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 Con- tract 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 costreimbursement 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
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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;
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(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
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(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 selfdetermination 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
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(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
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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
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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.
H. R. 4842—8

‘‘(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—
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‘‘(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
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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.
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‘‘(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:
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‘‘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 ll

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 ll 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 ll 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.
H. R. 4842—13

‘‘ ‘(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
H. R. 4842—14

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 periodi-
H. R. 4842—15

cally 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 SelfDetermination 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
H. R. 4842—16

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 thirdparty 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.
H. R. 4842—17

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 ll 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,
H. R. 4842—18

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 ll 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—
H. R. 4842—19

‘‘ ‘(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
H. R. 4842—20

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—
H. R. 4842—21

‘‘(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 dead- lines 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—
H. R. 4842—22

(1) the tribal right of self-government flows from the inherent sovereignty of Indian tribes and nations;

(2) the United States recognizes a special governmentto-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 SelfGovernance 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:
H. R. 4842—23

‘‘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 SelfGovernance 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 SelfGovernance shall consist of each tribe that—

‘‘(1) successfully completes the planning phase described in subsection (d);

‘‘(2) has requested participation in Self-Governance by reso- lution 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
H. R. 4842—24

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
H. R. 4842—25

‘‘(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
H. R. 4842—26

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,
H. R. 4842—27

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
H. R. 4842—28

Office of the Bureau of Indian Affairs for inclusion in the SelfGovernance 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.
H. R. 4842—29

‘‘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.