        conducted under this Contract to ensure compliance with the 
        Contract and applicable Federal requirements. With respect to 
        the monitoring activities of the Secretary, the routine 
        monitoring visits shall be limited to not more than one 
        performance monitoring visit for this Contract by the head of 
        each operating division, departmental bureau, or departmental 
        agency, or duly authorized representative of such head unless--
                ```(i) the Contractor agrees to one or more additional 
            visits; or
                ```(ii) the appropriate official determines that there 
            is reasonable cause to believe that grounds for 
            reassumption of the Contract, suspension of Contract 
            payments, or other serious Contract performance deficiency 
            may exist.
        No additional visit referred to in clause (ii) shall be made 
        until such time as reasonable advance notice that includes a 
        description of the nature of the problem that requires the 
        additional visit has been given to the Contractor.
        ```(8) Property.--
            ```(A) In general.--As provided in section 105(f) of the 
        Indian Self-Determination and Education Assistance Act (25 
        U.S.C. 450j(f)), at the request of the Contractor, the 
        Secretary may make available, or transfer to the Contractor, 
        all reasonably divisible real property, facilities, equipment, 
        and personal property that the Secretary has used to provide or 
        administer the programs, services, functions, and activities 
        covered by this Contract. A mutually agreed upon list 
        specifying the property, facilities, and equipment so furnished 
        shall also be prepared by the Secretary, with the concurrence 
        of the Contractor, and periodically revised by the Secretary, 
        with the concurrence of the Contractor.
            ```(B) Records.--The Contractor shall maintain a record of 
        all property referred to in subparagraph (A) or other property 
        acquired by the Contractor under section 105(f)(2)(A) of such 
        Act for purposes of replacement.
            ```(C) Joint use agreements.--Upon the request of the 
        Contractor, the Secretary and the Contractor shall enter into a 
        separate joint use agreement to address the shared use by the 
        parties of real or personal property that is not reasonably 
        divisible.
            ```(D) Acquisition of property.--The Contractor is granted 
        the authority to acquire such excess property as the Contractor 
        may determine to be appropriate in the judgment of the 
        Contractor to support the programs, services, functions, and 
        activities operated pursuant to this Contract.
            ```(E) Confiscated or excess property.--The Secretary shall 
        assist the Contractor in obtaining such confiscated or excess 
        property as may become available to tribes, tribal 
        organizations, or local governments.
            ```(F) Screener identification card.--A screener 
        identification card (General Services Administration form 
        numbered 2946) shall be issued to the Contractor not later than 
        the effective date of this Contract. The designated official 
        shall, upon request, assist the Contractor in securing the use 
        of the card.
            ```(G) Capital equipment.--The Contractor shall determine 
        the capital equipment, leases, rentals, property, or services 
        the Contractor requires to perform the obligations of the 
        Contractor under this subsection, and shall acquire and 
        maintain records of such capital equipment, property rentals, 
        leases, property, or services through applicable procurement 
        procedures of the Contractor.
        ```(9) Availability of funds.--Notwithstanding any other 
    provision of law, any funds provided under this Contract--
            ```(A) shall remain available until expended; and
            ```(B) with respect to such funds, no further--
                ```(i) approval by the Secretary, or
                ```(ii) justifying documentation from the Contractor,
    shall be required prior to the expenditure of such funds.
        ```(10) Transportation.--Beginning on the effective date of 
    this Contract, the Secretary shall authorize the Contractor to 
    obtain interagency motor pool vehicles and related services for 
    performance of any activities carried out under this Contract.
        ```(11) Federal program guidelines, manuals, or policy 
    directives.--Except as specifically provided in the Indian Self-
    Determination and Education Assistance Act (25 U.S.C. 450 et seq.) 
    the Contractor is not required to abide by program guidelines, 
    manuals, or policy directives of the Secretary, unless otherwise 
    agreed to by the Contractor and the Secretary, or otherwise 
    required by law.
        ```(12) Disputes.--
            ```(A) Third-party mediation defined.--For the purposes of 
        this Contract, the term ``third-party mediation'' means a form 
        of mediation whereby the Secretary and the Contractor nominate 
        a third party who is not employed by or significantly involved 
        with the Secretary of the Interior, the Secretary of Health and 
        Human Services, or the Contractor, to serve as a third-party 
        mediator to mediate disputes under this Contract.
            ```(B) Alternative procedures.--In addition to, or as an 
        alternative to, remedies and procedures prescribed by section 
        110 of the Indian Self-Determination and Education Assistance 
        Act (25 U.S.C. 450m-1), the parties to this Contract may 
        jointly--
                ```(i) submit disputes under this Contract to third-
            party mediation;
                ```(ii) submit the dispute to the adjudicatory body of 
            the Contractor, including the tribal court of the 
            Contractor;
                ```(iii) submit the dispute to mediation processes 
            provided for under the laws, policies, or procedures of the 
            Contractor; or
                ```(iv) use the administrative dispute resolution 
            processes authorized in subchapter IV of chapter 5 of title 
            5, United States Code.
            ```(C) Effect of decisions.--The Secretary shall be bound 
        by decisions made pursuant to the processes set forth in 
        subparagraph (B), except that the Secretary shall not be bound 
        by any decision that significantly conflicts with the interests 
        of Indians or the United States.
        ```(13) Administrative procedures of contractor.--Pursuant to 
    the Indian Civil Rights Act of 1968 (25 U.S.C. 1301 et seq.), the 
    laws, policies, and procedures of the Contractor shall provide for 
    administrative due process (or the equivalent of administrative due 
    process) with respect to programs, services, functions, and 
    activities that are provided by the Contractor pursuant to this 
    Contract.
        ```(14) Successor annual funding agreement.--
            ```(A) In general.--Negotiations for a successor annual 
        funding agreement, provided for in subsection (f)(2), shall 
        begin not later than 120 days prior to the conclusion of the 
        preceding annual funding agreement. Except as provided in 
        section 105(c)(2) of the Indian Self-Determination and 
        Education Assistance Act (25 U.S.C. 450j(c)(2)) the funding for 
        each such successor annual funding agreement shall only be 
        reduced pursuant to section 106(b) of such Act (25 U.S.C. 450j-
        1(b)).
            ```(B) Information.--The Secretary shall prepare and supply 
        relevant information, and promptly comply with any request by 
        the Contractor for information that the Contractor reasonably 
        needs to determine the amount of funds that may be available 
        for a successor annual funding agreement, as provided for in 
        subsection (f)(2) of this Contract.
        ```(15) Contract requirements; approval by secretary.--
            ```(A) In general.--Except as provided in subparagraph (B), 
        for the term of the Contract, section 2103 of the Revised 
        Statutes (25 U.S.C. 81) and section 16 of the Act of June 18, 
        1934 (48 Stat. 987, chapter 576; 25 U.S.C. 476), shall not 
        apply to any contract entered into in connection with this 
        Contract.
            ```(B) Requirements.--Each Contract entered into by the 
        Contractor with a third party in connection with performing the 
        obligations of the Contractor under this Contract shall--
                ```(i) be in writing;
                ```(ii) identify the interested parties, the 
            authorities of such parties, and purposes of the Contract;
                ```(iii) state the work to be performed under the 
            Contract; and
                ```(iv) state the process for making any claim, the 
            payments to be made, and the terms of the Contract, which 
            shall be fixed.
    ```(c) Obligation of the Contractor.--
        ```(1) Contract performance.--Except as provided in subsection 
    (d)(2), the Contractor shall perform the programs, services, 
    functions, and activities as provided in the annual funding 
    agreement under subsection (f)(2) of this Contract.
        ```(2) Amount of funds.--The total amount of funds to be paid 
    under this Contract pursuant to section 106(a) shall be determined 
    in an annual funding agreement entered into between the Secretary 
    and the Contractor, which shall be incorporated into this Contract.
        ```(3) Contracted programs.--Subject to the availability of 
    appropriated funds, the Contractor shall administer the programs, 
    services, functions, and activities identified in this Contract and 
    funded through the annual funding agreement under subsection 
    (f)(2).
        ```(4) Trust services for individual indians.--
            ```(A) In general.--To the extent that the annual funding 
        agreement provides funding for the delivery of trust services 
        to individual Indians that have been provided by the Secretary, 
        the Contractor shall maintain at least the same level of 
        service as the Secretary provided for such individual Indians, 
        subject to the availability of appropriated funds for such 
        services.
            ```(B) Trust services to individual indians.--For the 
        purposes of this paragraph only, the term ``trust services for 
        individual Indians'' means only those services that pertain to 
        land or financial management connected to individually held 
        allotments.
        ```(5) Fair and uniform services.--The Contractor shall provide 
    services under this Contract in a fair and uniform manner and shall 
    provide access to an administrative or judicial body empowered to 
    adjudicate or otherwise resolve complaints, claims, and grievances 
    brought by program beneficiaries against the Contractor arising out 
    of the performance of the Contract.
    ```(d) Obligation of the United States.--
        ```(1) Trust responsibility.--
            ```(A) In general.--The United States reaffirms the trust 
        responsibility of the United States to the ____ Indian tribe(s) 
        to protect and conserve the trust resources of the Indian 
        tribe(s) and the trust resources of individual Indians.
            ```(B) Construction of contract.--Nothing in this Contract 
        may be construed to terminate, waive, modify, or reduce the 
        trust responsibility of the United States to the tribe(s) or 
        individual Indians. The Secretary shall act in good faith in 
        upholding such trust responsibility.
        ```(2) Good faith.--To the extent that health programs are 
    included in this Contract, and within available funds, the 
    Secretary shall act in good faith in cooperating with the 
    Contractor to achieve the goals set forth in the Indian Health Care 
    Improvement Act (25 U.S.C. 1601 et seq.).
        ```(3) Programs retained.--As specified in the annual funding 
    agreement, the United States hereby retains the programs, services, 
    functions, and activities with respect to the tribe(s) that are not 
    specifically assumed by the Contractor in the annual funding 
    agreement under subsection (f)(2).
    ```(e) Other Provisions.--
        ```(1) Designated officials.--Not later than the effective date 
    of this Contract, the United States shall provide to the 
    Contractor, and the Contractor shall provide to the United States, 
    a written designation of a senior official to serve as a 
    representative for notices, proposed amendments to the Contract, 
    and other purposes for this Contract.
        ```(2) Contract modifications or amendment.--
            ```(A) In general.--Except as provided in subparagraph (B), 
        no modification to this Contract shall take effect unless such 
        modification is made in the form of a written amendment to the 
        Contract, and the Contractor and the Secretary provide written 
        consent for the modification.
            ```(B) Exception.--The addition of supplemental funds for 
        programs, functions, and activities (or portions thereof) 
        already included in the annual funding agreement under 
        subsection (f)(2), and the reduction of funds pursuant to 
        section 106(b)(2), shall not be subject to subparagraph (A).
        ```(3) Officials not to benefit.--No Member of Congress, or 
    resident commissioner, shall be admitted to any share or part of 
    any contract executed pursuant to this Contract, or to any benefit 
    that may arise from such contract. This paragraph may not be 
    construed to apply to any contract with a third party entered into 
    under this Contract if such contract is made with a corporation for 
    the general benefit of the corporation.
        ```(4) Covenant against contingent fees.--The parties warrant 
    that no person or selling agency has been employed or retained to 
    solicit or secure any contract executed pursuant to this Contract 
    upon an agreement or understanding for a commission, percentage, 
    brokerage, or contingent fee, excepting bona fide employees or bona 
    fide established commercial or selling agencies maintained by the 
    Contractor for the purpose of securing business.
    ```(f) Attachments.--
        ```(1) Approval of contract.--Unless previously furnished to 
    the Secretary, the resolution of the ____ Indian tribe(s) 
    authorizing the contracting of the programs, services, functions, 
    and activities identified in this Contract is attached to this 
    Contract as attachment 1.
        ```(2) Annual funding agreement.--
            ```(A) In general.--The annual funding agreement under this 
        Contract shall only contain--
                ```(i) terms that identify the programs, services, 
            functions, and activities to be performed or administered, 
            the general budget category assigned, the funds to be 
            provided, and the time and method of payment; and
                ```(ii) such other provisions, including a brief 
            description of the programs, services, functions, and 
            activities to be performed (including those supported by 
            financial resources other than those provided by the 
            Secretary), to which the parties agree.
            ```(B) Incorporation by reference.--The annual funding 
        agreement is hereby incorporated in its entirety in this 
        Contract and attached to this Contract as attachment 2.'''.

SEC. 104. ADDITIONAL AMENDMENTS.

    The Indian Self-Determination and Education Assistance Act (25 
U.S.C. 450 et seq.), as amended by sections 102 and 103, is further 
amended--
        (1) in section 109--
            (A) by inserting after ``pursuant to such contract or grant 
        agreement,'' the following ``or in the management of trust 
        fund, trust lands or interests in such lands pursuant to such 
        contract or grant agreement,'';
            (B) by striking ``action as prescribed by him'' and all 
        that follows through ``in such cases, he'' and inserting the 
        following: ``action as prescribed by the Secretary to remedy 
        the contract deficiency, except that the appropriate Secretary 
        may, upon written notice to a tribal organization, and the 
        tribe served by the tribal organization, immediately rescind a 
        contract or grant, in whole or in part, and resume control or 
        operation of a program, activity, function, or service, if the 
        Secretary finds that (i) there is an immediate threat of 
        imminent harm to the safety of any person, or imminent 
        substantial and irreparable harm to trust funds, trust lands, 
        or interests in such lands, and (ii) such threat arises from 
        the failure of the contractor to fulfill the requirements of 
        the contract. In such cases, the Secretary'';
            (C) by inserting after ``rescind such contract or grant 
        agreement'' the following: ``, in whole or in part,'';
            (D) by striking the second period after ``the tribal 
        organization may approve''; and
            (E) by inserting before the last sentence, the following 
        new sentence: ``In any hearing or appeal provided for under 
        this section, the Secretary shall have the burden of proof to 
        establish, by clearly demonstrating the validity of the grounds 
        for rescinding, assuming, or reassuming the contract that is 
        the subject of the hearing.'';
        (2) in section 110(a), by inserting immediately before the 
    period at the end the following: ``(including immediate injunctive 
    relief to reverse a declination finding under section 102(a)(2) or 
    to compel the Secretary to award and fund an approved self-
    determination contract)''; and
        (3) in section 110(d), by inserting immediately before the 
    period at the end the following: ``, except that all administrative 
    appeals relating to such contracts shall be heard by the Interior 
    Board of Contract Appeals established pursuant to section 8 of such 
    Act (41 U.S.C. 607)''.

SEC. 105. REGULATIONS.

    The Indian Self-Determination and Education Assistance Act (25 
U.S.C. 450 et seq.), as amended by sections 2 through 4, is further 
amended--
        (1) by striking subsections (a) and (b) of section 107 and 
    inserting the following new subsections:
    ``(a)(1) Except as may be specifically authorized in this 
subsection, or in any other provision of this Act, the Secretary of the 
Interior and the Secretary of Health and Human Services may not 
promulgate any regulation, nor impose any nonregulatory requirement, 
relating to self-determination contracts or the approval, award, or 
declination of such contracts, except that the Secretary of the 
Interior and the Secretary of Health and Human Services may promulgate 
regulations under this Act relating to chapter 171 of title 28, United 
States Code, commonly known as the `Federal Tort Claims Act', the 
Contract Disputes Act of 1978 (41 U.S.C. 601 et seq.), declination and 
waiver procedures, appeal procedures, reassumption procedures, 
discretionary grant procedures for grants awarded under section 103, 
property donation procedures arising under section 105(f), internal 
agency procedures relating to the implementation of this Act, 
retrocession and tribal organization relinquishment procedures, 
contract proposal contents, conflicts of interest, construction, 
programmatic reports and data requirements, procurement standards, 
property management standards, and financial management standards.
    ``(2)(A) The regulations promulgated under this Act, including the 
regulations referred to in this subsection, shall be promulgated--
        ``(i) in conformance with sections 552 and 553 of title 5, 
    United States Code and subsections (c), (d), and (e) of this 
    section; and
        ``(ii) as a single set of regulations in title 25 of the Code 
    of Federal Regulations.
    ``(B) The authority to promulgate regulations set forth in this Act 
shall expire if final regulations are not promulgated within 18 months 
after the date of enactment of the Indian Self-Determination Contract 
Reform Act of 1994.
    ``(b) The provisions of this Act shall supersede any conflicting 
provisions of law (including any conflicting regulations) in effect on 
the day before the date of enactment of the Indian Self-Determination 
Contract Reform Act of 1994, and the Secretary is authorized to repeal 
any regulation inconsistent with the provisions of this Act.''; and
        (2) by adding at the end of section 107, the following new 
    subsections:
    ``(d)(1) In drafting and promulgating regulations as provided in 
subsection (a) (including drafting and promulgating any revised 
regulations), the Secretary of the Interior and the Secretary of Health 
and Human Services shall confer with, and allow for active 
participation by, representatives of Indian tribes, tribal 
organizations, and individual tribal members.
    ``(2)(A) In carrying out rulemaking processes under this Act, the 
Secretary of the Interior and the Secretary of Health and Human 
Services shall follow the guidance of--
        ``(i) subchapter III of chapter 5 of title 5, United States 
    Code, commonly known as the `Negotiated Rulemaking Act of 1990'; 
    and
        ``(ii) the recommendations of the Administrative Conference of 
    the United States numbered 82-4 and 85-5 entitled `Procedures for 
    Negotiating Proposed Regulations' under sections 305.82-4 and 
    305.85-5 of title 1, Code of Federal Regulations, and any successor 
    recommendation or law (including any successor regulation).
    ``(B) The tribal participants in the negotiation process referred 
to in subparagraph (A) shall be nominated by and shall represent the 
groups described in this paragraph and shall include tribal 
representatives from all geographic regions.
    ``(C) The negotiations referred to in subparagraph (B) shall be 
conducted in a timely manner. Proposed regulations to implement the 
amendments made by the Indian Self-Determination Contract Reform Act of 
1994 shall be published in the Federal Register by the Secretary of the 
Interior and the Secretary of Health and Human Services not later than 
180 days after the date of enactment of such Act.
    ``(D) Notwithstanding any other provision of law (including any 
regulation), the Secretary of the Interior and the Secretary of Health 
and Human Services are authorized to jointly establish and fund such 
interagency committees or other interagency bodies, including advisory 
bodies comprised of tribal representatives, as may be necessary or 
appropriate to carry out the provisions of this Act.
    ``(E) If the Secretary determines that an extension of the 
deadlines under subsection (a)(2)(B) and subparagraph (C) of this 
paragraph is appropriate, the Secretary may submit proposed legislation 
to Congress for the extension of such deadlines.
    ``(e) The Secretary may, with respect to a contract entered into 
under this Act, make exceptions in the regulations promulgated to carry 
out this Act, or waive such regulations, if the Secretary finds that 
such exception or waiver is in the best interest of the Indians served 
by the contract or is consistent with the policies of this Act, and is 
not contrary to statutory law. In reviewing each request, the Secretary 
shall follow the timeline, findings, assistance, hearing, and appeal 
procedures set forth in section 102.''.

SEC. 106. CONFORMING AMENDMENTS.

    Section 105(h) of the Indian Self-Determination and Education 
Assistance Act (25 U.S.C. 450j(h)) is amended by striking ``and the 
rules and regulations adopted by the Secretaries of the Interior and 
Health and Human Services pursuant to section 107 of this Act''.

                       TITLE II--SELF-GOVERNANCE

SEC. 201. SHORT TITLE.

    This title may be cited as the ``Tribal Self-Governance Act of 
1994''.

SEC. 202. FINDINGS.

    Congress finds that--
        (1) the tribal right of self-government flows from the inherent 
    sovereignty of Indian tribes and nations;
        (2) the United States recognizes a special government-to-
    government relationship with Indian tribes, including the right of 
    the tribes to self-governance, as reflected in the Constitution, 
    treaties, Federal statutes, and the course of dealings of the 
    United States with Indian tribes;
        (3) although progress has been made, the Federal bureaucracy, 
    with its centralized rules and regulations, has eroded tribal self-
    governance and dominates tribal affairs;
        (4) the Tribal Self-Governance Demonstration Project was 
    designed to improve and perpetuate the government-to-government 
    relationship between Indian tribes and the United States and to 
    strengthen tribal control over Federal funding and program 
    management; and
        (5) Congress has reviewed the results of the Tribal Self-
    Governance Demonstration Project and finds that--
            (A) transferring control to tribal governments, upon tribal 
        request, over funding and decisionmaking for Federal programs, 
        services, functions, and activities, or portions thereof, is an 
        effective way to implement the Federal policy of government-to-
        government relations with Indian tribes; and
            (B) transferring control to tribal governments, upon tribal 
        request, over funding and decisionmaking for Federal programs, 
        services, functions, and activities strengthens the Federal 
        policy of Indian self-determination.

SEC. 203. DECLARATION OF POLICY.

    It is the policy of this title to permanently establish and 
implement tribal self-governance--
        (1) to enable the United States to maintain and improve its 
    unique and continuing relationship with, and responsibility to, 
    Indian tribes;
        (2) to permit each Indian tribe to choose the extent of the 
    participation of such tribe in self-governance;
        (3) to coexist with the provisions of the Indian Self-
    Determination Act relating to the provision of Indian services by 
    designated Federal agencies;
        (4) to ensure the continuation of the trust responsibility of 
    the United States to Indian tribes and Indian individuals;
        (5) to permit an orderly transition from Federal domination of 
    programs and services to provide Indian tribes with meaningful 
    authority to plan, conduct, redesign, and administer programs, 
    services, functions, and activities that meet the needs of the 
    individual tribal communities; and
        (6) to provide for an orderly transition through a planned and 
    measurable parallel reduction in the Federal bureaucracy.

SEC. 204. TRIBAL SELF-GOVERNANCE.

    The Indian Self-Determination and Education Assistance Act is 
amended by adding at the end the following new title:

                   ``TITLE IV--TRIBAL SELF-GOVERNANCE

``SEC. 401. ESTABLISHMENT.

    ``The 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.

``SEC. 402. SELECTION OF PARTICIPATING INDIAN TRIBES.

    ``(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.
    ``(b) Additional Participants.--(1) In addition to those Indian 
tribes participating in Self-Governance under subsection (a), 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) to participate in Self-Governance.
    ``(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.
    ``(c) Applicant Pool.--The qualified applicant pool for Self-
Governance shall consist of each tribe that--
        ``(1) successfully completes the planning phase described in 
    subsection (d);
        ``(2) has requested participation in Self-Governance by 
    resolution or other official action by the tribal governing body; 
    and
        ``(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.

``SEC. 403. 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), 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) the Act of November 2, 1921 (25 U.S.C. 13); 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 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;
        ``(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 1128 of the Education 
        Amendments of 1978 (25 U.S.C. 2008); 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 102;
        ``(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 105(e);
        ``(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 102, 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) 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.
    ``(d) Provisions Relating to the 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 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.
    ``(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.
    ``(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 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.
    ``(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.
    ``(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 110, the term `contract' shall include 
agreements entered into under this title.
    ``(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.
    ``(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 Act, and all funds provided under contracts or 
grants made pursuant to this Act, 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 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).

``SEC. 404. BUDGET REQUEST.

    ``The 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.

``SEC. 405. REPORTS.

    ``(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.
    ``(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).
    ``(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--
        ``(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 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.
    ``(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.
    ``(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.
    ``(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.
    ``(d) Report on Central Office Funds.--Within 90 days after the 
date of the enactment of this title, the Secretary shall, in 
consultation with Indian tribes, develop a funding formula to determine 
the individual tribal share of funds controlled by the Central Office 
of the Bureau of Indian Affairs for inclusion in the Self-Governance 
compacts. The Secretary shall include such formula in the annual report 
submitted to the Congress under subsection (b), together with the views 
of the affected Indian tribes.

``SEC. 406. DISCLAIMERS.

    ``(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.
    ``(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.
    ``(c) Application of Other Sections of Act.--All provisions of 
sections 6, 102(c), 104, 105(f), 110, and 111 of this Act shall apply 
to agreements provided under this title.

``SEC. 407. REGULATIONS.

    ``(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.
    ``(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.
    ``(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 the Indian tribes.
    ``(d) Effect.--The lack of promulgated regulations shall not limit 
the effect of this title.

``SEC. 408. AUTHORIZATION OF APPROPRIATIONS.

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







                               Speaker of the House of Representatives.







                            Vice President of the United States and    
                                               President of the Senate.`