103D CONGRESS

2D SESSION H. R. 4842

AN ACT

To specify the terms of contracts entered into by

Self-Governance, and for other purposes.cation Assistance Act and to provide for tribalunder the Indian Self-Determination and Eduthe United States and Indian tribal organizations
103D CONGRESS

2D SESSION H. R. 4842

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.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Indian Self-Determina5 tion Act Amendments of 1994’’.

6 TITLE I—INDIAN SELF-DETER7 MINATION ACT CONTRACTS

8 SEC. 101. SHORT TITLE.

9 This title may be cited as the ‘‘Indian Self-Deter10 mination Contract Reform Act of 1994’’.

11 SEC. 102. GENERAL AMENDMENTS.

12 The Indian Self-Determination and Education Assist13 ance Act (25 U.S.C. 450 et seq.) is amended—

14 (1) in section 4—
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1 (A) in subsection (g), by striking ‘‘indirect

2 costs rate’’ and inserting ‘‘indirect cost rate’’;

3 (B) by striking ‘‘and’’ at the end of sub4 section (k);

5 (C) by striking the period at the end of

6 subsection (l) and inserting ‘‘; and’’; and

7 (D) by adding at the end the following new

8 subsection:

9 ‘‘(m) ‘construction contract’ means a fixed-price or

10 cost-reimbursement self-determination contract for a con11 struction project, except that such term does not include

12 any contract—

13 ‘‘(1) that is limited to providing planning serv14 ices and construction management services (or a

15 combination of such services);

16 ‘‘(2) for the Housing Improvement Program or

17 roads maintenance program of the Bureau of Indian

18 Affairs administered by the Secretary of the Inte19 rior; or

20 ‘‘(3) for the health facility maintenance and im21 provement program administered by the Secretary of

22 Health and Human Services.’’;

23 (2) by striking subsection (f) of section 5 and

24 inserting the following new subsection:
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1 ‘‘(f)(1) For each fiscal year during which an Indian

2 tribal organization receives or expends funds pursuant to

3 a contract entered into, or grant made, under this Act,

4 the tribal organization that requested such contract or

5 grant shall submit to the appropriate Secretary a single6 agency audit report required by chapter 75 of title 31,

7 United States Code.

8 ‘‘(2) In addition to submitting a single-agency audit

9 report pursuant to paragraph (1), a tribal organization re10 ferred to in such paragraph shall submit such additional

11 information concerning the conduct of the program, func12 tion, service, or activity carried out pursuant to the con13 tract or grant that is the subject of the report as the tribal

14 organization may negotiate with the Secretary.

15 ‘‘(3) Any disagreement over reporting requirements

16 shall be subject to the declination criteria and procedures

17 set forth in section 102.’’;

18 (3) in section 7(a), by striking ‘‘of subcontrac19 tors’’ and inserting in lieu thereof ‘‘or subcontrac20 tors (excluding tribes and tribal organizations)’’;

21 (4) at the end of section 7, add the following

22 new subsection:

23 ‘‘(c) Notwithstanding subsections (a) and (b), with

24 respect to any self-determination contract, or portion of

25 a self-determination contract, that is intended to benefit
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1 one tribe, the tribal employment or contract preference

2 laws adopted by such tribe shall govern with respect to

3 the administration of the contract or portion of the con4 tract.’’;

5 (5) at the end of section 102(a)(1), add the fol6 lowing new flush sentence:

7 ‘‘The programs, functions, services, or activities that are

8 contracted under this paragraph shall include administra9 tive functions of the Department of the Interior and the

10 Department of Health and Human Services (whichever is

11 applicable) that support the delivery of services to Indians,

12 including those administrative activities supportive of, but

13 not included as part of, the service delivery programs de14 scribed in this paragraph that are otherwise contractable.

15 The administrative functions referred to in the preceding

16 sentence shall be contractable without regard to the orga17 nizational level within the department that carries out

18 such functions.’’;

19 (6) in section 102(a)—

20 (A) in paragraph (2)—

21 (i) in the first sentence, by inserting

22 ‘‘, or a proposal to amend or renew a self23 determination contract,’’ before ‘‘to the

24 Secretary for review’’;

25 (ii) in the second sentence—
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1 (I) by striking ‘‘The’’ and insert2 ing ‘‘Subject to the provisions of para3 graph (4), the’’;

4 (II) by inserting ‘‘and award the

5 contract’’ after ‘‘approve the pro6 posal’’;

7 (III) by striking ‘‘, within sixty

8 days of receipt of the proposal,’’; and

9 (IV) by striking ‘‘a specific find10 ing is made that’’ and inserting ‘‘the

11 Secretary provides written notification

12 to the applicant that contains a spe13 cific finding that clearly demonstrates

14 that, or that is supported by a con15 trolling legal authority that’’;

16 (iii) in subparagraph (B), by striking

17 ‘‘or’’ after the semicolon;

18 (iv) in subparagraph (C), by striking

19 the period at the end and inserting a semi20 colon;

21 (v) by adding at the end the following

22 new subparagraphs:

23 ‘‘(D) the amount of funds proposed under

24 the contract is in excess of the applicable fund-
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1 ing level for the contract, as determined under

2 section 106(a); or

3 ‘‘(E) the program, function, service, or ac4 tivity (or portion thereof) that is the subject of

5 the proposal is beyond the scope of programs,

6 functions, services, or activities covered under

7 paragraph (1) because the proposal includes ac8 tivities that cannot lawfully be carried out by

9 the contractor.’’; and

10 (vi) by adding at the end of the para11 graph the following new flush material:

12 ‘‘Notwithstanding any other provision of law, the Sec13 retary may extend or otherwise alter the 90-day period

14 specified in the second sentence of this subsection, if be15 fore the expiration of such period, the Secretary obtains

16 the voluntary and express written consent of the tribe or

17 tribal organization to extend or otherwise alter such pe18 riod. The contractor shall include in the proposal of the

19 contractor the standards under which the tribal organiza20 tion will operate the contracted program, service, function,

21 or activity, including in the area of construction, provi22 sions regarding the use of licensed and qualified archi23 tects, applicable health and safety standards, adherence

24 to applicable Federal, State, local, or tribal building codes

25 and engineering standards. The standards referred to in
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1 the preceding sentence shall ensure structural integrity,

2 accountability of funds, adequate competition for sub3 contracting under tribal or other applicable law, the com4 mencement, performance, and completion of the contract,

5 adherence to project plans and specifications (including

6 any applicable Federal construction guidelines and manu7 als), the use of proper materials and workmanship, nec8 essary inspection and testing, and changes, modifications,

9 stop work, and termination of the work when warranted.’’;

10 and

11 (B) by adding at the end the following new

12 paragraph:

13 ‘‘(4) The Secretary shall approve any severable por14 tion of a contract proposal that does not support a declina15 tion finding described in paragraph (2). If the Secretary

16 determines under such paragraph that a contract pro17 posal—

18 ‘‘(A) proposes in part to plan, conduct, or ad19 minister a program, function, service, or activity

20 that is beyond the scope of programs covered under

21 paragraph (1), or

22 ‘‘(B) proposes a level of funding that is in ex23 cess of the applicable level determined under section

24 106(a),
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1 subject to any alteration in the scope of the proposal that

2 the Secretary and the tribal organization agree to, the

3 Secretary shall, as appropriate, approve such portion of

4 the program, function, service, or activity as is authorized

5 under paragraph (1) or approve a level of funding author6 ized under section 106(a). If a tribal organization elects

7 to carry out a severable portion of a contract proposal pur8 suant to this paragraph, subsection (b) shall only apply

9 to the portion of the contract that is declined by the Sec10 retary pursuant to this subsection.’’;

11 (7) in section 102(b)(3)—

12 (A) by inserting after ‘‘record’’ the follow13 ing: ‘‘with the right to engage in full discovery

14 relevant to any issue raised in the matter’’; and

15 (B) by inserting before the period the fol16 lowing: ‘‘, except that the tribe or tribal organi17 zation may, in lieu of filing such appeal, exer18 cise the option to initiate an action in a Federal

19 district court and proceed directly to such court

20 pursuant to section 110(a)’’;

21 (8) in section 102(d), by striking ‘‘as provided

22 in section 2671 of title 28)’’ and inserting ‘‘as pro23 vided in section 2671 of title 28, United States

24 Code, and including an individual who provides

25 health care services pursuant to a personal services
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1 contract with a tribal organization for the provision

2 of services in any facility owned, operated, or con3 structed under the jurisdiction of the Indian Health

4 Service)’’;

5 (9) by adding at the end of section 102 the fol6 lowing new subsection:

7 ‘‘(e)(1) With respect to any hearing or appeal con8 ducted pursuant to subsection (b)(3), the Secretary shall

9 have the burden of proof to establish by clearly dem10 onstrating the validity of the grounds for declining the

11 contract proposal (or portion thereof).

12 ‘‘(2) Notwithstanding any other provision of law, a

13 decision by an official of the Department of the Interior

14 or the Department of Health and Human Services, as ap15 propriate (referred to in this paragraph as the ‘Depart16 ment’) that constitutes final agency action and that relates

17 to an appeal within the Department that is conducted

18 under subsection (b)(3) shall be made either—

19 ‘‘(A) by an official of the Department who holds

20 a position at a higher organizational level within the

21 Department than the level of the departmental agen22 cy (such as the Indian Health Service or the Bureau

23 of Indian Affairs) in which the decision that is the

24 subject of the appeal was made; or

25 ‘‘(B) by an administrative judge.’’;
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1 (10) by striking subsection (a) of section 105

2 and inserting the following new subsection:

3 ‘‘(a)(1) Notwithstanding any other provision of law,

4 subject to paragraph (3), the contracts and cooperative

5 agreements entered into with tribal organizations pursu6 ant to section 102 shall not be subject to Federal contract7 ing or cooperative agreement laws (including any regula8 tions), except to the extent that such laws expressly apply

9 to Indian tribes.

10 ‘‘(2) Program standards applicable to a nonconstruc11 tion self-determination contract shall be set forth in the

12 contract proposal and the final contract of the tribe or

13 tribal organization.

14 ‘‘(3)(A) With respect to a construction contract (or

15 a subcontract of such a construction contract), the provi16 sions of the Office of Federal Procurement Policy Act (41

17 U.S.C. 401 et seq.) and the regulations relating to acquisi18 tions promulgated under such Act shall apply only to the

19 extent that the application of such provision to the con20 struction contract (or subcontract) is—

21 ‘‘(i) necessary to ensure that the contract may

22 be carried out in a satisfactory manner;

23 ‘‘(ii) directly related to the construction activity;

24 and

25 ‘‘(iii) not inconsistent with this Act.
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1 ‘‘(B) A list of the Federal requirements that meet

2 the requirements of clauses (i) through (iii) of subpara3 graph (A) shall be included in an attachment to the con4 tract pursuant to negotiations between the Secretary and

5 the tribal organization.

6 ‘‘(C)(i) Except as provided in subparagraph (B), no

7 Federal law listed in clause (ii) or any other provision of

8 Federal law (including an Executive order) relating to ac9 quisition by the Federal Government shall apply to a con10 struction contract that a tribe or tribal organization enters

11 into under this Act, unless expressly provided in such law.

12 ‘‘(ii) The laws listed in this paragraph are as follows:

13 ‘‘(I) The Federal Property and Administrative

14 Services Act of 1949 (40 U.S.C. 471 et seq.).

15 ‘‘(II) Section 3709 of the Revised Statutes.

16 ‘‘(III) Section 9(c) of the Act of Aug. 2, 1946

17 (60 Stat. 809, chapter 744).

18 ‘‘(IV) Title III of the Federal Property and Ad19 ministrative Services Act of 1949 (63 Stat. 393 et

20 seq., chapter 288).

21 ‘‘(V) Section 13 of the Act of Oct. 3, 1944 (58

22 Stat. 770; chapter 479).

23 ‘‘(VI) Chapters 21, 25, 27, 29, and 31 of title

24 44, United States Code.
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1 ‘‘(VII) Section 2 of the Act of June 13, 1934

2 (48 Stat 948, chapter 483).

3 ‘‘(VIII) Sections 1 through 12 of the Act of

4 June 30, 1936 (49 Stat. 2036 et seq. chapter 881).

5 ‘‘(IX) The Service Control Act of 1965 (41

6 U.S.C. 351 et seq.).

7 ‘‘(X) The Small Business Act (15 U.S.C. 631

8 et seq.).

9 ‘‘(XI) Executive Order Nos. 12138, 11246,

10 11701 and 11758.’’;

11 (11) by striking subsection (e) and inserting the

12 following new subsection:

13 ‘‘(e) If an Indian tribe, or a tribal organization au14 thorized by a tribe, requests retrocession of the appro15 priate Secretary for any contract or portion of a contract

16 entered into pursuant to this Act, unless the tribe or tribal

17 organization rescinds the request for retrocession, such

18 retrocession shall become effective on—

19 ‘‘(1) the earlier of—

20 ‘‘(A) the date that is 1 year after the date

21 the Indian tribe or tribal organization submits

22 such request; or

23 ‘‘(B) the date on which the contract ex24 pires; or
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1 ‘‘(2) such date as may be mutually agreed by

2 the Secretary and the Indian tribe.’’;

3 (12) by striking paragraph (2) of section 105(f)

4 and inserting the following new paragraph:

5 ‘‘(2) donate to an Indian tribe or tribal organi6 zation title to any personal or real property found to

7 be excess to the needs of the Bureau of Indian Af8 fairs, the Indian Health Service, or the General

9 Services Administration, except that—

10 ‘‘(A) subject to the provisions of subpara11 graph (B), title to property and equipment fur12 nished by the Federal Government for use in

13 the performance of the contract or purchased

14 with funds under any self-determination con15 tract or grant agreement shall, unless otherwise

16 requested by the tribe or tribal organization,

17 vest in the appropriate tribe or tribal organiza18 tion;

19 ‘‘(B) if property described in subparagraph

20 (A) has a value in excess of $5,000 at the time

21 of the retrocession, rescission, or termination of

22 the self-determination contract or grant agree23 ment, at the option of the Secretary, upon the

24 retrocession, rescission, or termination, title to

25 such property and equipment shall revert to the
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1 Department of the Interior or the Department

2 of Health and Human Services, as appropriate;

3 and

4 ‘‘(C) all property referred to in subpara5 graph (A) shall remain eligible for replacement

6 on the same basis as if title to such property

7 were vested in the United States; and’’;

8 (13) by adding at the end of section 105 the

9 following new subsections:

10 ‘‘(i)(1) If a self-determination contract requires the

11 Secretary to divide the administration of a program that

12 has previously been administered for the benefit of a

13 greater number of tribes than are represented by the tribal

14 organization that is a party to the contract, the Secretary

15 shall take such action as may be necessary to ensure that

16 services are provided to the tribes not served by a self17 determination contract, including program redesign in

18 consultation with the tribal organization and all affected

19 tribes.

20 ‘‘(2) Nothing in this title shall be construed to limit

21 or reduce in any way the funding for any program, project,

22 or activity serving a tribe under this or other applicable

23 Federal law. Any tribe or tribal organization that alleges

24 that a self-determination contract is in violation of this

25 section may apply the provisions of section 110.
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1 ‘‘(j) Upon providing notice to the Secretary, a tribal

2 organization that carries out a nonconstruction self-deter3 mination contract may propose a redesign of a program,

4 activity, function, or service carried out by the tribal orga5 nization under the contract, including any nonstatutory

6 program standard, in such manner as to best meet the

7 local geographic, demographic, economic, cultural, health,

8 and institutional needs of the Indian people and tribes

9 served under the contract. The Secretary shall evaluate

10 any proposal to redesign any program, activity, function,

11 or service provided under the contract. With respect to de12 clining to approve a redesigned program, activity, func13 tion, or service under this subsection, the Secretary shall

14 apply the criteria and procedures set forth in section 102.

15 ‘‘(k) For purposes of section 201(a) of the Federal

16 Property and Administrative Services Act of 1949 (40

17 U.S.C. 481(a)) (relating to Federal sources of supply, in18 cluding lodging providers, airlines and other transpor19 tation providers), a tribal organization carrying out a con20 tract, grant, or cooperative agreement under this Act shall

21 be deemed an executive agency when carrying out such

22 contract, grant, or agreement and the employees of the

23 tribal organization shall be eligible to have access to such

24 sources of supply on the same basis as employees of an

25 executive agency have such access.
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1 ‘‘(l)(1) Upon the request of an Indian tribe or tribal

2 organization, the Secretary shall enter into a lease with

3 the Indian tribe or tribal organization that holds title to,

4 a leasehold interest in, or a trust interest in, a facility

5 used by the Indian tribe or tribal organization for the ad6 ministration and delivery of services under this Act.

7 ‘‘(2) The Secretary shall compensate each Indian

8 tribe or tribal organization that enters into a lease under

9 paragraph (1) for the use of the facility leased for the pur10 poses specified in such paragraph. Such compensation

11 may include rent, depreciation based on the useful life of

12 the facility, principal and interest paid or accrued, oper13 ation and maintenance expenses, and such other reason14 able expenses that the Secretary determines, by regula15 tion, to be allowable.

16 ‘‘(m)(1) Each construction contract requested, ap17 proved, or awarded under this Act shall be subject to—

18 ‘‘(A) except as otherwise provided in this Act,

19 the provisions of this Act, other than sections

20 102(a)(2), 106(l), 108 and 109; and

21 ‘‘(B) section 314 of the Department of the In22 terior and Related Agencies Appropriations Act,

23 1991 (104 Stat. 1959).

24 ‘‘(2) In providing technical assistance to tribes and

25 tribal organizations in the development of construction
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1 contract proposals, the Secretary shall provide, not later

2 than 30 days after receiving a request from a tribe or trib3 al organization, all information available to the Secretary

4 regarding the construction project, including construction

5 drawings, maps, engineering reports, design reports, plans

6 of requirements, cost estimates, environmental assess7 ments or environmental impact reports, and archaeological

8 reports.

9 ‘‘(3) Prior to finalizing a construction contract pro10 posal pursuant to section 102(a), and upon request of the

11 tribe or tribal organization that submits the proposal, the

12 Secretary shall provide for a precontract negotiation phase

13 in the development of a contract proposal. Such phase

14 shall include, at a minimum, the following elements:

15 ‘‘(A) The provision of technical assistance pur16 suant to section 103 and paragraph (2).

17 ‘‘(B) A joint scoping session between the Sec18 retary and the tribe or tribal organization to review

19 all plans, specifications, engineering reports, cost es20 timates, and other information available to the par21 ties, for the purpose of identifying all areas of agree22 ment and disagreement.

23 ‘‘(C) An opportunity for the Secretary to revise

24 the plans, designs, or cost estimates of the Secretary
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1 in response to concerns raised, or information pro2 vided by, the tribe or tribal organization.

3 ‘‘(D) A negotiation session during which the

4 Secretary and the tribe or tribal organization shall

5 seek to develop a mutually agreeable contract pro6 posal.

7 ‘‘(E) Upon the request of the tribe or tribal or8 ganization, the use of an alternative dispute resolu9 tion mechanism to seek resolution of all remaining

10 areas of disagreement pursuant to the dispute reso11 lution provisions under subchapter IV of chapter 5

12 of title 5, United States Code.

13 ‘‘(F) The submission to the Secretary by the

14 tribe or tribal organization of a final contract pro15 posal pursuant to section 102(a).

16 ‘‘(4)(A) Subject to subparagraph (B), in funding a

17 fixed-price construction contract pursuant to section

18 106(a), the Secretary shall provide for the following:

19 ‘‘(i) The reasonable costs to the tribe or tribal

20 organization for general administration incurred in

21 connection with the project that is the subject of the

22 contract.

23 ‘‘(ii) The ability of the contractor that carries

24 out the construction contract to make a reasonable

25 profit, taking into consideration the risks associated
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1 with carrying out the contract and other relevant

2 considerations.

3 ‘‘(B) In establishing a contract budget for a construc4 tion project, the Secretary shall not be required to sepa5 rately identify the components described in clauses (i) and

6 (ii) of subparagraph (A).

7 ‘‘(C) The total amount awarded under a construction

8 contract shall reflect an overall fair and reasonable price

9 to the parties, including the following costs:

10 ‘‘(i) The reasonable costs to the tribal organiza11 tion of performing the contract, taking into consider12 ation the terms of the contract and the requirements

13 of this Act and any other applicable law.

14 ‘‘(ii) The costs of preparing the contract pro15 posal and supporting cost data.

16 ‘‘(iii) The costs associated with auditing the

17 general and administrative costs of the tribal organi18 zation associated with the management of the con19 struction contract.

20 ‘‘(iv) In the case of a fixed-price contract, a fair

21 profit determined by taking into consideration the

22 relevant risks and local market conditions.

23 ‘‘(v) If the Secretary and the tribe or tribal or24 ganization are unable to develop a mutually agree25 able construction contract proposal pursuant to the
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1 procedures set forth in this subsection, the tribe or

2 tribal organization may submit a final contract pro3 posal to the Secretary. Not later than 30 days after

4 receiving such final contract proposal, the Secretary

5 shall approve the contract proposal and award the

6 contract, unless, during such period the Secretary

7 declines the proposal pursuant to sections 102(a)(2)

8 and 102(b) of section 102 (including providing op9 portunity for an appeal pursuant to section 102(b)).

10 ‘‘(n) Notwithstanding any other provision of law, the

11 rental rates for housing provided to an employee by the

12 Federal Government in Alaska pursuant to a self-deter13 mination contract shall be determined on the basis of—

14 ‘‘(1) the reasonable value of the quarters and

15 facilities (as such terms are defined under section

16 5911 of title 5, United States Code) to such em17 ployee, and

18 ‘‘(2) the circumstances under which such quar19 ters and facilities are provided to such employee,

20 as based on the cost of comparable private rental housing

21 in the nearest established community with a year-round

22 population of 1,500 or more individuals.’’;

23 (14) in section 106(a)—

24 (A) in paragraph (1), by inserting before

25 the period at the end the following: ‘‘, without
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1 regard to any organizational level within the

2 Department of the Interior or the Department

3 of Health and Human Services, as appropriate,

4 at which the program, function, service, or ac5 tivity or portion thereof, including supportive

6 administrative functions that are otherwise con7 tractable, is operated’’;

8 (B) in paragraph (2), by inserting after

9 ‘‘consist of’’ the following: ‘‘an amount for’’;

10 and

11 (C) by striking paragraph (3) and insert12 ing the following new paragraphs:

13 ‘‘(3)(A) The contract support costs that are eligible

14 costs for the purposes of receiving funding under this Act

15 shall include the costs of reimbursing each tribal contrac16 tor for reasonable and allowable costs of—

17 ‘‘(i) direct program expenses for the operation

18 of the Federal program that is the subject of the

19 contract, and

20 ‘‘(ii) any additional administrative or other ex21 pense related to the overhead incurred by the tribal

22 contractor in connection with the operation of the

23 Federal program, function, service, or activity pursu24 ant to the contract,
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1 except that such funding shall not duplicate any funding

2 provided under section 106(a)(1).

3 ‘‘(B) On an annual basis, during such period as a

4 tribe or tribal organization operates a Federal program,

5 function, service, or activity pursuant to a contract en6 tered into under this Act, the tribe or tribal organization

7 shall have the option to negotiate with the Secretary the

8 amount of funds that the tribe or tribal organization is

9 entitled to receive under such contract pursuant to this

10 paragraph.

11 ‘‘(4) For each fiscal year during which a self-deter12 mination contract is in effect, any savings attributable to

13 the operation of a Federal program, function, service, or

14 activity under a self-determination contract by a tribe or

15 tribal organization (including a cost reimbursement con16 struction contract) shall—

17 ‘‘(A) be used to provide additional services or

18 benefits under the contract; or

19 ‘‘(B) be expended by the tribe or tribal organi20 zation in the succeeding fiscal year, as provided in

21 section 8.

22 ‘‘(5) Subject to paragraph (6), during the initial year

23 that a self-determination contract is in effect, the amount

24 required to be paid under paragraph (2) shall include

25 startup costs consisting of the reasonable costs that have
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1 been incurred or will be incurred on a one-time basis pur2 suant to the contract necessary—

3 ‘‘(A) to plan, prepare for, and assume operation

4 of the program, function, service, or activity that is

5 the subject of the contract; and

6 ‘‘(B) to ensure compliance with the terms of the

7 contract and prudent management.

8 ‘‘(6) Costs incurred before the initial year that a self9 determination contract is in effect may not be included

10 in the amount required to be paid under paragraph (2)

11 if the Secretary does not receive a written notification of

12 the nature and extent of the costs prior to the date on

13 which such costs are incurred.’’;

14 (15) in section 106(c)—

15 (A) by striking ‘‘March 15’’ and inserting

16 ‘‘May 15’’;

17 (B) in paragraphs (1) and (2), by striking

18 ‘‘indirect costs’’ each place it appears and in19 serting ‘‘contract support costs’’;

20 (C) in paragraph (4), by striking ‘‘and’’ at

21 the end;

22 (D) in paragraph (5), by striking the pe23 riod at the end and inserting ‘‘; and’’; and

24 (E) by adding at the end the following new

25 paragraph:
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1 ‘‘(6) an accounting of any deficiency of funds

2 needed to maintain the preexisting level of services

3 to any tribes affected by contracting activities under

4 this Act, and a statement of the amount of funds

5 needed for transitional purposes to enable contrac6 tors to convert from a Federal fiscal year accounting

7 cycle to a different accounting cycle, as authorized

8 by section 105(d).’’;

9 (16) in section 106(f), by inserting immediately

10 after the second sentence the following new sentence:

11 ‘‘For the purpose of determining the 365-day period

12 specified in this paragraph, an audit report shall be

13 deemed to have been received on the date of actual

14 receipt by the Secretary, if, within 60 days after re15 ceiving the report, the Secretary does not give notice

16 of a determination by the Secretary to reject the sin17 gle-agency report as insufficient due to noncompli18 ance with chapter 75 of title 31, United States

19 Code, or noncompliance with any other applicable

20 law.’’;

21 (17) by striking subsection (g) of section 106

22 and inserting the following new subsection:

23 ‘‘(g) Upon the approval of a self-determination con24 tract, the Secretary shall add to the contract the full

25 amount of funds to which the contractor is entitled under
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1 section 106(a), subject to adjustments for each subsequent

2 year that such tribe or tribal organization administers a

3 Federal program, function, service, or activity under such

4 contract.’’;

5 (18) by striking subsection (i) of section 106

6 and inserting the following new subsection:

7 ‘‘(i) On an annual basis, the Secretary shall consult

8 with, and solicit the participation of, Indian tribes and

9 tribal organizations in the development of the budget for

10 the Indian Health Service and the Bureau of Indian Af11 fairs (including participation of Indian tribes and tribal

12 organizations in formulating annual budget requests that

13 the Secretary submits to the President for submission to

14 Congress pursuant to section 1105 of title 31, United

15 States Code).’’; and

16 (19) by adding at the end of section 106 the

17 following new subsections:

18 ‘‘(j) Notwithstanding any other provision of law, a

19 tribal organization may use funds provided under a self20 determination contract to meet matching or cost participa21 tion requirements under other Federal and non-Federal

22 programs.

23 ‘‘(k) Without intending any limitation, a tribal orga24 nization may, without the approval of the Secretary, ex25 pend funds provided under a self-determination contract
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1 for the following purposes, to the extent that the expendi2 ture of the funds is supportive of a contracted program:

3 ‘‘(1) Depreciation and use allowances not other4 wise specifically prohibited by law, including the de5 preciation of facilities owned by the tribe or tribal

6 organization.

7 ‘‘(2) Publication and printing costs.

8 ‘‘(3) Building, realty, and facilities costs, in9 cluding rental costs or mortgage expenses.

10 ‘‘(4) Automated data processing and similar

11 equipment or services.

12 ‘‘(5) Costs for capital assets and repairs.

13 ‘‘(6) Management studies.

14 ‘‘(7) Professional services, other than services

15 provided in connection with judicial proceedings by

16 or against the United States.

17 ‘‘(8) Insurance and indemnification, including

18 insurance covering the risk of loss of or damage to

19 property used in connection with the contract with20 out regard to the ownership of such property.

21 ‘‘(9) Costs incurred to raise funds or contribu22 tions from non-Federal sources for the purpose of

23 furthering the goals and objectives of the self-deter24 mination contract.
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1 ‘‘(10) Interest expenses paid on capital expendi2 tures such as buildings, building renovation, or ac3 quisition or fabrication of capital equipment, and in4 terest expenses on loans necessitated due to delays

5 by the Secretary in providing funds under a con6 tract.

7 ‘‘(11) Expenses of a governing body of a tribal

8 organization that are attributable to the manage9 ment or operation of programs under this Act.

10 ‘‘(12) Costs associated with the management of

11 pension funds, self-insurance funds, and other funds

12 of the tribal organization that provide for participa13 tion by the Federal Government.

14 ‘‘(l) The Secretary may only suspend, withhold, or

15 delay the payment of funds for a period of 30 days begin16 ning on the date the Secretary makes a determination

17 under this paragraph to a tribal organization under a self18 determination contract, if the Secretary determines that

19 the tribal organization has failed to substantially carry out

20 the contract without good cause. In any such case, the

21 Secretary shall provide the tribal organization with rea22 sonable advance written notice, technical assistance (sub23 ject to available resources) to assist the tribal organiza24 tion, a hearing on the record not later than 10 days after

25 the date of such determination or such later date as the
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1 tribal organization shall approve, and promptly release

2 any funds withheld upon subsequent compliance.

3 ‘‘(2) With respect to any hearing or appeal conducted

4 pursuant to this subsection, the Secretary shall have the

5 burden of proof to establish by clearly demonstrating the

6 validity of the grounds for suspending, withholding, or de7 laying payment of funds.

8 ‘‘(m) The program income earned by a tribal organi9 zation in the course of carrying out a self-determination

10 contract—

11 ‘‘(1) shall be used by the tribal organization to

12 further the general purposes of the contract; and

13 ‘‘(2) shall not be a basis for reducing the

14 amount of funds otherwise obligated to the contract.

15 ‘‘(n) To the extent that programs, functions, services,

16 or activities carried out by tribal organizations pursuant

17 to contracts entered into under this Act reduce the admin18 istrative or other responsibilities of the Secretary with re19 spect to the operation of Indian programs and result in

20 savings that have not otherwise been included in the

21 amount of contract funds determined under subsection

22 (a), the Secretary shall make such savings available for

23 the provision of additional services to program bene24 ficiaries, either directly or through contractors, in a man25 ner equitable to both direct and contracted programs.
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1 ‘‘(o) Notwithstanding any other provision of law (in2 cluding any regulation), a tribal organization that carries

3 out a self-determination contract may, with respect to allo4 cations within the approved budget of the contract,

5 rebudget to meet contract requirements, if such

6 rebudgeting would not have an adverse effect on the per7 formance of the contract.’’.

8 SEC. 103. CONTRACT SPECIFICATIONS.

9 The Indian Self-Determination Education Assistance

10 Act (25 U.S.C. 450 et seq.) is amended by inserting after

11 section 107 the following new section:

12 ‘‘SEC. 108. CONTRACT OR GRANT SPECIFICATIONS.

13 ‘‘(a) Each self-determination contract entered into

14 under this Act shall—

15 ‘‘(1) contain, or incorporate by reference, the

16 provisions of the model agreement described in sub17 section (c) (with modifications where indicated and

18 the blanks appropriately filled in), and

19 ‘‘(2) contain such other provisions as are agreed

20 to by the parties.

21 ‘‘(b) Notwithstanding any other provision of law, the

22 Secretary may make payments pursuant to section 1(b)(6)

23 of such model agreement. As provided in section 1(b)(7)

24 of the model agreement, the records of the tribal govern25 ment or tribal organization specified in such section shall
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1 not be considered Federal records for purposes of chapter

2 5 of title 5, United States Code.

3 ‘‘(c) The model agreement referred to in subsection

4 (a)(1) reads as follows:

5 ‘‘ ‘SECTION 1. AGREEMENT BETWEEN THE SECRETARY AND

6 THE ll TRIBAL GOVERNMENT.

7 ‘‘ ‘(a) AUTHORITY AND PURPOSE.—

8 ‘‘ ‘(1) AUTHORITY.—This agreement, denoted a

9 Self-Determination Contract (referred to in this

10 agreement as the ‘‘Contract’’), is entered into by the

11 Secretary of the Interior or the Secretary of Health

12 and Human Services (referred to in this agreement

13 as the ‘‘Secretary’’), for and on behalf of the United

14 States pursuant to title I of the Indian Self-Deter15 mination and Education Assistance Act (25 U.S.C.

16 450 et seq.) and by the authority of the ll tribal

17 government or tribal organization (referred to in this

18 agreement as the ‘‘Contractor’’). The provisions of

19 title I of the Indian Self-Determination and Edu20 cation Assistance Act (25 U.S.C. 450 et seq.) are in21 corporated in this agreement.

22 ‘‘ ‘(2) PURPOSE.—Each provision of the Indian

23 Self-Determination and Education Assistance Act

24 (25 U.S.C. 450 et seq.) and each provision of this

25 Contract shall be liberally construed for the benefit
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1 of the Contractor to transfer the funding and the

2 following related functions, services, activities, and

3 programs (or portions thereof), that are otherwise

4 contractable under section 102(a) of such Act, in5 cluding all related administrative functions, from the

6 Federal Government to the Contractor: (List func7 tions, services, activities, and programs).

8 ‘‘ ‘(b) TERMS, PROVISIONS, AND CONDITIONS.—

9 ‘‘ ‘(1) TERM.—Pursuant to section 105(c)(1) of

10 the Indian Self-Determination and Education Assist11 ance Act (25 U.S.C. 450j(c)(1)), the term of this

12 contract shall be ll years. Pursuant to section

13 105(d)(1) of such Act (25 U.S.C. 450j(d)), upon the

14 election by the Contractor, the period of this Con15 tract shall be determined on the basis of a calendar

16 year, unless the Secretary and the Contractor agree

17 on a different period in the annual funding agree18 ment incorporated by reference in subsection (f)(2).

19 ‘‘ ‘(2) EFFECTIVE DATE.—This Contract shall

20 become effective upon the date of the approval and

21 execution by the Contractor and the Secretary, un22 less the Contractor and the Secretary agree on an

23 effective date other than the date specified in this

24 paragraph.
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1 ‘‘ ‘(3) PROGRAM STANDARD.—The Contractor

2 agrees to administer the program, services, functions

3 and activities (or portions thereof) listed in sub4 section (a)(2) of the Contract in conformity with the

5 following standards: (list standards).

6 ‘‘ ‘(4) FUNDING AMOUNT.—Subject to the avail7 ability of appropriations, the Secretary shall make

8 available to the Contractor the total amount speci9 fied in the annual funding agreement incorporated

10 by reference in subsection (f)(2). Such amount shall

11 not be less than the applicable amount determined

12 pursuant to section 106(a) of the Indian Self-Deter13 mination and Education Assistance Act (25 U.S.C.

14 450j–1).

15 ‘‘ ‘(5) LIMITATION OF COSTS.—The Contractor

16 shall not be obligated to continue performance that

17 requires an expenditure of funds in excess of the

18 amount of funds awarded under this Contract. If, at

19 any time, the Contractor has reason to believe that

20 the total amount required for performance of this

21 Contract or a specific activity conducted under this

22 Contract would be greater than the amount of funds

23 awarded under this Contract, the Contractor shall

24 provide reasonable notice to the appropriate Sec25 retary. If the appropriate Secretary does not take
33

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1 such action as may be necessary to increase the

2 amount of funds awarded under this Contract, the

3 Contractor may suspend performance of the Con4 tract until such time as additional funds are award5 ed.

6 ‘‘ ‘(6) PAYMENT.—

7 ‘‘ ‘(A) IN GENERAL.—Payments to the

8 Contractor under this Contract shall—

9 ‘‘ ‘(i) be made as expeditiously as

10 practicable; and

11 ‘‘ ‘(ii) include financial arrangements

12 to cover funding during periods covered by

13 joint resolutions adopted by Congress mak14 ing continuing appropriations, to the ex15 tent permitted by such resolutions.

16 ‘‘ ‘(B) QUARTERLY, SEMIANNUAL, LUMP17 SUM, AND OTHER METHODS OF PAYMENT.—

18 ‘‘ ‘(i) IN GENERAL.—Pursuant to sec19 tion 108(b) of the Indian Self-Determina20 tion and Education Assistance Act, and

21 notwithstanding any other provision of law,

22 for each fiscal year covered by this Con23 tract, the Secretary shall make available to

24 the Contractor the funds specified for the

25 fiscal year under the annual funding agree-
34

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1 ment incorporated by reference pursuant

2 to subsection (f)(2) by paying to the Con3 tractor, on a quarterly basis, one-quarter

4 of the total amount provided for in the an5 nual funding agreement for that fiscal

6 year, in a lump-sum payment or as semi7 annual payments, or any other method of

8 payment authorized by law, in accordance

9 with such method as may be requested by

10 the Contractor and specified in the annual

11 funding agreement.

12 ‘‘ ‘(ii) METHOD OF QUARTERLY PAY13 MENT.—If quarterly payments are speci14 fied in the annual funding agreement in15 corporated by reference pursuant to sub16 section (f)(2), each quarterly payment

17 made pursuant to clause (i) shall be made

18 on the first day of each quarter of the fis19 cal year, except that in any case in which

20 the contract year coincides with the Fed21 eral fiscal year, payment for the first quar22 ter shall be made not later than the date

23 that is 10 calendar days after the date on

24 which the Office of Management and

25 Budget apportions the appropriations for
35

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1 the fiscal year for the programs, services,

2 functions, and activities subject to this

3 Contract.

4 ‘‘ ‘(iii) APPLICABILITY.—Chapter 39

5 of title 31, United States Code, shall apply

6 to the payment of funds due under this

7 Contract and the annual funding agree8 ment referred to in clause (i).

9 ‘‘ ‘(7) RECORDS AND MONITORING.—

10 ‘‘ ‘(A) IN GENERAL.—Except for previously

11 provided copies of tribal records that the Sec12 retary demonstrates are clearly required to be

13 maintained as part of the recordkeeping system

14 of the Department of the Interior or the De15 partment of Health and Human Services (or

16 both), records of the Contractor shall not be

17 considered Federal records for purposes of

18 chapter 5 of title 5, United States Code.

19 ‘‘ ‘(B) RECORDKEEPING SYSTEM.—The

20 Contractor shall maintain a recordkeeping sys21 tem and, upon reasonable advance request, pro22 vide reasonable access to such records to the

23 Secretary.

24 ‘‘ ‘(C) RESPONSIBILITIES OF CONTRAC25 TOR.—The Contractor shall be responsible for
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•HR 4842 EH

1 managing the day-to-day operations conducted

2 under this Contract and for monitoring activi3 ties conducted under this Contract to ensure

4 compliance with the contract and applicable

5 Federal requirements. With respect to the mon6 itoring activities of the Secretary, the routine

7 monitoring visits shall be limited to not more

8 than one performance monitoring visit for this

9 Contract by the head of each operating division,

10 departmental bureau, or departmental agency,

11 or duly authorized representative of such head

12 unless—

13 ‘‘ ‘(i) the Contractor agrees to one or

14 more additional visits; or

15 ‘‘ ‘(ii) the appropriate official deter16 mines that there is reasonable cause to be17 lieve that grounds for reassumption of the

18 Contract, suspension of contract payments,

19 or other serious contract performance defi20 ciency may exist.

21 No additional visit referred to in clause (ii)

22 shall be made until such time as reasonable ad23 vance notice that includes a description of the

24 nature of the problem that requires the addi25 tional visit has been given to the Contractor.
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1 ‘‘ ‘(8) PROPERTY.—

2 ‘‘ ‘(A) IN GENERAL.—As provided in sec3 tion 105(f) of the Indian Self-Determination

4 and Education Assistance Act (25 U.S.C.

5 450j(f)), at the request of the Contractor, the

6 Secretary may make available, or transfer to

7 the Contractor, all reasonably divisible real

8 property, facilities, equipment, and personal

9 property that the Secretary has used to provide

10 or administer the programs, services, functions,

11 and activities covered by this Contract. A mutu12 ally agreed upon list specifying the property, fa13 cilities, and equipment so furnished shall also

14 be prepared by the Secretary, with the concur15 rence of the Contractor, and periodically revised

16 by the Secretary, with the concurrence of the

17 Contractor.

18 ‘‘ ‘(B) RECORDS.—The Contractor shall

19 maintain a record of all property referred to in

20 subparagraph (A) or other property acquired by

21 the Contractor under section 105(f)(2)(A) of

22 such Act for purposes of replacement.

23 ‘‘ ‘(C) JOINT USE AGREEMENTS.—Upon

24 the request of the Contractor, the Secretary

25 and the Contractor shall enter into a separate
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1 joint use agreement to address the shared use

2 by the parties of real or personal property that

3 is not reasonably divisible.

4 ‘‘ ‘(D) ACQUISITION OF PROPERTY.—The

5 Contractor is granted the authority to acquire

6 such excess property as the Contractor may de7 termine to be appropriate in the judgment of

8 the Contractor to support the programs, serv9 ices, functions, and activities operated pursuant

10 to this Contract.

11 ‘‘ ‘(E) CONFISCATED OR EXCESS PROP12 ERTY.—The Secretary shall assist the Contrac13 tor in obtaining such confiscated or excess

14 property as may become available to tribes,

15 tribal organizations, or local governments.

16 ‘‘ ‘(F) SCREENER IDENTIFICATION

17 CARD.—A screener identification card (General

18 Services Administration form numbered 2946)

19 shall be issued to the Contractor not later than

20 the effective date of this Contract. The des21 ignated official shall, upon request, assist the

22 Contractor in securing the use of the card.

23 ‘‘ ‘(G) CAPITAL EQUIPMENT.—The Con24 tractor shall determine the capital equipment,

25 leases, rentals, property, or services the Con-
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•HR 4842 EH

1 tractor requires to perform the obligations of

2 the Contractor under this subsection, and shall

3 acquire and maintain records of such capital

4 equipment, property rentals, leases, property, or

5 services through applicable procurement proce6 dures of the Contractor.

7 ‘‘ ‘(9) AVAILABILITY OF FUNDS.—Notwith8 standing any other provision of law, any funds pro9 vided under this contract—

10 ‘‘ ‘(A) shall remain available until ex11 pended; and

12 ‘‘ ‘(B) with respect to such funds, no fur13 ther—

14 ‘‘ ‘(i) approval by the Secretary, or

15 ‘‘ ‘(ii) justifying documentation from

16 the Contractor, shall be required prior to

17 the expenditure of such funds.

18 ‘‘ ‘(10) TRANSPORTATION.—Beginning on the

19 effective date of this Contract, the Secretary shall

20 authorize the Contractor to obtain interagency

21 motor pool vehicles and related services for perform22 ance of any activities carried out under this Con23 tract.

24 ‘‘ ‘(11) FEDERAL PROGRAM GUIDELINES, MANU25 ALS, OR POLICY DIRECTIVES.—Except as specifically
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1 provided in the Indian Self-Determination and Edu2 cation Assistance Act (25 U.S.C. 450 et seq.) the

3 Contractor is not required to abide by program

4 guidelines, manuals, or policy directives of the Sec5 retary, unless otherwise agreed to by the Contractor

6 and the Secretary, or otherwise required by law.

7 ‘‘ ‘(12) DISPUTES.—

8 ‘‘ ‘(A) THIRD-PARTY MEDIATION DE9 FINED.—For the purposes of this Contract, the

10 term ‘‘third-party mediation’’ means a form of

11 mediation whereby the Secretary and the Con12 tractor nominate a third party who is not em13 ployed by or significantly involved with the Sec14 retary of the Interior, the Secretary of Health

15 and Human Services, or the Contractor, to

16 serve as a third-party mediator to mediate dis17 putes under this Contract.

18 ‘‘ ‘(B) ALTERNATIVE PROCEDURES.—In

19 addition to, or as an alternative to, remedies

20 and procedures prescribed by section 110 of the

21 Indian Self-Determination and Education As22 sistance Act (25 U.S.C. 450m–1), the parties to

23 this Contract may jointly—

24 ‘‘ ‘(i) submit disputes under this Con25 tract to third-party mediation;
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1 ‘‘ ‘(ii) submit the dispute to the adju2 dicatory body of the Contractor, including

3 the tribal court of the Contractor;

4 ‘‘ ‘(iii) submit the dispute to mediation

5 processes provided for under the laws, poli6 cies, or procedures of the Contractor; or

7 ‘‘ ‘(iv) use the administrative dispute

8 resolution processes authorized in sub9 chapter IV of chapter 5 of title 5, United

10 States Code.

11 ‘‘ ‘(C) EFFECT OF DECISIONS.—The Sec12 retary shall be bound by decisions made pursu13 ant to the processes set forth in subparagraph

14 (B), except that the Secretary shall not be

15 bound by any decision that significantly con16 flicts with the interests of Indians or the United

17 States.

18 ‘‘ ‘(13) ADMINISTRATIVE PROCEDURES OF CON19 TRACTOR.—Pursuant to the Indian Civil Rights Act

20 of 1968 (25 U.S.C. 1301 et seq.), the laws, policies,

21 and procedures of the Contractor shall provide for

22 administrative due process (or the equivalent of ad23 ministrative due process) with respect to programs,

24 services, functions, and activities that are provided

25 by the Contractor pursuant to this Contract.
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1 ‘‘ ‘(14) SUCCESSOR ANNUAL FUNDING AGREE2 MENT.—

3 ‘‘ ‘(A) IN GENERAL.—Negotiations for a

4 successor annual funding agreement, provided

5 for in subsection (f)(2), shall begin not later

6 than 120 days prior to the conclusion of the

7 preceding annual funding agreement. Except as

8 provided in section 105(c)(2) of the Indian Self9 Determination and Education Assistance Act

10 (25 U.S.C. 450j(c)(2)) the funding for each

11 such successor annual funding agreement shall

12 only be reduced pursuant to section 106(b) of

13 such Act (25 U.S.C. 450j–1(b)).

14 ‘‘ ‘(B) INFORMATION.—The Secretary shall

15 prepare and supply relevant information, and

16 promptly comply with any request by the Con17 tractor for information that the Contractor rea18 sonably needs to determine the amount of funds

19 that may be available for a successor annual

20 funding agreement, as provided for in sub21 section (f)(2) of this Contract.

22 ‘‘ ‘(15) CONTRACT REQUIREMENTS; APPROVAL

23 BY SECRETARY.—

24 ‘‘ ‘(A) IN GENERAL.—Except as provided

25 in subparagraph (B), for the term of the Con-
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1 tract, section 2103 of the Revised Statutes (25

2 U.S.C. 81) and section 16 of the Act of June

3 18, 1934 (48 Stat. 987, chapter 576; 25 U.S.C.

4 476), shall not apply to any contract entered

5 into in connection with this Contract.

6 ‘‘ ‘(B) REQUIREMENTS.—Each Contract

7 entered into by the Contractor with a third

8 party in connection with performing the obliga9 tions of the Contractor under this Contract

10 shall—

11 ‘‘ ‘(i) be in writing;

12 ‘‘ ‘(ii) identify the interested parties,

13 the authorities of such parties, and pur14 poses of the Contract;

15 ‘‘ ‘(iii) state the work to be performed

16 under the Contract; and

17 ‘‘ ‘(iv) state the process for making

18 any claim, the payments to be made, and

19 the terms of the Contract, which shall be

20 fixed.

21 ‘‘ ‘(c) OBLIGATION OF THE CONTRACTOR.—

22 ‘‘ ‘(1) CONTRACT PERFORMANCE.—Except as

23 provided in subsection (d)(2), the Contractor shall

24 perform the programs, services, functions, and ac-
44

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1 tivities as provided in the annual funding agreement

2 under subsection (f)(2) of this Contract.

3 ‘‘ ‘(2) AMOUNT OF FUNDS.—The total amount

4 of funds to be paid under this Contract pursuant to

5 section 106(a) shall be determined in an annual

6 funding agreement entered into between the Sec7 retary and the Contractor, which shall be incor8 porated into this Contract.

9 ‘‘ ‘(3) CONTRACTED PROGRAMS.—Subject to the

10 availability of appropriated funds, the Contractor

11 shall administer the programs, services, functions,

12 and activities identified in this Contract and funded

13 through the annual funding agreement under sub14 section (f)(2).

15 ‘‘ ‘(4) TRUST SERVICES FOR INDIVIDUAL INDI16 ANS.—

17 ‘‘ ‘(A) IN GENERAL.—To the extent that

18 the annual funding agreement provides funding

19 for the delivery of trust services to individual

20 Indians that have been provided by the Sec21 retary, the Contractor shall maintain at least

22 the same level of service as the Secretary pro23 vided for such individual Indians, subject to the

24 availability of appropriated funds for such serv25 ices.
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1 ‘‘ ‘(B) TRUST SERVICES TO INDIVIDUAL IN2 DIANS.—For the purposes of this paragraph

3 only, the term ‘‘trust services for individual In4 dians’’ means only those services that pertain to

5 land or financial management connected to in6 dividually held allotments.

7 ‘‘ ‘(5) FAIR AND UNIFORM SERVICES.—The

8 Contractor shall provide services under this Contract

9 in a fair and uniform manner and shall provide ac10 cess to an administrative or judicial body empowered

11 to adjudicate or otherwise resolve complaints, claims,

12 and grievances brought by program beneficiaries

13 against the Contractor arising out of the perform14 ance of the Contract.

15 ‘‘ ‘(d) OBLIGATION OF THE UNITED STATES.—

16 ‘‘ ‘(1) TRUST RESPONSIBILITY.—

17 ‘‘ ‘(A) IN GENERAL.—The United States

18 reaffirms the trust responsibility of the United

19 States to the ll Indian tribe(s) to protect

20 and conserve the trust resources of the Indian

21 tribe(s) and the trust resources of individual In22 dians.

23 ‘‘ ‘(B) CONSTRUCTION OF CONTRACT.—

24 Nothing in this Contract may be construed to

25 terminate, waive, modify, or reduce the trust re-
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1 sponsibility of the United States to the tribe(s)

2 or individual Indians. The Secretary shall act in

3 good faith in upholding such trust responsibil4 ity.

5 ‘‘ ‘(2) GOOD FAITH.—To the extent that health

6 programs are included in this Contract, and within

7 available funds, the Secretary shall act in good faith

8 in cooperating with the Contractor to achieve the

9 goals set forth in the Indian Health Care Improve10 ment Act (25 U.S.C. 1601 et seq.).

11 ‘‘ ‘(3) PROGRAMS RETAINED.—As specified in

12 the annual funding agreement, the United States

13 hereby retains the programs, services, functions, and

14 activities with respect to the tribe(s) that are not

15 specifically assumed by the Contractor in the annual

16 funding agreement under subsection (f)(2).

17 ‘‘ ‘(e) OTHER PROVISIONS.—

18 ‘‘ ‘(1) DESIGNATED OFFICIALS.—Not later than

19 the effective date of this Contract, the United States

20 shall provide to the Contractor, and the Contractor

21 shall provide to the United States, a written des22 ignation of a senior official to serve as a representa23 tive for notices, proposed amendments to the Con24 tract, and other purposes for this Contract.
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1 ‘‘ ‘(2) CONTRACT MODIFICATIONS OR AMEND2 MENT.—

3 ‘‘ ‘(A) IN GENERAL.—Except as provided

4 in subparagraph (B), no modification to this

5 Contract shall take effect unless such modifica6 tion is made in the form of a written amend7 ment to the Contract, and the Contractor and

8 the Secretary provide written consent for the

9 modification.

10 ‘‘ ‘(B) EXCEPTION.—The addition of sup11 plemental funds for programs, functions, and

12 activities (or portions thereof) already included

13 in the annual funding agreement under sub14 section (f)(2), and the reduction of funds pur15 suant to section 106(b)(2), shall not be subject

16 to subparagraph (A).

17 ‘‘ ‘(3) OFFICIALS NOT TO BENEFIT.—No Mem18 ber of Congress, or resident commissioner, shall be

19 admitted to any share or part of any contract exe20 cuted pursuant to this Contract, or to any benefit

21 that may arise from such contract. This paragraph

22 may not be construed to apply to any contract with

23 a third party entered into under this Contract if

24 such contract is made with a corporation for the

25 general benefit of the corporation.
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1 ‘‘ ‘(4) COVENANT AGAINST CONTINGENT

2 FEES.—The parties warrant that no person or sell3 ing agency has been employed or retained to solicit

4 or secure any contract executed pursuant to this

5 Contract upon an agreement or understanding for a

6 commission, percentage, brokerage, or contingent

7 fee, excepting bona fide employees or bona fide es8 tablished commercial or selling agencies maintained

9 by the Contractor for the purpose of securing busi10 ness.

11 ‘‘ ‘(f) ATTACHMENTS.—

12 ‘‘ ‘(1) APPROVAL OF CONTRACT.—Unless pre13 viously furnished to the Secretary, the resolution of

14 the ll Indian tribe(s) authorizing the contracting

15 of the programs, services, functions, and activities

16 identified in this Contract is attached to this Con17 tract as attachment 1.

18 ‘‘ ‘(2) ANNUAL FUNDING AGREEMENT.—

19 ‘‘ ‘(A) IN GENERAL.—The annual funding

20 agreement under this Contract shall only con21 tain—

22 ‘‘ ‘(i) terms that identify the pro23 grams, services, functions, and activities to

24 be performed or administered, the general

25 budget category assigned, the funds to be
49

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1 provided, and the time and method of pay2 ment; and

3 ‘‘ ‘(ii) such other provisions, including

4 a brief description of the programs, serv5 ices, functions, and activities to be per6 formed (including those supported by fi7 nancial resources other than those provided

8 by the Secretary), to which the parties

9 agree.

10 ‘‘ ‘(B) INCORPORATION BY REFERENCE.—

11 The annual funding agreement is hereby incor12 porated in its entirety in this Contract and at13 tached to this Contract as attachment 2.’ ’’.

14 SEC. 104. ADDITIONAL AMENDMENTS.

15 The Indian Self-Determination and Education Assist16 ance Act (25 U.S.C. 450 et seq.), as amended by sections

17 102 and 103, is further amended—

18 (1) in section 109—

19 (A) by inserting after ‘‘pursuant to such

20 contract or grant agreement,’’ the following ‘‘or

21 in the management of trust fund, trust lands or

22 interests in such lands pursuant to such con23 tract or grant agreement,’’;

24 (B) by striking ‘‘action as prescribed by

25 him’’ and all that follows through ‘‘in such
50

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1 cases, he’’ and inserting the following: ‘‘action

2 as prescribed by the Secretary to remedy the

3 contract deficiency, except that the appropriate

4 Secretary may, upon written notice to a tribal

5 organization, and the tribe served by the tribal

6 organization, immediately rescind a contract or

7 grant, in whole or in part, and resume control

8 or operation of a program, activity, function, or

9 service, if the Secretary finds that (i) there is

10 an immediate threat of imminent harm to the

11 safety of any person, or imminent substantial

12 and irreparable harm to trust funds, trust

13 lands, or interests in such lands, and (ii) such

14 threat arises from the failure of the contractor

15 to fulfill the requirements of the contract. In

16 such cases, the Secretary’’;

17 (C) by inserting after ‘‘rescind such con18 tract or grant agreement’’ the following: ‘‘, in

19 whole or in part,’’;

20 (D) by striking the second period after

21 ‘‘the tribal organization may approve’’; and

22 (E) by inserting before the last sentence,

23 the following new sentence: ‘‘In any hearing or

24 appeal provided for under this section, the Sec25 retary shall have the burden of proof to estab-
51

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1 lish, by clearly demonstrating the validity of the

2 grounds for rescinding, assuming, or

3 reassuming the contract that is the subject of

4 the hearing.’’;

5 (2) in section 110(a), by inserting immediately

6 before the period at the end the following: ‘‘(includ7 ing immediate injunctive relief to reverse a declina8 tion finding under section 102(a)(2) or to compel

9 the Secretary to award and fund an approved self10 determination contract)’’; and

11 (3) in section 110(d), by inserting immediately

12 before the period at the end the following: ‘‘, except

13 that all administrative appeals relating to such con14 tracts shall be heard by the Interior Board of Con15 tract Appeals established pursuant to section 8 of

16 such Act (41 U.S.C. 607)’’.

17 SEC. 105. REGULATIONS.

18 The Indian Self-Determination and Education Assist19 ance Act (25 U.S.C. 450 et seq.), as amended by sections

20 2 through 4, is further amended—

21 (1) by striking subsections (a) and (b) of sec22 tion 107 and inserting the following new subsections:

23 ‘‘(a)(1) Except as may be specifically authorized in

24 this subsection, or in any other provision of this Act, the

25 Secretary of the Interior and the Secretary of Health and
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1 Human Services may not promulgate any regulation, nor

2 impose any nonregulatory requirement, relating to self-de3 termination contracts or the approval, award, or declina4 tion of such contracts, except that the Secretary of the

5 Interior and the Secretary of Health and Human Services

6 may promulgate regulations under this Act relating to

7 chapter 171 of title 28, United States Code, commonly

8 known as the ‘Federal Tort Claims Act’, the Contract Dis9 putes Act of 1978 (41 U.S.C. 601 et seq.), declination and

10 waiver procedures, appeal procedures, reassumption proce11 dures, discretionary grant procedures for grants awarded

12 under section 103, property donation procedures arising

13 under section 105(f), internal agency procedures relating

14 to the implementation of this Act, retrocession and tribal

15 organization relinquishment procedures, contract proposal

16 contents, conflicts of interest, construction, programmatic

17 reports and data requirements, procurement standards,

18 property management standards, and financial manage19 ment standards.

20 ‘‘(2)(A) The regulations promulgated under this Act,

21 including the regulations referred to in this subsection,

22 shall be promulgated—

23 ‘‘(i) in conformance with sections 552 and 553

24 of title 5, United States Code and subsections (c),

25 (d), and (e) of this section; and
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1 ‘‘(ii) as a single set of regulations in title 25 of

2 the Code of Federal Regulations.

3 ‘‘(B) The authority to promulgate regulations set

4 forth in this Act shall expire if final regulations are not

5 promulgated within 18 months after the date of enactment

6 of the Indian Self-Determination Contract Reform Act of

7 1994.

8 ‘‘(b) The provisions of this Act shall supersede any

9 conflicting provisions of law (including any conflicting reg10 ulations) in effect on the day before the date of enactment

11 of the Indian Self-Determination Contract Reform Act of

12 1994, and the Secretary is authorized to repeal any regu13 lation inconsistent with the provisions of this Act.’’; and

14 (2) by adding at the end of section 107, the fol15 lowing new subsections:

16 ‘‘(d)(1) In drafting and promulgating regulations as

17 provided in subsection (a) (including drafting and promul18 gating any revised regulations), the Secretary of the Inte19 rior and the Secretary of Health and Human Services

20 shall confer with, and allow for active participation by,

21 representatives of Indian tribes, tribal organizations, and

22 individual tribal members.

23 ‘‘(2)(A) In carrying out rulemaking processes under

24 this Act, the Secretary of the Interior and the Secretary
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1 of Health and Human Services shall follow the guidance

2 of—

3 ‘‘(i) subchapter III of chapter 5 of title 5,

4 United States Code, commonly known as the ‘Nego5 tiated Rulemaking Act of 1990’; and

6 ‘‘(ii) the recommendations of the Administrative

7 Conference of the United States numbered 82–4 and

8 85–5 entitled ‘Procedures for Negotiating Proposed

9 Regulations’ under sections 305.82–4 and 305.85–5

10 of title 1, Code of Federal Regulations, and any suc11 cessor recommendation or law (including any succes12 sor regulation).

13 ‘‘(B) The tribal participants in the negotiation proc14 ess referred to in subparagraph (A) shall be nominated

15 by and shall represent the groups described in this para16 graph and shall include tribal representatives from all geo17 graphic regions.

18 ‘‘(C) The negotiations referred to in subparagraph

19 (B) shall be conducted in a timely manner. Proposed regu20 lations to implement the amendments made by the Indian

21 Self-Determination Contract Reform Act of 1994 shall be

22 published in the Federal Register by the Secretary of the

23 Interior and the Secretary of Health and Human Services

24 not later than 180 days after the date of enactment of

25 such Act.
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1 ‘‘(D) Notwithstanding any other provision of law (in2 cluding any regulation), the Secretary of the Interior and

3 the Secretary of Health and Human Services are author4 ized to jointly establish and fund such interagency com5 mittees or other interagency bodies, including advisory

6 bodies comprised of tribal representatives, as may be nec7 essary or appropriate to carry out the provisions of this

8 Act.

9 ‘‘(E) If the Secretary determines that an extension

10 of the deadlines under subsection (a)(2)(B) and subpara11 graph (C) of this paragraph is appropriate, the Secretary

12 may submit proposed legislation to Congress for the exten13 sion of such deadlines.

14 ‘‘(e) The Secretary may, with respect to a contract

15 entered into under this Act, make exceptions in the regula16 tions promulgated to carry out this Act, or waive such reg17 ulations, if the Secretary finds that such exception or

18 waiver is in the best interest of the Indians served by the

19 contract or is consistent with the policies of this Act, and

20 is not contrary to statutory law. In reviewing each request,

21 the Secretary shall follow the timeline, findings, assist22 ance, hearing, and appeal procedures set forth in section

23 102.’’.
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1 SEC. 106. CONFORMING AMENDMENTS.

2 Section 105(h) of the Indian Self-Determination and

3 Education Assistance Act (25 U.S.C. 450j(h)) is amended

4 by striking ‘‘and the rules and regulations adopted by the

5 Secretaries of the Interior and Health and Human Serv6 ices pursuant to section 107 of this Act’’.

7 TITLE II—SELF-GOVERNANCE

8 SEC. 201. SHORT TITLE.

9 This title may be cited as the ‘‘Tribal Self-Govern10 ance Act of 1994’’.

11 SEC. 202. FINDINGS.

12 Congress finds that—

13 (1) the tribal right of self-government flows

14 from the inherent sovereignty of Indian tribes and

15 nations;

16 (2) the United States recognizes a special gov17 ernment-to-government relationship with Indian

18 tribes, including the right of the tribes to self-gov19 ernance, as reflected in the Constitution, treaties,

20 Federal statutes, and the course of dealings of the

21 United States with Indian tribes;

22 (3) although progress has been made, the Fed23 eral bureaucracy, with its centralized rules and regu24 lations, has eroded tribal self-governance and domi25 nates tribal affairs;
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1 (4) the Tribal Self-Governance Demonstration

2 Project was designed to improve and perpetuate the

3 government-to-government relationship between In4 dian tribes and the United States and to strengthen

5 tribal control over Federal funding and program

6 management; and

7 (5) Congress has reviewed the results of the

8 Tribal Self-Governance Demonstration Project and

9 finds that—

10 (A) transferring control to tribal govern11 ments, upon tribal request, over funding and

12 decisionmaking for Federal programs, services,

13 functions, and activities, or portions thereof, is

14 an effective way to implement the Federal pol15 icy of government-to-government relations with

16 Indian tribes; and

17 (B) transferring control to tribal govern18 ments, upon tribal request, over funding and

19 decisionmaking for Federal programs, services,

20 functions, and activities strengthens the Fed21 eral policy of Indian self-determination.

22 SEC. 203. DECLARATION OF POLICY.

23 It is the policy of this title to permanently establish

24 and implement tribal self-governance—
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1 (1) to enable the United States to maintain and

2 improve its unique and continuing relationship with,

3 and responsibility to, Indian tribes;

4 (2) to permit each Indian tribe to choose the

5 extent of the participation of such tribe in self6 governance;

7 (3) to coexist with the provisions of the Indian

8 Self-Determination Act relating to the provision of

9 Indian services by designated Federal agencies;

10 (4) to ensure the continuation of the trust re11 sponsibility of the United States to Indian tribes and

12 Indian individuals;

13 (5) to permit an orderly transition from Federal

14 domination of programs and services to provide In15 dian tribes with meaningful authority to plan, con16 duct, redesign, and administer programs, services,

17 functions, and activities that meet the needs of the

18 individual tribal communities; and

19 (6) to provide for an orderly transition through

20 a planned and measurable parallel reduction in the

21 Federal bureaucracy.

22 SEC. 204. TRIBAL SELF-GOVERNANCE.

23 The Indian Self-Determination and Education Assist24 ance Act is amended by adding at the end the following

25 new title:
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1 ‘‘TITLE IV—TRIBAL SELF2 GOVERNANCE

3 ‘‘SEC. 401. ESTABLISHMENT.

4 ‘‘The Secretary of the Interior (hereinafter in this

5 title referred to as the ‘Secretary’) shall establish and

6 carry out a program within the Department of the Interior

7 to be known as Tribal Self-Governance (hereinafter in this

8 title referred to as ‘Self-Governance’) in accordance with

9 this title.

10 ‘‘SEC. 402. SELECTION OF PARTICIPATING INDIAN TRIBES.

11 ‘‘(a) CONTINUING PARTICIPATION.—Each Indian

12 tribe that is participating in the Tribal Self-Governance

13 Demonstration Project at the Department of the Interior

14 under title III on the date of enactment of this title shall

15 thereafter participate in Self-Governance under this title

16 and cease participation in the Tribal Self-Governance

17 Demonstration Project under title III with respect to the

18 Department of the Interior.

19 ‘‘(b) ADDITIONAL PARTICIPANTS.—(1) In addition to

20 those Indian tribes participating in Self-Governance under

21 subsection (a), the Secretary, acting through the Director

22 of the Office of Self-Governance, may select up to 20 new

23 tribes per year from the applicant pool described in sub24 section (c) to participate in Self-Governance.
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1 ‘‘(2) If each tribe requests, two or more otherwise eli2 gible Indian tribes may be treated as a single Indian tribe

3 for the purpose of participating in Self-Governance as a

4 consortium.

5 ‘‘(c) APPLICANT POOL.—The qualified applicant pool

6 for Self-Governance shall consist of each tribe that—

7 ‘‘(1) successfully completes the planning phase

8 described in subsection (d);

9 ‘‘(2) has requested participation in Self-Govern10 ance by resolution or other official action by the

11 tribal governing body; and

12 ‘‘(3) has demonstrated, for the previous three

13 fiscal years, financial stability and financial manage14 ment capability as evidenced by the tribe having no

15 material audit exceptions in the required annual

16 audit of the self-determination contracts of the tribe.

17 ‘‘(d) PLANNING PHASE.—Each Indian tribe seeking

18 to begin participation in Self-Governance shall complete

19 a planning phase in accordance with this subsection. The

20 tribe shall be eligible for a grant to plan and negotiate

21 participation in Self-Governance. The planning phase shall

22 include—

23 ‘‘(1) legal and budgetary research; and

24 ‘‘(2) internal tribal government planning and

25 organizational preparation.
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1 ‘‘SEC. 403. FUNDING AGREEMENTS.

2 ‘‘(a) AUTHORIZATION.—The Secretary shall nego3 tiate and enter into an annual written funding agreement

4 with the governing body of each participating tribal gov5 ernment in a manner consistent with the Federal Govern6 ment’s laws and trust relationship to and responsibility

7 for the Indian people.

8 ‘‘(b) CONTENTS.—Each funding agreement shall—

9 ‘‘(1) authorize the tribe to plan, conduct, con10 solidate, and administer programs, services, func11 tions, and activities, or portions thereof, adminis12 tered by the Department of the Interior through the

13 Bureau of Indian Affairs, without regard to the

14 agency or office of the Bureau of Indian Affairs

15 within which the program, service, function, and ac16 tivity, or portion thereof, is performed, including

17 funding for agency, area, and central office func18 tions in accordance with subsection (g)(3), and in19 cluding any program, service, function, and activity,

20 or portion thereof, administered under the authority

21 of—

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

23 452 et seq.);

24 ‘‘(B) the Act of November 2, 1921 (25

25 U.S.C. 13); and
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1 ‘‘(C) programs, services, functions, and ac2 tivities or portions thereof administered by the

3 Secretary of the Interior that are otherwise

4 available to Indian tribes or Indians for which

5 appropriations are made to agencies other than

6 the Department of the Interior;

7 ‘‘(2) subject to such terms as may be nego8 tiated, authorize the tribe to plan, conduct, consoli9 date, and administer programs, services, functions,

10 and activities, or portions thereof, administered by

11 the Department of the Interior, other than through

12 the Bureau of Indian Affairs, that are otherwise

13 available to Indian tribes or Indians, as identified in

14 section 405(c), except that nothing in this subsection

15 may be construed to provide any tribe with a pref16 erence with respect to the opportunity of the tribe

17 to administer programs, services, functions, and ac18 tivities, or portions thereof, unless such preference is

19 otherwise provided for by law;

20 ‘‘(3) subject to the terms of the agreement, au21 thorize the tribe to redesign or consolidate pro22 grams, services, functions, and activities, or portions

23 thereof, and reallocate funds for such programs,

24 services, functions, and activities, or portions there25 of, except that, with respect to the reallocation, con-
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1 solidation, and redesign of programs described in

2 paragraph (2), a joint agreement between the Sec3 retary and the tribe shall be required;

4 ‘‘(4) prohibit the inclusion of funds provided—

5 ‘‘(A) pursuant to the Tribally Controlled

6 Community College Assistance Act of 1978 (25

7 U.S.C. 1801 et seq.);

8 ‘‘(B) for elementary and secondary schools

9 under the formula developed pursuant to sec10 tion 1128 of the Education Amendments of

11 1978 (25 U.S.C. 2008); and

12 ‘‘(C) the Flathead Agency Irrigation Divi13 sion or the Flathead Agency Power Division,

14 except that nothing in this section shall affect

15 the contract authority of such divisions under

16 section 102;

17 ‘‘(5) specify the services to be provided, the

18 functions to be performed, and the responsibilities of

19 the tribe and the Secretary pursuant to the agree20 ment;

21 ‘‘(6) authorize the tribe and the Secretary to

22 reallocate funds or modify budget allocations within

23 any year, and specify the procedures to be used;

24 ‘‘(7) allow for retrocession of programs or por25 tions of programs pursuant to section 105(e);
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1 ‘‘(8) provide that, for the year for which, and

2 to the extent to which, funding is provided to a tribe

3 under this section, the tribe—

4 ‘‘(A) shall not be entitled to contract with

5 the Secretary for such funds under section 102,

6 except that such tribe shall be eligible for new

7 programs on the same basis as other tribes; and

8 ‘‘(B) shall be responsible for the adminis9 tration of programs, services, functions, and ac10 tivities pursuant to agreements entered into

11 under this section; and

12 ‘‘(9) prohibit the Secretary from waiving, modi13 fying, or diminishing in any way the trust respon14 sibility of the United States with respect to Indian

15 tribes and individual Indians that exists under trea16 ties, Executive orders, and other laws.

17 ‘‘(c) ADDITIONAL ACTIVITIES.—Each funding agree18 ment negotiated pursuant to subsections (a) and (b) may,

19 in accordance to such additional terms as the parties deem

20 appropriate, also include other programs, services, func21 tions, and activities, or portions thereof, administered by

22 the Secretary of the Interior which are of special geo23 graphic, historical, or cultural significance to the partici24 pating Indian tribe requesting a compact.
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1 ‘‘(d) PROVISIONS RELATING TO THE SECRETARY.—

2 Funding agreements negotiated between the Secretary

3 and an Indian tribe shall include provisions—

4 ‘‘(1) to monitor the performance of trust func5 tions by the tribe through the annual trust evalua6 tion, and

7 ‘‘(2) for the Secretary to reassume a program,

8 service, function, or activity, or portions thereof, if

9 there is a finding of imminent jeopardy to a physical

10 trust asset, natural resources, or public health and

11 safety.

12 ‘‘(e) CONSTRUCTION PROJECTS.—(1) Regarding con13 struction programs or projects, the Secretary and Indian

14 tribes may negotiate for the inclusion of specific provisions

15 of the Office of Federal Procurement and Policy Act and

16 Federal acquisition regulations in any funding agreement

17 entered into under this Act. Absent a negotiated agree18 ment, such provisions and regulatory requirements shall

19 not apply.

20 ‘‘(2) In all construction projects performed pursuant

21 to this title, the Secretary shall ensure that proper health

22 and safety standards are provided for in the funding

23 agreements.

24 ‘‘(f) SUBMISSION FOR REVIEW.—Not later than 90

25 days before the proposed effective date of an agreement
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1 entered into under this section, the Secretary shall submit

2 a copy of such agreement to—

3 ‘‘(1) each Indian tribe that is served by the

4 Agency that is serving the tribe that is a party to

5 the funding agreement;

6 ‘‘(2) the Committee on Indian Affairs of the

7 Senate; and

8 ‘‘(3) the Subcommittee on Native American Af9 fairs of the Committee on Natural Resources of the

10 House of Representatives.

11 ‘‘(g) PAYMENT.—(1) At the request of the governing

12 body of the tribe and under the terms of an agreement

13 entered into under this section, the Secretary shall provide

14 funding to the tribe to carry out the agreement.

15 ‘‘(2) The funding agreements authorized by this title

16 and title III of this Act shall provide for advance payments

17 to the tribes in the form of annual or semi-annual install18 ments at the discretion of the tribes.

19 ‘‘(3) Subject to paragraph (4) of this subsection and

20 paragraphs (1) through (3) of subsection (b), the Sec21 retary shall provide funds to the tribe under an agreement

22 under this title for programs, services, functions, and ac23 tivities, or portions thereof, in an amount equal to the

24 amount that the tribe would have been eligible to receive

25 under contracts and grants under this Act, including
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1 amounts for direct program and contract support costs

2 and, in addition, any funds that are specifically or func3 tionally related to the provision by the Secretary of serv4 ices and benefits to the tribe or its members, without re5 gard to the organization level within the Department

6 where such functions are carried out.

7 ‘‘(4) Funds for trust services to individual Indians

8 shall be available under an agreement entered into under

9 this section only to the extent that the same services that

10 would have been provided by the Secretary are provided

11 to individual Indians by the tribe.

12 ‘‘(h) CIVIL ACTIONS.—(1) Except as provided in

13 paragraph (2), for the purposes of section 110, the term

14 ‘contract’ shall include agreements entered into under this

15 title.

16 ‘‘(2) For the period that an agreement entered into

17 under this title is in effect, the provisions of section 2103

18 of the Revised Statutes of the United States (25 U.S.C.

19 81), and section 16 of the Act of June 18, 1934 (25

20 U.S.C. 476), shall not apply to attorney and other profes21 sional contracts by Indian tribal governments participat22 ing in Self-Governance under this title.

23 ‘‘(i) FACILITATION.—(1) Except as otherwise pro24 vided by law, the Secretary shall interpret each Federal

25 law and regulation in a manner that will facilitate—
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1 ‘‘(A) the inclusion of programs, services, func2 tions, and activities in the agreements entered into

3 under this section; and

4 ‘‘(B) the implementation of agreements entered

5 into under this section.

6 ‘‘(2)(A) A tribe may submit a written request for a

7 waiver to the Secretary identifying the regulation sought

8 to be waived and the basis for the request.

9 ‘‘(B) Not later than 60 days after receipt by the Sec10 retary of a written request by a tribe to waive application

11 of a Federal regulation for an agreement entered into

12 under this section, the Secretary shall either approve or

13 deny the requested waiver in writing to the tribe. A denial

14 may be made only upon a specific finding by the Secretary

15 that identified language in the regulation may not be

16 waived because such waiver is prohibited by Federal law.

17 The Secretary’s decision shall be final for the Department.

18 ‘‘(j) FUNDS.—All funds provided under funding

19 agreements entered into pursuant to this Act, and all

20 funds provided under contracts or grants made pursuant

21 to this Act, shall be treated as non-Federal funds for pur22 poses of meeting matching requirements under any other

23 Federal law.

24 ‘‘(k) DISCLAIMER.—Nothing in this section is in25 tended or shall be construed to expand or alter existing
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1 statutory authorities in the Secretary so as to authorize

2 the Secretary to enter into any agreement under sections

3 403(b)(2) and 405(c)(1) with respect to functions that are

4 inherently Federal or where the statute establishing the

5 existing program does not authorize the type of participa6 tion sought by the tribe: Provided, however an Indian tribe

7 or tribes need not be identified in the authorizing statute

8 in order for a program or element of a program to be in9 cluded in a compact under section 403(b)(2).

10 ‘‘SEC. 404. BUDGET REQUEST.

11 ‘‘The Secretary shall identify, in the annual budget

12 request of the President to the Congress under section

13 1105 of title 31, United States Code, any funds proposed

14 to be included in agreements authorized under this title.

15 ‘‘SEC. 405. REPORTS.

16 ‘‘(a) REQUIREMENT.—The Secretary shall submit to

17 Congress a written report on January 1 of each year fol18 lowing the date of enactment of this title regarding the

19 administration of this title.

20 ‘‘(b) CONTENTS.—The report shall—

21 ‘‘(1) identify the relative costs and benefits of

22 Self-Governance;

23 ‘‘(2) identify, with particularity, all funds that

24 are specifically or functionally related to the provi-
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1 sion by the Secretary of services and benefits to

2 Self-Governance tribes and their members;

3 ‘‘(3) identify the funds transferred to each Self4 Governance tribe and the corresponding reduction in

5 the Federal bureaucracy;

6 ‘‘(4) include the separate views of the tribes;

7 and

8 ‘‘(5) include the funding formula for individual

9 tribal shares of Central Office funds, together with

10 the comments of affected Indian tribes, developed

11 under subsection (d).

12 ‘‘(c) REPORT ON NON-BIA PROGRAMS.—(1) In order

13 to optimize opportunities for including non-Bureau of In14 dian Affairs programs, services, functions, and activities,

15 or portions thereof, in agreements with tribes participat16 ing in Self-Governance under this title, the Secretary

17 shall—

18 ‘‘(A) review all programs, services, functions,

19 and activities, or portions thereof, administered by

20 the Department of the Interior, other than through

21 the Bureau of Indian Affairs, without regard to the

22 agency or office concerned; and

23 ‘‘(B) not later than 90 days after the date of

24 enactment of this title, provide to the appropriate

25 committees of Congress a listing of all such pro-
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1 grams, services, functions, and activities, or portions

2 thereof, that the Secretary determines, with the con3 currence of tribes participating in Self-Governance

4 under this title, are eligible for inclusion in such

5 agreements at the request of a participating Indian

6 tribe.

7 ‘‘(2) The Secretary shall establish programmatic tar8 gets, after consultation with tribes participating in Self9 Governance under this title, to encourage bureaus of the

10 Department to assure that a significant portion of such

11 programs, services, functions, and activities are actually

12 included in the agreements negotiated under section 403.

13 ‘‘(3) The listing and targets under paragraphs (1)

14 and (2) shall be published in the Federal Register and

15 be made available to any Indian tribe participating in Self16 Governance under this title. The list shall be published

17 before January 1, 1995, and annually thereafter by Janu18 ary 1 preceding the fiscal year in which the targets are

19 to be met.

20 ‘‘(4) Thereafter, the Secretary shall annually review

21 and publish in the Federal Register, after consultation

22 with tribes participating in Self-Governance under this

23 title, a revised listing and programmatic targets.

24 ‘‘(d) REPORT ON CENTRAL OFFICE FUNDS.—Within

25 90 days after the date of the enactment of this title, the
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1 Secretary shall, in consultation with Indian tribes, develop

2 a funding formula to determine the individual tribal share

3 of funds controlled by the Central Office of the Bureau

4 of Indian Affairs for inclusion in the Self-Governance com5 pacts. The Secretary shall include such formula in the an6 nual report submitted to the Congress under subsection

7 (b), together with the views of the affected Indian tribes.

8 ‘‘SEC. 406. DISCLAIMERS.

9 ‘‘(a) OTHER SERVICES, CONTRACTS, AND FUNDS.—

10 Nothing in this title shall be construed to limit or reduce

11 in any way the services, contracts, or funds that any other

12 Indian tribe or tribal organization is eligible to receive

13 under section 102 or any other applicable Federal law.

14 ‘‘(b) FEDERAL TRUST RESPONSIBILITIES.—Nothing

15 in this Act shall be construed to diminish the Federal trust

16 responsibility to Indian tribes, individual Indians, or Indi17 ans with trust allotments.

18 ‘‘(c) APPLICATION OF OTHER SECTIONS OF ACT.—

19 All provisions of sections 6, 102(c), 104, 105(f), 110, and

20 111 of this Act shall apply to agreements provided under

21 this title.

22 ‘‘SEC. 407. REGULATIONS.

23 ‘‘(a) IN GENERAL.—Not later than 90 days after the

24 date of enactment of this title, at the request of a majority

25 of the Indian tribes with agreements under this title, the
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1 Secretary shall initiate procedures under subchapter III

2 of chapter 5 of title 5, United States Code, to negotiate

3 and promulgate such regulations as are necessary to carry

4 out this title.

5 ‘‘(b) COMMITTEE.—A negotiated rulemaking commit6 tee established pursuant to section 565 of title 5, United

7 States Code, to carry out this section shall have as its

8 members only Federal and tribal government representa9 tives, a majority of whom shall be representatives of In10 dian tribes with agreements under this title.

11 ‘‘(c) ADAPTATION OF PROCEDURES.—The Secretary

12 shall adapt the negotiated rulemaking procedures to the

13 unique context of Self-Governance and the government-to14 government relationship between the United States and

15 the Indian tribes.

16 ‘‘(d) EFFECT.—The lack of promulgated regulations

17 shall not limit the effect of this title.

18 ‘‘SEC. 408. AUTHORIZATION OF APPROPRIATIONS.

19 ‘‘There are authorized to be appropriated such sums

20 as may be necessary to carry out this title.’’.

Passed the House of Representatives October 7 (legislative day, October 6), 1994.

Attest:

Clerk.
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