II 

Calendar No. 533 

113TH CONGRESS 

2D SESSION S. 919 

To amend the Indian Self-Determination and Education Assistance Act to 

provide further self-governance by Indian tribes, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MAY 9, 2013 

Ms. CANTWELL (for herself, Mr. BARRASSO, Mrs. MURRAY, Mr. BAUCUS, Mr. 

TESTER, Mr. UDALL of New Mexico, Mr. HEINRICH, Mr. SCHATZ, Mr. 

WYDEN, Mr. CRAPO, Ms. MURKOWSKI, Mr. BEGICH, Ms. WARREN, and 

Mr. WALSH) introduced the following bill; which was read twice and referred to the Committee on Indian Affairs 

AUGUST 26, 2014 

Reported, under authority of the order of the Senate of August 5 (legislative 

day, August 1), 2014, by Mr. TESTER, with an amendment 

[Strike out all after the enacting clause and insert the part printed in italic] 

A BILL 

To amend the Indian Self-Determination and Education Assistance Act to provide further self-governance by Indian 

tribes, 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, 


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1 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

2 (a) SHORT TITLE.—This Act may be cited as the 

3 ‘‘Department of the Interior Tribal Self-Governance Act 

4 of 2013’’. 

5 (b) TABLE OF CONTENTS.—The table of contents of 

6 this Act is as follows: 

Sec. 1. Short title; table of contents. 

TITLE I—INDIAN SELF-DETERMINATION 

Sec. 101. Definitions; reporting and audit requirements; application of provisions. 

Sec. 102. Contracts by Secretary of the Interior. 

Sec. 103. Administrative provisions. 

Sec. 104. Contract funding and indirect costs. 

Sec. 105. Contract or grant specifications. 

TITLE II—TRIBAL SELF-GOVERNANCE 

Sec. 201. Tribal self-governance. 

Sec. 202. Effect of certain provisions. 

7 TITLE I—INDIAN SELF8 DETERMINATION 

9 SEC. 101. DEFINITIONS; REPORTING AND AUDIT REQUIRE10 MENTS; APPLICATION OF PROVISIONS. 

11 (a) DEFINITIONS.—Section 4 of the Indian Self-De12 termination and Education Assistance Act (25 U.S.C. 

13 450b) is amended by striking subsection (j) and inserting 

14 the following: 

15 ‘‘(j) ‘self-determination contract’ means a contract 

16 entered into under title I (or a grant or cooperative agree17 ment used under section 9) between a tribal organization 

18 and the appropriate Secretary for the planning, conduct, 

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1 wise provided to Indian tribes and members of Indian 

2 tribes pursuant to Federal law, subject to the condition 

3 that, except as provided in section 105(a)(3), no contract 

4 entered into under title I (or grant or cooperative agree5 ment used under section 9) shall be— 

6 ‘‘(1) considered to be a procurement contract; 

7 or 

8 ‘‘(2) except as provided in section 107(a)(1), 

9 subject to any Federal procurement law (including 

10 regulations);’’. 

11 (b) REPORTING AND AUDIT REQUIREMENTS.—Sec12 tion 5(b) of the Indian Self-Determination and Education 

13 Assistance Act (25 U.S.C. 450c(b)) is amended— 

14 (1) by striking ‘‘after completion of the project 

15 or undertaking referred to in the preceding sub16 section of this section’’ and inserting ‘‘after the re17 tention period for the report that is submitted to the 

18 Secretary under subsection (a)’’; and 

19 (2) by adding at the end the following: ‘‘The re20 tention period shall be defined in regulations pro21 mulgated by the Secretary pursuant to section 

22 414.’’. 

23 (c) APPLICATION OF OTHER PROVISIONS.—Sections 

24 4, 5, 6, 7, 102(c), 104, 105(a)(1), 105(f), 110, and 111 

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1 ance Act, as amended (25 U.S.C. 450 et seq.) (Public Law 

2 93–638; 88 Stat. 2203) and section 314 of the Depart3 ment of the Interior and Related Agencies Appropriations 

4 Act, 1991 (Public Law 101–512; 104 Stat. 1959), apply 

5 to compacts and funding agreements entered into under 

6 title IV. 

7 SEC. 102. CONTRACTS BY SECRETARY OF THE INTERIOR. 

8 Section 102 of the Indian Self-Determination and 

9 Education Assistance Act (25 U.S.C. 450f) is amended— 

10 (1) in subsection (c)(2), by striking ‘‘economic 

11 enterprises’’ and all that follows through ‘‘except 

12 that’’ and inserting ‘‘economic enterprises (as de13 fined in section 3 of the Indian Financing Act of 

14 1974 (25 U.S.C. 1452)), except that’’; and 

15 (2) by adding at the end the following: 

16 ‘‘(f) GOOD FAITH REQUIREMENT.—Subject to sec17 tion 202 of the Department of the Interior Tribal Self18 Governance Act of 2013, in the negotiation of contracts 

19 and funding agreements, the Secretary shall— 

20 ‘‘(1) at all times negotiate in good faith to 

21 maximize implementation of the self-determination 

22 policy; and 

23 ‘‘(2) carry out this Act in a manner that maxi24 mizes the policy of tribal self-determination, in a 


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1 manner consistent with the purposes specified in sec2 tion 3. 

3 ‘‘(g) RULE OF CONSTRUCTION.—Subject to section 

4 202 of the Department of the Interior Tribal Self-Govern5 ance Act of 2013, each provision of this Act and each pro6 vision of a contract or funding agreement shall be liberally 

7 construed for the benefit of the Indian tribe participating 

8 in self-determination, and any ambiguity shall be resolved 

9 in favor of the Indian tribe.’’. 

10 SEC. 103. ADMINISTRATIVE PROVISIONS. 

11 Section 105 of the Indian Self-Determination and 

12 Education Assistance Act (25 U.S.C. 450j) is amended— 

13 (1) in subsection (b), in the first sentence, by 

14 striking ‘‘pursuant to’’ and all that follows through 

15 ‘‘of this Act’’ and inserting ‘‘pursuant to sections 

16 102 and 103’’; and 

17 (2) by adding at the end the following: 

18 ‘‘(p) INTERPRETATION BY SECRETARY.—Except as 

19 otherwise provided by law (including section 202 of the 

20 Department of the Interior Tribal Self-Governance Act of 

21 2013), the Secretary shall interpret all Federal laws (in22 cluding regulations) and Executive orders in a manner 

23 that facilitates, to the maximum extent practicable— 

24 ‘‘(1) the inclusion in self-determination con25 tracts and funding agreements of— 


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1 ‘‘(A) applicable programs, services, func2 tions, and activities (or portions thereof); and 

3 ‘‘(B) funds associated with those pro4 grams, services, functions, and activities; 

5 ‘‘(2) the implementation of self-determination 

6 contracts and funding agreements; and 

7 ‘‘(3) the achievement of tribal health objec8 tives.’’. 

9 SEC. 104. CONTRACT FUNDING AND INDIRECT COSTS. 

10 Section 106(a)(3) of the Indian Self-Determination 

11 and Education Assistance Act (25 U.S.C. 450j–1(a)(3)) 

12 is amended— 

13 (1) in subparagraph (A)— 

14 (A) in clause (i), by striking ‘‘, and’’ and 

15 inserting ‘‘; and’’; and 

16 (B) in clause (ii), by striking ‘‘expense re17 lated to the overhead incurred’’ and inserting 

18 ‘‘expense incurred by the governing body of the 

19 Indian tribe or tribal organization and any 

20 overhead expense incurred’’; 

21 (2) by redesignating subparagraph (B) as sub22 paragraph (C); and 

23 (3) by inserting after subparagraph (A) the fol24 lowing: 


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1 ‘‘(B) In calculating the reimbursement rate 

2 for expenses described in subparagraph (A)(ii), 

3 not less than 50 percent of the expenses de4 scribed in subparagraph (A)(ii) that are in5 curred by the governing body of an Indian tribe 

6 or tribal organization relating to a Federal pro7 gram, function, service, or activity carried out 

8 pursuant to the contract shall be considered to 

9 be reasonable and allowable.’’. 

10 SEC. 105. CONTRACT OR GRANT SPECIFICATIONS. 

11 Section 108 of the Indian Self-Determination and 

12 Education Assistance Act (25 U.S.C. 450l) is amended— 

13 (1) in subsection (a)(2), by inserting ‘‘subject 

14 to subsections (a) and (b) of section 102,’’ before 

15 ‘‘contain’’; and 

16 (2) in subsection (f)(2)(A)(ii) of the model 

17 agreement contained in subsection (c), by inserting 

18 ‘‘subject to subsections (a) and (b) of section 102 of 

19 the Indian Self-Determination and Education Assist20 ance Act (25 U.S.C. 450f),’’ before ‘‘such other pro21 visions’’. 


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1 TITLE II—TRIBAL SELF2 GOVERNANCE 

3 SEC. 201. TRIBAL SELF-GOVERNANCE. 

4 (a) DEFINITIONS.—Section 401 of the Indian Self5 Determination and Education Assistance Act (25 U.S.C. 

6 458aa) is amended to read as follows: 

7 ‘‘SEC. 401. DEFINITIONS. 

8 ‘‘In this title: 

9 ‘‘(1) COMPACT.—The term ‘compact’ means a 

10 self-governance compact entered into under section 

11 404. 

12 ‘‘(2) CONSTRUCTION PROGRAM; CONSTRUCTION

13 PROJECT.—The term ‘construction program’ or ‘con14 struction project’ means a tribal undertaking relat15 ing to the administration, planning, environmental 

16 determination, design, construction, repair, improve17 ment, or expansion of roads, bridges, buildings, 

18 structures, systems, or other facilities for purposes 

19 of housing, law enforcement, detention, sanitation, 

20 water supply, education, administration, community, 

21 health, irrigation, agriculture, conservation, flood 

22 control, transportation, or port facilities, or for other 

23 tribal purposes. 

24 ‘‘(3) DEPARTMENT.—The term ‘Department’ 

25 means the Department of the Interior. 


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1 ‘‘(4) FUNDING AGREEMENT.—The term ‘fund2 ing agreement’ means a funding agreement entered 

3 into under section 403. 

4 ‘‘(5) GROSS MISMANAGEMENT.—The term 

5 ‘gross mismanagement’ means a significant viola6 tion, shown by a preponderance of the evidence, of 

7 a compact, funding agreement, or statutory or regu8 latory requirement applicable to Federal funds— 

9 ‘‘(A) for a program administered by an In10 dian tribe; or 

11 ‘‘(B) under a compact or funding agree12 ment that results in a significant reduction of 

13 funds available for the programs assumed by an 

14 Indian tribe. 

15 ‘‘(6) INHERENT FEDERAL FUNCTION.—The 

16 term ‘inherent Federal function’ means a Federal 

17 function that may not legally be delegated to an In18 dian tribe. 

19 ‘‘(7) PROGRAM.—The term ‘program’ means 

20 any program, function, service, or activity (or por21 tion thereof) within the Department that is included 

22 in a funding agreement. 

23 ‘‘(8) SECRETARY.—The term ‘Secretary’ means 

24 the Secretary of the Interior. 


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1 ‘‘(9) SELF-GOVERNANCE.—The term ‘self-gov2 ernance’ means the Tribal Self-Governance Program 

3 established under section 402. 

4 ‘‘(10) TRIBAL SHARE.—The term ‘tribal share’ 

5 means the portion of all funds and resources of an 

6 Indian tribe that— 

7 ‘‘(A) support any program within the Bu8 reau of Indian Affairs, the Office of Special 

9 Trustee, or the Office of the Assistant Sec10 retary for Indian Affairs; and 

11 ‘‘(B) are not required by the Secretary for 

12 the performance of an inherent Federal func13 tion.’’. 

14 (b) ESTABLISHMENT.—Section 402 of the Indian 

15 Self-Determination and Education Assistance Act (25 

16 U.S.C. 458bb) is amended to read as follows: 

17 ‘‘SEC. 402. TRIBAL SELF-GOVERNANCE PROGRAM. 

18 ‘‘(a) ESTABLISHMENT.—The Secretary shall estab19 lish and carry out a program within the Department to 

20 be known as the ‘Tribal Self-Governance Program’. 

21 ‘‘(b) SELECTION OF PARTICIPATING INDIAN

22 TRIBES.— 

23 ‘‘(1) IN GENERAL.— 

24 ‘‘(A) ELIGIBILITY.—The Secretary, acting 

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1 ernance, may select up to 50 new Indian tribes 

2 per year from those eligible under subsection 

3 (c) to participate in self-governance. 

4 ‘‘(B) JOINT PARTICIPATION.—On the re5 quest of each participating Indian tribe, two or 

6 more otherwise eligible Indian tribes may be 

7 treated as a single Indian tribe for the purpose 

8 of participating in self-governance. 

9 ‘‘(2) OTHER AUTHORIZED INDIAN TRIBE OR

10 TRIBAL ORGANIZATION.—If an Indian tribe author11 izes another Indian tribe or a tribal organization to 

12 plan for or carry out a program on its behalf under 

13 this title, the authorized Indian tribe or tribal orga14 nization shall have the rights and responsibilities of 

15 the authorizing Indian tribe (except as otherwise 

16 provided in the authorizing resolution). 

17 ‘‘(3) JOINT PARTICIPATION.—Two or more In18 dian tribes that are not otherwise eligible under sub19 section (c) may be treated as a single Indian tribe 

20 for the purpose of participating in self-governance as 

21 a tribal organization if— 

22 ‘‘(A) each Indian tribe so requests; and 

23 ‘‘(B) the tribal organization itself, or at 

24 least one of the Indian tribes participating in 


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1 the tribal organization, is eligible under sub2 section (c). 

3 ‘‘(4) TRIBAL WITHDRAWAL FROM A TRIBAL OR4 GANIZATION.— 

5 ‘‘(A) IN GENERAL.—An Indian tribe that 

6 withdraws from participation in a tribal organi7 zation, in whole or in part, shall be entitled to 

8 participate in self-governance if the Indian tribe 

9 is eligible under subsection (c). 

10 ‘‘(B) EFFECT OF WITHDRAWAL.—If an In11 dian tribe withdraws from participation in a 

12 tribal organization, the Indian tribe shall be en13 titled to its tribal share of funds and resources 

14 supporting the programs that the Indian tribe 

15 is entitled to carry out under the compact and 

16 funding agreement of the Indian tribe. 

17 ‘‘(C) PARTICIPATION IN SELF-GOVERN18 ANCE.—The withdrawal of an Indian tribe from 

19 a tribal organization shall not affect the eligi20 bility of the tribal organization to participate in 

21 self-governance on behalf of one or more other 

22 Indian tribes, if the tribal organization still 

23 qualifies under subsection (c). 

24 ‘‘(D) WITHDRAWAL PROCESS.— 


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1 ‘‘(i) IN GENERAL.—An Indian tribe 

2 may, by tribal resolution, fully or partially 

3 withdraw its tribal share of any program 

4 in a funding agreement from a partici5 pating tribal organization. 

6 ‘‘(ii) NOTIFICATION.—The Indian 

7 tribe shall provide a copy of the tribal reso8 lution described in clause (i) to the Sec9 retary. 

10 ‘‘(iii) EFFECTIVE DATE.— 

11 ‘‘(I) IN GENERAL.—A withdrawal 

12 under clause (i) shall become effective 

13 on the date that is specified in the 

14 tribal resolution and mutually agreed 

15 upon by the Secretary, the with16 drawing Indian tribe, and the tribal 

17 organization that signed the compact 

18 and funding agreement on behalf of 

19 the withdrawing Indian tribe or tribal 

20 organization. 

21 ‘‘(II) NO SPECIFIED DATE.—In 

22 the absence of a date specified in the 

23 resolution, the withdrawal shall be24 come effective on— 

25 ‘‘(aa) the earlier of— 


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1 ‘‘(AA) 1 year after the 

2 date of submission of the re3 quest; and 

4 ‘‘(BB) the date on 

5 which the funding agree6 ment expires; or 

7 ‘‘(bb) such date as may be 

8 mutually agreed upon by the Sec9 retary, the withdrawing Indian 

10 tribe, and the tribal organization 

11 that signed the compact and 

12 funding agreement on behalf of 

13 the withdrawing Indian tribe or 

14 tribal organization. 

15 ‘‘(E) DISTRIBUTION OF FUNDS.—If an In16 dian tribe or tribal organization eligible to enter 

17 into a self-determination contract under title I 

18 or a compact or funding agreement under this 

19 title fully or partially withdraws from a partici20 pating tribal organization, the withdrawing In21 dian tribe— 

22 ‘‘(i) may elect to enter into a self-de23 termination contract or compact, in which 

24 case— 


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1 ‘‘(I) the withdrawing Indian tribe 

2 or tribal organization shall be entitled 

3 to its tribal share of unexpended 

4 funds and resources supporting the 

5 programs that the Indian tribe will be 

6 carrying out under its own self-deter7 mination contract or compact and 

8 funding agreement (calculated on the 

9 same basis as the funds were initially 

10 allocated to the funding agreement of 

11 the tribal organization); and 

12 ‘‘(II) the funds referred to in 

13 subclause (I) shall be withdrawn by 

14 the Secretary from the funding agree15 ment of the tribal organization and 

16 transferred to the withdrawing Indian 

17 tribe, on the condition that sections 

18 102 and 105(i), as appropriate, shall 

19 apply to the withdrawing Indian tribe; 

20 or 

21 ‘‘(ii) may elect not to enter into a self22 determination contract or compact, in 

23 which case all unexpended funds and re24 sources associated with the withdrawing 

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1 culated on the same basis as the funds 

2 were initially allocated to the funding 

3 agreement of the tribal organization) shall 

4 be returned by the tribal organization to 

5 the Secretary for operation of the pro6 grams included in the withdrawal. 

7 ‘‘(F) RETURN TO MATURE CONTRACT STA8 TUS.—If an Indian tribe elects to operate all or 

9 some programs carried out under a compact or 

10 funding agreement under this title through a 

11 self-determination contract under title I, at the 

12 option of the Indian tribe, the resulting self-de13 termination contract shall be a mature self-de14 termination contract as long as the Indian tribe 

15 meets the requirements set forth in section 

16 4(h). 

17 ‘‘(c) ELIGIBILITY.—To be eligible to participate in 

18 self-governance, an Indian tribe shall— 

19 ‘‘(1) successfully complete the planning phase 

20 described in subsection (d); 

21 ‘‘(2) request participation in self-governance by 

22 resolution or other official action by the tribal gov23 erning body; and 

24 ‘‘(3) demonstrate, for the 3 fiscal years pre25 ceding the date on which the Indian tribe requests 


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1 participation, financial stability and financial man2 agement capability as evidenced by the Indian tribe 

3 having no uncorrected significant and material audit 

4 exceptions in the required annual audit of its self5 determination or self-governance agreements with 

6 any Federal agency. 

7 ‘‘(d) PLANNING PHASE.— 

8 ‘‘(1) IN GENERAL.—An Indian tribe seeking to 

9 begin participation in self-governance shall complete 

10 a planning phase as provided in this subsection. 

11 ‘‘(2) ACTIVITIES.—The planning phase shall— 

12 ‘‘(A) be conducted to the satisfaction of 

13 the Indian tribe; and 

14 ‘‘(B) include— 

15 ‘‘(i) legal and budgetary research; and 

16 ‘‘(ii) internal tribal government plan17 ning, training, and organizational prepara18 tion. 

19 ‘‘(e) GRANTS.— 

20 ‘‘(1) IN GENERAL.—Subject to the availability 

21 of appropriations, an Indian tribe or tribal organiza22 tion that meets the requirements of paragraphs (2) 

23 and (3) of subsection (c) shall be eligible for 

24 grants— 


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1 ‘‘(A) to plan for participation in self-gov2 ernance; and 

3 ‘‘(B) to negotiate the terms of participa4 tion by the Indian tribe or tribal organization 

5 in self-governance, as set forth in a compact 

6 and a funding agreement. 

7 ‘‘(2) RECEIPT OF GRANT NOT REQUIRED.—Re8 ceipt of a grant under paragraph (1) shall not be a 

9 requirement of participation in self-governance.’’. 

10 (c) FUNDING AGREEMENTS.—Section 403 of the In11 dian Self-Determination and Education Assistance Act 

12 (25 U.S.C. 458cc) is amended— 

13 (1) by striking subsection (a) and inserting the 

14 following: 

15 ‘‘(a) AUTHORIZATION.—The Secretary shall, on the 

16 request of any Indian tribe or tribal organization, enter 

17 into a written funding agreement with the governing body 

18 of the Indian tribe or the tribal organization in a manner 

19 consistent with— 

20 ‘‘(1) the trust responsibility of the Federal Gov21 ernment, treaty obligations, and the government-to22 government relationship between Indian tribes and 

23 the United States; and 

24 ‘‘(2) subsection (b).’’; 

25 (2) in subsection (b)— 


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1 (A) in paragraph (1)— 

2 (i) in the matter preceding subpara3 graph (A), by striking ‘‘without regard to 

4 the agency or office of the Bureau of In5 dian Affairs’’ and inserting ‘‘the Office of 

6 the Assistant Secretary for Indian Affairs, 

7 and the Office of the Special Trustee, 

8 without regard to the agency or office of 

9 that Bureau or those Offices’’; 

10 (ii) in subparagraph (B), by striking 

11 ‘‘and’’; 

12 (iii) in subparagraph (C), by inserting 

13 ‘‘and’’ after the semicolon at the end; and 

14 (iv) by adding at the end the fol15 lowing: 

16 ‘‘(D) any other programs, services, func17 tions, or activities (or portions thereof) that are 

18 provided through the Bureau of Indian Affairs, 

19 the Office of the Assistant Secretary for Indian 

20 Affairs, or the Office of the Special Trustee 

21 with respect to which Indian tribes or Indians 

22 are primary or significant beneficiaries;’’; 

23 (B) in paragraph (2)— 

24 (i) by striking ‘‘section 405(c)’’ and 

25 inserting ‘‘section 413(c)’’; and 


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1 (ii) by inserting ‘‘and’’ after the semi2 colon at the end; 

3 (C) in paragraph (3), by striking the semi4 colon at the end and inserting a period; and 

5 (D) by striking paragraphs (4) through 

6 (9); and 

7 (3) by adding at the end the following: 

8 ‘‘(m) OTHER PROVISIONS.— 

9 ‘‘(1) EXCLUDED FUNDING.—A funding agree10 ment shall not authorize an Indian tribe to plan, 

11 conduct, administer, or receive tribal share funding 

12 under any program that— 

13 ‘‘(A) is provided under the Tribally Con14 trolled Colleges and Universities Assistance Act 

15 of 1978 (25 U.S.C. 1801 et seq.); and 

16 ‘‘(B) is provided for elementary and sec17 ondary schools under the formula developed 

18 under section 1127 of the Education Amend19 ments of 1978 (25 U.S.C. 2007). 

20 ‘‘(2) SERVICES, FUNCTIONS, AND RESPONSIBIL21 ITIES.—A funding agreement shall specify— 

22 ‘‘(A) the services to be provided under the 

23 funding agreement; 

24 ‘‘(B) the functions to be performed under 

25 the funding agreement; and 


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1 ‘‘(C) the responsibilities of the Indian tribe 

2 and the Secretary under the funding agreement. 

3 ‘‘(3) BASE BUDGET.—A funding agreement 

4 shall, at the option of the Indian tribe, provide for 

5 a stable base budget specifying the recurring funds 

6 (which may include funds available under section 

7 106(a)) to be transferred to the Indian tribe, for 

8 such period as the Indian tribe specifies in the fund9 ing agreement, subject to annual adjustment only to 

10 reflect changes in congressional appropriations. 

11 ‘‘(4) NO WAIVER OF TRUST RESPONSIBILITY.— 

12 A funding agreement shall prohibit the Secretary 

13 from waiving, modifying, or diminishing in any way 

14 the trust responsibility of the United States with re15 spect to Indian tribes and individual Indians that ex16 ists under treaties, Executive orders, court decisions, 

17 and other laws. 

18 ‘‘(n) AMENDMENT.—The Secretary shall not revise, 

19 amend, or require additional terms in a new or subsequent 

20 funding agreement without the consent of the Indian tribe, 

21 unless such terms are required by Federal law. 

22 ‘‘(o) EFFECTIVE DATE.—A funding agreement shall 

23 become effective on the date specified in the funding 

24 agreement. 


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1 ‘‘(p) EXISTING AND SUBSEQUENT FUNDING AGREE2 MENTS.— 

3 ‘‘(1) SUBSEQUENT FUNDING AGREEMENTS.— 

4 Absent notification from an Indian tribe that the In5 dian tribe is withdrawing or retroceding the oper6 ation of one or more programs identified in a fund7 ing agreement, or unless otherwise agreed to by the 

8 parties to the funding agreement or by the nature 

9 of any noncontinuing program, service, function, or 

10 activity contained in a funding agreement— 

11 ‘‘(A) a funding agreement shall remain in 

12 full force and effect until a subsequent funding 

13 agreement is executed, with funding paid annu14 ally for each fiscal year the agreement is in ef15 fect; and 

16 ‘‘(B) the term of the subsequent funding 

17 agreement shall be retroactive to the end of the 

18 term of the preceding funding agreement for 

19 the purposes of calculating the amount of fund20 ing to which the Indian tribe is entitled. 

21 ‘‘(2) DISPUTES.—Disputes over the implemen22 tation of paragraph (1)(A) shall be subject to section 

23 406(c). 

24 ‘‘(3) EXISTING FUNDING AGREEMENTS.—An 

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1 ance under this title on the date of enactment of the 

2 Department of the Interior Tribal Self-Governance 

3 Act of 2013 shall have the option at any time after 

4 that date— 

5 ‘‘(A) to retain its existing funding agree6 ment (in whole or in part) to the extent that 

7 the provisions of that funding agreement are 

8 not directly contrary to any express provision of 

9 this title; or 

10 ‘‘(B) to negotiate a new funding agreement 

11 in a manner consistent with this title. 

12 ‘‘(4) MULTIYEAR FUNDING AGREEMENTS.—An 

13 Indian tribe may, at the discretion of the Indian 

14 tribe, negotiate with the Secretary for a funding 

15 agreement with a term that exceeds 1 year.’’. 

16 (d) GENERAL REVISIONS.—Title IV of the Indian 

17 Self-Determination and Education Assistance Act (25 

18 U.S.C. 450aa et seq.) is amended by striking sections 404 

19 through 408 and inserting the following: 

20 ‘‘SEC. 404. COMPACTS. 

21 ‘‘(a) IN GENERAL.—The Secretary shall negotiate 

22 and enter into a written compact with each Indian tribe 

23 participating in self-governance in a manner consistent 

24 with the trust responsibility of the Federal Government, 


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1 treaty obligations, and the government-to-government re2 lationship between Indian tribes and the United States. 

3 ‘‘(b) CONTENTS.—A compact under subsection (a) 

4 shall— 

5 ‘‘(1) specify and affirm the general terms of the 

6 government-to-government relationship between the 

7 Indian tribe and the Secretary; and 

8 ‘‘(2) include such terms as the parties intend 

9 shall control during the term of the compact. 

10 ‘‘(c) AMENDMENT.—A compact under subsection (a) 

11 may be amended only by agreement of the parties. 

12 ‘‘(d) EFFECTIVE DATE.—The effective date of a com13 pact under subsection (a) shall be— 

14 ‘‘(1) the date of the execution of the compact 

15 by the parties; or 

16 ‘‘(2) another date agreed upon by the parties. 

17 ‘‘(e) DURATION.—A compact under subsection (a) 

18 shall remain in effect— 

19 ‘‘(1) for so long as permitted by Federal law; 

20 or 

21 ‘‘(2) until termination by written agreement, 

22 retrocession, or reassumption. 

23 ‘‘(f) EXISTING COMPACTS.—An Indian tribe partici24 pating in self-governance under this title, as in effect on 

25 the date of enactment of the Department of the Interior 


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1 Tribal Self-Governance Act of 2013, shall have the option 

2 at any time after that date— 

3 ‘‘(1) to retain its negotiated compact (in whole 

4 or in part) to the extent that the provisions of the 

5 compact are not directly contrary to any express 

6 provision of this title; or 

7 ‘‘(2) to negotiate a new compact in a manner 

8 consistent with this title. 

9 ‘‘SEC. 405. GENERAL PROVISIONS. 

10 ‘‘(a) APPLICABILITY.—An Indian tribe and the Sec11 retary shall include in any compact or funding agreement 

12 provisions that reflect the requirements of this title. 

13 ‘‘(b) CONFLICTS OF INTEREST.—An Indian tribe 

14 participating in self-governance shall ensure that internal 

15 measures are in place to address, pursuant to tribal law 

16 and procedures, conflicts of interest in the administration 

17 of programs. 

18 ‘‘(c) AUDITS.— 

19 ‘‘(1) SINGLE AGENCY AUDIT ACT.—Chapter 75 

20 of title 31, United States Code, shall apply to a 

21 funding agreement under this title. 

22 ‘‘(2) COST PRINCIPLES.—An Indian tribe shall 

23 apply cost principles under the applicable Office of 

24 Management and Budget circular, except as modi25 fied by— 


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1 ‘‘(A) any provision of law, including section 

2 106; or 

3 ‘‘(B) any exemptions to applicable Office 

4 of Management and Budget circulars subse5 quently granted by the Office of Management 

6 and Budget. 

7 ‘‘(3) FEDERAL CLAIMS.—Any claim by the Fed8 eral Government against an Indian tribe relating to 

9 funds received under a funding agreement based on 

10 any audit under this subsection shall be subject to 

11 section 106(f). 

12 ‘‘(d) REDESIGN AND CONSOLIDATION.—Except as 

13 provided in section 407, an Indian tribe may redesign or 

14 consolidate programs or reallocate funds for programs in 

15 any manner that the Indian tribe determines to be in the 

16 best interest of the Indian community being served, so 

17 long as that the redesign or consolidation does not have 

18 the effect of denying eligibility for services to population 

19 groups otherwise eligible to be served under applicable 

20 Federal law, except that, with respect to the reallocation, 

21 consolidation, and redesign of programs described in sub22 section (b)(2) or (c) of section 403, a joint agreement be23 tween the Secretary and the Indian tribe shall be required. 

24 ‘‘(e) RETROCESSION.— 


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1 ‘‘(1) IN GENERAL.—An Indian tribe may fully 

2 or partially retrocede to the Secretary any program 

3 under a compact or funding agreement. 

4 ‘‘(2) EFFECTIVE DATE.— 

5 ‘‘(A) AGREEMENT.—Unless an Indian 

6 tribe rescinds a request for retrocession under 

7 paragraph (1), the retrocession shall become ef8 fective on the date specified by the parties in 

9 the compact or funding agreement. 

10 ‘‘(B) NO AGREEMENT.—In the absence of 

11 a specification of an effective date in the com12 pact or funding agreement, the retrocession 

13 shall become effective on— 

14 ‘‘(i) the earlier of— 

15 ‘‘(I) 1 year after the date on 

16 which the request is submitted; and 

17 ‘‘(II) the date on which the fund18 ing agreement expires; or 

19 ‘‘(ii) such date as may be mutually 

20 agreed upon by the Secretary and the In21 dian tribe. 

22 ‘‘(f) NONDUPLICATION.—A funding agreement shall 

23 provide that, for the period for which, and to the extent 

24 to which, funding is provided to an Indian tribe under this 

25 title, the Indian tribe— 


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1 ‘‘(1) shall not be entitled to contract with the 

2 Secretary for funds under section 102, except that 

3 the Indian tribe shall be eligible for new programs 

4 on the same basis as other Indian tribes; and 

5 ‘‘(2) shall be responsible for the administration 

6 of programs in accordance with the compact or 

7 funding agreement. 

8 ‘‘(g) RECORDS.— 

9 ‘‘(1) IN GENERAL.—Unless an Indian tribe 

10 specifies otherwise in the compact or funding agree11 ment, records of an Indian tribe shall not be consid12 ered to be Federal records for purposes of chapter 

13 5 of title 5, United States Code. 

14 ‘‘(2) RECORDKEEPING SYSTEM.—An Indian 

15 tribe shall— 

16 ‘‘(A) maintain a recordkeeping system; and 

17 ‘‘(B) on a notice period of not less than 30 

18 days, provide the Secretary with reasonable ac19 cess to the records to enable the Department to 

20 meet the requirements of sections 3101 through 

21 3106 of title 44, United States Code. 

22 ‘‘SEC. 406. PROVISIONS RELATING TO THE SECRETARY. 

23 ‘‘(a) TRUST EVALUATIONS.—A funding agreement 

24 shall include a provision to monitor the performance of 


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1 trust functions by the Indian tribe through the annual 

2 trust evaluation. 

3 ‘‘(b) REASSUMPTION.— 

4 ‘‘(1) IN GENERAL.—A compact or funding 

5 agreement shall include provisions for the Secretary 

6 to reassume a program and associated funding if 

7 there is a specific finding relating to that program 

8 of— 

9 ‘‘(A) imminent jeopardy to a trust asset, 

10 natural resources, or public health and safety 

11 that— 

12 ‘‘(i) is caused by an act or omission of 

13 the Indian tribe; and 

14 ‘‘(ii) arises out of a failure to carry 

15 out the compact or funding agreement; or 

16 ‘‘(B) gross mismanagement with respect to 

17 funds transferred to an Indian tribe under a 

18 compact or funding agreement, as determined 

19 by the Secretary in consultation with the In20 spector General, as appropriate. 

21 ‘‘(2) PROHIBITION.—The Secretary shall not 

22 reassume operation of a program, in whole or part, 

23 unless— 


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1 ‘‘(A) the Secretary first provides written 

2 notice and a hearing on the record to the In3 dian tribe; and 

4 ‘‘(B) the Indian tribe does not take correc5 tive action to remedy the mismanagement of 

6 the funds or programs, or the imminent jeop7 ardy to a trust asset, natural resource, or pub8 lic health and safety. 

9 ‘‘(3) EXCEPTION.— 

10 ‘‘(A) IN GENERAL.—Notwithstanding para11 graph (2), the Secretary may, on written notice 

12 to the Indian tribe, immediately reassume oper13 ation of a program if— 

14 ‘‘(i) the Secretary makes a finding of 

15 imminent and substantial jeopardy and ir16 reparable harm to a trust asset, a natural 

17 resource, or the public health and safety 

18 caused by an act or omission of the Indian 

19 tribe; and 

20 ‘‘(ii) the imminent and substantial 

21 jeopardy, and irreparable harm to the trust 

22 asset, natural resource, or public health 

23 and safety arises out of a failure by the In24 dian tribe to carry out the terms of an ap25 plicable compact or funding agreement. 


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1 ‘‘(B) REASSUMPTION.—If the Secretary re2 assumes operation of a program under subpara3 graph (A), the Secretary shall provide the In4 dian tribe with a hearing on the record not 

5 later than 10 days after the date of reassump6 tion. 

7 ‘‘(c) INABILITY TO AGREE ON COMPACT OR FUND8 ING AGREEMENT.— 

9 ‘‘(1) FINAL OFFER.—If the Secretary and a 

10 participating Indian tribe are unable to agree, in 

11 whole or in part, on the terms of a compact or fund12 ing agreement (including funding levels), the Indian 

13 tribe may submit a final offer to the Secretary. 

14 ‘‘(2) DETERMINATION.—Not more than 60 

15 days after the date of receipt of a final offer by the 

16 one or more officials designated pursuant to para17 graph (4), the Secretary shall review and make a de18 termination with respect to the final offer. 

19 ‘‘(3) EXTENSIONS.—The deadline described in 

20 paragraph (2) may be extended for any length of 

21 time, as agreed upon by both the Indian tribe and 

22 the Secretary. 

23 ‘‘(4) DESIGNATED OFFICIALS.— 

24 ‘‘(A) IN GENERAL.—The Secretary shall 

25 designate one or more appropriate officials in 


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1 the Department to receive a copy of the final 

2 offer described in paragraph (1). 

3 ‘‘(B) NO DESIGNATION.—If no official is 

4 designated, the Executive Secretariat of the 

5 Secretary shall be the designated official. 

6 ‘‘(5) NO TIMELY DETERMINATION.—Except as 

7 otherwise provided in section 202 of the Department 

8 of the Interior Tribal Self-Governance Act of 2013, 

9 if the Secretary fails to make a determination with 

10 respect to a final offer within the period specified in 

11 paragraph (2), the Secretary shall be deemed to 

12 have agreed to the offer. 

13 ‘‘(6) REJECTION OF FINAL OFFER.— 

14 ‘‘(A) IN GENERAL.—If the Secretary re15 jects a final offer (or one or more provisions or 

16 funding levels in a final offer), the Secretary 

17 shall— 

18 ‘‘(i) provide timely written notification 

19 to the Indian tribe that contains a specific 

20 finding that clearly demonstrates, or that 

21 is supported by a controlling legal author22 ity, that— 

23 ‘‘(I) the amount of funds pro24 posed in the final offer exceeds the 


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1 applicable funding level as determined 

2 under section 106(a)(1); 

3 ‘‘(II) the program that is the 

4 subject of the final offer is an inher5 ent Federal function or is subject to 

6 the discretion of the Secretary under 

7 section 403(c); 

8 ‘‘(III) the Indian tribe cannot 

9 carry out the program in a manner 

10 that would not result in significant 

11 danger or risk to the public health or 

12 safety, to natural resources, or to 

13 trust resources; 

14 ‘‘(IV) the Indian tribe is not eli15 gible to participate in self-governance 

16 under section 402(c); 

17 ‘‘(V) the funding agreement 

18 would violate a Federal statute or reg19 ulation; or 

20 ‘‘(VI) with respect to a program 

21 or portion of a program included in a 

22 final offer pursuant to section 

23 403(b)(2), the program or the portion 

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1 able to Indian tribes or Indians under 

2 section 102(a)(1)(E); 

3 ‘‘(ii) provide technical assistance to 

4 overcome the objections stated in the noti5 fication required by clause (i); 

6 ‘‘(iii) provide the Indian tribe with— 

7 ‘‘(I) a hearing on the record with 

8 the right to engage in full discovery 

9 relevant to any issue raised in the 

10 matter; and 

11 ‘‘(II) the opportunity for appeal 

12 on the objections raised (except that 

13 the Indian tribe may, in lieu of filing 

14 such appeal, directly proceed to ini15 tiate an action in a United States dis16 trict court under section 110(a)); and 

17 ‘‘(iv) provide the Indian tribe the op18 tion of entering into the severable portions 

19 of a final proposed compact or funding 

20 agreement (including a lesser funding 

21 amount, if any), that the Secretary did not 

22 reject, subject to any additional alterations 

23 necessary to conform the compact or fund24 ing agreement to the severed provisions. 


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1 ‘‘(B) EFFECT OF EXERCISING CERTAIN

2 OPTION.—If an Indian tribe exercises the op3 tion specified in subparagraph (A)(iv)— 

4 ‘‘(i) the Indian tribe shall retain the 

5 right to appeal the rejection by the Sec6 retary under this section; and 

7 ‘‘(ii) clauses (i), (ii), and (iii) of sub8 paragraph (A) shall apply only to the por9 tion of the proposed final compact or fund10 ing agreement that was rejected by the 

11 Secretary. 

12 ‘‘(d) BURDEN OF PROOF.—In any administrative ac13 tion, hearing, or appeal or civil action brought under this 

14 section, the Secretary shall have the burden of proof— 

15 ‘‘(1) of demonstrating, by a preponderance of 

16 the evidence, the validity of the grounds for a re17 assumption under subsection (b); and 

18 ‘‘(2) of clearly demonstrating the validity of the 

19 grounds for rejecting a final offer made under sub20 section (c). 

21 ‘‘(e) GOOD FAITH.— 

22 ‘‘(1) IN GENERAL.—Subject to section 202 of 

23 the Department of the Interior Tribal Self-Govern24 ance Act of 2013, in the negotiation of compacts 

25 and funding agreements, the Secretary shall at all 


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1 times negotiate in good faith to maximize implemen2 tation of the self-governance policy. 

3 ‘‘(2) POLICY.—Subject to section 202 of the 

4 Department of the Interior Tribal Self-Governance 

5 Act of 2013, the Secretary shall carry out this title 

6 in a manner that maximizes the policy of tribal self7 governance. 

8 ‘‘(f) SAVINGS.— 

9 ‘‘(1) IN GENERAL.—To the extent that pro10 grams carried out for the benefit of Indian tribes 

11 and tribal organizations under this title reduce the 

12 administrative or other responsibilities of the Sec13 retary with respect to the operation of Indian pro14 grams and result in savings that have not otherwise 

15 been included in the amount of tribal shares and 

16 other funds determined under section 408(c), except 

17 for funding agreements entered into for programs 

18 under section 403(c), the Secretary shall make such 

19 savings available to the Indian tribes or tribal orga20 nizations for the provision of additional services to 

21 program beneficiaries in a manner equitable to di22 rectly served, contracted, and compacted programs. 

23 ‘‘(2) DISCRETIONARY PROGRAMS OF SPECIAL

24 SIGNIFICANCE.—For any savings generated as a re25 sult of the assumption of a program by an Indian 


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1 tribe under section 403(c), such savings shall be 

2 made available to that Indian tribe. 

3 ‘‘(g) TRUST RESPONSIBILITY.—The Secretary may 

4 not waive, modify, or diminish in any way the trust re5 sponsibility of the United States with respect to Indian 

6 tribes and individual Indians that exists under treaties, 

7 Executive orders, other laws, or court decisions. 

8 ‘‘(h) DECISIONMAKER.—A decision that constitutes 

9 final agency action and relates to an appeal within the 

10 Department conducted under subsection (c)(4) may be 

11 made by— 

12 ‘‘(1) an official of the Department who holds a 

13 position at a higher organizational level within the 

14 Department than the level of the departmental agen15 cy in which the decision that is the subject of the 

16 appeal was made; or 

17 ‘‘(2) an administrative law judge. 

18 ‘‘(i) RULES OF CONSTRUCTION.—Subject to section 

19 202 of the Department of the Interior Tribal Self-Govern20 ance Act of 2013, each provision of this title and each 

21 provision of a compact or funding agreement shall be lib22 erally construed for the benefit of the Indian tribe partici23 pating in self-governance, and any ambiguity shall be re24 solved in favor of the Indian tribe. 


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1 ‘‘SEC. 407. CONSTRUCTION PROGRAMS AND PROJECTS. 

2 ‘‘(a) IN GENERAL.—Indian tribes participating in 

3 tribal self-governance may carry out construction projects 

4 under this title. 

5 ‘‘(b) TRIBAL OPTION TO CARRY OUT CERTAIN FED6 ERAL ENVIRONMENTAL ACTIVITIES.—In carrying out a 

7 construction project under this title, an Indian tribe may, 

8 subject to the agreement of the Secretary, elect to assume 

9 some Federal responsibilities under the National Environ10 mental Policy Act of 1969 (42 U.S.C. 4321 et seq.), the 

11 National Historic Preservation Act (16 U.S.C. 470 et 

12 seq.), and related provisions of law and regulations that 

13 would apply if the Secretary were to undertake a construc14 tion project, by adopting a resolution— 

15 ‘‘(1) designating a certifying tribal officer to 

16 represent the Indian tribe and to assume the status 

17 of a responsible Federal official under those Acts or 

18 regulations; and 

19 ‘‘(2) accepting the jurisdiction of the United 

20 States courts for the purpose of enforcing the re21 sponsibilities of the certifying tribal officer assuming 

22 the status of a responsible Federal official under 

23 those Acts or regulations. 

24 ‘‘(c) SAVINGS CLAUSE.—Notwithstanding subsection 

25 (b), nothing in this section authorizes the Secretary to in26 clude in any compact or funding agreement duties of the 


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1 Secretary under the National Environmental Policy Act 

2 (42 U.S.C. 4321 et seq.), the National Historic Preserva3 tion Act (16 U.S.C. 470 et seq.), and other related provi4 sions of law that are inherent Federal functions. 

5 ‘‘(d) CODES AND STANDARDS.—In carrying out a 

6 construction project under this title, an Indian tribe 

7 shall— 

8 ‘‘(1) adhere to applicable Federal, State, local, 

9 and tribal building codes, architectural and engineer10 ing standards, and applicable Federal guidelines re11 garding design, space, and operational standards, 

12 appropriate for the particular project; and 

13 ‘‘(2) use only architects and engineers who— 

14 ‘‘(A) are licensed to practice in the State 

15 in which the facility will be built; and 

16 ‘‘(B) certify that— 

17 ‘‘(i) they are qualified to perform the 

18 work required by the specific construction 

19 involved; and 

20 ‘‘(ii) upon completion of design, the 

21 plans and specifications meet or exceed the 

22 applicable construction and safety codes. 

23 ‘‘(e) TRIBAL ACCOUNTABILITY.— 

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1 sume responsibility for the successful completion of 

2 the construction project and of a facility that is usa3 ble for the purpose for which the Indian tribe re4 ceived funding. 

5 ‘‘(2) REQUIREMENTS.—For each construction 

6 project carried out by an Indian tribe under this 

7 title, the Indian tribe and the Secretary shall nego8 tiate a provision to be included in the funding agree9 ment that identifies— 

10 ‘‘(A) the approximate start and completion 

11 dates for the project, which may extend over a 

12 period of one or more years; 

13 ‘‘(B) a general description of the project, 

14 including the scope of work, references to de15 sign criteria, and other terms and conditions; 

16 ‘‘(C) the responsibilities of the Indian tribe 

17 and the Secretary for the project; 

18 ‘‘(D) how project-related environmental 

19 considerations will be addressed; 

20 ‘‘(E) the amount of funds provided for the 

21 project; 

22 ‘‘(F) the obligations of the Indian tribe to 

23 comply with the codes referenced in subsection 

24 (c)(1) and applicable Federal laws and regula25 tions; 


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1 ‘‘(G) the agreement of the parties over who 

2 will bear any additional costs necessary to meet 

3 changes in scope, or errors or omissions in de4 sign and construction; and 

5 ‘‘(H) the agreement of the Secretary to 

6 issue a certificate of occupancy, if requested by 

7 the Indian tribe, based upon the review and 

8 verification by the Secretary, to the satisfaction 

9 of the Secretary, that the Indian tribe has se10 cured upon completion the review and approval 

11 of the plans and specifications, sufficiency of 

12 design, life safety, and code compliance by 

13 qualified, licensed, and independent architects 

14 and engineers. 

15 ‘‘(f) FUNDING.— 

16 ‘‘(1) IN GENERAL.—Subject to section 202 of 

17 the Department of the Interior Tribal Self-Govern18 ance Act of 2013, funding appropriated for con19 struction projects carried out under this title shall 

20 be included in funding agreements as annual or 

21 semiannual advance payments at the option of the 

22 Indian tribe. 

23 ‘‘(2) ADVANCE PAYMENTS.—Subject to section 

24 202 of the Department of the Interior Tribal Self25 Governance Act of 2013, the Secretary shall include 


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1 all associated project contingency funds with each 

2 advance payment, and the Indian tribe shall be re3 sponsible for the management of such contingency 

4 funds. 

5 ‘‘(g) NEGOTIATIONS.—At the option of the Indian 

6 tribe, construction project funding proposals shall be nego7 tiated pursuant to the statutory process in section 105, 

8 and any resulting construction project agreement shall be 

9 incorporated into the funding agreement as addenda. 

10 ‘‘(h) FEDERAL REVIEW AND VERIFICATION.— 

11 ‘‘(1) IN GENERAL.—On a schedule negotiated 

12 by the Secretary and the Indian tribe— 

13 ‘‘(A) the Secretary shall review and verify, 

14 to the satisfaction of the Secretary, that project 

15 planning and design documents prepared by the 

16 Indian tribe in advance of initial construction 

17 are in conformity with the obligations of the In18 dian tribe under subsection (c); and 

19 ‘‘(B) before the project planning and de20 sign documents are implemented, the Secretary 

21 shall review and verify to the satisfaction of the 

22 Secretary that subsequent document amend23 ments which result in a significant change in 

24 construction are in conformity with the obliga25 tions of the Indian tribe under subsection (c). 


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1 ‘‘(2) REPORTS.—The Indian tribe shall provide 

2 the Secretary with project progress and financial re3 ports not less than semiannually. 

4 ‘‘(3) OVERSIGHT VISITS.—The Secretary may 

5 conduct onsite project oversight visits semiannually 

6 or on an alternate schedule agreed to by the Sec7 retary and the Indian tribe. 

8 ‘‘(i) APPLICATION OF OTHER LAWS.—Unless other9 wise agreed to by the Indian tribe and except as otherwise 

10 provided in this Act, no provision of the Office of Federal 

11 Procurement Policy Act (41 U.S.C. 401 et seq.), the Fed12 eral Acquisition Regulations issued pursuant to that Act, 

13 or any other law or regulation pertaining to Federal pro14 curement (including Executive orders) shall apply to any 

15 construction program or project carried out under this 

16 title. 

17 ‘‘(j) FUTURE FUNDING.—Subject to section 202 of 

18 the Department of the Interior Tribal Self-Governance Act 

19 of 2013, upon completion of a facility constructed under 

20 this title, the Secretary shall include the facility among 

21 those eligible for annual operation and maintenance fund22 ing support comparable to that provided for similar facili23 ties funded by the Department as annual appropriations 

24 are available and to the extent that the facility size and 


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1 complexity and other factors do not exceed the funding 

2 formula criteria for comparable buildings. 

3 ‘‘SEC. 408. PAYMENT. 

4 ‘‘(a) IN GENERAL.—At the request of the governing 

5 body of an Indian tribe and under the terms of an applica6 ble funding agreement, the Secretary shall provide funding 

7 to the Indian tribe to carry out the funding agreement. 

8 ‘‘(b) ADVANCE ANNUAL PAYMENT.—At the option of 

9 the Indian tribe, a funding agreement shall provide for 

10 an advance annual payment to an Indian tribe. 

11 ‘‘(c) AMOUNT.— 

12 ‘‘(1) IN GENERAL.—Subject to subsection (e) 

13 and sections 403 and 405, the Secretary shall pro14 vide funds to the Indian tribe under a funding 

15 agreement for programs in an amount that is equal 

16 to the amount that the Indian tribe would have been 

17 entitled to receive under contracts and grants under 

18 this Act (including amounts for direct program and 

19 contract support costs and, in addition, any funds 

20 that are specifically or functionally related to the 

21 provision by the Secretary of services and benefits to 

22 the Indian tribe or its members) without regard to 

23 the organization level within the Department at 

24 which the programs are carried out. 


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1 ‘‘(2) SAVINGS CLAUSE.—Nothing in this section 

2 reduces programs, services, or funds of, or provided 

3 to, another Indian tribe. 

4 ‘‘(d) TIMING.— 

5 ‘‘(1) IN GENERAL.—Pursuant to the terms of 

6 any compact or funding agreement entered into 

7 under this title, the Secretary shall transfer to the 

8 Indian tribe all funds provided for in the funding 

9 agreement, pursuant to subsection (c), and provide 

10 funding for periods covered by joint resolution 

11 adopted by Congress making continuing appropria12 tions, to the extent permitted by such resolution. 

13 ‘‘(2) TRANSFERS.—Not later than 1 year after 

14 the date of enactment of the Department of the In15 terior Tribal Self-Governance Act of 2013, in any in16 stance in which a funding agreement requires an an17 nual transfer of funding to be made at the beginning 

18 of a fiscal year or requires semiannual or other peri19 odic transfers of funding to be made commencing at 

20 the beginning of a fiscal year, the first such transfer 

21 shall be made not later than 10 days after the ap22 portionment of such funds by the Office of Manage23 ment and Budget to the Department, unless the 

24 funding agreement provides otherwise. 


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1 ‘‘(e) AVAILABILITY.—Funds for trust services to indi2 vidual Indians shall be available under a funding agree3 ment only to the extent that the same services that would 

4 have been provided by the Secretary are provided to indi5 vidual Indians by the Indian tribe. 

6 ‘‘(f) MULTIYEAR FUNDING.—A funding agreement 

7 may provide for multiyear funding. 

8 ‘‘(g) LIMITATIONS ON AUTHORITY OF THE SEC9 RETARY.—The Secretary shall not— 

10 ‘‘(1) fail to transfer to an Indian tribe its full 

11 share of any central, headquarters, regional, area, or 

12 service unit office or other funds due under this title 

13 for programs eligible under paragraph (1) or (2) of 

14 section 403(b), except as required by Federal law; 

15 ‘‘(2) withhold any portion of such funds for 

16 transfer over a period of years; or 

17 ‘‘(3) reduce the amount of funds required under 

18 this title— 

19 ‘‘(A) to make funding available for self20 governance monitoring or administration by the 

21 Secretary; 

22 ‘‘(B) in subsequent years, except as nec23 essary as a result of— 

24 ‘‘(i) a reduction in appropriations 

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1 gram to be included in a compact or fund2 ing agreement; 

3 ‘‘(ii) a congressional directive in legis4 lation or an accompanying report; 

5 ‘‘(iii) a tribal authorization; 

6 ‘‘(iv) a change in the amount of pass7 through funds subject to the terms of the 

8 funding agreement; or 

9 ‘‘(v) completion of an activity under a 

10 program for which the funds were pro11 vided; 

12 ‘‘(C) to pay for Federal functions, includ13 ing— 

14 ‘‘(i) Federal pay costs; 

15 ‘‘(ii) Federal employee retirement ben16 efits; 

17 ‘‘(iii) automated data processing; 

18 ‘‘(iv) technical assistance; and 

19 ‘‘(v) monitoring of activities under 

20 this title; or 

21 ‘‘(D) to pay for costs of Federal personnel 

22 displaced by self-determination contracts under 

23 this Act or self-governance under this title. 

24 ‘‘(h) FEDERAL RESOURCES.—If an Indian tribe 

25 elects to carry out a compact or funding agreement with 


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1 the use of Federal personnel, Federal supplies (including 

2 supplies available from Federal warehouse facilities), Fed3 eral supply sources (including lodging, airline transpor4 tation, and other means of transportation, including the 

5 use of interagency motor pool vehicles), or other Federal 

6 resources (including supplies, services, and resources 

7 available to the Secretary under any procurement con8 tracts in which the Department is eligible to participate), 

9 the Secretary shall, as soon as practicable, acquire and 

10 transfer such personnel, supplies, or resources to the In11 dian tribe under this title. 

12 ‘‘(i) PROMPT PAYMENT ACT.—Chapter 39 of title 31, 

13 United States Code, shall apply to the transfer of funds 

14 due under a compact or funding agreement authorized 

15 under this title. 

16 ‘‘(j) INTEREST OR OTHER INCOME.— 

17 ‘‘(1) IN GENERAL.—An Indian tribe may retain 

18 interest or income earned on any funds paid under 

19 a compact or funding agreement to carry out gov20 ernmental purposes. 

21 ‘‘(2) NO EFFECT ON OTHER AMOUNTS.—The 

22 retention of interest or income under paragraph (1) 

23 shall not diminish the amount of funds an Indian 

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1 ment in the year the interest or income is earned or 

2 in any subsequent fiscal year. 

3 ‘‘(3) INVESTMENT STANDARD.—Funds trans4 ferred under this title shall be managed by the In5 dian tribe using the prudent investment standard, 

6 provided that the Secretary shall not be liable for 

7 any investment losses of funds managed by the In8 dian tribe that are not otherwise guaranteed or in9 sured by the Federal Government. 

10 ‘‘(k) CARRYOVER OF FUNDS.— 

11 ‘‘(1) IN GENERAL.—Notwithstanding any provi12 sion of an appropriations Act, all funds paid to an 

13 Indian tribe in accordance with a compact or fund14 ing agreement shall remain available until expended. 

15 ‘‘(2) EFFECT OF CARRYOVER.—If an Indian 

16 tribe elects to carry over funding from 1 year to the 

17 next, the carryover shall not diminish the amount of 

18 funds the Indian tribe is entitled to receive under a 

19 funding agreement in that fiscal year or any subse20 quent fiscal year. 

21 ‘‘(l) LIMITATION OF COSTS.— 

22 ‘‘(1) IN GENERAL.—An Indian tribe shall not 

23 be obligated to continue performance that requires 

24 an expenditure of funds in excess of the amount of 


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1 funds transferred under a compact or funding agree2 ment. 

3 ‘‘(2) NOTICE OF INSUFFICIENCY.—If at any 

4 time the Indian tribe has reason to believe that the 

5 total amount provided for a specific activity under a 

6 compact or funding agreement is insufficient, the In7 dian tribe shall provide reasonable notice of such in8 sufficiency to the Secretary. 

9 ‘‘(3) SUSPENSION OF PERFORMANCE.—If, after 

10 notice under paragraph (2), the Secretary does not 

11 increase the amount of funds transferred under the 

12 funding agreement, the Indian tribe may suspend 

13 performance of the activity until such time as addi14 tional funds are transferred. 

15 ‘‘(4) SAVINGS CLAUSE.—Nothing in this section 

16 reduces any programs, services, or funds of, or pro17 vided to, another Indian tribe. 

18 ‘‘(m) DISTRIBUTION OF FUNDS.—The Office of Self19 Governance shall be responsible for distribution of all Bu20 reau of Indian Affairs funds provided under this title un21 less otherwise agreed by the parties to an applicable fund22 ing agreement. 

23 ‘‘(n) APPLICABILITY.—Section 202 of the Depart24 ment of the Interior Tribal Self-Governance Act of 2013 

25 applies to subsections (a) through (m). 


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1 ‘‘SEC. 409. FACILITATION. 

2 ‘‘(a) IN GENERAL.—Except as otherwise provided by 

3 law (including section 202 of the Department of the Inte4 rior Tribal Self-Governance Act of 2013), the Secretary 

5 shall interpret each Federal law and regulation in a man6 ner that facilitates— 

7 ‘‘(1) the inclusion of programs in funding 

8 agreements; and 

9 ‘‘(2) the implementation of funding agreements. 

10 ‘‘(b) REGULATION WAIVER.— 

11 ‘‘(1) REQUEST.—An Indian tribe may submit 

12 to the Secretary a written request for a waiver of 

13 applicability of a Federal regulation, including— 

14 ‘‘(A) an identification of the specific text in 

15 the regulation sought to be waived; and 

16 ‘‘(B) the basis for the request. 

17 ‘‘(2) DETERMINATION BY THE SECRETARY.— 

18 Not later than 120 days after receipt by the Sec19 retary and the designated officials under paragraph 

20 (4) of a request under paragraph (1), the Secretary 

21 shall approve or deny the requested waiver in writ22 ing to the Indian tribe. 

23 ‘‘(3) EXTENSIONS.—The deadline described in 

24 paragraph (2) may be extended for any length of 

25 time, as agreed upon by both the Indian tribe and 

26 the Secretary. 


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1 ‘‘(4) DESIGNATED OFFICIALS.—The Secretary 

2 shall designate one or more appropriate officials in 

3 the Department to receive a copy of the waiver re4 quest described in paragraph (1). 

5 ‘‘(5) GROUNDS FOR DENIAL.—The Secretary 

6 may deny a request under paragraph (1)— 

7 ‘‘(A) for a program eligible under para8 graph (1) or (2) of section 403(b), only upon a 

9 specific finding by the Secretary that the identi10 fied text in the regulation may not be waived 

11 because such a waiver is prohibited by Federal 

12 law; and 

13 ‘‘(B) for a program eligible under section 

14 403(c), upon a specific finding by the Secretary 

15 that the waiver is prohibited by Federal law or 

16 is inconsistent with the express provisions of 

17 the funding agreement. 

18 ‘‘(6) FAILURE TO MAKE DETERMINATION.—If 

19 the Secretary fails to approve or deny a waiver re20 quest within the period required under paragraph 

21 (2), the Secretary shall be deemed to have approved 

22 the request. 

23 ‘‘(7) FINALITY.—A decision of the Secretary 

24 under this section shall be final for the Department. 


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1 ‘‘SEC. 410. DISCLAIMERS. 

2 ‘‘Nothing in this title expands or alters any statutory 

3 authority of the Secretary in a manner that authorizes the 

4 Secretary to enter into any agreement under section 

5 403— 

6 ‘‘(1) with respect to an inherent Federal func7 tion; 

8 ‘‘(2) in a case in which the law establishing a 

9 program explicitly prohibits the type of participation 

10 sought by the Indian tribe (without regard to wheth11 er one or more Indian tribes are identified in the au12 thorizing law); or 

13 ‘‘(3) that limits or reduces in any way the serv14 ices, contracts, or funds that any other Indian tribe 

15 or tribal organization is eligible to receive under sec16 tion 102 or any other applicable Federal law. 

17 ‘‘SEC. 411. DISCRETIONARY APPLICATION OF OTHER SEC18 TIONS. 

19 ‘‘(a) IN GENERAL.—Except as otherwise provided in 

20 section 101(c), at the option of a participating Indian tribe 

21 or Indian tribes, any of the provisions of title I may be 

22 incorporated in any compact or funding agreement under 

23 this title. 

24 ‘‘(b) EFFECT.—Each incorporated provision under 

25 subsection (a) shall— 


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1 ‘‘(1) have the same force and effect as if set out 

2 in full in this title; 

3 ‘‘(2) supplement or replace any related provi4 sion in this title; and 

5 ‘‘(3) apply to any agency otherwise governed by 

6 this title. 

7 ‘‘(c) EFFECTIVE DATE.—If an Indian tribe requests 

8 incorporation at the negotiation stage of a compact or 

9 funding agreement, the incorporation shall— 

10 ‘‘(1) be effective immediately; and 

11 ‘‘(2) control the negotiation and resulting com12 pact and funding agreement. 

13 ‘‘SEC. 412. ANNUAL BUDGET LIST. 

14 ‘‘The Secretary shall list, in the annual budget re15 quest submitted to Congress under section 1105 of title 

16 31, United States Code, any funds proposed to be included 

17 in funding agreements authorized under this Act. 

18 ‘‘SEC. 413. REPORTS. 

19 ‘‘(a) IN GENERAL.— 

20 ‘‘(1) REQUIREMENT.—On January 1 of each 

21 year, the Secretary shall submit to Congress a re22 port regarding the administration of this title. 

23 ‘‘(2) ANALYSIS.—Any Indian tribe may submit 

24 to the Office of Self-Governance and to the appro25 priate Committees of Congress a detailed annual 


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1 analysis of unmet tribal needs for funding agree2 ments under this title. 

3 ‘‘(b) CONTENTS.—The report under subsection (a)(1) 

4 shall— 

5 ‘‘(1) be compiled from information contained in 

6 funding agreements, annual audit reports, and data 

7 of the Secretary regarding the disposition of Federal 

8 funds; 

9 ‘‘(2) identify— 

10 ‘‘(A) the relative costs and benefits of self11 governance; 

12 ‘‘(B) with particularity, all funds that are 

13 specifically or functionally related to the provi14 sion by the Secretary of services and benefits to 

15 self-governance Indian tribes and members of 

16 Indian tribes; 

17 ‘‘(C) the funds transferred to each Indian 

18 tribe and the corresponding reduction in the 

19 Federal employees and workload; and 

20 ‘‘(D) the funding formula for individual 

21 tribal shares of all Central Office funds, to22 gether with the comments of affected Indian 

23 tribes, developed under subsection (d); 


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1 ‘‘(3) before being submitted to Congress, be dis2 tributed to the Indian tribes for comment (with a 

3 comment period of no less than 30 days); 

4 ‘‘(4) include the separate views and comments 

5 of each Indian tribe or tribal organization; and 

6 ‘‘(5) include a list of— 

7 ‘‘(A) all such programs that the Secretary 

8 determines, in consultation with Indian tribes 

9 participating in self-governance, are eligible for 

10 negotiation to be included in a funding agree11 ment at the request of a participating Indian 

12 tribe; and 

13 ‘‘(B) all such programs which Indian tribes 

14 have formally requested to include in a funding 

15 agreement under section 403(c) due to the spe16 cial geographic, historical, or cultural signifi17 cance of the program to the Indian tribe, indi18 cating whether each request was granted or de19 nied, and stating the grounds for any denial. 

20 ‘‘(c) REPORT ON NON-BIA, NON-OST PROGRAMS.— 

21 ‘‘(1) IN GENERAL.—In order to optimize oppor22 tunities for including non-Bureau of Indian Affairs 

23 and non-Office of Special Trustee programs in 

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1 view all programs administered by the Department, 

2 other than through the Bureau of Indian Affairs or 

3 Office of the Special Trustee, without regard to the 

4 agency or office concerned. 

5 ‘‘(2) PROGRAMMATIC TARGETS.—The Secretary 

6 shall establish programmatic targets, after consulta7 tion with Indian tribes participating in self-govern8 ance, to encourage bureaus of the Department to en9 sure that an appropriate portion of those programs 

10 are available to be included in funding agreements. 

11 ‘‘(3) PUBLICATION.—The lists under subsection 

12 (b)(5) and targets under paragraph (2) shall be pub13 lished in the Federal Register and made available to 

14 any Indian tribe participating in self-governance. 

15 ‘‘(4) ANNUAL REVIEW.— 

16 ‘‘(A) IN GENERAL.—The Secretary shall 

17 annually review and publish in the Federal Reg18 ister, after consultation with Indian tribes par19 ticipating in self-governance, revised lists and 

20 programmatic targets. 

21 ‘‘(B) CONTENTS.—In preparing the revised 

22 lists and programmatic targets, the Secretary 

23 shall consider all programs that were eligible 

24 for contracting in the original list published in 

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1 grams specifically determined not to be 

2 contractible as a matter of law. 

3 ‘‘(d) REPORT ON CENTRAL OFFICE FUNDS.—Not 

4 later than January 1, 2013, the Secretary shall, in con5 sultation with Indian tribes, develop a funding formula to 

6 determine the individual tribal share of funds controlled 

7 by the Central Office of the Bureau of Indian Affairs and 

8 the Office of the Special Trustee for inclusion in the com9 pacts. 

10 ‘‘SEC. 414. REGULATIONS. 

11 ‘‘(a) IN GENERAL.— 

12 ‘‘(1) PROMULGATION.—Not later than 90 days 

13 after the date of enactment of the Department of 

14 the Interior Tribal Self-Governance Act of 2013, the 

15 Secretary shall initiate procedures under subchapter 

16 III of chapter 5 of title 5, United States Code, to 

17 negotiate and promulgate such regulations as are 

18 necessary to carry out this title. 

19 ‘‘(2) PUBLICATION OF PROPOSED REGULA20 TIONS.—Proposed regulations to implement this title 

21 shall be published in the Federal Register not later 

22 than 21 months after the date of enactment of the 

23 Department of the Interior Tribal Self-Governance 

24 Act of 2013. 


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1 ‘‘(3) EXPIRATION OF AUTHORITY.—The author2 ity to promulgate regulations under paragraph (1) 

3 shall expire on the date that is 30 months after the 

4 date of enactment of the Department of the Interior 

5 Tribal Self-Governance Act of 2013. 

6 ‘‘(b) COMMITTEE.— 

7 ‘‘(1) MEMBERSHIP.—A negotiated rulemaking 

8 committee established pursuant to section 565 of 

9 title 5, United States Code, to carry out this section 

10 shall have as its members only representatives of the 

11 Federal Government and tribal government. 

12 ‘‘(2) LEAD AGENCY.—Among the Federal rep13 resentatives described in paragraph (1), the Office of 

14 Self-Governance shall be the lead agency for the De15 partment. 

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

17 shall adapt the negotiated rulemaking procedures to the 

18 unique context of self-governance and the government-to19 government relationship between the United States and 

20 Indian tribes. 

21 ‘‘(d) EFFECT.— 

22 ‘‘(1) REPEAL.—The Secretary may repeal any 

23 regulation that is inconsistent with this Act. 

24 ‘‘(2) CONFLICTING PROVISIONS.—Subject to 

25 section 202 of the Department of the Interior Tribal 


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1 Self-Governance Act of 2013, this title shall super2 sede any conflicting provision of law (including any 

3 conflicting regulations). 

4 ‘‘(3) EFFECTIVENESS WITHOUT REGARD TO

5 REGULATIONS.—The lack of promulgated regula6 tions on an issue shall not limit the effect or imple7 mentation of this title. 

8 ‘‘SEC. 415. EFFECT OF CIRCULARS, POLICIES, MANUALS, 

9 GUIDANCE, AND RULES. 

10 ‘‘Unless expressly agreed to by a participating Indian 

11 tribe in a compact or funding agreement, the participating 

12 Indian tribe shall not be subject to any agency circular, 

13 policy, manual, guidance, or rule adopted by the Depart14 ment, except for— 

15 ‘‘(1) the eligibility provisions of section 105(g); 

16 and 

17 ‘‘(2) regulations promulgated pursuant to sec18 tion 414. 

19 ‘‘SEC. 416. APPEALS. 

20 ‘‘Except as provided in section 406(d), in any admin21 istrative action, appeal, or civil action for judicial review 

22 of any decision made by the Secretary under this title, 

23 the Secretary shall have the burden of proof of dem24 onstrating by a preponderance of the evidence— 


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1 ‘‘(1) the validity of the grounds for the decision; 

2 and 

3 ‘‘(2) the consistency of the decision with the re4 quirements and policies of this title. 

5 ‘‘SEC. 417. APPLICATION OF OTHER PROVISIONS. 

6 ‘‘Section 314 of the Department of the Interior and 

7 Related Agencies Appropriations Act, 1991 (Public Law 

8 101–512; 104 Stat. 1959), shall apply to compacts and 

9 funding agreements entered into under this title. 

10 ‘‘SEC. 418. AUTHORIZATION OF APPROPRIATIONS. 

11 ‘‘There are authorized to be appropriated such sums 

12 as are necessary to carry out this title.’’. 

13 SEC. 202. EFFECT OF CERTAIN PROVISIONS. 

14 (a) DEFINITIONS.—In this section: 

15 (1) FUNDING AGREEMENT.—The term ‘‘fund16 ing agreement’’ means a funding agreement entered 

17 into under section 403 of the ISDEAA (25 U.S.C. 

18 458cc). 

19 (2) ISDEAA.—The term ‘‘ISDEAA’’ means 

20 the Indian Self-Determination and Education Assist21 ance Act (25 U.S.C. 450 et seq.). 

22 (3) NON-BIA PROGRAM.—The term ‘‘non-BIA 

23 program’’ means all or a portion of a program, func24 tion, service, or activity that is administered by any 


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1 bureau, service, office, or agency of the Department 

2 of the Interior other than through— 

3 (A) the Bureau of Indian Affairs; 

4 (B) the Office of the Assistant Secretary 

5 for Indian Affairs; or 

6 (C) the Office of the Special Trustee for 

7 American Indians. 

8 (4) SECRETARY.—The term ‘‘Secretary’’ means 

9 the Secretary of the Interior. 

10 (5) SELF-DETERMINATION CONTRACT.—The 

11 term ‘‘self-determination contract’’ means a self-de12 termination contract entered into under section 102 

13 of the ISDEAA (25 U.S.C. 450f). 

14 (6) TRIBAL WATER SETTLEMENT.—The term 

15 ‘‘tribal water settlement’’ means any settlement, 

16 compact, or other agreement entered into by an In17 dian tribe and the United States, or by an Indian 

18 tribe, the United States, and one or more parties 

19 that— 

20 (A) settles or quantifies any Federal re21 served water rights or any claims relating to 

22 those rights of the Indian tribe; and 

23 (B) has been authorized by an Act of Con24 gress. 


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1 (b) EFFECT OF PROVISIONS.—Nothing in this Act 

2 (including this section) or any amendment made by this 

3 Act (including section 414 of the ISDEAA (relating to 

4 regulations), as added by section 201)— 

5 (1) modifies or affects the meaning, application, 

6 or effect of— 

7 (A) section 102(a)(1)(E) of the ISDEAA 

8 (25 U.S.C. 450f(a)(1)(E)), as in effect on the 

9 day before the date of enactment of this Act; or 

10 (B) paragraph (2) or (3) of subsection (b) 

11 or subsection (c) of section 403 of the ISDEAA 

12 (25 U.S.C. 458cc), as in effect on the day be13 fore the date of enactment of this Act; 

14 (2) increases, limits, modifies, or otherwise af15 fects any authority of the Secretary that the Sec16 retary held on the day before the date of enactment 

17 of this Act under section 403(c) of the ISDEAA (25 

18 U.S.C. 458cc(c)); 

19 (3) authorizes the inclusion of any non-BIA 

20 program in— 

21 (A) a self-determination contract as a pro22 gram under section 102(a)(1)(E) of the 

23 ISDEAA (25 U.S.C. 450f(a)(1)(E)) if the in24 clusion of that non-BIA program in a self-de25 termination contract as a program under that 


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1 section would not have been authorized under 

2 the ISDEAA on the day before the date of en3 actment of this Act; 

4 (B) a funding agreement as a program 

5 under section 403(b)(2) of the ISDEAA (25 

6 U.S.C. 458cc(b)(2)) if the inclusion of that non7 BIA program in a funding agreement as a pro8 gram under that section would not have been 

9 authorized on the day before the date of enact10 ment of this Act; or 

11 (C) a funding agreement as a program 

12 under section 403(c) of the ISDEAA (25 

13 U.S.C. 458cc(c)) if the inclusion of that non14 BIA program in a funding agreement as a pro15 gram under that section would not have been 

16 authorized under the ISDEAA on the day be17 fore the date of enactment of this Act; 

18 (4) modifies or otherwise affects the meaning, 

19 application, or effect of any provision of law that— 

20 (A) is not contained in the ISDEAA; and 

21 (B) expressly authorizes or prohibits con22 tracting or compacting under title I or title IV 

23 of the ISDEAA with respect to a specific pro24 gram or project that is identified or otherwise 

25 referred to in that provision of law; 


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1 (5) modifies or otherwise affects the meaning, 

2 application, or effect of, or the performance required 

3 of a party, or any payment or funding under— 

4 (A) a tribal water settlement; or 

5 (B) any Act of Congress approving, au6 thorizing, or ratifying a tribal water settlement; 

7 or 

8 (6) authorizes any self-determination contract 

9 or funding agreement or approval of any self-deter10 mination contract or funding agreement under the 

11 ISDEAA (as amended by section 201) that would 

12 authorize an Indian tribe to plan, conduct, consoli13 date, administer, or receive funding for any pro14 gram, project, or activity that is required, author15 ized, or funded by a tribal water settlement or an 

16 Act of Congress approving, authorizing, or ratifying 

17 a tribal water settlement in a manner that is incon18 sistent with the terms of that tribal water settlement 

19 or that Act of Congress. 

20 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

21 (a) SHORT TITLE.—This Act may be cited as the ‘‘De22 partment of the Interior Tribal Self-Governance Act of 

23 2014’’. 

24 (b) TABLE OF CONTENTS.—The table of contents of this 

25 Act is as follows: 

Sec. 1. Short title; table of contents. 


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TITLE I—INDIAN SELF-DETERMINATION 

Sec. 101. Definitions; reporting and audit requirements; application of provisions. 

Sec. 102. Contracts by Secretary of the Interior. 

Sec. 103. Administrative provisions. 

Sec. 104. Contract funding and indirect costs. 

Sec. 105. Contract or grant specifications. 

TITLE II—TRIBAL SELF-GOVERNANCE 

Sec. 201. Tribal self-governance. 

Sec. 202. Effect of certain provisions. 

1 TITLE I—INDIAN SELF2 DETERMINATION 

3 SEC. 101. DEFINITIONS; REPORTING AND AUDIT REQUIRE4 MENTS; APPLICATION OF PROVISIONS. 

5 (a) DEFINITIONS.—Section 4 of the Indian Self-Deter6 mination and Education Assistance Act (25 U.S.C. 450b) 

7 is amended by striking subsection (j) and inserting the fol8 lowing: 

9 ‘‘(j) ‘self-determination contract’ means a contract en10 tered into under title I (or a grant or cooperative agreement 

11 used under section 9) between a tribal organization and the 

12 appropriate Secretary for the planning, conduct, and ad13 ministration of programs or services that are otherwise pro14 vided to Indian tribes and members of Indian tribes pursu15 ant to Federal law, subject to the condition that, except as 

16 provided in section 105(a)(3), no contract entered into 

17 under title I (or grant or cooperative agreement used under 

18 section 9) shall be— 

19 ‘‘(1) considered to be a procurement contract; or 


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1 ‘‘(2) except as provided in section 107(a)(1), sub2 ject to any Federal procurement law (including regu3 lations);’’. 

4 (b) REPORTING AND AUDIT REQUIREMENTS.—Section 

5 5(b) of the Indian Self-Determination and Education As6 sistance Act (25 U.S.C. 450c(b)) is amended— 

7 (1) by striking ‘‘after completion of the project or 

8 undertaking referred to in the preceding subsection of 

9 this section’’ and inserting ‘‘after the retention period 

10 for the report that is submitted to the Secretary under 

11 subsection (a)’’; and 

12 (2) by adding at the end the following: ‘‘The re13 tention period shall be defined in regulations promul14 gated by the Secretary pursuant to section 414.’’. 

15 (c) APPLICATION OF OTHER PROVISIONS.—Sections 4, 

16 5, 6, 7, 102(c), 104, 105(a)(1), 105(f), 110, and 111 of the 

17 Indian Self-Determination and Education Assistance Act, 

18 as amended (25 U.S.C. 450 et seq.) (Public Law 93–638; 

19 88 Stat. 2203) and section 314 of the Department of the 

20 Interior and Related Agencies Appropriations Act, 1991 

21 (Public Law 101–512; 104 Stat. 1959), apply to compacts 

22 and funding agreements entered into under title IV. 

23 SEC. 102. CONTRACTS BY SECRETARY OF THE INTERIOR. 

24 Section 102 of the Indian Self-Determination and 

25 Education Assistance Act (25 U.S.C. 450f) is amended— 


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1 (1) in subsection (c)(2), by striking ‘‘economic 

2 enterprises’’ and all that follows through ‘‘except 

3 that’’ and inserting ‘‘economic enterprises (as defined 

4 in section 3 of the Indian Financing Act of 1974 (25 

5 U.S.C. 1452)), except that’’; and 

6 (2) by adding at the end the following: 

7 ‘‘(f) GOOD FAITH REQUIREMENT.—In the negotiation 

8 of contracts and funding agreements, the Secretary shall— 

9 ‘‘(1) at all times negotiate in good faith to maxi10 mize implementation of the self-determination policy; 

11 and 

12 ‘‘(2) carry out this Act in a manner that maxi13 mizes the policy of tribal self-determination, in a 

14 manner consistent with— 

15 ‘‘(A) the purposes specified in section 3; and 

16 ‘‘(B) the Department of the Interior Tribal 

17 Self-Governance Act of 2014. 

18 ‘‘(g) RULE OF CONSTRUCTION.—Subject to section 202 

19 of the Department of the Interior Tribal Self-Governance 

20 Act of 2014, each provision of this Act and each provision 

21 of a contract or funding agreement shall be liberally con22 strued for the benefit of the Indian tribe participating in 

23 self-determination, and any ambiguity shall be resolved in 

24 favor of the Indian tribe.’’. 


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1 SEC. 103. ADMINISTRATIVE PROVISIONS. 

2 Section 105 of the Indian Self-Determination and 

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

4 (1) in subsection (b), in the first sentence, by 

5 striking ‘‘pursuant to’’ and all that follows through 

6 ‘‘of this Act’’ and inserting ‘‘pursuant to sections 102 

7 and 103’’; and 

8 (2) by adding at the end the following: 

9 ‘‘(p) INTERPRETATION BY SECRETARY.—Except as 

10 otherwise provided by law (including section 202 of the De11 partment of the Interior Tribal Self-Governance Act of 

12 2014), the Secretary shall interpret all Federal laws (in13 cluding regulations) and Executive orders in a manner that 

14 facilitates, to the maximum extent practicable— 

15 ‘‘(1) the inclusion in self-determination contracts 

16 and funding agreements of— 

17 ‘‘(A) applicable programs, services, func18 tions, and activities (or portions thereof); and 

19 ‘‘(B) funds associated with those programs, 

20 services, functions, and activities; 

21 ‘‘(2) the implementation of self-determination 

22 contracts and funding agreements; and 

23 ‘‘(3) the achievement of tribal health objectives.’’. 


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1 SEC. 104. CONTRACT FUNDING AND INDIRECT COSTS. 

2 Section 106(a)(3) of the Indian Self-Determination 

3 and Education Assistance Act (25 U.S.C. 450j–1(a)(3)) is 

4 amended— 

5 (1) in subparagraph (A)— 

6 (A) in clause (i), by striking ‘‘, and’’ and 

7 inserting ‘‘; and’’; and 

8 (B) in clause (ii), by striking ‘‘expense re9 lated to the overhead incurred’’ and inserting 

10 ‘‘expense incurred by the governing body of the 

11 Indian tribe or tribal organization and any 

12 overhead expense incurred’’; 

13 (2) by redesignating subparagraph (B) as sub14 paragraph (C); and 

15 (3) by inserting after subparagraph (A) the fol16 lowing: 

17 ‘‘(B) In calculating the reimbursement rate 

18 for expenses described in subparagraph (A)(ii), 

19 not less than 50 percent of the expenses described 

20 in subparagraph (A)(ii) that are incurred by the 

21 governing body of an Indian tribe or tribal orga22 nization relating to a Federal program, function, 

23 service, or activity carried out pursuant to the 

24 contract shall be considered to be reasonable and 

25 allowable.’’. 


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1 SEC. 105. CONTRACT OR GRANT SPECIFICATIONS. 

2 Section 108 of the Indian Self-Determination and 

3 Education Assistance Act (25 U.S.C. 450l) is amended— 

4 (1) in subsection (a)(2), by inserting ‘‘subject to 

5 subsections (a) and (b) of section 102,’’ before ‘‘con6 tain’’; and 

7 (2) in subsection (f)(2)(A)(ii) of the model agree8 ment contained in subsection (c), by inserting ‘‘sub9 ject to subsections (a) and (b) of section 102 of the In10 dian Self-Determination and Education Assistance 

11 Act (25 U.S.C. 450f),’’ before ‘‘such other provisions’’. 

12 TITLE II—TRIBAL SELF13 GOVERNANCE 

14 SEC. 201. TRIBAL SELF-GOVERNANCE. 

15 (a) DEFINITIONS.—Section 401 of the Indian Self-De16 termination and Education Assistance Act (25 U.S.C. 

17 458aa) is amended to read as follows: 

18 ‘‘SEC. 401. DEFINITIONS. 

19 ‘‘In this title: 

20 ‘‘(1) COMPACT.—The term ‘compact’ means a 

21 self-governance compact entered into under section 

22 404. 

23 ‘‘(2) CONSTRUCTION PROGRAM; CONSTRUCTION

24 PROJECT.—The term ‘construction program’ or ‘con25 struction project’ means a tribal undertaking relating 

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1 mination, design, construction, repair, improvement, 

2 or expansion of roads, bridges, buildings, structures, 

3 systems, or other facilities for purposes of housing, 

4 law enforcement, detention, sanitation, water supply, 

5 education, administration, community, health, irriga6 tion, agriculture, conservation, flood control, trans7 portation, or port facilities, or for other tribal pur8 poses. 

9 ‘‘(3) DEPARTMENT.—The term ‘Department’ 

10 means the Department of the Interior. 

11 ‘‘(4) FUNDING AGREEMENT.—The term ‘funding 

12 agreement’ means a funding agreement entered into 

13 under section 403. 

14 ‘‘(5) GROSS MISMANAGEMENT.—The term ‘gross 

15 mismanagement’ means a significant violation, 

16 shown by a preponderance of the evidence, of a com17 pact, funding agreement, or statutory or regulatory 

18 requirement applicable to Federal funds— 

19 ‘‘(A) for a program administered by an In20 dian tribe; or 

21 ‘‘(B) under a compact or funding agreement 

22 that results in a significant reduction of funds 

23 available for the programs assumed by an In24 dian tribe. 


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1 ‘‘(6) INHERENT FEDERAL FUNCTION.—The term 

2 ‘inherent Federal function’ means a Federal function 

3 that may not legally be delegated to an Indian tribe. 

4 ‘‘(7) PROGRAM.—The term ‘program’ means any 

5 program, function, service, or activity (or portion 

6 thereof) within the Department that is included in a 

7 funding agreement. 

8 ‘‘(8) SECRETARY.—The term ‘Secretary’ means 

9 the Secretary of the Interior. 

10 ‘‘(9) SELF-GOVERNANCE.—The term ‘self-govern11 ance’ means the Tribal Self-Governance Program es12 tablished under section 402. 

13 ‘‘(10) TRIBAL SHARE.—The term ‘tribal share’ 

14 means the portion of all funds and resources of an In15 dian tribe that— 

16 ‘‘(A) support any program within the Bu17 reau of Indian Affairs, the Office of the Special 

18 Trustee, or the Office of the Assistant Secretary 

19 for Indian Affairs; and 

20 ‘‘(B) are not required by the Secretary for 

21 the performance of an inherent Federal func22 tion.’’. 

23 (b) ESTABLISHMENT.—Section 402 of the Indian Self24 Determination and Education Assistance Act (25 U.S.C. 

25 458bb) is amended to read as follows: 


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1 ‘‘SEC. 402. TRIBAL SELF-GOVERNANCE PROGRAM. 

2 ‘‘(a) ESTABLISHMENT.—The Secretary shall establish 

3 and carry out a program within the Department to be 

4 known as the ‘Tribal Self-Governance Program’. 

5 ‘‘(b) SELECTION OF PARTICIPATING INDIAN TRIBES.— 

6 ‘‘(1) IN GENERAL.— 

7 ‘‘(A) ELIGIBILITY.—The Secretary, acting 

8 through the Director of the Office of Self-Govern9 ance, may select up to 50 new Indian tribes per 

10 year from those eligible under subsection (c) to 

11 participate in self-governance. 

12 ‘‘(B) JOINT PARTICIPATION.—On the re13 quest of each participating Indian tribe, two or 

14 more otherwise eligible Indian tribes may be 

15 treated as a single Indian tribe for the purpose 

16 of participating in self-governance. 

17 ‘‘(2) OTHER AUTHORIZED INDIAN TRIBE OR

18 TRIBAL ORGANIZATION.—If an Indian tribe author19 izes another Indian tribe or a tribal organization to 

20 plan for or carry out a program on its behalf under 

21 this title, the authorized Indian tribe or tribal organi22 zation shall have the rights and responsibilities of the 

23 authorizing Indian tribe (except as otherwise pro24 vided in the authorizing resolution). 

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1 section (c) may be treated as a single Indian tribe for 

2 the purpose of participating in self-governance as a 

3 tribal organization if— 

4 ‘‘(A) each Indian tribe so requests; and 

5 ‘‘(B) the tribal organization itself, or at 

6 least one of the Indian tribes participating in 

7 the tribal organization, is eligible under sub8 section (c). 

9 ‘‘(4) TRIBAL WITHDRAWAL FROM A TRIBAL OR10 GANIZATION.— 

11 ‘‘(A) IN GENERAL.—An Indian tribe that 

12 withdraws from participation in a tribal organi13 zation, in whole or in part, shall be entitled to 

14 participate in self-governance if the Indian tribe 

15 is eligible under subsection (c). 

16 ‘‘(B) EFFECT OF WITHDRAWAL.—If an In17 dian tribe withdraws from participation in a 

18 tribal organization, the Indian tribe shall be en19 titled to its tribal share of funds and resources 

20 supporting the programs that the Indian tribe is 

21 entitled to carry out under the compact and 

22 funding agreement of the Indian tribe. 

23 ‘‘(C) PARTICIPATION IN SELF-GOVERN24 ANCE.—The withdrawal of an Indian tribe from 

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1 bility of the tribal organization to participate in 

2 self-governance on behalf of one or more other In3 dian tribes, if the tribal organization still quali4 fies under subsection (c). 

5 ‘‘(D) WITHDRAWAL PROCESS.— 

6 ‘‘(i) IN GENERAL.—An Indian tribe 

7 may, by tribal resolution, fully or partially 

8 withdraw its tribal share of any program 

9 in a funding agreement from a partici10 pating tribal organization. 

11 ‘‘(ii) NOTIFICATION.—The Indian tribe 

12 shall provide a copy of the tribal resolution 

13 described in clause (i) to the Secretary. 

14 ‘‘(iii) EFFECTIVE DATE.— 

15 ‘‘(I) IN GENERAL.—A withdrawal 

16 under clause (i) shall become effective 

17 on the date that is specified in the trib18 al resolution and mutually agreed 

19 upon by the Secretary, the with20 drawing Indian tribe, and the tribal 

21 organization that signed the compact 

22 and funding agreement on behalf of the 

23 withdrawing Indian tribe or tribal or24 ganization. 


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1 ‘‘(II) NO SPECIFIED DATE.—In 

2 the absence of a date specified in the 

3 resolution, the withdrawal shall become 

4 effective on— 

5 ‘‘(aa) the earlier of— 

6 ‘‘(AA) 1 year after the 

7 date of submission of the re8 quest; and 

9 ‘‘(BB) the date on which 

10 the funding agreement ex11 pires; or 

12 ‘‘(bb) such date as may be 

13 mutually agreed upon by the Sec14 retary, the withdrawing Indian 

15 tribe, and the tribal organization 

16 that signed the compact and fund17 ing agreement on behalf of the 

18 withdrawing Indian tribe or trib19 al organization. 

20 ‘‘(E) DISTRIBUTION OF FUNDS.—If an In21 dian tribe or tribal organization eligible to enter 

22 into a self-determination contract under title I 

23 or a compact or funding agreement under this 

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1 pating tribal organization, the withdrawing In2 dian tribe— 

3 ‘‘(i) may elect to enter into a self-deter4 mination contract or compact, in which 

5 case— 

6 ‘‘(I) the withdrawing Indian tribe 

7 or tribal organization shall be entitled 

8 to its tribal share of unexpended funds 

9 and resources supporting the programs 

10 that the Indian tribe will be carrying 

11 out under its own self-determination 

12 contract or compact and funding 

13 agreement (calculated on the same 

14 basis as the funds were initially allo15 cated to the funding agreement of the 

16 tribal organization); and 

17 ‘‘(II) the funds referred to in sub18 clause (I) shall be withdrawn by the 

19 Secretary from the funding agreement 

20 of the tribal organization and trans21 ferred to the withdrawing Indian tribe, 

22 on the condition that sections 102 and 

23 105(i), as appropriate, shall apply to 

24 the withdrawing Indian tribe; or 


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1 ‘‘(ii) may elect not to enter into a self2 determination contract or compact, in 

3 which case all unexpended funds and re4 sources associated with the withdrawing In5 dian tribe’s returned programs (calculated 

6 on the same basis as the funds were ini7 tially allocated to the funding agreement of 

8 the tribal organization) shall be returned by 

9 the tribal organization to the Secretary for 

10 operation of the programs included in the 

11 withdrawal. 

12 ‘‘(F) RETURN TO MATURE CONTRACT STA13 TUS.—If an Indian tribe elects to operate all or 

14 some programs carried out under a compact or 

15 funding agreement under this title through a 

16 self-determination contract under title I, at the 

17 option of the Indian tribe, the resulting self-de18 termination contract shall be a mature self-deter19 mination contract as long as the Indian tribe 

20 meets the requirements set forth in section 4(h). 

21 ‘‘(c) ELIGIBILITY.—To be eligible to participate in self22 governance, an Indian tribe shall— 

23 ‘‘(1) successfully complete the planning phase de24 scribed in subsection (d); 


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1 ‘‘(2) request participation in self-governance by 

2 resolution or other official action by the tribal gov3 erning body; and 

4 ‘‘(3) demonstrate, for the 3 fiscal years preceding 

5 the date on which the Indian tribe requests participa6 tion, financial stability and financial management 

7 capability as evidenced by the Indian tribe having no 

8 uncorrected significant and material audit exceptions 

9 in the required annual audit of its self-determination 

10 or self-governance agreements with any Federal agen11 cy. 

12 ‘‘(d) PLANNING PHASE.— 

13 ‘‘(1) IN GENERAL.—An Indian tribe seeking to 

14 begin participation in self-governance shall complete 

15 a planning phase as provided in this subsection. 

16 ‘‘(2) ACTIVITIES.—The planning phase shall— 

17 ‘‘(A) be conducted to the satisfaction of the 

18 Indian tribe; and 

19 ‘‘(B) include— 

20 ‘‘(i) legal and budgetary research; and 

21 ‘‘(ii) internal tribal government plan22 ning, training, and organizational prepara23 tion. 

24 ‘‘(e) GRANTS.— 


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1 ‘‘(1) IN GENERAL.—Subject to the availability of 

2 appropriations, an Indian tribe or tribal organiza3 tion that meets the requirements of paragraphs (2) 

4 and (3) of subsection (c) shall be eligible for grants— 

5 ‘‘(A) to plan for participation in self-gov6 ernance; and 

7 ‘‘(B) to negotiate the terms of participation 

8 by the Indian tribe or tribal organization in self9 governance, as set forth in a compact and a 

10 funding agreement. 

11 ‘‘(2) RECEIPT OF GRANT NOT REQUIRED.—Re12 ceipt of a grant under paragraph (1) shall not be a 

13 requirement of participation in self-governance.’’. 

14 (c) FUNDING AGREEMENTS.—Section 403 of the In15 dian Self-Determination and Education Assistance Act (25 

16 U.S.C. 458cc) is amended— 

17 (1) by striking subsection (a) and inserting the 

18 following: 

19 ‘‘(a) AUTHORIZATION.—The Secretary shall, on the re20 quest of any Indian tribe or tribal organization, enter into 

21 a written funding agreement with the governing body of the 

22 Indian tribe or the tribal organization in a manner con23 sistent with— 

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1 government relationship between Indian tribes and 

2 the United States; and 

3 ‘‘(2) subsection (b).’’; 

4 (2) in subsection (b)— 

5 (A) in paragraph (1)— 

6 (i) in the matter preceding subpara7 graph (A), by striking ‘‘without regard to 

8 the agency or office of the Bureau of Indian 

9 Affairs’’ and inserting ‘‘the Office of the As10 sistant Secretary for Indian Affairs, and 

11 the Office of the Special Trustee, without re12 gard to the agency or office of that Bureau 

13 or those Offices’’; 

14 (ii) in subparagraph (B), by striking 

15 ‘‘and’’; 

16 (iii) in subparagraph (C), by inserting 

17 ‘‘and’’ after the semicolon at the end; and 

18 (iv) by adding at the end the following: 

19 ‘‘(D) any other programs, services, func20 tions, or activities (or portions thereof) that are 

21 provided through the Bureau of Indian Affairs, 

22 the Office of the Assistant Secretary for Indian 

23 Affairs, or the Office of the Special Trustee with 

24 respect to which Indian tribes or Indians are 

25 primary or significant beneficiaries;’’; 


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1 (B) in paragraph (2)— 

2 (i) by striking ‘‘section 405(c)’’ and in3 serting ‘‘section 413(c)’’; and 

4 (ii) by inserting ‘‘and’’ after the semi5 colon at the end; 

6 (C) in paragraph (3), by striking the semi7 colon at the end and inserting a period; and 

8 (D) by striking paragraphs (4) through (9); 

9 and 

10 (3) by adding at the end the following: 

11 ‘‘(m) OTHER PROVISIONS.— 

12 ‘‘(1) EXCLUDED FUNDING.—A funding agree13 ment shall not authorize an Indian tribe to plan, con14 duct, administer, or receive tribal share funding 

15 under any program that— 

16 ‘‘(A) is provided under the Tribally Con17 trolled Colleges and Universities Assistance Act 

18 of 1978 (25 U.S.C. 1801 et seq.); or 

19 ‘‘(B) is provided for elementary and sec20 ondary schools under the formula developed 

21 under section 1127 of the Education Amend22 ments of 1978 (25 U.S.C. 2007). 

23 ‘‘(2) SERVICES, FUNCTIONS, AND RESPONSIBIL24 ITIES.—A funding agreement shall specify— 


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1 ‘‘(A) the services to be provided under the 

2 funding agreement; 

3 ‘‘(B) the functions to be performed under 

4 the funding agreement; and 

5 ‘‘(C) the responsibilities of the Indian tribe 

6 and the Secretary under the funding agreement. 

7 ‘‘(3) BASE BUDGET.—A funding agreement shall, 

8 at the option of the Indian tribe, provide for a stable 

9 base budget specifying the recurring funds (which 

10 may include funds available under section 106(a)) to 

11 be transferred to the Indian tribe, for such period as 

12 the Indian tribe specifies in the funding agreement, 

13 subject to annual adjustment only to reflect changes 

14 in congressional appropriations. 

15 ‘‘(4) NO WAIVER OF TRUST RESPONSIBILITY.—A 

16 funding agreement shall prohibit the Secretary from 

17 waiving, modifying, or diminishing in any way the 

18 trust responsibility of the United States with respect 

19 to Indian tribes and individual Indians that exists 

20 under treaties, Executive orders, court decisions, and 

21 other laws. 

22 ‘‘(n) AMENDMENT.—The Secretary shall not revise, 

23 amend, or require additional terms in a new or subsequent 

24 funding agreement without the consent of the Indian tribe, 

25 unless such terms are required by Federal law. 


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1 ‘‘(o) EFFECTIVE DATE.—A funding agreement shall 

2 become effective on the date specified in the funding agree3 ment. 

4 ‘‘(p) EXISTING AND SUBSEQUENT FUNDING AGREE5 MENTS.— 

6 ‘‘(1) SUBSEQUENT FUNDING AGREEMENTS.—Ab7 sent notification from an Indian tribe that the Indian 

8 tribe is withdrawing or retroceding the operation of 

9 one or more programs identified in a funding agree10 ment, or unless otherwise agreed to by the parties to 

11 the funding agreement or by the nature of any non12 continuing program, service, function, or activity 

13 contained in a funding agreement— 

14 ‘‘(A) a funding agreement shall remain in 

15 full force and effect until a subsequent funding 

16 agreement is executed, with funding paid annu17 ally for each fiscal year the agreement is in ef18 fect; and 

19 ‘‘(B) the term of the subsequent funding 

20 agreement shall be retroactive to the end of the 

21 term of the preceding funding agreement for the 

22 purposes of calculating the amount of funding to 

23 which the Indian tribe is entitled. 


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1 ‘‘(2) DISPUTES.—Disputes over the implementa2 tion of paragraph (1)(A) shall be subject to section 

3 406(c). 

4 ‘‘(3) EXISTING FUNDING AGREEMENTS.—An In5 dian tribe that was participating in self-governance 

6 under this title on the date of enactment of the De7 partment of the Interior Tribal Self-Governance Act 

8 of 2014 shall have the option at any time after that 

9 date— 

10 ‘‘(A) to retain its existing funding agree11 ment (in whole or in part) to the extent that the 

12 provisions of that funding agreement are not di13 rectly contrary to any express provision of this 

14 title; or 

15 ‘‘(B) to negotiate a new funding agreement 

16 in a manner consistent with this title. 

17 ‘‘(4) MULTIYEAR FUNDING AGREEMENTS.—An 

18 Indian tribe may, at the discretion of the Indian 

19 tribe, negotiate with the Secretary for a funding 

20 agreement with a term that exceeds 1 year.’’. 

21 (d) GENERAL REVISIONS.—Title IV of the Indian Self22 Determination and Education Assistance Act (25 U.S.C. 

23 458aa et seq.) is amended by striking sections 404 through 

24 408 and inserting the following: 


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1 ‘‘SEC. 404. COMPACTS. 

2 ‘‘(a) IN GENERAL.—The Secretary shall negotiate and 

3 enter into a written compact with each Indian tribe partici4 pating in self-governance in a manner consistent with the 

5 trust responsibility of the Federal Government, treaty obli6 gations, and the government-to-government relationship be7 tween Indian tribes and the United States. 

8 ‘‘(b) CONTENTS.—A compact under subsection (a) 

9 shall— 

10 ‘‘(1) specify and affirm the general terms of the 

11 government-to-government relationship between the 

12 Indian tribe and the Secretary; and 

13 ‘‘(2) include such terms as the parties intend 

14 shall control during the term of the compact. 

15 ‘‘(c) AMENDMENT.—A compact under subsection (a) 

16 may be amended only by agreement of the parties. 

17 ‘‘(d) EFFECTIVE DATE.—The effective date of a com18 pact under subsection (a) shall be— 

19 ‘‘(1) the date of the execution of the compact by 

20 the parties; or 

21 ‘‘(2) such date as is mutually agreed upon by the 

22 parties. 

23 ‘‘(e) DURATION.—A compact under subsection (a) shall 

24 remain in effect— 

25 ‘‘(1) for so long as permitted by Federal law; or 


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1 ‘‘(2) until termination by written agreement, ret2 rocession, or reassumption. 

3 ‘‘(f) EXISTING COMPACTS.—An Indian tribe partici4 pating in self-governance under this title, as in effect on 

5 the date of enactment of the Department of the Interior 

6 Tribal Self-Governance Act of 2014, shall have the option 

7 at any time after that date— 

8 ‘‘(1) to retain its negotiated compact (in whole 

9 or in part) to the extent that the provisions of the 

10 compact are not directly contrary to any express pro11 vision of this title; or 

12 ‘‘(2) to negotiate a new compact in a manner 

13 consistent with this title. 

14 ‘‘SEC. 405. GENERAL PROVISIONS. 

15 ‘‘(a) APPLICABILITY.—An Indian tribe and the Sec16 retary shall include in any compact or funding agreement 

17 provisions that reflect the requirements of this title. 

18 ‘‘(b) CONFLICTS OF INTEREST.—An Indian tribe par19 ticipating in self-governance shall ensure that internal 

20 measures are in place to address, pursuant to tribal law 

21 and procedures, conflicts of interest in the administration 

22 of programs. 

23 ‘‘(c) AUDITS.— 


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1 ‘‘(1) SINGLE AGENCY AUDIT ACT.—Chapter 75 of 

2 title 31, United States Code, shall apply to a funding 

3 agreement under this title. 

4 ‘‘(2) COST PRINCIPLES.—An Indian tribe shall 

5 apply cost principles under the applicable Office of 

6 Management and Budget circular, except as modified 

7 by— 

8 ‘‘(A) any provision of law, including section 

9 106; or 

10 ‘‘(B) any exemptions to applicable Office of 

11 Management and Budget circulars subsequently 

12 granted by the Office of Management and Budg13 et. 

14 ‘‘(3) FEDERAL CLAIMS.—Any claim by the Fed15 eral Government against an Indian tribe relating to 

16 funds received under a funding agreement based on 

17 any audit under this subsection shall be subject to sec18 tion 106(f). 

19 ‘‘(d) REDESIGN AND CONSOLIDATION.—Except as pro20 vided in section 407, an Indian tribe may redesign or con21 solidate programs or reallocate funds for programs in any 

22 manner that the Indian tribe determines to be in the best 

23 interest of the Indian community being served, so long as 

24 that the redesign or consolidation does not have the effect 

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1 erwise eligible to be served under applicable Federal law, 

2 except that, with respect to the reallocation, consolidation, 

3 and redesign of programs described in subsection (b)(2) or 

4 (c) of section 403, a joint agreement between the Secretary 

5 and the Indian tribe shall be required. 

6 ‘‘(e) RETROCESSION.— 

7 ‘‘(1) IN GENERAL.—An Indian tribe may fully 

8 or partially retrocede to the Secretary any program 

9 under a compact or funding agreement. 

10 ‘‘(2) EFFECTIVE DATE.— 

11 ‘‘(A) AGREEMENT.—Unless an Indian tribe 

12 rescinds a request for retrocession under para13 graph (1), the retrocession shall become effective 

14 on the date specified by the parties in the com15 pact or funding agreement. 

16 ‘‘(B) NO AGREEMENT.—In the absence of a 

17 specification of an effective date in the compact 

18 or funding agreement, the retrocession shall be19 come effective on— 

20 ‘‘(i) the earlier of— 

21 ‘‘(I) 1 year after the date on 

22 which the request is submitted; and 

23 ‘‘(II) the date on which the fund24 ing agreement expires; or 


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1 ‘‘(ii) such date as may be mutually 

2 agreed upon by the Secretary and the In3 dian tribe. 

4 ‘‘(f) NONDUPLICATION.—A funding agreement shall 

5 provide that, for the period for which, and to the extent 

6 to which, funding is provided to an Indian tribe under this 

7 title, the Indian tribe— 

8 ‘‘(1) shall not be entitled to contract with the 

9 Secretary for funds under section 102, except that the 

10 Indian tribe shall be eligible for new programs on the 

11 same basis as other Indian tribes; and 

12 ‘‘(2) shall be responsible for the administration 

13 of programs in accordance with the compact or fund14 ing agreement. 

15 ‘‘(g) RECORDS.— 

16 ‘‘(1) IN GENERAL.—Unless an Indian tribe 

17 specifies otherwise in the compact or funding agree18 ment, records of an Indian tribe shall not be consid19 ered to be Federal records for purposes of chapter 5 

20 of title 5, United States Code. 

21 ‘‘(2) RECORDKEEPING SYSTEM.—An Indian tribe 

22 shall— 

23 ‘‘(A) maintain a recordkeeping system; and 

24 ‘‘(B) on a notice period of not less than 30 

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1 cess to the records to enable the Department to 

2 meet the requirements of sections 3101 through 

3 3106 of title 44, United States Code. 

4 ‘‘SEC. 406. PROVISIONS RELATING TO THE SECRETARY. 

5 ‘‘(a) TRUST EVALUATIONS.—A funding agreement 

6 shall include a provision to monitor the performance of 

7 trust functions by the Indian tribe through the annual trust 

8 evaluation. 

9 ‘‘(b) REASSUMPTION.— 

10 ‘‘(1) IN GENERAL.—A compact or funding agree11 ment shall include provisions for the Secretary to re12 assume a program and associated funding if there is 

13 a specific finding relating to that program of— 

14 ‘‘(A) imminent jeopardy to a trust asset, a 

15 natural resource, or public health and safety 

16 that— 

17 ‘‘(i) is caused by an act or omission of 

18 the Indian tribe; and 

19 ‘‘(ii) arises out of a failure to carry 

20 out the compact or funding agreement; or 

21 ‘‘(B) gross mismanagement with respect to 

22 funds transferred to an Indian tribe under a 

23 compact or funding agreement, as determined by 

24 the Secretary in consultation with the Inspector 

25 General, as appropriate. 


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1 ‘‘(2) PROHIBITION.—The Secretary shall not re2 assume operation of a program, in whole or part, un3 less— 

4 ‘‘(A) the Secretary first provides written no5 tice and a hearing on the record to the Indian 

6 tribe; and 

7 ‘‘(B) the Indian tribe does not take correc8 tive action to remedy the mismanagement of the 

9 funds or programs, or the imminent jeopardy to 

10 a trust asset, natural resource, or public health 

11 and safety. 

12 ‘‘(3) EXCEPTION.— 

13 ‘‘(A) IN GENERAL.—Notwithstanding para14 graph (2), the Secretary may, on written notice 

15 to the Indian tribe, immediately reassume oper16 ation of a program if— 

17 ‘‘(i) the Secretary makes a finding of 

18 imminent and substantial jeopardy and ir19 reparable harm to a trust asset, a natural 

20 resource, or the public health and safety 

21 caused by an act or omission of the Indian 

22 tribe; and 

23 ‘‘(ii) the imminent and substantial 

24 jeopardy, and irreparable harm to the trust 

25 asset, natural resource, or public health and 


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1 safety arises out of a failure by the Indian 

2 tribe to carry out the terms of an applicable 

3 compact or funding agreement. 

4 ‘‘(B) REASSUMPTION.—If the Secretary re5 assumes operation of a program under subpara6 graph (A), the Secretary shall provide the Indian 

7 tribe with a hearing on the record not later than 

8 10 days after the date of reassumption. 

9 ‘‘(c) INABILITY TO AGREE ON COMPACT OR FUNDING

10 AGREEMENT.— 

11 ‘‘(1) FINAL OFFER.—If the Secretary and a par12 ticipating Indian tribe are unable to agree, in whole 

13 or in part, on the terms of a compact or funding 

14 agreement (including funding levels), the Indian tribe 

15 may submit a final offer to the Secretary. 

16 ‘‘(2) DETERMINATION.—Not more than 60 days 

17 after the date of receipt of a final offer by the one or 

18 more officials designated pursuant to paragraph (4), 

19 the Secretary shall review and make a determination 

20 with respect to the final offer. 

21 ‘‘(3) EXTENSIONS.—The deadline described in 

22 paragraph (2) may be extended for any length of 

23 time, as agreed upon by both the Indian tribe and the 

24 Secretary. 

25 ‘‘(4) DESIGNATED OFFICIALS.— 


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1 ‘‘(A) IN GENERAL.—The Secretary shall 

2 designate one or more appropriate officials in 

3 the Department to receive a copy of the final 

4 offer described in paragraph (1). 

5 ‘‘(B) NO DESIGNATION.—If no official is 

6 designated, the Executive Secretariat of the Sec7 retary shall be the designated official. 

8 ‘‘(5) NO TIMELY DETERMINATION.—Except as 

9 otherwise provided in section 202 of the Department 

10 of the Interior Tribal Self-Governance Act of 2014, if 

11 the Secretary fails to make a determination with re12 spect to a final offer within the period specified in 

13 paragraph (2), the Secretary shall be deemed to have 

14 agreed to the offer. 

15 ‘‘(6) REJECTION OF FINAL OFFER.— 

16 ‘‘(A) IN GENERAL.—If the Secretary rejects 

17 a final offer (or one or more provisions or fund18 ing levels in a final offer), the Secretary shall— 

19 ‘‘(i) provide timely written notification 

20 to the Indian tribe that contains a specific 

21 finding that clearly demonstrates, or that is 

22 supported by a controlling legal authority, 

23 that— 

24 ‘‘(I) the amount of funds proposed 

25 in the final offer exceeds the applicable 


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1 funding level as determined under sec2 tion 106(a)(1); 

3 ‘‘(II) the program that is the sub4 ject of the final offer is an inherent 

5 Federal function or is subject to the 

6 discretion of the Secretary under sec7 tion 403(c); 

8 ‘‘(III) the Indian tribe cannot 

9 carry out the program in a manner 

10 that would not result in significant 

11 danger or risk to the public health or 

12 safety, to natural resources, or to trust 

13 resources; 

14 ‘‘(IV) the Indian tribe is not eligi15 ble to participate in self-governance 

16 under section 402(c); 

17 ‘‘(V) the funding agreement would 

18 violate a Federal statute or regulation; 

19 or 

20 ‘‘(VI) with respect to a program 

21 or portion of a program included in a 

22 final offer pursuant to section 

23 403(b)(2), the program or the portion 

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1 able to Indian tribes or Indians under 

2 section 102(a)(1)(E); 

3 ‘‘(ii) provide technical assistance to 

4 overcome the objections stated in the notifi5 cation required by clause (i); 

6 ‘‘(iii) provide the Indian tribe with— 

7 ‘‘(I) a hearing on the record with 

8 the right to engage in full discovery 

9 relevant to any issue raised in the 

10 matter; and 

11 ‘‘(II) the opportunity for appeal 

12 on the objections raised (except that the 

13 Indian tribe may, in lieu of filing such 

14 appeal, directly proceed to initiate an 

15 action in a United States district court 

16 under section 110(a)); and 

17 ‘‘(iv) provide the Indian tribe the op18 tion of entering into the severable portions 

19 of a final proposed compact or funding 

20 agreement (including a lesser funding 

21 amount, if any), that the Secretary did not 

22 reject, subject to any additional alterations 

23 necessary to conform the compact or fund24 ing agreement to the severed provisions. 


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1 ‘‘(B) EFFECT OF EXERCISING CERTAIN OP2 TION.—If an Indian tribe exercises the option 

3 specified in subparagraph (A)(iv)— 

4 ‘‘(i) the Indian tribe shall retain the 

5 right to appeal the rejection by the Sec6 retary under this section; and 

7 ‘‘(ii) clauses (i), (ii), and (iii) of sub8 paragraph (A) shall apply only to the por9 tion of the proposed final compact or fund10 ing agreement that was rejected by the Sec11 retary. 

12 ‘‘(d) BURDEN OF PROOF.—In any administrative ac13 tion, hearing, or appeal or civil action brought under this 

14 section, the Secretary shall have the burden of proof— 

15 ‘‘(1) of demonstrating, by a preponderance of the 

16 evidence, the validity of the grounds for a reassump17 tion under subsection (b); and 

18 ‘‘(2) of clearly demonstrating the validity of the 

19 grounds for rejecting a final offer made under sub20 section (c). 

21 ‘‘(e) GOOD FAITH.— 

22 ‘‘(1) IN GENERAL.—In the negotiation of com23 pacts and funding agreements, the Secretary shall at 

24 all times negotiate in good faith to maximize imple25 mentation of the self-governance policy. 


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1 ‘‘(2) POLICY.—The Secretary shall carry out this 

2 title in a manner that maximizes the policy of tribal 

3 self-governance. 

4 ‘‘(f) SAVINGS.— 

5 ‘‘(1) IN GENERAL.—To the extent that programs 

6 carried out for the benefit of Indian tribes and tribal 

7 organizations under this title reduce the administra8 tive or other responsibilities of the Secretary with re9 spect to the operation of Indian programs and result 

10 in savings that have not otherwise been included in 

11 the amount of tribal shares and other funds deter12 mined under section 408(c), except for funding agree13 ments entered into for programs under section 403(c), 

14 the Secretary shall make such savings available to the 

15 Indian tribes or tribal organizations for the provision 

16 of additional services to program beneficiaries in a 

17 manner equitable to directly served, contracted, and 

18 compacted programs. 

19 ‘‘(2) DISCRETIONARY PROGRAMS OF SPECIAL

20 SIGNIFICANCE.—For any savings generated as a re21 sult of the assumption of a program by an Indian 

22 tribe under section 403(c), such savings shall be made 

23 available to that Indian tribe. 

24 ‘‘(g) TRUST RESPONSIBILITY.—The Secretary may not 

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1 bility of the United States with respect to Indian tribes and 

2 individual Indians that exists under treaties, Executive or3 ders, other laws, or court decisions. 

4 ‘‘(h) DECISIONMAKER.—A decision that constitutes 

5 final agency action and relates to an appeal within the De6 partment conducted under subsection (c)(4) may be made 

7 by— 

8 ‘‘(1) an official of the Department who holds a 

9 position at a higher organizational level within the 

10 Department than the level of the departmental agency 

11 in which the decision that is the subject of the appeal 

12 was made; or 

13 ‘‘(2) an administrative law judge. 

14 ‘‘(i) RULES OF CONSTRUCTION.—Subject to section 

15 202 of the Department of the Interior Tribal Self-Govern16 ance Act of 2014, each provision of this title and each provi17 sion of a compact or funding agreement shall be liberally 

18 construed for the benefit of the Indian tribe participating 

19 in self-governance, and any ambiguity shall be resolved in 

20 favor of the Indian tribe. 

21 ‘‘SEC. 407. CONSTRUCTION PROGRAMS AND PROJECTS. 

22 ‘‘(a) IN GENERAL.—Indian tribes participating in 

23 tribal self-governance may carry out construction projects 

24 under this title. 


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1 ‘‘(b) TRIBAL OPTION TO CARRY OUT CERTAIN FED2 ERAL ENVIRONMENTAL ACTIVITIES.—In carrying out a 

3 construction project under this title, an Indian tribe may, 

4 subject to the agreement of the Secretary, elect to assume 

5 some Federal responsibilities under the National Environ6 mental Policy Act of 1969 (42 U.S.C. 4321 et seq.), the Na7 tional Historic Preservation Act (16 U.S.C. 470 et seq.), 

8 and related provisions of law and regulations that would 

9 apply if the Secretary were to undertake a construction 

10 project, by adopting a resolution— 

11 ‘‘(1) designating a certifying tribal officer to rep12 resent the Indian tribe and to assume the status of a 

13 responsible Federal official under those Acts or regu14 lations; and 

15 ‘‘(2) accepting the jurisdiction of the United 

16 States courts for the purpose of enforcing the respon17 sibilities of the certifying tribal officer assuming the 

18 status of a responsible Federal official under those 

19 Acts or regulations. 

20 ‘‘(c) SAVINGS CLAUSE.—Notwithstanding subsection 

21 (b), nothing in this section authorizes the Secretary to in22 clude in any compact or funding agreement duties of the 

23 Secretary under the National Environmental Policy Act 

24 (42 U.S.C. 4321 et seq.), the National Historic Preservation 


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1 Act (16 U.S.C. 470 et seq.), and other related provisions 

2 of law that are inherent Federal functions. 

3 ‘‘(d) CODES AND STANDARDS.—In carrying out a con4 struction project under this title, an Indian tribe shall— 

5 ‘‘(1) adhere to applicable Federal, State, local, 

6 and tribal building codes, architectural and engineer7 ing standards, and applicable Federal guidelines re8 garding design, space, and operational standards, ap9 propriate for the particular project; and 

10 ‘‘(2) use only architects and engineers who— 

11 ‘‘(A) are licensed to practice in the State in 

12 which the facility will be built; and 

13 ‘‘(B) certify that— 

14 ‘‘(i) they are qualified to perform the 

15 work required by the specific construction 

16 involved; and 

17 ‘‘(ii) upon completion of design, the 

18 plans and specifications meet or exceed the 

19 applicable construction and safety codes. 

20 ‘‘(e) TRIBAL ACCOUNTABILITY.— 

21 ‘‘(1) IN GENERAL.—In carrying out a construc22 tion project under this title, an Indian tribe shall as23 sume responsibility for the successful completion of 

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1 ble for the purpose for which the Indian tribe received 

2 funding. 

3 ‘‘(2) REQUIREMENTS.—For each construction 

4 project carried out by an Indian tribe under this 

5 title, the Indian tribe and the Secretary shall nego6 tiate a provision to be included in the funding agree7 ment that identifies— 

8 ‘‘(A) the approximate start and completion 

9 dates for the project, which may extend over a 

10 period of one or more years; 

11 ‘‘(B) a general description of the project, in12 cluding the scope of work, references to design 

13 criteria, and other terms and conditions; 

14 ‘‘(C) the responsibilities of the Indian tribe 

15 and the Secretary for the project; 

16 ‘‘(D) how project-related environmental con17 siderations will be addressed; 

18 ‘‘(E) the amount of funds provided for the 

19 project; 

20 ‘‘(F) the obligations of the Indian tribe to 

21 comply with the codes referenced in subsection 

22 (d)(1) and applicable Federal laws and regula23 tions; 

24 ‘‘(G) the agreement of the parties over who 

25 will bear any additional costs necessary to meet 


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1 changes in scope, or errors or omissions in de2 sign and construction; and 

3 ‘‘(H) the agreement of the Secretary to issue 

4 a certificate of occupancy, if requested by the In5 dian tribe, based upon the review and 

6 verification by the Secretary, to the satisfaction 

7 of the Secretary, that the Indian tribe has se8 cured upon completion the review and approval 

9 of the plans and specifications, sufficiency of de10 sign, life safety, and code compliance by quali11 fied, licensed, and independent architects and en12 gineers. 

13 ‘‘(f) FUNDING.— 

14 ‘‘(1) IN GENERAL.—Funding appropriated for 

15 construction projects carried out under this title shall 

16 be included in funding agreements as annual or semi17 annual advance payments at the option of the Indian 

18 tribe. 

19 ‘‘(2) ADVANCE PAYMENTS.—The Secretary shall 

20 include all associated project contingency funds with 

21 each advance payment, and the Indian tribe shall be 

22 responsible for the management of such contingency 

23 funds. 

24 ‘‘(g) NEGOTIATIONS.—At the option of the Indian 

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1 tiated pursuant to the statutory process in section 105, and 

2 any resulting construction project agreement shall be incor3 porated into the funding agreement as addenda. 

4 ‘‘(h) FEDERAL REVIEW AND VERIFICATION.— 

5 ‘‘(1) IN GENERAL.—On a schedule negotiated by 

6 the Secretary and the Indian tribe— 

7 ‘‘(A) the Secretary shall review and verify, 

8 to the satisfaction of the Secretary, that project 

9 planning and design documents prepared by the 

10 Indian tribe in advance of initial construction 

11 are in conformity with the obligations of the In12 dian tribe under subsection (d); and 

13 ‘‘(B) before the project planning and design 

14 documents are implemented, the Secretary shall 

15 review and verify to the satisfaction of the Sec16 retary that subsequent document amendments 

17 which result in a significant change in construc18 tion are in conformity with the obligations of the 

19 Indian tribe under subsection (d). 

20 ‘‘(2) REPORTS.—The Indian tribe shall provide 

21 the Secretary with project progress and financial re22 ports not less than semiannually. 

23 ‘‘(3) OVERSIGHT VISITS.—The Secretary may 

24 conduct onsite project oversight visits semiannually or 


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1 on an alternate schedule agreed to by the Secretary 

2 and the Indian tribe. 

3 ‘‘(i) APPLICATION OF OTHER LAWS.—Unless otherwise 

4 agreed to by the Indian tribe and except as otherwise pro5 vided in this Act, no provision of the Office of Federal Pro6 curement Policy Act (41 U.S.C. 401 et seq.), the Federal 

7 Acquisition Regulations issued pursuant to that Act, or any 

8 other law or regulation pertaining to Federal procurement 

9 (including Executive orders) shall apply to any construc10 tion program or project carried out under this title. 

11 ‘‘(j) FUTURE FUNDING.—Upon completion of a facil12 ity constructed under this title, the Secretary shall include 

13 the facility among those eligible for annual operation and 

14 maintenance funding support comparable to that provided 

15 for similar facilities funded by the Department as annual 

16 appropriations are available and to the extent that the fa17 cility size and complexity and other factors do not exceed 

18 the funding formula criteria for comparable buildings. 

19 ‘‘(k) APPLICABILITY.—Notwithstanding any other pro20 vision of this section, section 202 of the Department of the 

21 Interior Tribal Self-Governance Act of 2014 applies to sub22 sections (a) through (j). 

23 ‘‘SEC. 408. PAYMENT. 

24 ‘‘(a) IN GENERAL.—At the request of the governing 

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1 ble funding agreement, the Secretary shall provide funding 

2 to the Indian tribe to carry out the funding agreement. 

3 ‘‘(b) ADVANCE ANNUAL PAYMENT.—At the option of 

4 the Indian tribe, a funding agreement shall provide for an 

5 advance annual payment to an Indian tribe. 

6 ‘‘(c) AMOUNT.— 

7 ‘‘(1) IN GENERAL.—Subject to subsection (e) and 

8 sections 403 and 405, the Secretary shall provide 

9 funds to the Indian tribe under a funding agreement 

10 for programs in an amount that is equal to the 

11 amount that the Indian tribe would have been entitled 

12 to receive under contracts and grants under this Act 

13 (including amounts for direct program and contract 

14 support costs and, in addition, any funds that are 

15 specifically or functionally related to the provision by 

16 the Secretary of services and benefits to the Indian 

17 tribe or its members) without regard to the organiza18 tion level within the Department at which the pro19 grams are carried out. 

20 ‘‘(2) SAVINGS CLAUSE.—Nothing in this section 

21 reduces programs, services, or funds of, or provided to, 

22 another Indian tribe. 

23 ‘‘(d) TIMING.— 

24 ‘‘(1) IN GENERAL.—Pursuant to the terms of any 

25 compact or funding agreement entered into under this 


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1 title, the Secretary shall transfer to the Indian tribe 

2 all funds provided for in the funding agreement, pur3 suant to subsection (c), and provide funding for peri4 ods covered by joint resolution adopted by Congress 

5 making continuing appropriations, to the extent per6 mitted by such resolution. 

7 ‘‘(2) TRANSFERS.—Not later than 1 year after 

8 the date of enactment of the Department of the Inte9 rior Tribal Self-Governance Act of 2014, in any in10 stance in which a funding agreement requires an an11 nual transfer of funding to be made at the beginning 

12 of a fiscal year or requires semiannual or other peri13 odic transfers of funding to be made commencing at 

14 the beginning of a fiscal year, the first such transfer 

15 shall be made not later than 10 days after the appor16 tionment of such funds by the Office of Management 

17 and Budget to the Department, unless the funding 

18 agreement provides otherwise. 

19 ‘‘(e) AVAILABILITY.—Funds for trust services to indi20 vidual Indians shall be available under a funding agree21 ment only to the extent that the same services that would 

22 have been provided by the Secretary are provided to indi23 vidual Indians by the Indian tribe. 

24 ‘‘(f) MULTIYEAR FUNDING.—A funding agreement 

25 may provide for multiyear funding. 


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1 ‘‘(g) LIMITATIONS ON AUTHORITY OF THE SEC2 RETARY.—The Secretary shall not— 

3 ‘‘(1) fail to transfer to an Indian tribe its full 

4 share of any central, headquarters, regional, area, or 

5 service unit office or other funds due under this title 

6 for programs eligible under paragraph (1) or (2) of 

7 section 403(b), except as required by Federal law; 

8 ‘‘(2) withhold any portion of such funds for 

9 transfer over a period of years; or 

10 ‘‘(3) reduce the amount of funds required under 

11 this title— 

12 ‘‘(A) to make funding available for self-gov13 ernance monitoring or administration by the 

14 Secretary; 

15 ‘‘(B) in subsequent years, except as nec16 essary as a result of— 

17 ‘‘(i) a reduction in appropriations 

18 from the previous fiscal year for the pro19 gram to be included in a compact or fund20 ing agreement; 

21 ‘‘(ii) a congressional directive in legis22 lation or an accompanying report; 

23 ‘‘(iii) a tribal authorization; 


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1 ‘‘(iv) a change in the amount of pass2 through funds subject to the terms of the 

3 funding agreement; or 

4 ‘‘(v) completion of an activity under a 

5 program for which the funds were provided; 

6 ‘‘(C) to pay for Federal functions, includ7 ing— 

8 ‘‘(i) Federal pay costs; 

9 ‘‘(ii) Federal employee retirement bene10 fits; 

11 ‘‘(iii) automated data processing; 

12 ‘‘(iv) technical assistance; and 

13 ‘‘(v) monitoring of activities under this 

14 title; or 

15 ‘‘(D) to pay for costs of Federal personnel 

16 displaced by self-determination contracts under 

17 this Act or self-governance under this title. 

18 ‘‘(h) FEDERAL RESOURCES.—If an Indian tribe elects 

19 to carry out a compact or funding agreement with the use 

20 of Federal personnel, Federal supplies (including supplies 

21 available from Federal warehouse facilities), Federal supply 

22 sources (including lodging, airline transportation, and 

23 other means of transportation, including the use of inter24 agency motor pool vehicles), or other Federal resources (in25 cluding supplies, services, and resources available to the 


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1 Secretary under any procurement contracts in which the 

2 Department is eligible to participate), the Secretary shall, 

3 as soon as practicable, acquire and transfer such personnel, 

4 supplies, or resources to the Indian tribe under this title. 

5 ‘‘(i) PROMPT PAYMENT ACT.—Chapter 39 of title 31, 

6 United States Code, shall apply to the transfer of funds due 

7 under a compact or funding agreement authorized under 

8 this title. 

9 ‘‘(j) INTEREST OR OTHER INCOME.— 

10 ‘‘(1) IN GENERAL.—An Indian tribe may retain 

11 interest or income earned on any funds paid under 

12 a compact or funding agreement to carry out govern13 mental purposes. 

14 ‘‘(2) NO EFFECT ON OTHER AMOUNTS.—The re15 tention of interest or income under paragraph (1) 

16 shall not diminish the amount of funds an Indian 

17 tribe is entitled to receive under a funding agreement 

18 in the year the interest or income is earned or in any 

19 subsequent fiscal year. 

20 ‘‘(3) INVESTMENT STANDARD.—Funds trans21 ferred under this title shall be managed by the Indian 

22 tribe using the prudent investment standard, provided 

23 that the Secretary shall not be liable for any invest24 ment losses of funds managed by the Indian tribe that 


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1 are not otherwise guaranteed or insured by the Fed2 eral Government. 

3 ‘‘(k) CARRYOVER OF FUNDS.— 

4 ‘‘(1) IN GENERAL.—Notwithstanding any provi5 sion of an appropriations Act, all funds paid to an 

6 Indian tribe in accordance with a compact or fund7 ing agreement shall remain available until expended. 

8 ‘‘(2) EFFECT OF CARRYOVER.—If an Indian 

9 tribe elects to carry over funding from 1 year to the 

10 next, the carryover shall not diminish the amount of 

11 funds the Indian tribe is entitled to receive under a 

12 funding agreement in that fiscal year or any subse13 quent fiscal year. 

14 ‘‘(l) LIMITATION OF COSTS.— 

15 ‘‘(1) IN GENERAL.—An Indian tribe shall not be 

16 obligated to continue performance that requires an ex17 penditure of funds in excess of the amount of funds 

18 transferred under a compact or funding agreement. 

19 ‘‘(2) NOTICE OF INSUFFICIENCY.—If at any time 

20 the Indian tribe has reason to believe that the total 

21 amount provided for a specific activity under a com22 pact or funding agreement is insufficient, the Indian 

23 tribe shall provide reasonable notice of such insuffi24 ciency to the Secretary. 


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1 ‘‘(3) SUSPENSION OF PERFORMANCE.—If, after 

2 notice under paragraph (2), the Secretary does not 

3 increase the amount of funds transferred under the 

4 funding agreement, the Indian tribe may suspend 

5 performance of the activity until such time as addi6 tional funds are transferred. 

7 ‘‘(4) SAVINGS CLAUSE.—Nothing in this section 

8 reduces any programs, services, or funds of, or pro9 vided to, another Indian tribe. 

10 ‘‘(m) DISTRIBUTION OF FUNDS.—The Office of Self11 Governance shall be responsible for distribution of all Bu12 reau of Indian Affairs funds provided under this title unless 

13 otherwise agreed by the parties to an applicable funding 

14 agreement. 

15 ‘‘(n) APPLICABILITY.—Notwithstanding any other pro16 vision of this section, section 202 of the Department of the 

17 Interior Tribal Self-Governance Act of 2014 applies to sub18 sections (a) through (m). 

19 ‘‘SEC. 409. FACILITATION. 

20 ‘‘(a) IN GENERAL.—Except as otherwise provided by 

21 law (including section 202 of the Department of the Interior 

22 Tribal Self-Governance Act of 2014), the Secretary shall in23 terpret each Federal law and regulation in a manner that 

24 facilitates— 


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1 ‘‘(1) the inclusion of programs in funding agree2 ments; and 

3 ‘‘(2) the implementation of funding agreements. 

4 ‘‘(b) REGULATION WAIVER.— 

5 ‘‘(1) REQUEST.—An Indian tribe may submit to 

6 the Secretary a written request for a waiver of appli7 cability of a Federal regulation, including— 

8 ‘‘(A) an identification of the specific text in 

9 the regulation sought to be waived; and 

10 ‘‘(B) the basis for the request. 

11 ‘‘(2) DETERMINATION BY THE SECRETARY.—Not 

12 later than 120 days after receipt by the Secretary and 

13 the designated officials under paragraph (4) of a re14 quest under paragraph (1), the Secretary shall ap15 prove or deny the requested waiver in writing to the 

16 Indian tribe. 

17 ‘‘(3) EXTENSIONS.—The deadline described in 

18 paragraph (2) may be extended for any length of 

19 time, as agreed upon by both the Indian tribe and the 

20 Secretary. 

21 ‘‘(4) DESIGNATED OFFICIALS.—The Secretary 

22 shall designate one or more appropriate officials in 

23 the Department to receive a copy of the waiver request 

24 described in paragraph (1). 


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1 ‘‘(5) GROUNDS FOR DENIAL.—The Secretary 

2 may deny a request under paragraph (1)— 

3 ‘‘(A) for a program eligible under para4 graph (1) or (2) of section 403(b), only upon a 

5 specific finding by the Secretary that the identi6 fied text in the regulation may not be waived be7 cause such a waiver is prohibited by Federal 

8 law; and 

9 ‘‘(B) for a program eligible under section 

10 403(c), upon a specific finding by the Secretary 

11 that the waiver is prohibited by Federal law or 

12 is inconsistent with the express provisions of the 

13 funding agreement. 

14 ‘‘(6) FAILURE TO MAKE DETERMINATION.—If the 

15 Secretary fails to approve or deny a waiver request 

16 within the period required under paragraph (2), the 

17 Secretary shall be deemed to have approved the re18 quest. 

19 ‘‘(7) FINALITY.—A decision of the Secretary 

20 under this section shall be final for the Department. 

21 ‘‘SEC. 410. DISCLAIMERS. 

22 ‘‘Nothing in this title expands or alters any statutory 

23 authority of the Secretary in a manner that authorizes the 

24 Secretary to enter into any agreement under section 403— 


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1 ‘‘(1) with respect to an inherent Federal func2 tion; 

3 ‘‘(2) in a case in which the law establishing a 

4 program explicitly prohibits the type of participation 

5 sought by the Indian tribe (without regard to whether 

6 one or more Indian tribes are identified in the au7 thorizing law); or 

8 ‘‘(3) that limits or reduces in any way the serv9 ices, contracts, or funds that any other Indian tribe 

10 or tribal organization is eligible to receive under sec11 tion 102 or any other applicable Federal law. 

12 ‘‘SEC. 411. DISCRETIONARY APPLICATION OF OTHER SEC13 TIONS. 

14 ‘‘(a) IN GENERAL.—Except as otherwise provided in 

15 section 101(c), at the option of a participating Indian tribe 

16 or Indian tribes, any of the provisions of title I may be 

17 incorporated in any compact or funding agreement under 

18 this title. 

19 ‘‘(b) EFFECT.—Each incorporated provision under 

20 subsection (a) shall— 

21 ‘‘(1) have the same force and effect as if set out 

22 in full in this title; 

23 ‘‘(2) supplement or replace any related provision 

24 in this title; and 


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1 ‘‘(3) apply to any agency otherwise governed by 

2 this title. 

3 ‘‘(c) EFFECTIVE DATE.—If an Indian tribe requests 

4 incorporation at the negotiation stage of a compact or fund5 ing agreement, the incorporation shall— 

6 ‘‘(1) be effective immediately; and 

7 ‘‘(2) control the negotiation and resulting com8 pact and funding agreement. 

9 ‘‘SEC. 412. ANNUAL BUDGET LIST. 

10 ‘‘The Secretary shall list, in the annual budget request 

11 submitted to Congress under section 1105 of title 31, United 

12 States Code, any funds proposed to be included in funding 

13 agreements authorized under this Act. 

14 ‘‘SEC. 413. REPORTS. 

15 ‘‘(a) IN GENERAL.— 

16 ‘‘(1) REQUIREMENT.—On January 1 of each 

17 year, the Secretary shall submit to Congress a report 

18 regarding the administration of this title. 

19 ‘‘(2) ANALYSIS.—Any Indian tribe may submit 

20 to the Office of Self-Governance and to the appro21 priate Committees of Congress a detailed annual 

22 analysis of unmet tribal needs for funding agreements 

23 under this title. 

24 ‘‘(b) CONTENTS.—The report under subsection (a)(1) 

25 shall— 


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1 ‘‘(1) be compiled from information contained in 

2 funding agreements, annual audit reports, and data 

3 of the Secretary regarding the disposition of Federal 

4 funds; 

5 ‘‘(2) identify— 

6 ‘‘(A) the relative costs and benefits of self7 governance; 

8 ‘‘(B) with particularity, all funds that are 

9 specifically or functionally related to the provi10 sion by the Secretary of services and benefits to 

11 self-governance Indian tribes and members of In12 dian tribes; 

13 ‘‘(C) the funds transferred to each Indian 

14 tribe and the corresponding reduction in the 

15 Federal employees and workload; and 

16 ‘‘(D) the funding formula for individual 

17 tribal shares of all Central Office funds, together 

18 with the comments of affected Indian tribes, de19 veloped under subsection (d); 

20 ‘‘(3) before being submitted to Congress, be dis21 tributed to the Indian tribes for comment (with a 

22 comment period of no less than 30 days); 

23 ‘‘(4) include the separate views and comments of 

24 each Indian tribe or tribal organization; and 

25 ‘‘(5) include a list of— 


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1 ‘‘(A) all such programs that the Secretary 

2 determines, in consultation with Indian tribes 

3 participating in self-governance, are eligible for 

4 negotiation to be included in a funding agree5 ment at the request of a participating Indian 

6 tribe; and 

7 ‘‘(B) all such programs which Indian tribes 

8 have formally requested to include in a funding 

9 agreement under section 403(c) due to the special 

10 geographic, historical, or cultural significance of 

11 the program to the Indian tribe, indicating 

12 whether each request was granted or denied, and 

13 stating the grounds for any denial. 

14 ‘‘(c) REPORT ON NON-BIA, NON-OST PROGRAMS.— 

15 ‘‘(1) IN GENERAL.—In order to optimize oppor16 tunities for including non-Bureau of Indian Affairs 

17 and non-Office of Special Trustee programs in agree18 ments with Indian tribes participating in self-govern19 ance under this title, the Secretary shall review all 

20 programs administered by the Department, other than 

21 through the Bureau of Indian Affairs or Office of the 

22 Special Trustee, without regard to the agency or office 

23 concerned. 

24 ‘‘(2) PROGRAMMATIC TARGETS.—The Secretary 

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1 tion with Indian tribes participating in self-govern2 ance, to encourage bureaus of the Department to en3 sure that an appropriate portion of those programs 

4 are available to be included in funding agreements. 

5 ‘‘(3) PUBLICATION.—The lists under subsection 

6 (b)(5) and targets under paragraph (2) shall be pub7 lished in the Federal Register and made available to 

8 any Indian tribe participating in self-governance. 

9 ‘‘(4) ANNUAL REVIEW.— 

10 ‘‘(A) IN GENERAL.—The Secretary shall an11 nually review and publish in the Federal Reg12 ister, after consultation with Indian tribes par13 ticipating in self-governance, revised lists and 

14 programmatic targets. 

15 ‘‘(B) CONTENTS.—In preparing the revised 

16 lists and programmatic targets, the Secretary 

17 shall consider all programs that were eligible for 

18 contracting in the original list published in the 

19 Federal Register in 1995, except for programs 

20 specifically determined not to be contractible as 

21 a matter of law. 

22 ‘‘(d) REPORT ON CENTRAL OFFICE FUNDS.—Not later 

23 than January 1, 2015, the Secretary shall, in consultation 

24 with Indian tribes, develop a funding formula to determine 

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1 tral Office of the Bureau of Indian Affairs and the Office 

2 of the Special Trustee for inclusion in the compacts. 

3 ‘‘SEC. 414. REGULATIONS. 

4 ‘‘(a) IN GENERAL.— 

5 ‘‘(1) PROMULGATION.—Not later than 90 days 

6 after the date of enactment of the Department of the 

7 Interior Tribal Self-Governance Act of 2014, the Sec8 retary shall initiate procedures under subchapter III 

9 of chapter 5 of title 5, United States Code, to nego10 tiate and promulgate such regulations as are nec11 essary to carry out this title. 

12 ‘‘(2) PUBLICATION OF PROPOSED REGULA13 TIONS.—Proposed regulations to implement this title 

14 shall be published in the Federal Register not later 

15 than 21 months after the date of enactment of the De16 partment of the Interior Tribal Self-Governance Act 

17 of 2014. 

18 ‘‘(3) EXPIRATION OF AUTHORITY.—The author19 ity to promulgate regulations under paragraph (1) 

20 shall expire on the date that is 30 months after the 

21 date of enactment of the Department of the Interior 

22 Tribal Self-Governance Act of 2014. 

23 ‘‘(b) COMMITTEE.— 

24 ‘‘(1) MEMBERSHIP.—A negotiated rulemaking 

25 committee established pursuant to section 565 of title 


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1 5, United States Code, to carry out this section shall 

2 have as its members only representatives of the Fed3 eral Government and tribal government. 

4 ‘‘(2) LEAD AGENCY.—Among the Federal rep5 resentatives described in paragraph (1), the Office of 

6 Self-Governance shall be the lead agency for the De7 partment. 

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

9 shall adapt the negotiated rulemaking procedures to the 

10 unique context of self-governance and the government-to11 government relationship between the United States and In12 dian tribes. 

13 ‘‘(d) EFFECT.— 

14 ‘‘(1) REPEAL.—The Secretary may repeal any 

15 regulation that is inconsistent with this Act. 

16 ‘‘(2) CONFLICTING PROVISIONS.—Subject to sec17 tion 202 of the Department of the Interior Tribal 

18 Self-Governance Act of 2014, this title shall supersede 

19 any conflicting provision of law (including any con20 flicting regulations). 

21 ‘‘(3) EFFECTIVENESS WITHOUT REGARD TO REG22 ULATIONS.—The lack of promulgated regulations on 

23 an issue shall not limit the effect or implementation 

24 of this title. 


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1 ‘‘SEC. 415. EFFECT OF CIRCULARS, POLICIES, MANUALS, 

2 GUIDANCE, AND RULES. 

3 ‘‘Unless expressly agreed to by a participating Indian 

4 tribe in a compact or funding agreement, the participating 

5 Indian tribe shall not be subject to any agency circular, 

6 policy, manual, guidance, or rule adopted by the Depart7 ment, except for— 

8 ‘‘(1) the eligibility provisions of section 105(g); 

9 and 

10 ‘‘(2) regulations promulgated pursuant to section 

11 414. 

12 ‘‘SEC. 416. APPEALS. 

13 ‘‘Except as provided in section 406(d), in any admin14 istrative action, appeal, or civil action for judicial review 

15 of any decision made by the Secretary under this title, the 

16 Secretary shall have the burden of proof of demonstrating 

17 by a preponderance of the evidence— 

18 ‘‘(1) the validity of the grounds for the decision; 

19 and 

20 ‘‘(2) the consistency of the decision with the re21 quirements and policies of this title. 

22 ‘‘SEC. 417. APPLICATION OF OTHER PROVISIONS. 

23 ‘‘Section 314 of the Department of the Interior and 

24 Related Agencies Appropriations Act, 1991 (Public Law 

25 101–512; 104 Stat. 1959), shall apply to compacts and 

26 funding agreements entered into under this title. 


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1 ‘‘SEC. 418. AUTHORIZATION OF APPROPRIATIONS. 

2 ‘‘There are authorized to be appropriated such sums 

3 as are necessary to carry out this title.’’. 

4 SEC. 202. EFFECT OF CERTAIN PROVISIONS. 

5 (a) DEFINITIONS.—In this section: 

6 (1) FUNDING AGREEMENT.—The term ‘‘funding 

7 agreement’’ means a funding agreement entered into 

8 under section 403 of the ISDEAA (25 U.S.C. 458cc). 

9 (2) ISDEAA.—The term ‘‘ISDEAA’’ means the 

10 Indian Self-Determination and Education Assistance 

11 Act (25 U.S.C. 450 et seq.). 

12 (3) NON-BIA PROGRAM.—The term ‘‘non-BIA 

13 program’’ means all or a portion of a program, func14 tion, service, or activity that is administered by any 

15 bureau, service, office, or agency of the Department of 

16 the Interior other than through— 

17 (A) the Bureau of Indian Affairs; 

18 (B) the Office of the Assistant Secretary for 

19 Indian Affairs; or 

20 (C) the Office of the Special Trustee for 

21 American Indians. 

22 (4) SECRETARY.—The term ‘‘Secretary’’ means 

23 the Secretary of the Interior. 

24 (5) SELF-DETERMINATION CONTRACT.—The term 

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1 tion contract entered into under section 102 of the 

2 ISDEAA (25 U.S.C. 450f). 

3 (6) TRIBAL WATER RIGHTS SETTLEMENT.—The 

4 term ‘‘tribal water rights settlement’’ means any set5 tlement, compact, or other agreement expressly rati6 fied or approved by an Act of Congress that— 

7 (A) includes an Indian tribe and the United 

8 States as parties; and 

9 (B) quantifies or otherwise defines any 

10 water right of the Indian tribe. 

11 (b) EFFECT OF PROVISIONS.—Nothing in this Act— 

12 (1) modifies, limits, expands, or otherwise af13 fects— 

14 (A) the authority of the Secretary, as pro15 vided for under the ISDEAA on the day before 

16 the date of enactment of this Act, to include any 

17 non-BIA program in a self-determination con18 tract under section 102(a)(1)(E) of the ISDEAA 

19 (25 U.S.C. 450f(a)(1)(E)) or a funding agree20 ment under section 403(b)(2) or 403(c) of the 

21 ISDEAA (25 U.S.C. 458cc(b)(2), 458cc(c)); or 

22 (B) the implementation of any contract or 

23 agreement described in subparagraph (A) that is 

24 in effect on the day before the date of enactment 

25 of this Act; 


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1 (2) modifies or otherwise affects the meaning, 

2 application, or effect of any provision of law that— 

3 (A) is not contained in the ISDEAA; and 

4 (B) expressly authorizes or prohibits con5 tracting or compacting under title I or title IV 

6 of the ISDEAA with respect to a specific pro7 gram or project that is identified or otherwise re8 ferred to in that provision of law; 

9 (3) modifies or otherwise affects the meaning, 

10 application, or effect of, or the performance required 

11 of a party to, or any payment or funding under a 

12 tribal water rights settlement; or 

13 (4) authorizes any self-determination contract or 

14 funding agreement that contains one or more provi15 sions that are inconsistent with the terms of a tribal 

16 water rights settlement. 


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Calendar No. 533 

113TH CONGRESS 

2D SESSION S. 919 

A BILL 

To amend the Indian Self-Determination and Eduernance by Indian tribes, and for other purposes. cation Assistance Act to provide further self-govAUGUST 26, 2014 

Reported with an amendment 


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