II

103D CONGRESS

2D SESSION H. R. 4842

IN THE SENATE OF THE UNITED STATES

OCTOBER 7 (legislative day, SEPTEMBER 12), 1994

Received

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’’.
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1 SEC. 102. GENERAL AMENDMENTS.

2 The Indian Self-Determination and Education Assist3 ance Act (25 U.S.C. 450 et seq.) is amended—

4 (1) in section 4—

5 (A) in subsection (g), by striking ‘‘indirect

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

7 (B) by striking ‘‘and’’ at the end of sub8 section (k);

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

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

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

12 subsection:

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

14 cost-reimbursement self-determination contract for a con15 struction project, except that such term does not include

16 any contract—

17 ‘‘(1) that is limited to providing planning serv18 ices and construction management services (or a

19 combination of such services);

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

21 roads maintenance program of the Bureau of Indian

22 Affairs administered by the Secretary of the Inte23 rior; or

24 ‘‘(3) for the health facility maintenance and im25 provement program administered by the Secretary of

26 Health and Human Services.’’;
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1 (2) by striking subsection (f) of section 5 and

2 inserting the following new subsection:

3 ‘‘(f)(1) For each fiscal year during which an Indian

4 tribal organization receives or expends funds pursuant to

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

6 the tribal organization that requested such contract or

7 grant shall submit to the appropriate Secretary a single8 agency audit report required by chapter 75 of title 31,

9 United States Code.

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

11 report pursuant to paragraph (1), a tribal organization re12 ferred to in such paragraph shall submit such additional

13 information concerning the conduct of the program, func14 tion, service, or activity carried out pursuant to the con15 tract or grant that is the subject of the report as the tribal

16 organization may negotiate with the Secretary.

17 ‘‘(3) Any disagreement over reporting requirements

18 shall be subject to the declination criteria and procedures

19 set forth in section 102.’’;

20 (3) in section 7(a), by striking ‘‘of subcontrac21 tors’’ and inserting in lieu thereof ‘‘or subcontrac22 tors (excluding tribes and tribal organizations)’’;

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

24 new subsection:
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1 ‘‘(c) Notwithstanding subsections (a) and (b), with

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

3 a self-determination contract, that is intended to benefit

4 one tribe, the tribal employment or contract preference

5 laws adopted by such tribe shall govern with respect to

6 the administration of the contract or portion of the con7 tract.’’;

8 (5) at the end of section 102(a)(1), add the fol9 lowing new flush sentence:

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

11 contracted under this paragraph shall include administra12 tive functions of the Department of the Interior and the

13 Department of Health and Human Services (whichever is

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

15 including those administrative activities supportive of, but

16 not included as part of, the service delivery programs de17 scribed in this paragraph that are otherwise contractable.

18 The administrative functions referred to in the preceding

19 sentence shall be contractable without regard to the orga20 nizational level within the department that carries out

21 such functions.’’;

22 (6) in section 102(a)—

23 (A) in paragraph (2)—

24 (i) in the first sentence, by inserting

25 ‘‘, or a proposal to amend or renew a self-
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1 determination contract,’’ before ‘‘to the

2 Secretary for review’’;

3 (ii) in the second sentence—

4 (I) by striking ‘‘The’’ and insert5 ing ‘‘Subject to the provisions of para6 graph (4), the’’;

7 (II) by inserting ‘‘and award the

8 contract’’ after ‘‘approve the pro9 posal’’;

10 (III) by striking ‘‘, within sixty

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

12 (IV) by striking ‘‘a specific find13 ing is made that’’ and inserting ‘‘the

14 Secretary provides written notification

15 to the applicant that contains a spe16 cific finding that clearly demonstrates

17 that, or that is supported by a con18 trolling legal authority that’’;

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

20 ‘‘or’’ after the semicolon;

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

22 the period at the end and inserting a semi23 colon;

24 (v) by adding at the end the following

25 new subparagraphs:
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1 ‘‘(D) the amount of funds proposed under

2 the contract is in excess of the applicable fund3 ing level for the contract, as determined under

4 section 106(a); or

5 ‘‘(E) the program, function, service, or ac6 tivity (or portion thereof) that is the subject of

7 the proposal is beyond the scope of programs,

8 functions, services, or activities covered under

9 paragraph (1) because the proposal includes ac10 tivities that cannot lawfully be carried out by

11 the contractor.’’; and

12 (vi) by adding at the end of the para13 graph the following new flush material:

14 ‘‘Notwithstanding any other provision of law, the Sec15 retary may extend or otherwise alter the 90-day period

16 specified in the second sentence of this subsection, if be17 fore the expiration of such period, the Secretary obtains

18 the voluntary and express written consent of the tribe or

19 tribal organization to extend or otherwise alter such pe20 riod. The contractor shall include in the proposal of the

21 contractor the standards under which the tribal organiza22 tion will operate the contracted program, service, function,

23 or activity, including in the area of construction, provi24 sions regarding the use of licensed and qualified archi25 tects, applicable health and safety standards, adherence
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1 to applicable Federal, State, local, or tribal building codes

2 and engineering standards. The standards referred to in

3 the preceding sentence shall ensure structural integrity,

4 accountability of funds, adequate competition for sub5 contracting under tribal or other applicable law, the com6 mencement, performance, and completion of the contract,

7 adherence to project plans and specifications (including

8 any applicable Federal construction guidelines and manu9 als), the use of proper materials and workmanship, nec10 essary inspection and testing, and changes, modifications,

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

12 and

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

14 paragraph:

15 ‘‘(4) The Secretary shall approve any severable por16 tion of a contract proposal that does not support a declina17 tion finding described in paragraph (2). If the Secretary

18 determines under such paragraph that a contract pro19 posal—

20 ‘‘(A) proposes in part to plan, conduct, or ad21 minister a program, function, service, or activity

22 that is beyond the scope of programs covered under

23 paragraph (1), or
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1 ‘‘(B) proposes a level of funding that is in ex2 cess of the applicable level determined under section

3 106(a),

4 subject to any alteration in the scope of the proposal that

5 the Secretary and the tribal organization agree to, the

6 Secretary shall, as appropriate, approve such portion of

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

8 under paragraph (1) or approve a level of funding author9 ized under section 106(a). If a tribal organization elects

10 to carry out a severable portion of a contract proposal pur11 suant to this paragraph, subsection (b) shall only apply

12 to the portion of the contract that is declined by the Sec13 retary pursuant to this subsection.’’;

14 (7) in section 102(b)(3)—

15 (A) by inserting after ‘‘record’’ the follow16 ing: ‘‘with the right to engage in full discovery

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

18 (B) by inserting before the period the fol19 lowing: ‘‘, except that the tribe or tribal organi20 zation may, in lieu of filing such appeal, exer21 cise the option to initiate an action in a Federal

22 district court and proceed directly to such court

23 pursuant to section 110(a)’’;

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

25 in section 2671 of title 28)’’ and inserting ‘‘as pro-
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1 vided in section 2671 of title 28, United States

2 Code, and including an individual who provides

3 health care services pursuant to a personal services

4 contract with a tribal organization for the provision

5 of services in any facility owned, operated, or con6 structed under the jurisdiction of the Indian Health

7 Service)’’;

8 (9) by adding at the end of section 102 the fol9 lowing new subsection:

10 ‘‘(e)(1) With respect to any hearing or appeal con11 ducted pursuant to subsection (b)(3), the Secretary shall

12 have the burden of proof to establish by clearly dem13 onstrating the validity of the grounds for declining the

14 contract proposal (or portion thereof).

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

16 decision by an official of the Department of the Interior

17 or the Department of Health and Human Services, as ap18 propriate (referred to in this paragraph as the ‘Depart19 ment’) that constitutes final agency action and that relates

20 to an appeal within the Department that is conducted

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

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

23 a position at a higher organizational level within the

24 Department than the level of the departmental agen25 cy (such as the Indian Health Service or the Bureau
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1 of Indian Affairs) in which the decision that is the

2 subject of the appeal was made; or

3 ‘‘(B) by an administrative judge.’’;

4 (10) by striking subsection (a) of section 105

5 and inserting the following new subsection:

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

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

8 agreements entered into with tribal organizations pursu9 ant to section 102 shall not be subject to Federal contract10 ing or cooperative agreement laws (including any regula11 tions), except to the extent that such laws expressly apply

12 to Indian tribes.

13 ‘‘(2) Program standards applicable to a nonconstruc14 tion self-determination contract shall be set forth in the

15 contract proposal and the final contract of the tribe or

16 tribal organization.

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

18 a subcontract of such a construction contract), the provi19 sions of the Office of Federal Procurement Policy Act (41

20 U.S.C. 401 et seq.) and the regulations relating to acquisi21 tions promulgated under such Act shall apply only to the

22 extent that the application of such provision to the con23 struction contract (or subcontract) is—

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

25 be carried out in a satisfactory manner;
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1 ‘‘(ii) directly related to the construction activity;

2 and

3 ‘‘(iii) not inconsistent with this Act.

4 ‘‘(B) A list of the Federal requirements that meet

5 the requirements of clauses (i) through (iii) of subpara6 graph (A) shall be included in an attachment to the con7 tract pursuant to negotiations between the Secretary and

8 the tribal organization.

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

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

11 Federal law (including an Executive order) relating to ac12 quisition by the Federal Government shall apply to a con13 struction contract that a tribe or tribal organization enters

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

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

16 ‘‘(I) The Federal Property and Administrative

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

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

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

20 (60 Stat. 809, chapter 744).

21 ‘‘(IV) Title III of the Federal Property and Ad22 ministrative Services Act of 1949 (63 Stat. 393 et

23 seq., chapter 288).

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

25 Stat. 770; chapter 479).
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1 ‘‘(VI) Chapters 21, 25, 27, 29, and 31 of title

2 44, United States Code.

3 ‘‘(VII) Section 2 of the Act of June 13, 1934

4 (48 Stat 948, chapter 483).

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

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

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

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

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

10 et seq.).

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

12 11701 and 11758.’’;

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

14 following new subsection:

15 ‘‘(e) If an Indian tribe, or a tribal organization au16 thorized by a tribe, requests retrocession of the appro17 priate Secretary for any contract or portion of a contract

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

19 organization rescinds the request for retrocession, such

20 retrocession shall become effective on—

21 ‘‘(1) the earlier of—

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

23 the Indian tribe or tribal organization submits

24 such request; or
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1 ‘‘(B) the date on which the contract ex2 pires; or

3 ‘‘(2) such date as may be mutually agreed by

4 the Secretary and the Indian tribe.’’;

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

6 and inserting the following new paragraph:

7 ‘‘(2) donate to an Indian tribe or tribal organi8 zation title to any personal or real property found to

9 be excess to the needs of the Bureau of Indian Af10 fairs, the Indian Health Service, or the General

11 Services Administration, except that—

12 ‘‘(A) subject to the provisions of subpara13 graph (B), title to property and equipment fur14 nished by the Federal Government for use in

15 the performance of the contract or purchased

16 with funds under any self-determination con17 tract or grant agreement shall, unless otherwise

18 requested by the tribe or tribal organization,

19 vest in the appropriate tribe or tribal organiza20 tion;

21 ‘‘(B) if property described in subparagraph

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

23 of the retrocession, rescission, or termination of

24 the self-determination contract or grant agree25 ment, at the option of the Secretary, upon the
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1 retrocession, rescission, or termination, title to

2 such property and equipment shall revert to the

3 Department of the Interior or the Department

4 of Health and Human Services, as appropriate;

5 and

6 ‘‘(C) all property referred to in subpara7 graph (A) shall remain eligible for replacement

8 on the same basis as if title to such property

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

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

11 following new subsections:

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

13 Secretary to divide the administration of a program that

14 has previously been administered for the benefit of a

15 greater number of tribes than are represented by the tribal

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

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

18 services are provided to the tribes not served by a self19 determination contract, including program redesign in

20 consultation with the tribal organization and all affected

21 tribes.

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

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

24 or activity serving a tribe under this or other applicable

25 Federal law. Any tribe or tribal organization that alleges
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1 that a self-determination contract is in violation of this

2 section may apply the provisions of section 110.

3 ‘‘(j) Upon providing notice to the Secretary, a tribal

4 organization that carries out a nonconstruction self-deter5 mination contract may propose a redesign of a program,

6 activity, function, or service carried out by the tribal orga7 nization under the contract, including any nonstatutory

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

9 local geographic, demographic, economic, cultural, health,

10 and institutional needs of the Indian people and tribes

11 served under the contract. The Secretary shall evaluate

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

13 or service provided under the contract. With respect to de14 clining to approve a redesigned program, activity, func15 tion, or service under this subsection, the Secretary shall

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

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

18 Property and Administrative Services Act of 1949 (40

19 U.S.C. 481(a)) (relating to Federal sources of supply, in20 cluding lodging providers, airlines and other transpor21 tation providers), a tribal organization carrying out a con22 tract, grant, or cooperative agreement under this Act shall

23 be deemed an executive agency when carrying out such

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

25 tribal organization shall be eligible to have access to such
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1 sources of supply on the same basis as employees of an

2 executive agency have such access.

3 ‘‘(l)(1) Upon the request of an Indian tribe or tribal

4 organization, the Secretary shall enter into a lease with

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

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

7 used by the Indian tribe or tribal organization for the ad8 ministration and delivery of services under this Act.

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

10 tribe or tribal organization that enters into a lease under

11 paragraph (1) for the use of the facility leased for the pur12 poses specified in such paragraph. Such compensation

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

14 the facility, principal and interest paid or accrued, oper15 ation and maintenance expenses, and such other reason16 able expenses that the Secretary determines, by regula17 tion, to be allowable.

18 ‘‘(m)(1) Each construction contract requested, ap19 proved, or awarded under this Act shall be subject to—

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

21 the provisions of this Act, other than sections

22 102(a)(2), 106(l), 108 and 109; and

23 ‘‘(B) section 314 of the Department of the In24 terior and Related Agencies Appropriations Act,

25 1991 (104 Stat. 1959).
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1 ‘‘(2) In providing technical assistance to tribes and

2 tribal organizations in the development of construction

3 contract proposals, the Secretary shall provide, not later

4 than 30 days after receiving a request from a tribe or trib5 al organization, all information available to the Secretary

6 regarding the construction project, including construction

7 drawings, maps, engineering reports, design reports, plans

8 of requirements, cost estimates, environmental assess9 ments or environmental impact reports, and archaeological

10 reports.

11 ‘‘(3) Prior to finalizing a construction contract pro12 posal pursuant to section 102(a), and upon request of the

13 tribe or tribal organization that submits the proposal, the

14 Secretary shall provide for a precontract negotiation phase

15 in the development of a contract proposal. Such phase

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

17 ‘‘(A) The provision of technical assistance pur18 suant to section 103 and paragraph (2).

19 ‘‘(B) A joint scoping session between the Sec20 retary and the tribe or tribal organization to review

21 all plans, specifications, engineering reports, cost es22 timates, and other information available to the par23 ties, for the purpose of identifying all areas of agree24 ment and disagreement.
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1 ‘‘(C) An opportunity for the Secretary to revise

2 the plans, designs, or cost estimates of the Secretary

3 in response to concerns raised, or information pro4 vided by, the tribe or tribal organization.

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

6 Secretary and the tribe or tribal organization shall

7 seek to develop a mutually agreeable contract pro8 posal.

9 ‘‘(E) Upon the request of the tribe or tribal or10 ganization, the use of an alternative dispute resolu11 tion mechanism to seek resolution of all remaining

12 areas of disagreement pursuant to the dispute reso13 lution provisions under subchapter IV of chapter 5

14 of title 5, United States Code.

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

16 tribe or tribal organization of a final contract pro17 posal pursuant to section 102(a).

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

19 fixed-price construction contract pursuant to section

20 106(a), the Secretary shall provide for the following:

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

22 organization for general administration incurred in

23 connection with the project that is the subject of the

24 contract.
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1 ‘‘(ii) The ability of the contractor that carries

2 out the construction contract to make a reasonable

3 profit, taking into consideration the risks associated

4 with carrying out the contract and other relevant

5 considerations.

6 ‘‘(B) In establishing a contract budget for a construc7 tion project, the Secretary shall not be required to sepa8 rately identify the components described in clauses (i) and

9 (ii) of subparagraph (A).

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

11 contract shall reflect an overall fair and reasonable price

12 to the parties, including the following costs:

13 ‘‘(i) The reasonable costs to the tribal organiza14 tion of performing the contract, taking into consider15 ation the terms of the contract and the requirements

16 of this Act and any other applicable law.

17 ‘‘(ii) The costs of preparing the contract pro18 posal and supporting cost data.

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

20 general and administrative costs of the tribal organi21 zation associated with the management of the con22 struction contract.

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

24 profit determined by taking into consideration the

25 relevant risks and local market conditions.
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1 ‘‘(v) If the Secretary and the tribe or tribal or2 ganization are unable to develop a mutually agree3 able construction contract proposal pursuant to the

4 procedures set forth in this subsection, the tribe or

5 tribal organization may submit a final contract pro6 posal to the Secretary. Not later than 30 days after

7 receiving such final contract proposal, the Secretary

8 shall approve the contract proposal and award the

9 contract, unless, during such period the Secretary

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

11 and 102(b) of section 102 (including providing op12 portunity for an appeal pursuant to section 102(b)).

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

14 rental rates for housing provided to an employee by the

15 Federal Government in Alaska pursuant to a self-deter16 mination contract shall be determined on the basis of—

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

18 facilities (as such terms are defined under section

19 5911 of title 5, United States Code) to such em20 ployee, and

21 ‘‘(2) the circumstances under which such quar22 ters and facilities are provided to such employee,

23 as based on the cost of comparable private rental housing

24 in the nearest established community with a year-round

25 population of 1,500 or more individuals.’’;
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1 (14) in section 106(a)—

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

3 the period at the end the following: ‘‘, without

4 regard to any organizational level within the

5 Department of the Interior or the Department

6 of Health and Human Services, as appropriate,

7 at which the program, function, service, or ac8 tivity or portion thereof, including supportive

9 administrative functions that are otherwise con10 tractable, is operated’’;

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

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

13 and

14 (C) by striking paragraph (3) and insert15 ing the following new paragraphs:

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

17 costs for the purposes of receiving funding under this Act

18 shall include the costs of reimbursing each tribal contrac19 tor for reasonable and allowable costs of—

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

21 of the Federal program that is the subject of the

22 contract, and

23 ‘‘(ii) any additional administrative or other ex24 pense related to the overhead incurred by the tribal

25 contractor in connection with the operation of the
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1 Federal program, function, service, or activity pursu2 ant to the contract,

3 except that such funding shall not duplicate any funding

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

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

6 tribe or tribal organization operates a Federal program,

7 function, service, or activity pursuant to a contract en8 tered into under this Act, the tribe or tribal organization

9 shall have the option to negotiate with the Secretary the

10 amount of funds that the tribe or tribal organization is

11 entitled to receive under such contract pursuant to this

12 paragraph.

13 ‘‘(4) For each fiscal year during which a self-deter14 mination contract is in effect, any savings attributable to

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

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

17 tribal organization (including a cost reimbursement con18 struction contract) shall—

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

20 benefits under the contract; or

21 ‘‘(B) be expended by the tribe or tribal organi22 zation in the succeeding fiscal year, as provided in

23 section 8.

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

25 that a self-determination contract is in effect, the amount
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1 required to be paid under paragraph (2) shall include

2 startup costs consisting of the reasonable costs that have

3 been incurred or will be incurred on a one-time basis pur4 suant to the contract necessary—

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

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

7 the subject of the contract; and

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

9 contract and prudent management.

10 ‘‘(6) Costs incurred before the initial year that a self11 determination contract is in effect may not be included

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

13 if the Secretary does not receive a written notification of

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

15 which such costs are incurred.’’;

16 (15) in section 106(c)—

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

18 ‘‘May 15’’;

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

20 ‘‘indirect costs’’ each place it appears and in21 serting ‘‘contract support costs’’;

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

23 the end;

24 (D) in paragraph (5), by striking the pe25 riod at the end and inserting ‘‘; and’’; and
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1 (E) by adding at the end the following new

2 paragraph:

3 ‘‘(6) an accounting of any deficiency of funds

4 needed to maintain the preexisting level of services

5 to any tribes affected by contracting activities under

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

7 needed for transitional purposes to enable contrac8 tors to convert from a Federal fiscal year accounting

9 cycle to a different accounting cycle, as authorized

10 by section 105(d).’’;

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

12 after the second sentence the following new sentence:

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

14 specified in this paragraph, an audit report shall be

15 deemed to have been received on the date of actual

16 receipt by the Secretary, if, within 60 days after re17 ceiving the report, the Secretary does not give notice

18 of a determination by the Secretary to reject the sin19 gle-agency report as insufficient due to noncompli20 ance with chapter 75 of title 31, United States

21 Code, or noncompliance with any other applicable

22 law.’’;

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

24 and inserting the following new subsection:
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1 ‘‘(g) Upon the approval of a self-determination con2 tract, the Secretary shall add to the contract the full

3 amount of funds to which the contractor is entitled under

4 section 106(a), subject to adjustments for each subsequent

5 year that such tribe or tribal organization administers a

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

7 contract.’’;

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

9 and inserting the following new subsection:

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

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

12 tribal organizations in the development of the budget for

13 the Indian Health Service and the Bureau of Indian Af14 fairs (including participation of Indian tribes and tribal

15 organizations in formulating annual budget requests that

16 the Secretary submits to the President for submission to

17 Congress pursuant to section 1105 of title 31, United

18 States Code).’’; and

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

20 following new subsections:

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

22 tribal organization may use funds provided under a self23 determination contract to meet matching or cost participa24 tion requirements under other Federal and non-Federal

25 programs.
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1 ‘‘(k) Without intending any limitation, a tribal orga2 nization may, without the approval of the Secretary, ex3 pend funds provided under a self-determination contract

4 for the following purposes, to the extent that the expendi5 ture of the funds is supportive of a contracted program:

6 ‘‘(1) Depreciation and use allowances not other7 wise specifically prohibited by law, including the de8 preciation of facilities owned by the tribe or tribal

9 organization.

10 ‘‘(2) Publication and printing costs.

11 ‘‘(3) Building, realty, and facilities costs, in12 cluding rental costs or mortgage expenses.

13 ‘‘(4) Automated data processing and similar

14 equipment or services.

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

16 ‘‘(6) Management studies.

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

18 provided in connection with judicial proceedings by

19 or against the United States.

20 ‘‘(8) Insurance and indemnification, including

21 insurance covering the risk of loss of or damage to

22 property used in connection with the contract with23 out regard to the ownership of such property.

24 ‘‘(9) Costs incurred to raise funds or contribu25 tions from non-Federal sources for the purpose of
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1 furthering the goals and objectives of the self-deter2 mination contract.

3 ‘‘(10) Interest expenses paid on capital expendi4 tures such as buildings, building renovation, or ac5 quisition or fabrication of capital equipment, and in6 terest expenses on loans necessitated due to delays

7 by the Secretary in providing funds under a con8 tract.

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

10 organization that are attributable to the manage11 ment or operation of programs under this Act.

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

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

14 of the tribal organization that provide for participa15 tion by the Federal Government.

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

17 delay the payment of funds for a period of 30 days begin18 ning on the date the Secretary makes a determination

19 under this paragraph to a tribal organization under a self20 determination contract, if the Secretary determines that

21 the tribal organization has failed to substantially carry out

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

23 Secretary shall provide the tribal organization with rea24 sonable advance written notice, technical assistance (sub25 ject to available resources) to assist the tribal organiza-
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1 tion, a hearing on the record not later than 10 days after

2 the date of such determination or such later date as the

3 tribal organization shall approve, and promptly release

4 any funds withheld upon subsequent compliance.

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

6 pursuant to this subsection, the Secretary shall have the

7 burden of proof to establish by clearly demonstrating the

8 validity of the grounds for suspending, withholding, or de9 laying payment of funds.

10 ‘‘(m) The program income earned by a tribal organi11 zation in the course of carrying out a self-determination

12 contract—

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

14 further the general purposes of the contract; and

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

16 amount of funds otherwise obligated to the contract.

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

18 or activities carried out by tribal organizations pursuant

19 to contracts entered into under this Act reduce the admin20 istrative or other responsibilities of the Secretary with re21 spect to the operation of Indian programs and result in

22 savings that have not otherwise been included in the

23 amount of contract funds determined under subsection

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

25 the provision of additional services to program bene-
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1 ficiaries, either directly or through contractors, in a man2 ner equitable to both direct and contracted programs.

3 ‘‘(o) Notwithstanding any other provision of law (in4 cluding any regulation), a tribal organization that carries

5 out a self-determination contract may, with respect to allo6 cations within the approved budget of the contract,

7 rebudget to meet contract requirements, if such

8 rebudgeting would not have an adverse effect on the per9 formance of the contract.’’.

10 SEC. 103. CONTRACT SPECIFICATIONS.

11 The Indian Self-Determination Education Assistance

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

13 section 107 the following new section:

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

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

16 under this Act shall—

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

18 provisions of the model agreement described in sub19 section (c) (with modifications where indicated and

20 the blanks appropriately filled in), and

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

22 to by the parties.

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

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

25 of such model agreement. As provided in section 1(b)(7)
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1 of the model agreement, the records of the tribal govern2 ment or tribal organization specified in such section shall

3 not be considered Federal records for purposes of chapter

4 5 of title 5, United States Code.

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

6 (a)(1) reads as follows:

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

8 THE ll TRIBAL GOVERNMENT.

9 ‘‘ ‘(a) AUTHORITY AND PURPOSE.—

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

11 Self-Determination Contract (referred to in this

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

13 Secretary of the Interior or the Secretary of Health

14 and Human Services (referred to in this agreement

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

16 States pursuant to title I of the Indian Self-Deter17 mination and Education Assistance Act (25 U.S.C.

18 450 et seq.) and by the authority of the ll tribal

19 government or tribal organization (referred to in this

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

21 title I of the Indian Self-Determination and Edu22 cation Assistance Act (25 U.S.C. 450 et seq.) are in23 corporated in this agreement.

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

25 Self-Determination and Education Assistance Act
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1 (25 U.S.C. 450 et seq.) and each provision of this

2 Contract shall be liberally construed for the benefit

3 of the Contractor to transfer the funding and the

4 following related functions, services, activities, and

5 programs (or portions thereof), that are otherwise

6 contractable under section 102(a) of such Act, in7 cluding all related administrative functions, from the

8 Federal Government to the Contractor: (List func9 tions, services, activities, and programs).

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

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

12 the Indian Self-Determination and Education Assist13 ance Act (25 U.S.C. 450j(c)(1)), the term of this

14 contract shall be ll years. Pursuant to section

15 105(d)(1) of such Act (25 U.S.C. 450j(d)), upon the

16 election by the Contractor, the period of this Con17 tract shall be determined on the basis of a calendar

18 year, unless the Secretary and the Contractor agree

19 on a different period in the annual funding agree20 ment incorporated by reference in subsection (f)(2).

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

22 become effective upon the date of the approval and

23 execution by the Contractor and the Secretary, un24 less the Contractor and the Secretary agree on an
32

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1 effective date other than the date specified in this

2 paragraph.

3 ‘‘ ‘(3) PROGRAM STANDARD.—The Contractor

4 agrees to administer the program, services, functions

5 and activities (or portions thereof) listed in sub6 section (a)(2) of the Contract in conformity with the

7 following standards: (list standards).

8 ‘‘ ‘(4) FUNDING AMOUNT.—Subject to the avail9 ability of appropriations, the Secretary shall make

10 available to the Contractor the total amount speci11 fied in the annual funding agreement incorporated

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

13 not be less than the applicable amount determined

14 pursuant to section 106(a) of the Indian Self-Deter15 mination and Education Assistance Act (25 U.S.C.

16 450j–1).

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

18 shall not be obligated to continue performance that

19 requires an expenditure of funds in excess of the

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

21 any time, the Contractor has reason to believe that

22 the total amount required for performance of this

23 Contract or a specific activity conducted under this

24 Contract would be greater than the amount of funds

25 awarded under this Contract, the Contractor shall
33

•HR 4842 RDS

1 provide reasonable notice to the appropriate Sec2 retary. If the appropriate Secretary does not take

3 such action as may be necessary to increase the

4 amount of funds awarded under this Contract, the

5 Contractor may suspend performance of the Con6 tract until such time as additional funds are

7 awarded.

8 ‘‘ ‘(6) PAYMENT.—

9 ‘‘ ‘(A) IN GENERAL.—Payments to the

10 Contractor under this Contract shall—

11 ‘‘ ‘(i) be made as expeditiously as

12 practicable; and

13 ‘‘ ‘(ii) include financial arrangements

14 to cover funding during periods covered by

15 joint resolutions adopted by Congress mak16 ing continuing appropriations, to the ex17 tent permitted by such resolutions.

18 ‘‘ ‘(B) QUARTERLY, SEMIANNUAL, LUMP19 SUM, AND OTHER METHODS OF PAYMENT.—

20 ‘‘ ‘(i) IN GENERAL.—Pursuant to sec21 tion 108(b) of the Indian Self-Determina22 tion and Education Assistance Act, and

23 notwithstanding any other provision of law,

24 for each fiscal year covered by this Con25 tract, the Secretary shall make available to
34

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1 the Contractor the funds specified for the

2 fiscal year under the annual funding agree3 ment incorporated by reference pursuant

4 to subsection (f)(2) by paying to the Con5 tractor, on a quarterly basis, one-quarter

6 of the total amount provided for in the an7 nual funding agreement for that fiscal

8 year, in a lump-sum payment or as semi9 annual payments, or any other method of

10 payment authorized by law, in accordance

11 with such method as may be requested by

12 the Contractor and specified in the annual

13 funding agreement.

14 ‘‘ ‘(ii) METHOD OF QUARTERLY PAY15 MENT.—If quarterly payments are speci16 fied in the annual funding agreement in17 corporated by reference pursuant to sub18 section (f)(2), each quarterly payment

19 made pursuant to clause (i) shall be made

20 on the first day of each quarter of the fis21 cal year, except that in any case in which

22 the contract year coincides with the Fed23 eral fiscal year, payment for the first quar24 ter shall be made not later than the date

25 that is 10 calendar days after the date on
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1 which the Office of Management and

2 Budget apportions the appropriations for

3 the fiscal year for the programs, services,

4 functions, and activities subject to this

5 Contract.

6 ‘‘ ‘(iii) APPLICABILITY.—Chapter 39

7 of title 31, United States Code, shall apply

8 to the payment of funds due under this

9 Contract and the annual funding agree10 ment referred to in clause (i).

11 ‘‘ ‘(7) RECORDS AND MONITORING.—

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

13 provided copies of tribal records that the Sec14 retary demonstrates are clearly required to be

15 maintained as part of the recordkeeping system

16 of the Department of the Interior or the De17 partment of Health and Human Services (or

18 both), records of the Contractor shall not be

19 considered Federal records for purposes of

20 chapter 5 of title 5, United States Code.

21 ‘‘ ‘(B) RECORDKEEPING SYSTEM.—The

22 Contractor shall maintain a recordkeeping sys23 tem and, upon reasonable advance request, pro24 vide reasonable access to such records to the

25 Secretary.
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1 ‘‘ ‘(C) RESPONSIBILITIES OF CONTRAC2 TOR.—The Contractor shall be responsible for

3 managing the day-to-day operations conducted

4 under this Contract and for monitoring activi5 ties conducted under this Contract to ensure

6 compliance with the contract and applicable

7 Federal requirements. With respect to the mon8 itoring activities of the Secretary, the routine

9 monitoring visits shall be limited to not more

10 than one performance monitoring visit for this

11 Contract by the head of each operating division,

12 departmental bureau, or departmental agency,

13 or duly authorized representative of such head

14 unless—

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

16 more additional visits; or

17 ‘‘ ‘(ii) the appropriate official deter18 mines that there is reasonable cause to be19 lieve that grounds for reassumption of the

20 Contract, suspension of contract payments,

21 or other serious contract performance defi22 ciency may exist.

23 No additional visit referred to in clause (ii)

24 shall be made until such time as reasonable ad25 vance notice that includes a description of the
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•HR 4842 RDS

1 nature of the problem that requires the addi2 tional visit has been given to the Contractor.

3 ‘‘ ‘(8) PROPERTY.—

4 ‘‘ ‘(A) IN GENERAL.—As provided in sec5 tion 105(f) of the Indian Self-Determination

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

7 450j(f)), at the request of the Contractor, the

8 Secretary may make available, or transfer to

9 the Contractor, all reasonably divisible real

10 property, facilities, equipment, and personal

11 property that the Secretary has used to provide

12 or administer the programs, services, functions,

13 and activities covered by this Contract. A mutu14 ally agreed upon list specifying the property, fa15 cilities, and equipment so furnished shall also

16 be prepared by the Secretary, with the concur17 rence of the Contractor, and periodically revised

18 by the Secretary, with the concurrence of the

19 Contractor.

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

21 maintain a record of all property referred to in

22 subparagraph (A) or other property acquired by

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

24 such Act for purposes of replacement.
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1 ‘‘ ‘(C) JOINT USE AGREEMENTS.—Upon

2 the request of the Contractor, the Secretary

3 and the Contractor shall enter into a separate

4 joint use agreement to address the shared use

5 by the parties of real or personal property that

6 is not reasonably divisible.

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

8 Contractor is granted the authority to acquire

9 such excess property as the Contractor may de10 termine to be appropriate in the judgment of

11 the Contractor to support the programs, serv12 ices, functions, and activities operated pursuant

13 to this Contract.

14 ‘‘ ‘(E) CONFISCATED OR EXCESS PROP15 ERTY.—The Secretary shall assist the Contrac16 tor in obtaining such confiscated or excess

17 property as may become available to tribes,

18 tribal organizations, or local governments.

19 ‘‘ ‘(F) SCREENER IDENTIFICATION

20 CARD.—A screener identification card (General

21 Services Administration form numbered 2946)

22 shall be issued to the Contractor not later than

23 the effective date of this Contract. The des24 ignated official shall, upon request, assist the

25 Contractor in securing the use of the card.
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1 ‘‘ ‘(G) CAPITAL EQUIPMENT.—The Con2 tractor shall determine the capital equipment,

3 leases, rentals, property, or services the Con4 tractor requires to perform the obligations of

5 the Contractor under this subsection, and shall

6 acquire and maintain records of such capital

7 equipment, property rentals, leases, property, or

8 services through applicable procurement proce9 dures of the Contractor.

10 ‘‘ ‘(9) AVAILABILITY OF FUNDS.—Notwith11 standing any other provision of law, any funds pro12 vided under this contract—

13 ‘‘ ‘(A) shall remain available until ex14 pended; and

15 ‘‘ ‘(B) with respect to such funds, no fur16 ther—

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

18 ‘‘ ‘(ii) justifying documentation from

19 the Contractor, shall be required prior to

20 the expenditure of such funds.

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

22 effective date of this Contract, the Secretary shall

23 authorize the Contractor to obtain interagency

24 motor pool vehicles and related services for perform-
40

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1 ance of any activities carried out under this

2 Contract.

3 ‘‘ ‘(11) FEDERAL PROGRAM GUIDELINES, MANU4 ALS, OR POLICY DIRECTIVES.—Except as specifically

5 provided in the Indian Self-Determination and Edu6 cation Assistance Act (25 U.S.C. 450 et seq.) the

7 Contractor is not required to abide by program

8 guidelines, manuals, or policy directives of the Sec9 retary, unless otherwise agreed to by the Contractor

10 and the Secretary, or otherwise required by law.

11 ‘‘ ‘(12) DISPUTES.—

12 ‘‘ ‘(A) THIRD-PARTY MEDIATION DE13 FINED.—For the purposes of this Contract, the

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

15 mediation whereby the Secretary and the Con16 tractor nominate a third party who is not em17 ployed by or significantly involved with the Sec18 retary of the Interior, the Secretary of Health

19 and Human Services, or the Contractor, to

20 serve as a third-party mediator to mediate dis21 putes under this Contract.

22 ‘‘ ‘(B) ALTERNATIVE PROCEDURES.—In

23 addition to, or as an alternative to, remedies

24 and procedures prescribed by section 110 of the

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

2 this Contract may jointly—

3 ‘‘ ‘(i) submit disputes under this Con4 tract to third-party mediation;

5 ‘‘ ‘(ii) submit the dispute to the adju6 dicatory body of the Contractor, including

7 the tribal court of the Contractor;

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

9 processes provided for under the laws, poli10 cies, or procedures of the Contractor; or

11 ‘‘ ‘(iv) use the administrative dispute

12 resolution processes authorized in sub13 chapter IV of chapter 5 of title 5, United

14 States Code.

15 ‘‘ ‘(C) EFFECT OF DECISIONS.—The Sec16 retary shall be bound by decisions made pursu17 ant to the processes set forth in subparagraph

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

19 bound by any decision that significantly con20 flicts with the interests of Indians or the United

21 States.

22 ‘‘ ‘(13) ADMINISTRATIVE PROCEDURES OF CON23 TRACTOR.—Pursuant to the Indian Civil Rights Act

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

25 and procedures of the Contractor shall provide for
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1 administrative due process (or the equivalent of ad2 ministrative due process) with respect to programs,

3 services, functions, and activities that are provided

4 by the Contractor pursuant to this Contract.

5 ‘‘ ‘(14) SUCCESSOR ANNUAL FUNDING AGREE6 MENT.—

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

8 successor annual funding agreement, provided

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

10 than 120 days prior to the conclusion of the

11 preceding annual funding agreement. Except as

12 provided in section 105(c)(2) of the Indian Self13 Determination and Education Assistance Act

14 (25 U.S.C. 450j(c)(2)) the funding for each

15 such successor annual funding agreement shall

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

17 such Act (25 U.S.C. 450j–1(b)).

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

19 prepare and supply relevant information, and

20 promptly comply with any request by the Con21 tractor for information that the Contractor rea22 sonably needs to determine the amount of funds

23 that may be available for a successor annual

24 funding agreement, as provided for in sub25 section (f)(2) of this Contract.
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1 ‘‘ ‘(15) CONTRACT REQUIREMENTS; APPROVAL

2 BY SECRETARY.—

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

4 in subparagraph (B), for the term of the Con5 tract, section 2103 of the Revised Statutes (25

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

7 18, 1934 (48 Stat. 987, chapter 576; 25 U.S.C.

8 476), shall not apply to any contract entered

9 into in connection with this Contract.

10 ‘‘ ‘(B) REQUIREMENTS.—Each Contract

11 entered into by the Contractor with a third

12 party in connection with performing the obliga13 tions of the Contractor under this Contract

14 shall—

15 ‘‘ ‘(i) be in writing;

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

17 the authorities of such parties, and pur18 poses of the Contract;

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

20 under the Contract; and

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

22 any claim, the payments to be made, and

23 the terms of the Contract, which shall be

24 fixed.

25 ‘‘ ‘(c) OBLIGATION OF THE CONTRACTOR.—
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1 ‘‘ ‘(1) CONTRACT PERFORMANCE.—Except as

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

3 perform the programs, services, functions, and ac4 tivities as provided in the annual funding agreement

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

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

7 of funds to be paid under this Contract pursuant to

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

9 funding agreement entered into between the Sec10 retary and the Contractor, which shall be incor11 porated into this Contract.

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

13 availability of appropriated funds, the Contractor

14 shall administer the programs, services, functions,

15 and activities identified in this Contract and funded

16 through the annual funding agreement under sub17 section (f)(2).

18 ‘‘ ‘(4) TRUST SERVICES FOR INDIVIDUAL INDI19 ANS.—

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

21 the annual funding agreement provides funding

22 for the delivery of trust services to individual

23 Indians that have been provided by the Sec24 retary, the Contractor shall maintain at least

25 the same level of service as the Secretary pro-
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1 vided for such individual Indians, subject to the

2 availability of appropriated funds for such

3 services.

4 ‘‘ ‘(B) TRUST SERVICES TO INDIVIDUAL IN5 DIANS.—For the purposes of this paragraph

6 only, the term ‘‘trust services for individual In7 dians’’ means only those services that pertain to

8 land or financial management connected to in9 dividually held allotments.

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

11 Contractor shall provide services under this Contract

12 in a fair and uniform manner and shall provide ac13 cess to an administrative or judicial body empowered

14 to adjudicate or otherwise resolve complaints, claims,

15 and grievances brought by program beneficiaries

16 against the Contractor arising out of the perform17 ance of the Contract.

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

19 ‘‘ ‘(1) TRUST RESPONSIBILITY.—

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

21 reaffirms the trust responsibility of the United

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

23 and conserve the trust resources of the Indian

24 tribe(s) and the trust resources of individual

25 Indians.
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1 ‘‘ ‘(B) CONSTRUCTION OF CONTRACT.—

2 Nothing in this Contract may be construed to

3 terminate, waive, modify, or reduce the trust re4 sponsibility of the United States to the tribe(s)

5 or individual Indians. The Secretary shall act in

6 good faith in upholding such trust responsibil7 ity.

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

9 programs are included in this Contract, and within

10 available funds, the Secretary shall act in good faith

11 in cooperating with the Contractor to achieve the

12 goals set forth in the Indian Health Care Improve13 ment Act (25 U.S.C. 1601 et seq.).

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

15 the annual funding agreement, the United States

16 hereby retains the programs, services, functions, and

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

18 specifically assumed by the Contractor in the annual

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

20 ‘‘ ‘(e) OTHER PROVISIONS.—

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

22 the effective date of this Contract, the United States

23 shall provide to the Contractor, and the Contractor

24 shall provide to the United States, a written des25 ignation of a senior official to serve as a representa-
47

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1 tive for notices, proposed amendments to the Con2 tract, and other purposes for this Contract.

3 ‘‘ ‘(2) CONTRACT MODIFICATIONS OR AMEND4 MENT.—

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

6 in subparagraph (B), no modification to this

7 Contract shall take effect unless such modifica8 tion is made in the form of a written amend9 ment to the Contract, and the Contractor and

10 the Secretary provide written consent for the

11 modification.

12 ‘‘ ‘(B) EXCEPTION.—The addition of sup13 plemental funds for programs, functions, and

14 activities (or portions thereof) already included

15 in the annual funding agreement under sub16 section (f)(2), and the reduction of funds pur17 suant to section 106(b)(2), shall not be subject

18 to subparagraph (A).

19 ‘‘ ‘(3) OFFICIALS NOT TO BENEFIT.—No Mem20 ber of Congress, or resident commissioner, shall be

21 admitted to any share or part of any contract exe22 cuted pursuant to this Contract, or to any benefit

23 that may arise from such contract. This paragraph

24 may not be construed to apply to any contract with

25 a third party entered into under this Contract if
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1 such contract is made with a corporation for the

2 general benefit of the corporation.

3 ‘‘ ‘(4) COVENANT AGAINST CONTINGENT

4 FEES.—The parties warrant that no person or sell5 ing agency has been employed or retained to solicit

6 or secure any contract executed pursuant to this

7 Contract upon an agreement or understanding for a

8 commission, percentage, brokerage, or contingent

9 fee, excepting bona fide employees or bona fide es10 tablished commercial or selling agencies maintained

11 by the Contractor for the purpose of securing busi12 ness.

13 ‘‘ ‘(f) ATTACHMENTS.—

14 ‘‘ ‘(1) APPROVAL OF CONTRACT.—Unless pre15 viously furnished to the Secretary, the resolution of

16 the ll Indian tribe(s) authorizing the contracting

17 of the programs, services, functions, and activities

18 identified in this Contract is attached to this Con19 tract as attachment 1.

20 ‘‘ ‘(2) ANNUAL FUNDING AGREEMENT.—

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

22 agreement under this Contract shall only con23 tain—

24 ‘‘ ‘(i) terms that identify the pro25 grams, services, functions, and activities to
49

•HR 4842 RDS

1 be performed or administered, the general

2 budget category assigned, the funds to be

3 provided, and the time and method of pay4 ment; and

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

6 a brief description of the programs, serv7 ices, functions, and activities to be per8 formed (including those supported by fi9 nancial resources other than those provided

10 by the Secretary), to which the parties

11 agree.

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

13 The annual funding agreement is hereby incor14 porated in its entirety in this Contract and at15 tached to this Contract as attachment 2.’ ’’.

16 SEC. 104. ADDITIONAL AMENDMENTS.

17 The Indian Self-Determination and Education Assist18 ance Act (25 U.S.C. 450 et seq.), as amended by sections

19 102 and 103, is further amended—

20 (1) in section 109—

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

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

23 in the management of trust fund, trust lands or

24 interests in such lands pursuant to such con25 tract or grant agreement,’’;
50

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

2 him’’ and all that follows through ‘‘in such

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

4 as prescribed by the Secretary to remedy the

5 contract deficiency, except that the appropriate

6 Secretary may, upon written notice to a tribal

7 organization, and the tribe served by the tribal

8 organization, immediately rescind a contract or

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

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

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

12 an immediate threat of imminent harm to the

13 safety of any person, or imminent substantial

14 and irreparable harm to trust funds, trust

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

16 threat arises from the failure of the contractor

17 to fulfill the requirements of the contract. In

18 such cases, the Secretary’’;

19 (C) by inserting after ‘‘rescind such con20 tract or grant agreement’’ the following: ‘‘, in

21 whole or in part,’’;

22 (D) by striking the second period after

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

24 (E) by inserting before the last sentence,

25 the following new sentence: ‘‘In any hearing or
51

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1 appeal provided for under this section, the Sec2 retary shall have the burden of proof to estab3 lish, by clearly demonstrating the validity of the

4 grounds for rescinding, assuming, or

5 reassuming the contract that is the subject of

6 the hearing.’’;

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

8 before the period at the end the following: ‘‘(includ9 ing immediate injunctive relief to reverse a declina10 tion finding under section 102(a)(2) or to compel

11 the Secretary to award and fund an approved self12 determination contract)’’; and

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

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

15 that all administrative appeals relating to such con16 tracts shall be heard by the Interior Board of Con17 tract Appeals established pursuant to section 8 of

18 such Act (41 U.S.C. 607)’’.

19 SEC. 105. REGULATIONS.

20 The Indian Self-Determination and Education Assist21 ance Act (25 U.S.C. 450 et seq.), as amended by sections

22 2 through 4, is further amended—

23 (1) by striking subsections (a) and (b) of sec24 tion 107 and inserting the following new subsections:
52

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

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

3 Secretary of the Interior and the Secretary of Health and

4 Human Services may not promulgate any regulation, nor

5 impose any nonregulatory requirement, relating to self-de6 termination contracts or the approval, award, or declina7 tion of such contracts, except that the Secretary of the

8 Interior and the Secretary of Health and Human Services

9 may promulgate regulations under this Act relating to

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

11 known as the ‘Federal Tort Claims Act’, the Contract Dis12 putes Act of 1978 (41 U.S.C. 601 et seq.), declination and

13 waiver procedures, appeal procedures, reassumption proce14 dures, discretionary grant procedures for grants awarded

15 under section 103, property donation procedures arising

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

17 to the implementation of this Act, retrocession and tribal

18 organization relinquishment procedures, contract proposal

19 contents, conflicts of interest, construction, programmatic

20 reports and data requirements, procurement standards,

21 property management standards, and financial manage22 ment standards.

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

24 including the regulations referred to in this subsection,

25 shall be promulgated—
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1 ‘‘(i) in conformance with sections 552 and 553

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

3 (d), and (e) of this section; and

4 ‘‘(ii) as a single set of regulations in title 25 of

5 the Code of Federal Regulations.

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

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

8 promulgated within 18 months after the date of enactment

9 of the Indian Self-Determination Contract Reform Act of

10 1994.

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

12 conflicting provisions of law (including any conflicting reg13 ulations) in effect on the day before the date of enactment

14 of the Indian Self-Determination Contract Reform Act of

15 1994, and the Secretary is authorized to repeal any regu16 lation inconsistent with the provisions of this Act.’’; and

17 (2) by adding at the end of section 107, the fol18 lowing new subsections:

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

20 provided in subsection (a) (including drafting and promul21 gating any revised regulations), the Secretary of the Inte22 rior and the Secretary of Health and Human Services

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

24 representatives of Indian tribes, tribal organizations, and

25 individual tribal members.
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1 ‘‘(2)(A) In carrying out rulemaking processes under

2 this Act, the Secretary of the Interior and the Secretary

3 of Health and Human Services shall follow the guidance

4 of—

5 ‘‘(i) subchapter III of chapter 5 of title 5, Unit6 ed States Code, commonly known as the ‘Negotiated

7 Rulemaking Act of 1990’; and

8 ‘‘(ii) the recommendations of the Administrative

9 Conference of the United States numbered 82–4 and

10 85–5 entitled ‘Procedures for Negotiating Proposed

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

12 of title 1, Code of Federal Regulations, and any suc13 cessor recommendation or law (including any succes14 sor regulation).

15 ‘‘(B) The tribal participants in the negotiation proc16 ess referred to in subparagraph (A) shall be nominated

17 by and shall represent the groups described in this para18 graph and shall include tribal representatives from all geo19 graphic regions.

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

21 (B) shall be conducted in a timely manner. Proposed regu22 lations to implement the amendments made by the Indian

23 Self-Determination Contract Reform Act of 1994 shall be

24 published in the Federal Register by the Secretary of the

25 Interior and the Secretary of Health and Human Services
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1 not later than 180 days after the date of enactment of

2 such Act.

3 ‘‘(D) Notwithstanding any other provision of law (in4 cluding any regulation), the Secretary of the Interior and

5 the Secretary of Health and Human Services are author6 ized to jointly establish and fund such interagency com7 mittees or other interagency bodies, including advisory

8 bodies comprised of tribal representatives, as may be nec9 essary or appropriate to carry out the provisions of this

10 Act.

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

12 of the deadlines under subsection (a)(2)(B) and subpara13 graph (C) of this paragraph is appropriate, the Secretary

14 may submit proposed legislation to Congress for the exten15 sion of such deadlines.

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

17 entered into under this Act, make exceptions in the regula18 tions promulgated to carry out this Act, or waive such reg19 ulations, if the Secretary finds that such exception or

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

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

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

23 the Secretary shall follow the timeline, findings, assist24 ance, hearing, and appeal procedures set forth in section

25 102.’’.
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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: DONNALD K. ANDERSON,

Clerk.

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