Calendar No. 412

106TH CONGRESS

1ST SESSION S. 979

[Report No. 106–221]

A BILL

To amend the Indian Self-Determination and Education Assistance Act to provide for further selfgovernance by Indian tribes, and for other purposes.

NOVEMBER 9, 1999

Reported with an amendment
II

Calendar No. 412

106TH CONGRESS

1ST SESSION S. 979

[Report No. 106–221]

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

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

IN THE SENATE OF THE UNITED STATES

MAY 6, 1999

Mr. CAMPBELL (for himself, Mr. MCCAIN, and Mr. INHOFE) introduced the

following bill; which was read twice and referred to the Committee on Indian Affairs

NOVEMBER 9, 1999

Reported by Mr. CAMPBELL, 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 for 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,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Tribal Self-Governance

5 Amendments of 1999’’.
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1 SEC. 2. FINDINGS.

2 Congress finds that—

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

4 from the inherent sovereignty of Indian tribes and

5 nations;

6 (2) the United States recognizes a special gov7 ernment-to-government relationship with Indian

8 tribes, including the right of the Indian tribes to

9 self-governance, as reflected in the Constitution,

10 treaties, Federal statutes, and the course of dealings

11 of the United States with Indian tribes;

12 (3) although progress has been made, the Fed13 eral bureaucracy, with its centralized rules and regu14 lations, has eroded tribal self-governance and domi15 nates tribal affairs;

16 (4) the Tribal Self-Governance Demonstration

17 Project, established under title III of the Indian

18 Self-Determination and Education Assistance Act

19 (25 U.S.C. 450f note) was designed to improve and

20 perpetuate the government-to-government relation21 ship between Indian tribes and the United States

22 and to strengthen tribal control over Federal fund23 ing and program management;

24 (5) although the Federal Government has made

25 considerable strides in improving Indian health care,

26 it has failed to fully meet its trust responsibilities
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1 and to satisfy its obligations to the Indian tribes

2 under treaties and other laws; and

3 (6) Congress has reviewed the results of the

4 Tribal Self-Governance Demonstration Project and

5 finds that transferring full control and funding to

6 tribal governments, upon tribal request, over deci7 sion making for Federal programs, services, func8 tions, and activities (or portions thereof)—

9 (A) is an appropriate and effective means

10 of implementing the Federal policy of govern11 ment-to-government relations with Indian

12 tribes; and

13 (B) strengthens the Federal policy of In14 dian self-determination.

15 SEC. 3. DECLARATION OF POLICY.

16 It is the policy of Congress—

17 (1) to permanently establish and implement

18 tribal self-governance within the Department of

19 Health and Human Services;

20 (2) to call for full cooperation from the Depart21 ment of Health and Human Services and its con22 stituent agencies in the implementation of tribal self23 governance—

24 (A) to enable the United States to main25 tain and improve its unique and continuing re-
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1 lationship with, and responsibility to, Indian

2 tribes;

3 (B) to permit each Indian tribe to choose

4 the extent of its participation in self-governance

5 in accordance with the provisions of the Indian

6 Self-Determination and Education Assistance

7 Act relating to the provision of Federal services

8 to Indian tribes;

9 (C) to ensure the continuation of the trust

10 responsibility of the United States to Indian

11 tribes and Indian individuals;

12 (D) to affirm and enable the United States

13 to fulfill its obligations to the Indian tribes

14 under treaties and other laws;

15 (E) to strengthen the government-to-gov16 ernment relationship between the United States

17 and Indian tribes through direct and meaning18 ful consultation with all tribes;

19 (F) to permit an orderly transition from

20 Federal domination of programs and services to

21 provide Indian tribes with meaningful authority,

22 control, funding, and discretion to plan, con23 duct, redesign, and administer programs, serv24 ices, functions, and activities (or portions there-
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1 of) that meet the needs of the individual tribal

2 communities;

3 (G) to provide for a measurable parallel re4 duction in the Federal bureaucracy as pro5 grams, services, functions, and activities (or

6 portion thereof) are assumed by Indian tribes;

7 (H) to encourage the Secretary to identify

8 all programs, services, functions, and activities

9 (or portions thereof) of the Department of

10 Health and Human Services that may be man11 aged by an Indian tribe under this Act and to

12 assist Indian tribes in assuming responsibility

13 for such programs, services, functions, and ac14 tivities (or portions thereof); and

15 (I) to provide Indian tribes with the ear16 liest opportunity to administer programs, serv17 ices, functions, and activities (or portions there18 of) from throughout the Department of Health

19 and Human Services.

20 SEC. 4. TRIBAL SELF-GOVERNANCE.

21 The Indian Self-Determination and Education Assist22 ance Act (25 U.S.C. 450 et seq.) is amended by adding

23 at the end the following:
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1 ‘‘TITLE V—TRIBAL SELF2 GOVERNANCE

3 ‘‘SEC. 501. DEFINITIONS.

4 ‘‘(a) IN GENERAL.—In this title:

5 ‘‘(1) CONSTRUCTION PROJECT.—The term ‘con6 struction project’—

7 ‘‘(A) means an organized noncontinuous

8 undertaking to complete a specific set of pre9 determined objectives for the planning, environ10 mental determination, design, construction, re11 pair, improvement, or expansion of buildings or

12 facilities, as described in a construction project

13 agreement; and

14 ‘‘(B) does not include construction pro15 gram administration and activities described in

16 paragraphs (1) through (3) of section 4(m),

17 that may otherwise be included in a funding

18 agreement under this title.

19 ‘‘(2) CONSTRUCTION PROJECT AGREEMENT.—

20 The term ‘construction project agreement’ means a

21 negotiated agreement between the Secretary and an

22 Indian tribe, that at a minimum—

23 ‘‘(A) establishes project phase start and

24 completion dates;
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1 ‘‘(B) defines a specific scope of work and

2 standards by which it will be accomplished;

3 ‘‘(C) identifies the responsibilities of the

4 Indian tribe and the Secretary;

5 ‘‘(D) addresses environmental consider6 ations;

7 ‘‘(E) identifies the owner and operations

8 and maintenance entity of the proposed work;

9 ‘‘(F) provides a budget;

10 ‘‘(G) provides a payment process; and

11 ‘‘(H) establishes the duration of the agree12 ment based on the time necessary to complete

13 the specified scope of work, which may be 1 or

14 more years.

15 ‘‘(3) INHERENT FEDERAL FUNCTIONS.—The

16 term ‘inherent Federal functions’ means those Fed17 eral functions which cannot legally be delegated to

18 Indian tribes.

19 ‘‘(4) INTER-TRIBAL CONSORTIUM.—The term

20 ‘inter-tribal consortium’ means a coalition of 2 or

21 more separate Indian tribes that join together for

22 the purpose of participating in self-governance, in23 cluding a tribal organization.

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

25 ‘gross mismanagement’ means a significant, clear,
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1 and convincing violation of a compact, funding

2 agreement, or regulatory, or statutory requirements

3 applicable to Federal funds transferred to an Indian

4 tribe by a compact or funding agreement that re5 sults in a significant reduction of funds available for

6 the programs, services, functions, or activities (or

7 portions thereof) assumed by an Indian tribe.

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

9 the Secretary of Health and Human Services.

10 ‘‘(7) SELF-GOVERNANCE.—The term ‘self-gov11 ernance’ means the program of self-governance es12 tablished under section 502.

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

14 means an Indian tribe’s portion of all funds and re15 sources that support secretarial programs, services,

16 functions, and activities (or portions thereof) that

17 are not required by the Secretary for performance of

18 inherent Federal functions.

19 ‘‘(b) INDIAN TRIBE.—In any case in which an Indian

20 tribe has authorized another Indian tribe, an inter-tribal

21 consortium, or a tribal organization to plan for or carry

22 out programs, services, functions, or activities (or portions

23 thereof) on its behalf under this title, the authorized In24 dian tribe, inter-tribal consortium, or tribal organization

25 shall have the rights and responsibilities of the authorizing
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1 Indian tribe (except as otherwise provided in the author2 izing resolution or in this title). In such event, the term

3 ‘Indian tribe’ as used in this title shall include such other

4 authorized Indian tribe, inter-tribal consortium, or tribal

5 organization.

6 ‘‘SEC. 502. ESTABLISHMENT.

7 ‘‘The Secretary of Health and Human Services shall

8 establish and carry out a program within the Indian

9 Health Service of the Department of Health and Human

10 Services to be known as the ‘Tribal Self-Governance Pro11 gram’ in accordance with this title.

12 ‘‘SEC. 503. SELECTION OF PARTICIPATING INDIAN TRIBES.

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

14 tribe that is participating in the Tribal Self-Governance

15 Demonstration Project under title III on the date of enact16 ment of this title may elect to participate in self-govern17 ance under this title under existing authority as reflected

18 in tribal resolution.

19 ‘‘(b) ADDITIONAL PARTICIPANTS.—

20 ‘‘(1) IN GENERAL.—In addition to those Indian

21 tribes participating in self-governance under sub22 section (a), each year an additional 50 Indian tribes

23 that meet the eligibility criteria specified in sub24 section (c) shall be entitled to participate in self-gov25 ernance.
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1 ‘‘(2) TREATMENT OF CERTAIN INDIAN

2 TRIBES.—

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

4 has withdrawn from participation in an inter5 tribal consortium or tribal organization, in

6 whole or in part, shall be entitled to participate

7 in self-governance provided the Indian tribe

8 meets the eligibility criteria specified in sub9 section (c).

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

12 an inter-tribal consortium or tribal organiza13 tion, that Indian tribe shall be entitled to its

14 tribal share of funds supporting those pro15 grams, services, functions, and activities (or

16 portions thereof) that the Indian tribe will be

17 carrying out under the compact and funding

18 agreement of the Indian tribe.

19 ‘‘(C) PARTICIPATION IN SELF-GOVERN20 ANCE.—In no event shall the withdrawal of an

21 Indian tribe from an inter-tribal consortium or

22 tribal organization affect the eligibility of the

23 inter-tribal consortium or tribal organization to

24 participate in self-governance.

25 ‘‘(c) APPLICANT POOL.—
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1 ‘‘(1) IN GENERAL.—The qualified applicant

2 pool for self-governance shall consist of each Indian

3 tribe that—

4 ‘‘(A) successfully completes the planning

5 phase described in subsection (d);

6 ‘‘(B) has requested participation in self7 governance by resolution or other official action

8 by the governing body of each Indian tribe to

9 be served; and

10 ‘‘(C) has demonstrated, for the preceding

11 period of 3 full fiscal years, financial stability

12 and financial management capability.

13 ‘‘(2) CRITERIA FOR DETERMINING FINANCIAL

14 STABILITY AND FINANCIAL MANAGEMENT CAPAC15 ITY.—For purposes of this subsection, evidence that,

16 during the 3-year period referred to in paragraph

17 (1)(C), an Indian tribe had no uncorrected signifi18 cant and material audit exceptions in the required

19 annual audit of the Indian tribe’s self-determination

20 contracts or self-governance funding agreements

21 with any Federal agency shall be conclusive evidence

22 of the required stability and capability.

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

24 participation in self-governance shall complete a planning
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1 phase. The planning phase shall be conducted to the satis2 faction of the Indian tribe and shall include—

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

4 ‘‘(2) internal tribal government planning and

5 organizational preparation relating to the adminis6 tration of health care programs.

7 ‘‘(e) GRANTS.—Subject to the availability of appro8 priations, any Indian tribe meeting the requirements of

9 paragraphs (2) and (3) of subsection (c) shall be eligible

10 for grants—

11 ‘‘(1) to plan for participation in self-governance;

12 and

13 ‘‘(2) to negotiate the terms of participation by

14 the Indian tribe or tribal organization in self-govern15 ance, as set forth in a compact and a funding agree16 ment.

17 ‘‘(f) RECEIPT OF GRANT NOT REQUIRED.—Receipt

18 of a grant under subsection (e) shall not be a requirement

19 of participation in self-governance.

20 ‘‘SEC. 504. COMPACTS.

21 ‘‘(a) COMPACT REQUIRED.—The Secretary shall ne22 gotiate and enter into a written compact with each Indian

23 tribe participating in self-governance in a manner con24 sistent with the Federal Government’s trust responsibility,
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1 treaty obligations, and the government-to-government re2 lationship between Indian tribes and the United States.

3 ‘‘(b) CONTENTS.—Each compact required under sub4 section (a) shall set forth the general terms of the govern5 ment-to-government relationship between the Indian tribe

6 and the Secretary, including such terms as the parties in7 tend shall control year after year. Such compacts may only

8 be amended by mutual agreement of the parties.

9 ‘‘(c) EXISTING COMPACTS.—An Indian tribe partici10 pating in the Tribal Self-Governance Demonstration

11 Project under title III on the date of enactment of this

12 title shall have the option at any time after the date of

13 enactment of this title to—

14 ‘‘(1) retain the Tribal Self-Governance Dem15 onstration Project compact of that Indian tribe (in

16 whole or in part) to the extent that the provisions

17 of that compact are not directly contrary to any ex18 press provision of this title; or

19 ‘‘(2) instead of retaining a compact or portion

20 thereof under paragraph (1), negotiate a new com21 pact in a manner consistent with the requirements

22 of this title.

23 ‘‘(d) TERM AND EFFECTIVE DATE.—The effective

24 date of a compact shall be the date of the approval and

25 execution by the Indian tribe or another date agreed upon
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1 by the parties, and shall remain in effect for so long as

2 permitted by Federal law or until terminated by mutual

3 written agreement, retrocession, or reassumption.

4 ‘‘SEC. 505. FUNDING AGREEMENTS.

5 ‘‘(a) FUNDING AGREEMENT REQUIRED.—The Sec6 retary shall negotiate and enter into a written funding

7 agreement with each Indian tribe participating in self-gov8 ernance in a manner consistent with the Federal Govern9 ment’s trust responsibility, treaty obligations, and the gov10 ernment-to-government relationship between Indian tribes

11 and the United States.

12 ‘‘(b) CONTENTS.—

13 ‘‘(1) IN GENERAL.—Each funding agreement

14 required under subsection (a) shall, as determined

15 by the Indian tribe, authorize the Indian tribe to

16 plan, conduct, consolidate, administer, and receive

17 full tribal share funding, including tribal shares of

18 discretionary Indian Health Service competitive

19 grants (excluding congressionally earmarked com20 petitive grants), for all programs, services, functions,

21 and activities (or portions thereof), that are carried

22 out for the benefit of Indians because of their status

23 as Indians without regard to the agency or office of

24 the Indian Health Service (or of such other agency)
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1 within which the program, service, function, or activ2 ity (or portion thereof) is performed.

3 ‘‘(2) INCLUSION OF CERTAIN PROGRAMS, SERV4 ICES, FUNCTIONS, AND ACTIVITIES.—Such pro5 grams, services, functions, or activities (or portions

6 thereof) include all programs, services, functions, ac7 tivities (or portions thereof) with respect to which

8 Indian tribes or Indians are primary or significant

9 beneficiaries, administered by the Department of

10 Health and Human Services through the Indian

11 Health Service and grants (which may be added to

12 a funding agreement after award of such grants)

13 and all local, field, service unit, area, regional, and

14 central headquarters or national office functions ad15 ministered under the authority of—

16 ‘‘(A) the Act of November 2, 1921 (42

17 Stat. 208, chapter 115; 25 U.S.C. 13);

18 ‘‘(B) the Act of April 16, 1934 (48 Stat.

19 596, chapter 147; 25 U.S.C. 452 et seq.);

20 ‘‘(C) the Act of August 5, 1954 (68 Stat.

21 674, chapter 658);

22 ‘‘(D) the Indian Health Care Improvement

23 Act (25 U.S.C. 1601 et seq.);
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1 ‘‘(E) the Indian Alcohol and Substance

2 Abuse Prevention and Treatment Act of 1986

3 (25 U.S.C. 2401 et seq.);

4 ‘‘(F) any other Act of Congress author5 izing any agency of the Department of Health

6 and Human Services to administer, carry out,

7 or provide financial assistance to such a pro8 gram, service, function or activity (or portions

9 thereof) described in this section; or

10 ‘‘(G) any other Act of Congress author11 izing such a program, service, function, or ac12 tivity (or portions thereof) under which appro13 priations are made available to any agency

14 other than an agency within the Department of

15 Health and Human Services, in any case in

16 which the Secretary administers that program,

17 service, function, or activity (or portion there18 of).

19 ‘‘(c) INCLUSION IN COMPACT OR FUNDING AGREE20 MENT.—It shall not be a requirement that an Indian tribe

21 or Indians be identified in the authorizing statute for a

22 program or element of a program to be eligible for inclu23 sion in a compact or funding agreement under this title.

24 ‘‘(d) FUNDING AGREEMENT TERMS.—Each funding

25 agreement under this title shall set forth—
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1 ‘‘(1) terms that generally identify the programs,

2 services, functions, and activities (or portions there3 of) to be performed or administered; and

4 ‘‘(2) for the items identified in paragraph (1)—

5 ‘‘(A) the general budget category assigned;

6 ‘‘(B) the funds to be provided, including

7 those funds to be provided on a recurring basis;

8 ‘‘(C) the time and method of transfer of

9 the funds;

10 ‘‘(D) the responsibilities of the Secretary;

11 and

12 ‘‘(E) any other provision with respect to

13 which the Indian tribe and the Secretary agree.

14 ‘‘(e) SUBSEQUENT FUNDING AGREEMENTS.—Absent

15 notification from an Indian tribe that is withdrawing or

16 retroceding the operation of 1 or more programs, services,

17 functions, or activities (or portions thereof) identified in

18 a funding agreement, or unless otherwise agreed to by the

19 parties, each funding agreement shall remain in full force

20 and effect until a subsequent funding agreement is exe21 cuted, and the terms of the subsequent funding agreement

22 shall be retroactive to the end of the term of the preceding

23 funding agreement.

24 ‘‘(f) EXISTING FUNDING AGREEMENTS.—Each In25 dian tribe participating in the Tribal Self-Governance
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1 Demonstration Project established under title III on the

2 date of enactment of this title shall have the option at

3 any time thereafter to—

4 ‘‘(1) retain the Tribal Self-Governance Dem5 onstration Project funding agreement of that Indian

6 tribe (in whole or in part) to the extent that the pro7 visions of that compact are not directly contrary to

8 any express provision of this title; or

9 ‘‘(2) instead of retaining a funding agreement

10 portion thereof under paragraph (1), negotiate a

11 new funding agreement in a manner consistent with

12 the requirements of this title.

13 ‘‘(g) STABLE BASE FUNDING.—At the option of an

14 Indian tribe, a funding agreement may provide for a stable

15 base budget specifying the recurring funds (including, for

16 purposes of this provision, funds available under section

17 106(a)) to be transferred to such Indian tribe, for such

18 period as may be specified in the funding agreement, sub19 ject to annual adjustment only to reflect changes in con20 gressional appropriations by sub-sub activity excluding

21 earmarks.

22 ‘‘SEC. 506. GENERAL PROVISIONS.

23 ‘‘(a) APPLICABILITY.—The provisions of this section

24 shall apply to compacts and funding agreements nego25 tiated under this title and an Indian tribe may, at its op-
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1 tion, include provisions that reflect such requirements in

2 a compact or funding agreement.

3 ‘‘(b) CONFLICTS OF INTEREST.—Indian tribes par4 ticipating in self-governance under this title shall ensure

5 that internal measures are in place to address conflicts

6 of interest in the administration of self-governance pro7 grams, services, functions, or activities (or portions there8 of).

9 ‘‘(c) AUDITS.—

10 ‘‘(1) SINGLE AGENCY AUDIT ACT.—The provi11 sions of chapter 75 of title 31, United States Code,

12 requiring a single agency audit report shall apply to

13 funding agreements under this title.

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

15 apply cost principles under the applicable Office of

16 Management and Budget Circular, except as modi17 fied by section 106, or by any exemptions to applica18 ble Office of Management and Budget Circulars sub19 sequently granted by the Office of Management and

20 Budget. No other audit or accounting standards

21 shall be required by the Secretary. Any claim by the

22 Federal Government against the Indian tribe relat23 ing to funds received under a funding agreement

24 based on any audit under this subsection shall be

25 subject to the provisions of section 106(f).
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1 ‘‘(d) RECORDS.—

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

3 specifies otherwise in the compact or funding agree4 ment, records of the Indian tribe shall not be consid5 ered Federal records for purposes of chapter 5 of

6 title 5, United States Code.

7 ‘‘(2) RECORDKEEPING SYSTEM.—The Indian

8 tribe shall maintain a recordkeeping system, and,

9 after 30 days advance notice, provide the Secretary

10 with reasonable access to such records to enable the

11 Department of Health and Human Services to meet

12 its minimum legal recordkeeping system require13 ments under sections 3101 through 3106 of title 44,

14 United States Code.

15 ‘‘(e) REDESIGN AND CONSOLIDATION.—An Indian

16 tribe may redesign or consolidate programs, services, func17 tions, and activities (or portions thereof) included in a

18 funding agreement under section 313 and reallocate or re19 direct funds for such programs, services, functions, and

20 activities (or portions thereof) in any manner which the

21 Indian tribe deems to be in the best interest of the health

22 and welfare of the Indian community being served, only

23 if the redesign or consolidation does not have the effect

24 of denying eligibility for services to population groups oth25 erwise eligible to be served.
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1 ‘‘(f) RETROCESSION.—An Indian tribe may retro2 cede, fully or partially, to the Secretary programs, serv3 ices, functions, or activities (or portions thereof) included

4 in the compact or funding agreement. Unless the Indian

5 tribe rescinds the request for retrocession, such retroces6 sion will become effective within the timeframe specified

7 by the parties in the compact or funding agreement. In

8 the absence of such a specification, such retrocession shall

9 become effective on—

10 ‘‘(1) the earlier of—

11 ‘‘(A) 1 year after the date of submission of

12 such request; or

13 ‘‘(B) the date on which the funding agree14 ment expires; or

15 ‘‘(2) such date as may be mutually agreed upon

16 by the Secretary and the Indian tribe.

17 ‘‘(g) WITHDRAWAL.—

18 ‘‘(1) PROCESS.—

19 ‘‘(A) IN GENERAL.—An Indian tribe may

20 fully or partially withdraw from a participating

21 inter-tribal consortium or tribal organization its

22 share of any program, function, service, or ac23 tivity (or portions thereof) included in a com24 pact or funding agreement.
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1 ‘‘(B) EFFECTIVE DATE.—The withdrawal

2 referred to in subparagraph (A) shall become

3 effective within the timeframe specified in the

4 resolution which authorizes transfer to the par5 ticipating tribal organization or inter-tribal con6 sortium. In the absence of a specific timeframe

7 set forth in the resolution, such withdrawal

8 shall become effective on—

9 ‘‘(i) the earlier of—

10 ‘‘(I) 1 year after the date of sub11 mission of such request; or

12 ‘‘(II) the date on which the fund13 ing agreement expires; or

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

15 agreed upon by the Secretary, the with16 drawing Indian tribe, and the participating

17 tribal organization or inter-tribal consor18 tium that has signed the compact or fund19 ing agreement on behalf of the with20 drawing Indian tribe, inter-tribal consor21 tium, or tribal organization.

22 ‘‘(2) DISTRIBUTION OF FUNDS.—When an In23 dian tribe or tribal organization eligible to enter into

24 a self-determination contract under title I or a com25 pact or funding agreement under this title fully or
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1 partially withdraws from a participating inter-tribal

2 consortium or tribal organization—

3 ‘‘(A) the withdrawing Indian tribe or tribal

4 organization shall be entitled to its tribal share

5 of funds supporting those programs, services,

6 functions, or activities (or portions thereof) that

7 the Indian tribe will be carrying out under its

8 own self-determination contract or compact and

9 funding agreement (calculated on the same

10 basis as the funds were initially allocated in the

11 funding agreement of the inter-tribal consor12 tium or tribal organization); and

13 ‘‘(B) the funds referred to in subparagraph

14 (A) shall be transferred from the funding agree15 ment of the inter-tribal consortium or tribal or16 ganization, on the condition that the provisions

17 of sections 102 and 105(i), as appropriate, shall

18 apply to that withdrawing Indian tribe.

19 ‘‘(3) REGAINING MATURE CONTRACT STATUS.—

20 If an Indian tribe elects to operate all or some pro21 grams, services, functions, or activities (or portions

22 thereof) carried out under a compact or funding

23 agreement under this title through a self-determina24 tion contract under title I, at the option of the In-
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1 dian tribe, the resulting self-determination contract

2 shall be a mature self-determination contract.

3 ‘‘(h) NONDUPLICATION.—For the period for which,

4 and to the extent to which, funding is provided under this

5 title or under the compact or funding agreement, the In6 dian tribe shall not be entitled to contract with the Sec7 retary for such funds under section 102, except that such

8 Indian tribe shall be eligible for new programs on the same

9 basis as other Indian tribes.

10 ‘‘SEC. 507. PROVISIONS RELATING TO THE SECRETARY.

11 ‘‘(a) MANDATORY PROVISIONS.—

12 ‘‘(1) HEALTH STATUS REPORTS.—Compacts or

13 funding agreements negotiated between the Sec14 retary and an Indian tribe shall include a provision

15 that requires the Indian tribe to report on health

16 status and service delivery—

17 ‘‘(A) to the extent such data is not other18 wise available to the Secretary and specific

19 funds for this purpose are provided by the Sec20 retary under the funding agreement; and

21 ‘‘(B) if such reporting shall impose mini22 mal burdens on the participating Indian tribe

23 and such requirements are promulgated under

24 section 517.

25 ‘‘(2) REASSUMPTION.—
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1 ‘‘(A) IN GENERAL.—Contracts or funding

2 agreements negotiated between the Secretary

3 and an Indian tribe shall include a provision

4 authorizing the Secretary to reassume operation

5 of a program, service, function, or activity (or

6 portions thereof) and associated funding if

7 there is a specific finding relative to that pro8 gram, service, function, or activity (or portion

9 thereof) of—

10 ‘‘(i) imminent endangerment of the

11 public health caused by an act or omission

12 of the Indian tribe, and the imminent

13 endangerment arises out of a failure to

14 carry out the compact or funding agree15 ment; or

16 ‘‘(ii) gross mismanagement with re17 spect to funds transferred to a tribe by a

18 compact or funding agreement, as deter19 mined by the Secretary in consultation

20 with the Inspector General, as appropriate.

21 ‘‘(B) PROHIBITION.—The Secretary shall

22 not reassume operation of a program, service,

23 function, or activity (or portions thereof)

24 unless—
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1 ‘‘(i) the Secretary has first provided

2 written notice and a hearing on the record

3 to the Indian tribe; and

4 ‘‘(ii) the Indian tribe has not taken

5 corrective action to remedy the imminent

6 endangerment to public health or gross

7 mismanagement.

8 ‘‘(C) EXCEPTION.—

9 ‘‘(i) IN GENERAL.—Notwithstanding

10 subparagraph (B), the Secretary may,

11 upon written notification to the Indian

12 tribe, immediately reassume operation of a

13 program, service, function, or activity (or

14 portion thereof) if—

15 ‘‘(I) the Secretary makes a find16 ing of imminent substantial and irrep17 arable endangerment of the public

18 health caused by an act or omission of

19 the Indian tribe; and

20 ‘‘(II) the endangerment arises

21 out of a failure to carry out the com22 pact or funding agreement.

23 ‘‘(ii) REASSUMPTION.—If the Sec24 retary reassumes operation of a program,

25 service, function, or activity (or portion
27

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1 thereof) under this subparagraph, the Sec2 retary shall provide the Indian tribe with a

3 hearing on the record not later than 10

4 days after such reassumption.

5 ‘‘(D) HEARINGS.—In any hearing or ap6 peal involving a decision to reassume operation

7 of a program, service, function, or activity (or

8 portion thereof), the Secretary shall have the

9 burden of proof of demonstrating by clear and

10 convincing evidence the validity of the grounds

11 for the reassumption.

12 ‘‘(b) FINAL OFFER.—In the event the Secretary and

13 a participating Indian tribe are unable to agree, in whole

14 or in part, on the terms of a compact or funding agree15 ment (including funding levels), the Indian tribe may sub16 mit a final offer to the Secretary. Not more than 45 days

17 after such submission, or within a longer time agreed upon

18 by the Indian tribe, the Secretary shall review and make

19 a determination with respect to such offer. In the absence

20 of a timely rejection of the offer, in whole or in part, made

21 in compliance with subsection (c), the offer shall be

22 deemed agreed to by the Secretary.

23 ‘‘(c) REJECTION OF FINAL OFFERS.—

24 ‘‘(1) IN GENERAL.—If the Secretary rejects an

25 offer made under subsection (b) (or 1 or more provi-
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1 sions or funding levels in such offer), the Secretary

2 shall provide—

3 ‘‘(A) a timely written notification to the

4 Indian tribe that contains a specific finding

5 that clearly demonstrates, or that is supported

6 by a controlling legal authority, that—

7 ‘‘(i) the amount of funds proposed in

8 the final offer exceeds the applicable fund9 ing level to which the Indian tribe is enti10 tled under this title;

11 ‘‘(ii) the program, function, service, or

12 activity (or portion thereof) that is the

13 subject of the final offer is an inherent

14 Federal function that cannot legally be del15 egated to an Indian tribe;

16 ‘‘(iii) the Indian tribe cannot carry

17 out the program, function, service, or ac18 tivity (or portion thereof) in a manner that

19 would not result in significant danger or

20 risk to the public health; or

21 ‘‘(iv) the Indian tribe is not eligible to

22 participate in self-governance under section

23 503;
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1 ‘‘(B) technical assistance to overcome the

2 objections stated in the notification required by

3 subparagraph (A);

4 ‘‘(C) the Indian tribe with a hearing on the

5 record with the right to engage in full discovery

6 relevant to any issue raised in the matter and

7 the opportunity for appeal on the objections

8 raised, except that the Indian tribe may, in lieu

9 of filing such appeal, directly proceed to initiate

10 an action in a Federal district court pursuant

11 to section 110(a); and

12 ‘‘(D) the Indian tribe with the option of

13 entering into the severable portions of a final

14 proposed compact or funding agreement, or

15 provision thereof, (including a lesser funding

16 amount, if any), that the Secretary did not re17 ject, subject to any additional alterations nec18 essary to conform the compact or funding

19 agreement to the severed provisions.

20 ‘‘(2) EFFECT OF EXERCISING CERTAIN OP21 TION.—If an Indian tribe exercises the option speci22 fied in paragraph (1)(D), that Indian tribe shall re23 tain the right to appeal the Secretary’s rejection

24 under this section, and subparagraphs (A), (B), and

25 (C) of that paragraph shall only apply to that por-
30

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1 tion of the proposed final compact, funding agree2 ment, or provision thereof that was rejected by the

3 Secretary.

4 ‘‘(d) BURDEN OF PROOF.—With respect to any hear5 ing or appeal or civil action conducted pursuant to this

6 section, the Secretary shall have the burden of dem7 onstrating by clear and convincing evidence the validity

8 of the grounds for rejecting the offer (or a provision there9 of) made under subsection (b).

10 ‘‘(e) GOOD FAITH.—In the negotiation of compacts

11 and funding agreements the Secretary shall at all times

12 negotiate in good faith to maximize implementation of the

13 self-governance policy. The Secretary shall carry out this

14 title in a manner that maximizes the policy of tribal self15 governance, in a manner consistent with the purposes

16 specified in section 3 of the Tribal Self-Governance

17 Amendments of 1999.

18 ‘‘(f) SAVINGS.—To the extent that programs, func19 tions, services, or activities (or portions thereof) carried

20 out by Indian tribes under this title reduce the administra21 tive or other responsibilities of the Secretary with respect

22 to the operation of Indian programs and result in savings

23 that have not otherwise been included in the amount of

24 tribal shares and other funds determined under section

25 508(c), the Secretary shall make such savings available
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1 to the Indian tribes, inter-tribal consortia, or tribal organi2 zations for the provision of additional services to program

3 beneficiaries in a manner equitable to directly served, con4 tracted, and compacted programs.

5 ‘‘(g) TRUST RESPONSIBILITY.—The Secretary is pro6 hibited from waiving, modifying, or diminishing in any

7 way the trust responsibility of the United States with re8 spect to Indian tribes and individual Indians that exists

9 under treaties, Executive orders, other laws, or court deci10 sions.

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

12 final agency action and relates to an appeal within the

13 Department of Health and Human Services conducted

14 under subsection (c) shall be made either—

15 ‘‘(1) by an official of the Department who holds

16 a position at a higher organizational level within the

17 Department than the level of the departmental agen18 cy in which the decision that is the subject of the

19 appeal was made; or

20 ‘‘(2) by an administrative judge.

21 ‘‘SEC. 508. TRANSFER OF FUNDS.

22 ‘‘(a) IN GENERAL.—Pursuant to the terms of any

23 compact or funding agreement entered into under this

24 title, the Secretary shall transfer to the Indian tribe all

25 funds provided for in the funding agreement, pursuant to
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1 subsection (c), and provide funding for periods covered by

2 joint resolution adopted by Congress making continuing

3 appropriations, to the extent permitted by such resolu4 tions. In any instance where a funding agreement requires

5 an annual transfer of funding to be made at the beginning

6 of a fiscal year, or requires semiannual or other periodic

7 transfers of funding to be made commencing at the begin8 ning of a fiscal year, the first such transfer shall be made

9 not later than 10 days after the apportionment of such

10 funds by the Office of Management and Budget to the

11 Department, unless the funding agreement provides other12 wise.

13 ‘‘(b) MULTIYEAR FUNDING.—The Secretary may em14 ploy, upon tribal request, multiyear funding agreements.

15 References in this title to funding agreements shall include

16 such multiyear funding agreements.

17 ‘‘(c) AMOUNT OF FUNDING.—The Secretary of

18 Health and Human Services shall provide funds under a

19 funding agreement under this title in an amount equal to

20 the amount that the Indian tribe would have been entitled

21 to receive under self-determination contracts under this

22 Act, including amounts for direct program costs specified

23 under section 106(a)(1) and amounts for contract support

24 costs specified under section 106(a) (2), (3), (5), and (6),

25 including any funds that are specifically or functionally
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1 related to the provision by the Secretary of services and

2 benefits to the Indian tribe or its members, all without

3 regard to the organizational level within the Department

4 where such functions are carried out.

5 ‘‘(d) PROHIBITIONS.—

6 ‘‘(1) IN GENERAL.—Except as provided in para7 graph (2), the Secretary is expressly prohibited

8 from—

9 ‘‘(A) failing or refusing to transfer to an

10 Indian tribe its full share of any central, head11 quarters, regional, area, or service unit office or

12 other funds due under this Act, except as re13 quired by Federal law;

14 ‘‘(B) withholding portions of such funds

15 for transfer over a period of years; and

16 ‘‘(C) reducing the use of funds, from the

17 the amount of funds that the Secretary is au18 thorized to use under this title—

19 ‘‘(i) to make funding available for

20 self-governance monitoring or administra21 tion by the Secretary;

22 ‘‘(ii) in subsequent years, except pur23 suant to—

24 ‘‘(I) a reduction in appropria25 tions from the previous fiscal year for
34

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1 the program or function to be in2 cluded in a compact or funding agree3 ment;

4 ‘‘(II) a congressional directive in

5 legislation or accompanying report;

6 ‘‘(III) a tribal authorization;

7 ‘‘(IV) a change in the amount of

8 pass-through funds subject to the

9 terms of the funding agreement; or

10 ‘‘(V) completion of a project, ac11 tivity, or program for which such

12 funds were provided;

13 ‘‘(iii) to pay for Federal functions, in14 cluding Federal pay costs, Federal em15 ployee retirement benefits, automated data

16 processing, technical assistance, and moni17 toring of activities under this Act; or

18 ‘‘(iv) to pay for costs of Federal per19 sonnel displaced by self-determination con20 tracts under this Act or self-governance;

21 ‘‘(2) EXCEPTION.—The funds described in

22 paragraph (1)(C) may be increased by the Secretary

23 if necessary to carry out this Act or as provided in

24 section 105(c)(2).
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1 ‘‘(e) OTHER RESOURCES.—In the event an Indian

2 tribe elects to carry out a compact or funding agreement

3 with the use of Federal personnel, Federal supplies (in4 cluding supplies available from Federal warehouse facili5 ties), Federal supply sources (including lodging, airline

6 transportation, and other means of transportation includ7 ing the use of interagency motor pool vehicles) or other

8 Federal resources (including supplies, services, and re9 sources available to the Secretary under any procurement

10 contracts in which the Department is eligible to partici11 pate), to the extent allowable under law, the Secretary

12 shall acquire and transfer such personnel, supplies, or re13 sources to the Indian tribe.

14 ‘‘(f) REIMBURSEMENT TO INDIAN HEALTH SERV15 ICE.—With respect to functions transferred by the Indian

16 Health Service to an Indian tribe, the Indian Health Serv17 ice is authorized to provide goods and services to the In18 dian tribe, on a reimbursable basis, including payment in

19 advance with subsequent adjustment. The reimbursements

20 received from those goods and services, along with the

21 funds received from the Indian tribe pursuant to this title,

22 may be credited to the same or subsequent appropriation

23 account which provided the funding, such amounts to re24 main available until expended.
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1 ‘‘(g) PROMPT PAYMENT ACT.—Chapter 39 of title

2 31, United States Code, shall apply to the transfer of

3 funds due under a compact or funding agreement author4 ized under this title.

5 ‘‘(h) INTEREST OR OTHER INCOME ON TRANS6 FERS.—An Indian tribe is entitled to retain interest

7 earned on any funds paid under a compact or funding

8 agreement to carry out governmental or health purposes

9 and such interest shall not diminish the amount of funds

10 the Indian tribe is authorized to receive under its funding

11 agreement in the year the interest is earned or in any sub12 sequent fiscal year. Funds transferred under this title

13 shall be managed using the prudent investment standard.

14 ‘‘(i) CARRYOVER OF FUNDS.—All funds paid to an

15 Indian tribe in accordance with a compact or funding

16 agreement shall remain available until expended. In the

17 event that an Indian tribe elects to carry over funding

18 from 1 year to the next, such carryover shall not diminish

19 the amount of funds the Indian tribe is authorized to re20 ceive under its funding agreement in that or any subse21 quent fiscal year.

22 ‘‘(j) PROGRAM INCOME.—All medicare, medicaid, or

23 other program income earned by an Indian tribe shall be

24 treated as supplemental funding to that negotiated in the

25 funding agreement. The Indian tribe may retain all such
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1 income and expend such funds in the current year or in

2 future years except to the extent that the Indian Health

3 Care Improvement Act (25 U.S.C. 1601 et seq.) provides

4 otherwise for medicare and medicaid receipts. Such funds

5 shall not result in any offset or reduction in the amount

6 of funds the Indian tribe is authorized to receive under

7 its funding agreement in the year the program income is

8 received or for any subsequent fiscal year.

9 ‘‘(k) LIMITATION OF COSTS.—An Indian tribe shall

10 not be obligated to continue performance that requires an

11 expenditure of funds in excess of the amount of funds

12 transferred under a compact or funding agreement. If at

13 any time the Indian tribe has reason to believe that the

14 total amount provided for a specific activity in the com15 pact or funding agreement is insufficient the Indian tribe

16 shall provide reasonable notice of such insufficiency to the

17 Secretary. If the Secretary does not increase the amount

18 of funds transferred under the funding agreement, the In19 dian tribe may suspend performance of the activity until

20 such time as additional funds are transferred.

21 ‘‘SEC. 509. CONSTRUCTION PROJECTS.

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

23 tribal self-governance may carry out construction projects

24 under this title if they elect to assume all Federal respon25 sibilities under the National Environmental Policy Act of
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1 1969 (42 U.S.C. 4321 et seq.), the National Historic

2 Preservation Act (16 U.S.C. 470 et seq.), and related pro3 visions of law that would apply if the Secretary were to

4 undertake a construction project, by adopting a

5 resolution—

6 ‘‘(1) designating a certifying officer to rep7 resent the Indian tribe and to assume the status of

8 a responsible Federal official under such laws; and

9 ‘‘(2) accepting the jurisdiction of the Federal

10 court for the purpose of enforcement of the respon11 sibilities of the responsible Federal official under

12 such environmental laws.

13 ‘‘(b) NEGOTIATIONS.—Construction project proposals

14 shall be negotiated pursuant to the statutory process in

15 section 105(m) and resulting construction project agree16 ments shall be incorporated into funding agreements as

17 addenda.

18 ‘‘(c) CODES AND STANDARDS.—The Indian tribe and

19 the Secretary shall agree upon and specify appropriate

20 building codes and architectural and engineering stand21 ards (including health and safety) which shall be in con22 formity with nationally recognized standards for com23 parable projects.

24 ‘‘(d) RESPONSIBILITY FOR COMPLETION.—The In25 dian tribe shall assume responsibility for the successful
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1 completion of the construction project in accordance with

2 the negotiated construction project agreement.

3 ‘‘(e) FUNDING.—Funding for construction projects

4 carried out under this title shall be included in funding

5 agreements as annual advance payments, with semiannual

6 payments at the option of the Indian tribe. Annual ad7 vance and semiannual payment amounts shall be deter8 mined based on mutually agreeable project schedules re9 flecting work to be accomplished within the advance pay10 ment period, work accomplished and funds expended in

11 previous payment periods, and the total prior payments.

12 The Secretary shall include associated project contingency

13 funds with each advance payment installment. The Indian

14 tribe shall be responsible for the management of the con15 tingency funds included in funding agreements.

16 ‘‘(f) APPROVAL.—The Secretary shall have at least

17 1 opportunity to approve project planning and design doc18 uments prepared by the Indian tribe in advance of con19 struction of the facilities specified in the scope of work

20 for each negotiated construction project agreement or

21 amendment thereof which results in a significant change

22 in the original scope of work. The Indian tribe shall pro23 vide the Secretary with project progress and financial re24 ports not less than semiannually. The Secretary may con25 duct onsite project oversight visits semiannually or on an
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1 alternate schedule agreed to by the Secretary and the In2 dian tribe.

3 ‘‘(g) WAGES.—All laborers and mechanics employed

4 by contractors and subcontractors in the construction, al5 teration, or repair, including painting or decorating of a

6 building or other facilities in connection with construction

7 projects undertaken by self-governance Indian tribes

8 under this Act, shall be paid wages at not less than those

9 prevailing wages on similar construction in the locality as

10 determined by the Indian tribe.

11 ‘‘(h) APPLICATION OF OTHER LAWS.—Unless other12 wise agreed to by the Indian tribe, no provision of the Of13 fice of Federal Procurement Policy Act, the Federal Ac14 quisition Regulations issued pursuant thereto, or any

15 other law or regulation pertaining to Federal procurement

16 (including Executive orders) shall apply to any construc17 tion project conducted under this title.

18 ‘‘SEC. 510. FEDERAL PROCUREMENT LAWS AND REGULA19 TIONS.

20 ‘‘Notwithstanding any other provision of law, unless

21 expressly agreed to by the participating Indian tribe, the

22 compacts and funding agreements entered into under this

23 title shall not be subject to Federal contracting or coopera24 tive agreement laws and regulations (including Executive

25 orders and the regulations relating to procurement issued
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1 by the Secretary), except to the extent that such laws ex2 pressly apply to Indian tribes.

3 ‘‘SEC. 511. CIVIL ACTIONS.

4 ‘‘(a) CONTRACT DEFINED.—For the purposes of sec5 tion 110, the term ‘contract’ shall include compacts and

6 funding agreements entered into under this title.

7 ‘‘(b) APPLICABILITY OF CERTAIN LAWS.—Section

8 2103 of the Revised Statutes (25 U.S.C. 81) and section

9 16 of the Act of June 18, 1934 (48 Stat. 987; chapter

10 576; 25 U.S.C. 476), shall not apply to attorney and other

11 professional contracts entered into by Indian tribes par12 ticipating in self-governance under this title.

13 ‘‘(c) REFERENCES.—All references in this Act to sec14 tion 1 of the Act of June 26, 1936 (49 Stat. 1967; chapter

15 831) are hereby deemed to include the first section of the

16 Act of July 3, 1952 (66 Stat. 323, chapter 549; 25 U.S.C.

17 82a).

18 ‘‘SEC. 512. FACILITATION.

19 ‘‘(a) SECRETARIAL INTERPRETATION.—Except as

20 otherwise provided by law, the Secretary shall interpret

21 all Federal laws, Executive orders and regulations in a

22 manner that will facilitate—

23 ‘‘(1) the inclusion of programs, services, func24 tions, and activities (or portions thereof) and funds
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1 associated therewith, in the agreements entered into

2 under this section;

3 ‘‘(2) the implementation of compacts and fund4 ing agreements entered into under this title; and

5 ‘‘(3) the achievement of tribal health goals and

6 objectives.

7 ‘‘(b) REGULATION WAIVER.—

8 ‘‘(1) IN GENERAL.—An Indian tribe may sub9 mit a written request to waive application of a regu10 lation for a compact or funding agreement entered

11 into with the Indian Health Service under this title,

12 to the Secretary identifying the applicable Federal

13 regulation sought to be waived and the basis for the

14 request.

15 ‘‘(2) APPROVAL.—Not later than 90 days after

16 receipt by the Secretary of a written request by an

17 Indian tribe to waive application of a regulation for

18 a compact or funding agreement entered into under

19 this title, the Secretary shall either approve or deny

20 the requested waiver in writing. A denial may be

21 made only upon a specific finding by the Secretary

22 that identified language in the regulation may not be

23 waived because such waiver is prohibited by Federal

24 law. A failure to approve or deny a waiver request

25 not later than 90 days after receipt shall be deemed
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1 an approval of such request. The Secretary’s deci2 sion shall be final for the Department.

3 ‘‘(c) ACCESS TO FEDERAL PROPERTY.—In connec4 tion with any compact or funding agreement executed pur5 suant to this title or an agreement negotiated under the

6 Tribal Self-Governance Demonstration Project established

7 under title III, as in effect before the enactment of the

8 Tribal Self-Governance Amendments of 1999, upon the re9 quest of an Indian tribe, the Secretary—

10 ‘‘(1) shall permit an Indian tribe to use existing

11 school buildings, hospitals, and other facilities and

12 all equipment therein or appertaining thereto and

13 other personal property owned by the Government

14 within the Secretary’s jurisdiction under such terms

15 and conditions as may be agreed upon by the Sec16 retary and the Indian tribe for their use and mainte17 nance;

18 ‘‘(2) may donate to an Indian tribe title to any

19 personal or real property found to be excess to the

20 needs of any agency of the Department, or the Gen21 eral Services Administration, except that—

22 ‘‘(A) subject to the provisions of subpara23 graph (B), title to property and equipment fur24 nished by the Federal Government for use in

25 the performance of the compact or funding
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1 agreement or purchased with funds under any

2 compact or funding agreement shall, unless oth3 erwise requested by the Indian tribe, vest in the

4 appropriate Indian tribe;

5 ‘‘(B) if property described in subparagraph

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

7 of retrocession, withdrawal, or reassumption, at

8 the option of the Secretary upon the retroces9 sion, withdrawal, or reassumption, title to such

10 property and equipment shall revert to the De11 partment of Health and Human Services; and

12 ‘‘(C) all property referred to in subpara13 graph (A) shall remain eligible for replacement,

14 maintenance, and improvement on the same

15 basis as if title to such property were vested in

16 the United States; and

17 ‘‘(3) shall acquire excess or surplus Government

18 personal or real property for donation to an Indian

19 tribe if the Secretary determines the property is ap20 propriate for use by the Indian tribe for any purpose

21 for which a compact or funding agreement is author22 ized under this title.

23 ‘‘(d) MATCHING OR COST-PARTICIPATION REQUIRE24 MENT.—All funds provided under compacts, funding

25 agreements, or grants made pursuant to this Act, shall
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1 be treated as non-Federal funds for purposes of meeting

2 matching or cost participation requirements under any

3 other Federal or non-Federal program.

4 ‘‘(e) STATE FACILITATION.—States are hereby au5 thorized and encouraged to enact legislation, and to enter

6 into agreements with Indian tribes to facilitate and supple7 ment the initiatives, programs, and policies authorized by

8 this title and other Federal laws benefiting Indians and

9 Indian tribes.

10 ‘‘(f) RULES OF CONSTRUCTION.—Each provision of

11 this title and each provision of a compact or funding

12 agreement shall be liberally construed for the benefit of

13 the Indian tribe participating in self-governance and any

14 ambiguity shall be resolved in favor of the Indian tribe.

15 ‘‘SEC. 513. BUDGET REQUEST.

16 ‘‘(a) IN GENERAL.—

17 ‘‘(1) IN GENERAL.—The President shall iden18 tify in the annual budget request submitted to Con19 gress under section 1105 of title 31, United States

20 Code, all funds necessary to fully fund all funding

21 agreements authorized under this title, including

22 funds specifically identified to fund tribal base budg23 ets. All funds so appropriated shall be apportioned

24 to the Indian Health Service. Such funds shall be

25 provided to the Office of Tribal Self-Governance
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1 which shall be responsible for distribution of all

2 funds provided under section 505.

3 ‘‘(2) RULE OF CONSTRUCTION.—Nothing in

4 this subsection shall be construed to authorize the

5 Indian Health Service to reduce the amount of funds

6 that a self-governance tribe is otherwise entitled to

7 receive under its funding agreement or other appli8 cable law, whether or not such funds are appor9 tioned to the Office of Tribal Self-Governance under

10 this section.

11 ‘‘(b) PRESENT FUNDING; SHORTFALLS.—In such

12 budget request, the President shall identify the level of

13 need presently funded and any shortfall in funding (in14 cluding direct program and contract support costs) for

15 each Indian tribe, either directly by the Secretary of

16 Health and Human Services, under self-determination

17 contracts, or under compacts and funding agreements au18 thorized under this title.

19 ‘‘SEC. 514. REPORTS.

20 ‘‘(a) ANNUAL REPORT.—

21 ‘‘(1) IN GENERAL.—Not later than January 1

22 of each year after the date of enactment of the Trib23 al Self-Governance Amendments of 1999, the Sec24 retary shall submit to the Committee on Indian Af25 fairs of the Senate and the Committee on Resources
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1 of the House of Representatives a written report re2 garding the administration of this title.

3 ‘‘(2) ANALYSIS.—The report under paragraph

4 (1) shall include a detailed analysis of the level of

5 need being presently funded or unfunded for each

6 Indian tribe, either directly by the Secretary, under

7 self-determination contracts under title I, or under

8 compacts and funding agreements authorized under

9 this Act. In compiling reports pursuant to this sec10 tion, the Secretary may not impose any reporting re11 quirements on participating Indian tribes or tribal

12 organizations, not otherwise provided in this Act.

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

14 shall—

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

16 funding agreements, annual audit reports, and data

17 of the Secretary regarding the disposition of Federal

18 funds; and

19 ‘‘(2) identify—

20 ‘‘(A) the relative costs and benefits of self21 governance;

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

23 specifically or functionally related to the provi24 sion by the Secretary of services and benefits to
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1 self-governance Indian tribes and their mem2 bers;

3 ‘‘(C) the funds transferred to each self4 governance Indian tribe and the corresponding

5 reduction in the Federal bureaucracy;

6 ‘‘(D) the funding formula for individual

7 tribal shares of all headquarters funds, together

8 with the comments of affected Indian tribes or

9 tribal organizations, developed under subsection

10 (c); and

11 ‘‘(E) amounts expended in the preceding

12 fiscal year to carry out inherent Federal func13 tions, including an identification of those func14 tions by type and location;

15 ‘‘(2) contain a description of the method or

16 methods (or any revisions thereof) used to determine

17 the individual tribal share of funds controlled by all

18 components of the Indian Health Service (including

19 funds assessed by any other Federal agency) for in20 clusion in self-governance compacts or funding

21 agreements;

22 ‘‘(3) before being submitted to Congress, be dis23 tributed to the Indian tribes for comment (with a

24 comment period of no less than 30 days, beginning

25 on the date of distribution); and
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1 ‘‘(4) include the separate views and comments

2 of the Indian tribes or tribal organizations.

3 ‘‘(c) REPORT ON FUND DISTRIBUTION METHOD.—

4 Not later than 180 days after the date of enactment of

5 the Tribal Self-Governance Amendments of 1999, the Sec6 retary shall, after consultation with Indian tribes, submit

7 a written report to the Committee on Resources of the

8 House of Representatives and the Committee on Indian

9 Affairs of the Senate which describes the method or meth10 ods used to determine the individual tribal share of funds

11 controlled by all components of the Indian Health Service

12 (including funds assessed by any other Federal agency)

13 for inclusion in self-governance compacts or funding

14 agreements.

15 ‘‘SEC. 515. DISCLAIMERS.

16 ‘‘(a) NO FUNDING REDUCTION.—Nothing in this

17 title shall be construed to limit or reduce in any way the

18 funding for any program, project, or activity serving an

19 Indian tribe under this or other applicable Federal law.

20 Any Indian tribe that alleges that a compact or funding

21 agreement is in violation of this section may apply the pro22 visions of section 110.

23 ‘‘(b) FEDERAL TRUST AND TREATY RESPONSIBIL24 ITIES.—Nothing in this Act shall be construed to diminish

25 in any way the trust responsibility of the United States
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1 to Indian tribes and individual Indians that exists under

2 treaties, Executive orders, or other laws and court deci3 sions.

4 ‘‘(c) TRIBAL EMPLOYMENT.—For purposes of section

5 2(2) of the Act of July 5, 1935 (49 Stat. 450, chapter

6 372) (commonly known as the ‘National Labor Relations

7 Act’), an Indian tribe carrying out a self-determination

8 contract, compact, annual funding agreement, grant, or

9 cooperative agreement under this Act shall not be consid10 ered an employer.

11 ‘‘(d) OBLIGATIONS OF THE UNITED STATES.—The

12 Indian Health Service under this Act shall neither bill nor

13 charge those Indians who may have the economic means

14 to pay for services, nor require any Indian tribe to do so.

15 ‘‘SEC. 516. APPLICATION OF OTHER SECTIONS OF THE ACT.

16 ‘‘(a) MANDATORY APPLICATION.—All provisions of

17 sections 5(b), 6, 7, 102 (c) and (d), 104, 105 (k) and (l),

18 106 (c) through (k), and 111 of this Act and section 314

19 of Public Law 101–512 (coverage under chapter 171 of

20 title 28, United States Code, commonly known as the

21 ‘Federal Tort Claims Act’), to the extent not in conflict

22 with this title, shall apply to compacts and funding agree23 ments authorized by this title.

24 ‘‘(b) DISCRETIONARY APPLICATION.—At the request

25 of a participating Indian tribe, any other provision of title
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1 I, to the extent such provision is not in conflict with this

2 title, shall be made a part of a funding agreement or com3 pact entered into under this title. The Secretary is obli4 gated to include such provision at the option of the partici5 pating Indian tribe or tribes. If such provision is incor6 porated it shall have the same force and effect as if it

7 were set out in full in this title. In the event an Indian

8 tribe requests such incorporation at the negotiation stage

9 of a compact or funding agreement, such incorporation

10 shall be deemed effective immediately and shall control the

11 negotiation and resulting compact and funding agreement.

12 ‘‘SEC. 517. REGULATIONS.

13 ‘‘(a) IN GENERAL.—

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

15 after the date of enactment of the Tribal Self-Gov16 ernance Amendments of 1999, the Secretary shall

17 initiate procedures under subchapter III of chapter

18 5 of title 5, United States Code, to negotiate and

19 promulgate such regulations as are necessary to

20 carry out this title.

21 ‘‘(2) PUBLICATION OF PROPOSED REGULA22 TIONS.—Proposed regulations to implement this title

23 shall be published in the Federal Register by the

24 Secretary no later than 1 year after the date of en-
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1 actment of the Tribal Self-Governance Amendments

2 of 1999.

3 ‘‘(3) EXPIRATION OF AUTHORITY.—The author4 ity to promulgate regulations under paragraph (1)

5 shall expire 21 months after the date of enactment

6 of the Tribal Self-Governance Amendments of 1999.

7 ‘‘(b) COMMITTEE.—

8 ‘‘(1) IN GENERAL.—A negotiated rulemaking

9 committee established pursuant to section 565 of

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

11 shall have as its members only Federal and tribal

12 government representatives, a majority of whom

13 shall be nominated by and be representatives of In14 dian tribes with funding agreements under this Act.

15 ‘‘(2) REQUIREMENTS.—The committee shall

16 confer with, and accommodate participation by, rep17 resentatives of Indian tribes, inter-tribal consortia,

18 tribal organizations, and individual tribal members.

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

20 of Health and Human Services shall adapt the negotiated

21 rulemaking procedures to the unique context of self-gov22 ernance and the government-to-government relationship

23 between the United States and Indian tribes.

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

25 shall not limit the effect of this title.
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1 ‘‘(e) EFFECT OF CIRCULARS, POLICIES, MANUALS,

2 GUIDANCES, AND RULES.—Unless expressly agreed to by

3 the participating Indian tribe in the compact or funding

4 agreement, the participating Indian tribe shall not be sub5 ject to any agency circular, policy, manual, guidance, or

6 rule adopted by the Indian Health Service, except as pro7 vided in section 105(g).

8 ‘‘SEC. 518. APPEALS.

9 ‘‘In any appeal (including civil actions) involving deci10 sions made by the Secretary under this title, the Secretary

11 shall have the burden of proof of demonstrating by clear

12 and convincing evidence—

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

14 made; and

15 ‘‘(2) that the decision is fully consistent with

16 provisions and policies of this title.

17 ‘‘SEC. 519. AUTHORIZATION OF APPROPRIATIONS.

18 ‘‘There are authorized to be appropriated such sums

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

20 SEC. 5. TRIBAL SELF-GOVERNANCE DEPARTMENT.

21 The Indian Self-Determination and Education Assist22 ance Act (25 U.S.C. 450 et seq.) is amended by adding

23 at the end the following:
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1 ‘‘TITLE VI—TRIBAL SELF-GOV2 ERNANCE—DEPARTMENT OF

3 HEALTH AND HUMAN SERV4 ICES

5 ‘‘SEC. 601. DEFINITIONS.

6 ‘‘(a) IN GENERAL.—In this title, the Secretary may

7 apply the definitions contained in title V.

8 ‘‘(b) OTHER DEFINITIONS.—In this title:

9 ‘‘(1) AGENCY.—The term the term ‘agency’

10 means any agency or other organizational unit of the

11 Department of Health and Human Services, other

12 than the Indian Health Service.

13 ‘‘(2) SECRETARY.—The term ‘Secretary’ means

14 the Secretary of Health and Human Services.

15 ‘‘SEC. 602. DEMONSTRATION PROJECT FEASIBILITY.

16 ‘‘(a) STUDY.—The Secretary shall conduct a study

17 to determine the feasibility of a tribal self-governance

18 demonstration project for appropriate programs, services,

19 functions, and activities (or portions thereof) of the agen20 cy.

21 ‘‘(b) CONSIDERATIONS.—In conducting the study,

22 the Secretary shall consider—

23 ‘‘(1) the probable effects on specific programs

24 and program beneficiaries of such a demonstration

25 project;
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1 ‘‘(2) statutory, regulatory, or other impedi2 ments to implementation of such a demonstration

3 project;

4 ‘‘(3) strategies for implementing such a dem5 onstration project;

6 ‘‘(4) probable costs or savings associated with

7 such a demonstration project;

8 ‘‘(5) methods to assure quality and account9 ability in such a demonstration project; and

10 ‘‘(6) such other issues that may be determined

11 by the Secretary or developed through consultation

12 pursuant to section 605.

13 ‘‘(c) REPORT.—Not later than 18 months after the

14 date of enactment of this title, the Secretary shall submit

15 a report to the Committee on Indian Affairs of the Senate

16 and the Committee on Resources of the House of Rep17 resentatives. The report shall contain—

18 ‘‘(1) the results of the study under this section;

19 ‘‘(2) a list of programs, services, functions, and

20 activities (or portions thereof) within each agency

21 with respect to which it would be feasible to include

22 in a tribal self-governance demonstration project;

23 ‘‘(3) a list of programs, services, functions, and

24 activities (or portions thereof) included in the list

25 provided pursuant to paragraph (2) that could be in-
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1 cluded in a tribal self-governance demonstration

2 project without amending statutes, or waiving regu3 lations that the Secretary may not waive;

4 ‘‘(4) a list of legislative actions required in

5 order to include those programs, services, functions,

6 and activities (or portions thereof) included in the

7 list provided pursuant to paragraph (2) but not in8 cluded in the list provided pursuant to paragraph

9 (3) in a tribal self-governance demonstration project;

10 and

11 ‘‘(5) any separate views of tribes and other en12 tities consulted pursuant to section 603 related to

13 the information provided pursuant to paragraphs (1)

14 through (4).

15 ‘‘SEC. 603. CONSULTATION.

16 ‘‘(a) STUDY PROTOCOL.—

17 ‘‘(1) CONSULTATION WITH INDIAN TRIBES.—

18 The Secretary shall consult with Indian tribes to de19 termine a protocol for consultation under subsection

20 (b) prior to consultation under such subsection with

21 the other entities described in such subsection.

22 ‘‘(2) REQUIREMENTS FOR PROTOCOL.—The

23 protocol shall require, at a minimum, that—
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1 ‘‘(A) the government-to-government rela2 tionship with Indian tribes forms the basis for

3 the consultation process;

4 ‘‘(B) the Indian tribes and the Secretary

5 jointly conduct the consultations required by

6 this section; and

7 ‘‘(C) the consultation process allows for

8 separate and direct recommendations from the

9 Indian tribes and other entities described in

10 subsection (b).

11 ‘‘(b) CONDUCTING STUDY.—In conducting the study

12 under this title, the Secretary shall consult with Indian

13 tribes, States, counties, municipalities, program bene14 ficiaries, and interested public interest groups, and may

15 consult with other entities as appropriate.

16 ‘‘SEC. 604. AUTHORIZATION OF APPROPRIATIONS.

17 ‘‘There are authorized to be appropriated for fiscal

18 years 2000 and 2001 such sums as may be necessary to

19 carry out this title. Such sums shall remain available until

20 expended.’’.

21 SEC. 6. AMENDMENTS CLARIFYING CIVIL PROCEEDINGS.

22 (a) BURDEN OF PROOF IN DISTRICT COURT AC23 TIONS.—Section 102(e)(1) of the Indian Self-Determina24 tion and Education Assistance Act (25 U.S.C. 450f(e)(1))

25 is amended by inserting after ‘‘subsection (b)(3)’’ the fol-
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1 lowing: ‘‘or any civil action conducted pursuant to section

2 110(a)’’.

3 (b) EFFECTIVE DATE.—The amendments made by

4 subsection (a) shall apply to any proceedings commenced

5 after October 25, 1994.

6 SEC. 7. SPEEDY ACQUISITION OF GOODS, SERVICES, OR

7 SUPPLIES.

8 Section 105(k) of the Indian Self-Determination and

9 Education Assistance Act (25 U.S.C. 450j(k)) is

10 amended—

11 (1) by striking ‘‘deemed an executive agency’’

12 and inserting ‘‘deemed an executive agency and part

13 of the Indian Health Service’’; and

14 (2) by adding at the end the following: ‘‘At the

15 request of an Indian tribe, the Secretary shall enter

16 into an agreement for the acquisition, on behalf of

17 the Indian tribe, of any goods, services, or supplies

18 available to the Secretary from the General Services

19 Administration or other Federal agencies that are

20 not directly available to the Indian tribe under this

21 section or any other Federal law, including acquisi22 tions from prime vendors. All such acquisitions shall

23 be undertaken through the most efficient and speedy

24 means practicable, including electronic ordering ar25 rangements.
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1 SEC. 8. REPEAL.

2 (a) IN GENERAL.—Title III of the Indian Self-Deter3 mination and Education Assistance Act (25 U.S.C. 450f

4 note) is hereby repealed.

5 (b) EFFECTIVE DATE.—This section shall take effect

6 on October 1, 1999.

7 SEC. 9. SAVINGS PROVISION.

8 Funds appropriated for title III of the Indian Self9 Determination and Education Assistance Act (25 U.S.C.

10 450f note) shall be available for use under title V of such

11 Act.

12 SECTION 1. SHORT TITLE.

13 This Act may be cited as the ‘‘Tribal Self-Governance

14 Amendments of 1999’’.

15 SEC. 2. FINDINGS.

16 Congress finds that—

17 (1) the tribal right of self-government flows from

18 the inherent sovereignty of Indian tribes and nations;

19 (2) the United States recognizes a special govern20 ment-to-government relationship with Indian tribes,

21 including the right of the Indian tribes to self-govern22 ance, as reflected in the Constitution, treaties, Federal

23 statutes, and the course of dealings of the United

24 States with Indian tribes;

25 (3) although progress has been made, the Federal

26 bureaucracy, with its centralized rules and regula-
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1 tions, has eroded tribal self-governance and dominates

2 tribal affairs;

3 (4) the Tribal Self-Governance Demonstration

4 Project, established under title III of the Indian Self5 Determination and Education Assistance Act (25

6 U.S.C. 450f note) was designed to improve and per7 petuate the government-to-government relationship be8 tween Indian tribes and the United States and to

9 strengthen tribal control over Federal funding and

10 program management;

11 (5) although the Federal Government has made

12 considerable strides in improving Indian health care,

13 it has failed to fully meet its trust responsibilities and

14 to satisfy its obligations to the Indian tribes under

15 treaties and other laws; and

16 (6) Congress has reviewed the results of the Trib17 al Self-Governance Demonstration Project and finds

18 that transferring full control and funding to tribal

19 governments, upon tribal request, over decision mak20 ing for Federal programs, services, functions, and ac21 tivities (or portions thereof)—

22 (A) is an appropriate and effective means of

23 implementing the Federal policy of government24 to-government relations with Indian tribes; and
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1 (B) strengthens the Federal policy of Indian

2 self-determination.

3 SEC. 3. DECLARATION OF POLICY.

4 It is the policy of Congress—

5 (1) to permanently establish and implement trib6 al self-governance within the Department of Health

7 and Human Services;

8 (2) to call for full cooperation from the Depart9 ment of Health and Human Services and its con10 stituent agencies in the implementation of tribal self11 governance—

12 (A) to enable the United States to maintain

13 and improve its unique and continuing relation14 ship with, and responsibility to, Indian tribes;

15 (B) to permit each Indian tribe to choose

16 the extent of its participation in self-governance

17 in accordance with the provisions of the Indian

18 Self-Determination and Education Assistance

19 Act relating to the provision of Federal services

20 to Indian tribes;

21 (C) to ensure the continuation of the trust

22 responsibility of the United States to Indian

23 tribes and Indian individuals;
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1 (D) to affirm and enable the United States

2 to fulfill its obligations to the Indian tribes

3 under treaties and other laws;

4 (E) to strengthen the government-to-govern5 ment relationship between the United States and

6 Indian tribes through direct and meaningful

7 consultation with all tribes;

8 (F) to permit an orderly transition from

9 Federal domination of programs and services to

10 provide Indian tribes with meaningful authority,

11 control, funding, and discretion to plan, conduct,

12 redesign, and administer programs, services,

13 functions, and activities (or portions thereof)

14 that meet the needs of the individual tribal com15 munities;

16 (G) to provide for a measurable parallel re17 duction in the Federal bureaucracy as programs,

18 services, functions, and activities (or portion

19 thereof) are assumed by Indian tribes;

20 (H) to encourage the Secretary to identify

21 all programs, services, functions, and activities

22 (or portions thereof) of the Department of Health

23 and Human Services that may be managed by

24 an Indian tribe under this Act and to assist In25 dian tribes in assuming responsibility for such
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1 programs, services, functions, and activities (or

2 portions thereof); and

3 (I) to provide Indian tribes with the earliest

4 opportunity to administer programs, services,

5 functions, and activities (or portions thereof)

6 from throughout the Department of Health and

7 Human Services.

8 SEC. 4. TRIBAL SELF-GOVERNANCE.

9 The Indian Self-Determination and Education Assist10 ance Act (25 U.S.C. 450 et seq.) is amended by adding at

11 the end the following:

12 ‘‘TITLE V—TRIBAL SELF13 GOVERNANCE

14 ‘‘SEC. 501. DEFINITIONS.

15 ‘‘(a) IN GENERAL.—In this title:

16 ‘‘(1) CONSTRUCTION PROJECT.—The term ‘con17 struction project’—

18 ‘‘(A) means an organized noncontinuous

19 undertaking to complete a specific set of pre20 determined objectives for the planning, environ21 mental determination, design, construction, re22 pair, improvement, or expansion of buildings or

23 facilities, as described in a construction project

24 agreement; and
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1 ‘‘(B) does not include construction program

2 administration and activities described in para3 graphs (1) through (3) of section 4(m), that may

4 otherwise be included in a funding agreement

5 under this title.

6 ‘‘(2) CONSTRUCTION PROJECT AGREEMENT.—The

7 term ‘construction project agreement’ means a nego8 tiated agreement between the Secretary and an In9 dian tribe, that at a minimum—

10 ‘‘(A) establishes project phase start and

11 completion dates;

12 ‘‘(B) defines a specific scope of work and

13 standards by which it will be accomplished;

14 ‘‘(C) identifies the responsibilities of the In15 dian tribe and the Secretary;

16 ‘‘(D) addresses environmental consider17 ations;

18 ‘‘(E) identifies the owner and operations

19 and maintenance entity of the proposed work;

20 ‘‘(F) provides a budget;

21 ‘‘(G) provides a payment process; and

22 ‘‘(H) establishes the duration of the agree23 ment based on the time necessary to complete the

24 specified scope of work, which may be 1 or more

25 years.
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1 ‘‘(3) GROSS MISMANAGEMENT.—The term ‘gross

2 mismanagement’ means a significant, clear, and con3 vincing violation of a compact, funding agreement, or

4 regulatory, or statutory requirements applicable to

5 Federal funds transferred to an Indian tribe by a

6 compact or funding agreement that results in a sig7 nificant reduction of funds available for the pro8 grams, services, functions, or activities (or portions

9 thereof) assumed by an Indian tribe.

10 ‘‘(4) INHERENT FEDERAL FUNCTIONS.—The term

11 ‘inherent Federal functions’ means those Federal func12 tions which cannot legally be delegated to Indian

13 tribes.

14 ‘‘(5) INTER-TRIBAL CONSORTIUM.—The term

15 ‘inter-tribal consortium’ means a coalition of 2 or

16 more separate Indian tribes that join together for the

17 purpose of participating in self-governance, including

18 tribal organizations.

19 ‘‘(6) SECRETARY.—The term ‘Secretary’ means

20 the Secretary of Health and Human Services.

21 ‘‘(7) SELF-GOVERNANCE.—The term ‘self-govern22 ance’ means the program of self-governance estab23 lished under section 502.

24 ‘‘(8) TRIBAL SHARE.—The term ‘tribal share’

25 means an Indian tribe’s portion of all funds and re-
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1 sources that support secretarial programs, services,

2 functions, and activities (or portions thereof) that are

3 not required by the Secretary for performance of in4 herent Federal functions.

5 ‘‘(b) INDIAN TRIBE.—In any case in which an Indian

6 tribe has authorized another Indian tribe, an inter-tribal

7 consortium, or a tribal organization to plan for or carry

8 out programs, services, functions, or activities (or portions

9 thereof) on its behalf under this title, the authorized Indian

10 tribe, inter-tribal consortium, or tribal organization shall

11 have the rights and responsibilities of the authorizing In12 dian tribe (except as otherwise provided in the authorizing

13 resolution or in this title). In such event, the term ‘Indian

14 tribe’ as used in this title shall include such other author15 ized Indian tribe, inter-tribal consortium, or tribal organi16 zation.

17 ‘‘SEC. 502. ESTABLISHMENT.

18 ‘‘The Secretary shall establish and carry out a pro19 gram within the Indian Health Service of the Department

20 of Health and Human Services to be known as the ‘Tribal

21 Self-Governance Program’ in accordance with this title.

22 ‘‘SEC. 503. SELECTION OF PARTICIPATING INDIAN TRIBES.

23 ‘‘(a) CONTINUING PARTICIPATION.—Each Indian tribe

24 that is participating in the Tribal Self-Governance Dem25 onstration Project under title III on the date of enactment
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1 of this title may elect to participate in self-governance

2 under this title under existing authority as reflected in trib3 al resolution.

4 ‘‘(b) ADDITIONAL PARTICIPANTS.—

5 ‘‘(1) IN GENERAL.—In addition to those Indian

6 tribes participating in self-governance under sub7 section (a), each year an additional 50 Indian tribes

8 that meet the eligibility criteria specified in sub9 section (c) shall be entitled to participate in self-gov10 ernance.

11 ‘‘(2) TREATMENT OF CERTAIN INDIAN TRIBES.—

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

13 has withdrawn from participation in an inter14 tribal consortium or tribal organization, in

15 whole or in part, shall be entitled to participate

16 in self-governance provided the Indian tribe

17 meets the eligibility criteria specified in sub18 section (c).

19 ‘‘(B) EFFECT OF WITHDRAWAL.—If an In20 dian tribe has withdrawn from participation in

21 an inter-tribal consortium or tribal organiza22 tion, that Indian tribe shall be entitled to its

23 tribal share of funds supporting those programs,

24 services, functions, and activities (or portions

25 thereof) that the Indian tribe will be carrying
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1 out under the compact and funding agreement of

2 the Indian tribe.

3 ‘‘(C) PARTICIPATION IN SELF-GOVERN4 ANCE.—In no event shall the withdrawal of an

5 Indian tribe from an inter-tribal consortium or

6 tribal organization affect the eligibility of the

7 inter-tribal consortium or tribal organization to

8 participate in self-governance.

9 ‘‘(c) APPLICANT POOL.—

10 ‘‘(1) IN GENERAL.—The qualified applicant pool

11 for self-governance shall consist of each Indian tribe

12 that—

13 ‘‘(A) successfully completes the planning

14 phase described in subsection (d);

15 ‘‘(B) has requested participation in self-gov16 ernance by resolution or other official action by

17 the governing body of each Indian tribe to be

18 served; and

19 ‘‘(C) has demonstrated, for 3 fiscal years, fi20 nancial stability and financial management ca21 pability.

22 ‘‘(2) CRITERIA FOR DETERMINING FINANCIAL

23 STABILITY AND FINANCIAL MANAGEMENT CAPACITY.—

24 For purposes of this subsection, evidence that, during

25 the 3-year period referred to in paragraph (1)(C), an
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1 Indian tribe had no uncorrected significant and ma2 terial audit exceptions in the required annual audit

3 of the Indian tribe’s self-determination contracts or

4 self-governance funding agreements with any Federal

5 agency shall be conclusive evidence of the required sta6 bility and capability.

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

8 participation in self-governance shall complete a planning

9 phase. The planning phase shall be conducted to the satis10 faction of the Indian tribe and shall include—

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

12 ‘‘(2) internal tribal government planning and

13 organizational preparation relating to the adminis14 tration of health care programs.

15 ‘‘(e) GRANTS.—Subject to the availability of appro16 priations, any Indian tribe meeting the requirements of

17 paragraph (1) (B) and (C) of subsection (c) shall be eligible

18 for grants—

19 ‘‘(1) to plan for participation in self-governance;

20 and

21 ‘‘(2) to negotiate the terms of participation by

22 the Indian tribe or tribal organization in self-govern23 ance, as set forth in a compact and a funding agree24 ment.
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1 ‘‘(f) RECEIPT OF GRANT NOT REQUIRED.—Receipt of

2 a grant under subsection (e) shall not be a requirement of

3 participation in self-governance.

4 ‘‘SEC. 504. COMPACTS.

5 ‘‘(a) COMPACT REQUIRED.—The Secretary shall nego6 tiate and enter into a written compact with each Indian

7 tribe participating in self-governance in a manner con8 sistent with the Federal Government’s trust responsibility,

9 treaty obligations, and the government-to-government rela10 tionship between Indian tribes and the United States.

11 ‘‘(b) CONTENTS.—Each compact required under sub12 section (a) shall set forth the general terms of the govern13 ment-to-government relationship between the Indian tribe

14 and the Secretary, including such terms as the parties in15 tend shall control year after year. Such compacts may only

16 be amended by mutual agreement of the parties.

17 ‘‘(c) EXISTING COMPACTS.—An Indian tribe partici18 pating in the Tribal Self-Governance Demonstration

19 Project under title III on the date of enactment of this title

20 shall have the option at any time after the date of enact21 ment of this title to—

22 ‘‘(1) retain the Tribal Self-Governance Dem23 onstration Project compact of that Indian tribe (in

24 whole or in part) to the extent that the provisions of
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1 that funding agreement are not directly contrary to

2 any express provision of this title; or

3 ‘‘(2) instead of retaining a compact or portion

4 thereof under paragraph (1), negotiate a new compact

5 in a manner consistent with the requirements of this

6 title.

7 ‘‘(d) TERM AND EFFECTIVE DATE.—The effective date

8 of a compact shall be the date of the approval and execution

9 by the Indian tribe or another date agreed upon by the par10 ties, and shall remain in effect for so long as permitted by

11 Federal law or until terminated by mutual written agree12 ment, retrocession, or reassumption.

13 ‘‘SEC. 505. FUNDING AGREEMENTS.

14 ‘‘(a) FUNDING AGREEMENT REQUIRED.—The Sec15 retary shall negotiate and enter into a written funding

16 agreement with each Indian tribe participating in self-gov17 ernance in a manner consistent with the Federal Govern18 ment’s trust responsibility, treaty obligations, and the gov19 ernment-to-government relationship between Indian tribes

20 and the United States.

21 ‘‘(b) CONTENTS.—

22 ‘‘(1) IN GENERAL.—Each funding agreement re23 quired under subsection (a) shall, as determined by

24 the Indian tribe, authorize the Indian tribe to plan,

25 conduct, consolidate, administer, and receive full trib-
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1 al share funding, including tribal shares of discre2 tionary Indian Health Service competitive grants (ex3 cluding congressionally earmarked competitive

4 grants), for all programs, services, functions, and ac5 tivities (or portions thereof), that are carried out for

6 the benefit of Indians because of their status as Indi7 ans without regard to the agency or office of the In8 dian Health Service (or of such other agency) within

9 which the program, service, function, or activity (or

10 portion thereof) is performed.

11 ‘‘(2) INCLUSION OF CERTAIN PROGRAMS, SERV12 ICES, FUNCTIONS, AND ACTIVITIES.—Such programs,

13 services, functions, or activities (or portions thereof)

14 include all programs, services, functions, activities (or

15 portions thereof), including grants (which may be

16 added to a funding agreement after an award of such

17 grants), with respect to which Indian tribes or Indi18 ans are primary or significant beneficiaries, adminis19 tered by the Department of Health and Human Serv20 ices through the Indian Health Service and all local,

21 field, service unit, area, regional, and central head22 quarters or national office functions administered

23 under the authority of—

24 ‘‘(A) the Act of November 2, 1921 (42 Stat.

25 208, chapter 115; 25 U.S.C. 13);
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1 ‘‘(B) the Act of April 16, 1934 (48 Stat.

2 596, chapter 147; 25 U.S.C. 452 et seq.);

3 ‘‘(C) the Act of August 5, 1954 (68 Stat.

4 674, chapter 658);

5 ‘‘(D) the Indian Health Care Improvement

6 Act (25 U.S.C. 1601 et seq.);

7 ‘‘(E) the Indian Alcohol and Substance

8 Abuse Prevention and Treatment Act of 1986 (25

9 U.S.C. 2401 et seq.);

10 ‘‘(F) any other Act of Congress authorizing

11 any agency of the Department of Health and

12 Human Services to administer, carry out, or

13 provide financial assistance to such a program,

14 service, function or activity (or portions thereof)

15 described in this section that is carried out for

16 the benefit of Indians because of their status as

17 Indians; or

18 ‘‘(G) any other Act of Congress authorizing

19 such a program, service, function, or activity (or

20 portions thereof) carried out for the benefit of In21 dians under which appropriations are made

22 available to any agency other than an agency

23 within the Department of Health and Human

24 Services, in any case in which the Secretary ad-
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1 ministers that program, service, function, or ac2 tivity (or portion thereof).

3 ‘‘(c) INCLUSION IN COMPACT OR FUNDING AGREE4 MENT.—It shall not be a requirement that an Indian tribe

5 or Indians be identified in the authorizing statute for a pro6 gram or element of a program to be eligible for inclusion

7 in a compact or funding agreement under this title.

8 ‘‘(d) FUNDING AGREEMENT TERMS.—Each funding

9 agreement under this title shall set forth—

10 ‘‘(1) terms that generally identify the programs,

11 services, functions, and activities (or portions thereof)

12 to be performed or administered; and

13 ‘‘(2) for the items identified in paragraph (1)—

14 ‘‘(A) the general budget category assigned;

15 ‘‘(B) the funds to be provided, including

16 those funds to be provided on a recurring basis;

17 ‘‘(C) the time and method of transfer of the

18 funds;

19 ‘‘(D) the responsibilities of the Secretary;

20 and

21 ‘‘(E) any other provision with respect to

22 which the Indian tribe and the Secretary agree.

23 ‘‘(e) SUBSEQUENT FUNDING AGREEMENTS.—Absent

24 notification from an Indian tribe that is withdrawing or

25 retroceding the operation of 1 or more programs, services,
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1 functions, or activities (or portions thereof) identified in a

2 funding agreement, or unless otherwise agreed to by the par3 ties, each funding agreement shall remain in full force and

4 effect until a subsequent funding agreement is executed, and

5 the terms of the subsequent funding agreement shall be ret6 roactive to the end of the term of the preceding funding

7 agreement.

8 ‘‘(f) EXISTING FUNDING AGREEMENTS.—Each Indian

9 tribe participating in the Tribal Self-Governance Dem10 onstration Project established under title III on the date

11 of enactment of this title shall have the option at any time

12 thereafter to—

13 ‘‘(1) retain the Tribal Self-Governance Dem14 onstration Project funding agreement of that Indian

15 tribe (in whole or in part) to the extent that the pro16 visions of that funding agreement are not directly

17 contrary to any express provision of this title; or

18 ‘‘(2) instead of retaining a funding agreement or

19 portion thereof under paragraph (1), negotiate a new

20 funding agreement in a manner consistent with the

21 requirements of this title.

22 ‘‘(g) STABLE BASE FUNDING.—At the option of an In23 dian tribe, a funding agreement may provide for a stable

24 base budget specifying the recurring funds (including, for

25 purposes of this provision, funds available under section
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1 106(a)) to be transferred to such Indian tribe, for such pe2 riod as may be specified in the funding agreement, subject

3 to annual adjustment only to reflect changes in congres4 sional appropriations by sub-sub activity excluding ear5 marks.

6 ‘‘SEC. 506. GENERAL PROVISIONS.

7 ‘‘(a) APPLICABILITY.—The provisions of this section

8 shall apply to compacts and funding agreements negotiated

9 under this title and an Indian tribe may, at its option,

10 include provisions that reflect such requirements in a com11 pact or funding agreement.

12 ‘‘(b) CONFLICTS OF INTEREST.—Indian tribes partici13 pating in self-governance under this title shall ensure that

14 internal measures are in place to address conflicts of inter15 est in the administration of self-governance programs, serv16 ices, functions, or activities (or portions thereof).

17 ‘‘(c) AUDITS.—

18 ‘‘(1) SINGLE AGENCY AUDIT ACT.—The provi19 sions of chapter 75 of title 31, United States Code, re20 quiring a single agency audit report shall apply to

21 funding agreements 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 modified

25 by section 106, or by any exemptions to applicable
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1 Office of Management and Budget circulars subse2 quently granted by the Office of Management and

3 Budget. No other audit or accounting standards shall

4 be required by the Secretary. Any claim by the Fed5 eral Government against the Indian tribe relating to

6 funds received under a funding agreement based on

7 any audit under this subsection shall be subject to the

8 provisions of section 106(f).

9 ‘‘(d) RECORDS.—

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

11 specifies otherwise in the compact or funding agree12 ment, records of the Indian tribe shall not be consid13 ered Federal records for purposes of chapter 5 of title

14 5, United States Code.

15 ‘‘(2) RECORDKEEPING SYSTEM.—The Indian

16 tribe shall maintain a recordkeeping system, and,

17 after 30 days advance notice, provide the Secretary

18 with reasonable access to such records to enable the

19 Department of Health and Human Services to meet

20 its minimum legal recordkeeping system requirements

21 under sections 3101 through 3106 of title 44, United

22 States Code.

23 ‘‘(e) REDESIGN AND CONSOLIDATION.—An Indian

24 tribe may redesign or consolidate programs, services, func25 tions, and activities (or portions thereof) included in a
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1 funding agreement under section 305 and reallocate or redi2 rect funds for such programs, services, functions, and activi3 ties (or portions thereof) in any manner which the Indian

4 tribe deems to be in the best interest of the health and wel5 fare of the Indian community being served, only if the rede6 sign or consolidation does not have the effect of denying eli7 gibility for services to population groups otherwise eligible

8 to be served under applicable Federal law.

9 ‘‘(f) RETROCESSION.—An Indian tribe may retrocede,

10 fully or partially, to the Secretary programs, services, func11 tions, or activities (or portions thereof) included in the com12 pact or funding agreement. Unless the Indian tribe rescinds

13 the request for retrocession, such retrocession will become

14 effective within the timeframe specified by the parties in

15 the compact or funding agreement. In the absence of such

16 a specification, such retrocession shall become effective on—

17 ‘‘(1) the earlier of—

18 ‘‘(A) 1 year after the date of submission of

19 such request; or

20 ‘‘(B) the date on which the funding agree21 ment expires; or

22 ‘‘(2) such date as may be mutually agreed upon

23 by the Secretary and the Indian tribe.

24 ‘‘(g) WITHDRAWAL.—

25 ‘‘(1) PROCESS.—
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1 ‘‘(A) IN GENERAL.—An Indian tribe may

2 fully or partially withdraw from a participating

3 inter-tribal consortium or tribal organization its

4 share of any program, function, service, or activ5 ity (or portions thereof) included in a compact

6 or funding agreement.

7 ‘‘(B) EFFECTIVE DATE.—The withdrawal

8 referred to in subparagraph (A) shall become ef9 fective within the timeframe specified in the reso10 lution which authorizes transfer to the partici11 pating tribal organization or inter-tribal consor12 tium. In the absence of a specific timeframe set

13 forth in the resolution, such withdrawal shall be14 come effective on—

15 ‘‘(i) the earlier of—

16 ‘‘(I) 1 year after the date of sub17 mission of such request; or

18 ‘‘(II) the date on which the fund19 ing agreement expires; or

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

21 agreed upon by the Secretary, the with22 drawing Indian tribe, and the participating

23 tribal organization or inter-tribal consor24 tium that has signed the compact or fund25 ing agreement on behalf of the withdrawing
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1 Indian tribe, inter-tribal consortium, or

2 tribal organization.

3 ‘‘(2) DISTRIBUTION OF FUNDS.—When an In4 dian tribe or tribal organization eligible to enter into

5 a self-determination contract under title I or a com6 pact or funding agreement under this title fully or

7 partially withdraws from a participating inter-tribal

8 consortium or tribal organization—

9 ‘‘(A) the withdrawing Indian tribe or tribal

10 organization shall be entitled to its tribal share

11 of funds supporting those programs, services,

12 functions, or activities (or portions thereof) that

13 the Indian tribe will be carrying out under its

14 own self-determination contract or compact and

15 funding agreement (calculated on the same basis

16 as the funds were initially allocated in the fund17 ing agreement of the inter-tribal consortium or

18 tribal organization); and

19 ‘‘(B) the funds referred to in subparagraph

20 (A) shall be transferred from the funding agree21 ment of the inter-tribal consortium or tribal or22 ganization, on the condition that the provisions

23 of sections 102 and 105(i), as appropriate, shall

24 apply to that withdrawing Indian tribe.
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1 ‘‘(3) REGAINING MATURE CONTRACT STATUS.—If

2 an Indian tribe elects to operate all or some pro3 grams, services, functions, or activities (or portions

4 thereof) carried out under a compact or funding

5 agreement under this title through a self-determina6 tion contract under title I, at the option of the Indian

7 tribe, the resulting self-determination contract shall be

8 a mature self-determination contract.

9 ‘‘(h) NONDUPLICATION.—For the period for which, and

10 to the extent to which, funding is provided under this title

11 or under the compact or funding agreement, the Indian

12 tribe shall not be entitled to contract with the Secretary

13 for such funds under section 102, except that such Indian

14 tribe shall be eligible for new programs on the same basis

15 as other Indian tribes.

16 ‘‘SEC. 507. PROVISIONS RELATING TO THE SECRETARY.

17 ‘‘(a) MANDATORY PROVISIONS.—

18 ‘‘(1) HEALTH STATUS REPORTS.—Compacts or

19 funding agreements negotiated between the Secretary

20 and an Indian tribe shall include a provision that re21 quires the Indian tribe to report on health status and

22 service delivery—

23 ‘‘(A) to the extent such data is not otherwise

24 available to the Secretary and specific funds for
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1 this purpose are provided by the Secretary under

2 the funding agreement; and

3 ‘‘(B) if such reporting shall impose mini4 mal burdens on the participating Indian tribe

5 and such requirements are promulgated under

6 section 517.

7 ‘‘(2) REASSUMPTION.—

8 ‘‘(A) IN GENERAL.—Compacts or funding

9 agreements negotiated between the Secretary and

10 an Indian tribe shall include a provision author11 izing the Secretary to reassume operation of a

12 program, service, function, or activity (or por13 tions thereof) and associated funding if there is

14 a specific finding relative to that program, serv15 ice, function, or activity (or portion thereof) of—

16 ‘‘(i) imminent endangerment of the

17 public health caused by an act or omission

18 of the Indian tribe, and the imminent

19 endangerment arises out of a failure to

20 carry out the compact or funding agree21 ment; or

22 ‘‘(ii) gross mismanagement with re23 spect to funds transferred to a tribe by a

24 compact or funding agreement, as deter-
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1 mined by the Secretary in consultation with

2 the Inspector General, as appropriate.

3 ‘‘(B) PROHIBITION.—The Secretary shall

4 not reassume operation of a program, service,

5 function, or activity (or portions thereof)

6 unless—

7 ‘‘(i) the Secretary has first provided

8 written notice and a hearing on the record

9 to the Indian tribe; and

10 ‘‘(ii) the Indian tribe has not taken

11 corrective action to remedy the imminent

12 endangerment to public health or gross mis13 management.

14 ‘‘(C) EXCEPTION.—

15 ‘‘(i) IN GENERAL.—Notwithstanding

16 subparagraph (B), the Secretary may, upon

17 written notification to the Indian tribe, im18 mediately reassume operation of a program,

19 service, function, or activity (or portion

20 thereof) if—

21 ‘‘(I) the Secretary makes a find22 ing of imminent substantial and irrep23 arable endangerment of the public

24 health caused by an act or omission of

25 the Indian tribe; and
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1 ‘‘(II) the endangerment arises out

2 of a failure to carry out the compact or

3 funding agreement.

4 ‘‘(ii) REASSUMPTION.—If the Secretary

5 reassumes operation of a program, service,

6 function, or activity (or portion thereof)

7 under this subparagraph, the Secretary

8 shall provide the Indian tribe with a hear9 ing on the record not later than 10 days

10 after such reassumption.

11 ‘‘(D) HEARINGS.—In any hearing or ap12 peal involving a decision to reassume operation

13 of a program, service, function, or activity (or

14 portion thereof), the Secretary shall have the bur15 den of proof of demonstrating by clear and con16 vincing evidence the validity of the grounds for

17 the reassumption.

18 ‘‘(b) FINAL OFFER.—In the event the Secretary and

19 a participating Indian tribe are unable to agree, in whole

20 or in part, on the terms of a compact or funding agreement

21 (including funding levels), the Indian tribe may submit a

22 final offer to the Secretary. Not more than 45 days after

23 such submission, or within a longer time agreed upon by

24 the Indian tribe, the Secretary shall review and make a de25 termination with respect to such offer. In the absence of a
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1 timely rejection of the offer, in whole or in part, made in

2 compliance with subsection (c), the offer shall be deemed

3 agreed to by the Secretary.

4 ‘‘(c) REJECTION OF FINAL OFFERS.—

5 ‘‘(1) IN GENERAL.—If the Secretary rejects an

6 offer made under subsection (b) (or 1 or more provi7 sions or funding levels in such offer), the Secretary

8 shall provide—

9 ‘‘(A) a timely written notification to the In10 dian tribe that contains a specific finding that

11 clearly demonstrates, or that is supported by a

12 controlling legal authority, that—

13 ‘‘(i) the amount of funds proposed in

14 the final offer exceeds the applicable funding

15 level to which the Indian tribe is entitled

16 under this title;

17 ‘‘(ii) the program, function, service, or

18 activity (or portion thereof) that is the sub19 ject of the final offer is an inherent Federal

20 function that cannot legally be delegated to

21 an Indian tribe;

22 ‘‘(iii) the Indian tribe cannot carry

23 out the program, function, service, or activ24 ity (or portion thereof) in a manner that
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1 would not result in significant danger or

2 risk to the public health; or

3 ‘‘(iv) the Indian tribe is not eligible to

4 participate in self-governance under section

5 503;

6 ‘‘(B) technical assistance to overcome the

7 objections stated in the notification required by

8 subparagraph (A);

9 ‘‘(C) the Indian tribe with a hearing on the

10 record with the right to engage in full discovery

11 relevant to any issue raised in the matter and

12 the opportunity for appeal on the objections

13 raised, except that the Indian tribe may, in lieu

14 of filing such appeal, directly proceed to initiate

15 an action in a Federal district court pursuant to

16 section 110(a); and

17 ‘‘(D) the Indian tribe with the option of en18 tering into the severable portions of a final pro19 posed compact or funding agreement, or provi20 sion thereof, (including a lesser funding amount,

21 if any), that the Secretary did not reject, subject

22 to any additional alterations necessary to con23 form the compact or funding agreement to the

24 severed provisions.
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1 ‘‘(2) EFFECT OF EXERCISING CERTAIN OPTION.—

2 If an Indian tribe exercises the option specified in

3 paragraph (1)(D), that Indian tribe shall retain the

4 right to appeal the Secretary’s rejection under this

5 section, and subparagraphs (A), (B), and (C) of that

6 paragraph shall only apply to that portion of the pro7 posed final compact, funding agreement, or provision

8 thereof that was rejected by the Secretary.

9 ‘‘(d) BURDEN OF PROOF.—With respect to any hear10 ing or appeal or civil action conducted pursuant to this

11 section, the Secretary shall have the burden of dem12 onstrating by clear and convincing evidence the validity of

13 the grounds for rejecting the offer (or a provision thereof)

14 made under subsection (b).

15 ‘‘(e) GOOD FAITH.—In the negotiation of compacts

16 and funding agreements the Secretary shall at all times ne17 gotiate in good faith to maximize implementation of the

18 self-governance policy. The Secretary shall carry out this

19 title in a manner that maximizes the policy of tribal self20 governance, in a manner consistent with the purposes speci21 fied in section 3 of the Tribal Self-Governance Amendments

22 of 1999.

23 ‘‘(f) SAVINGS.—To the extent that programs, functions,

24 services, or activities (or portions thereof) carried out by

25 Indian tribes under this title reduce the administrative or
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1 other responsibilities of the Secretary with respect to the

2 operation of Indian programs and result in savings that

3 have not otherwise been included in the amount of tribal

4 shares and other funds determined under section 508(c), the

5 Secretary shall make such savings available to the Indian

6 tribes, inter-tribal consortia, or tribal organizations for the

7 provision of additional services to program beneficiaries in

8 a manner equitable to directly served, contracted, and com9 pacted programs.

10 ‘‘(g) TRUST RESPONSIBILITY.—The Secretary is pro11 hibited from waiving, modifying, or diminishing in any

12 way the trust responsibility of the United States with re13 spect to Indian tribes and individual Indians that exists

14 under treaties, Executive orders, other laws, or court deci15 sions.

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

17 final agency action and relates to an appeal within the De18 partment of Health and Human Services conducted under

19 subsection (c) shall be made either—

20 ‘‘(1) by an official of the Department who holds

21 a position at a higher organizational level within the

22 Department than the level of the departmental agency

23 in which the decision that is the subject of the appeal

24 was made; or

25 ‘‘(2) by an administrative judge.
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1 ‘‘SEC. 508. TRANSFER OF FUNDS.

2 ‘‘(a) IN GENERAL.—Pursuant to the terms of any com3 pact or funding agreement entered into under this title, the

4 Secretary shall transfer to the Indian tribe all funds pro5 vided for in the funding agreement, pursuant to subsection

6 (c), and provide funding for periods covered by joint resolu7 tion adopted by Congress making continuing appropria8 tions, to the extent permitted by such resolutions. In any

9 instance where a funding agreement requires an annual

10 transfer of funding to be made at the beginning of a fiscal

11 year, or requires semiannual or other periodic transfers of

12 funding to be made commencing at the beginning of a fiscal

13 year, the first such transfer shall be made not later than

14 10 days after the apportionment of such funds by the Office

15 of Management and Budget to the Department, unless the

16 funding agreement provides otherwise.

17 ‘‘(b) MULTIYEAR FUNDING.—The Secretary may em18 ploy, upon tribal request, multiyear funding agreements.

19 References in this title to funding agreements shall include

20 such multiyear funding agreements.

21 ‘‘(c) AMOUNT OF FUNDING.—The Secretary shall pro22 vide funds under a funding agreement under this title in

23 an amount equal to the amount that the Indian tribe would

24 have been entitled to receive under self-determination con25 tracts under this Act, including amounts for direct program

26 costs specified under section 106(a)(1) and amounts for con-
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1 tract support costs specified under section 106(a) (2), (3),

2 (5), and (6), including any funds that are specifically or

3 functionally related to the provision by the Secretary of

4 services and benefits to the Indian tribe or its members, all

5 without regard to the organizational level within the De6 partment where such functions are carried out.

7 ‘‘(d) PROHIBITIONS.—

8 ‘‘(1) IN GENERAL.—Except as provided in para9 graph (2), the Secretary is expressly prohibited

10 from—

11 ‘‘(A) failing or refusing to transfer to an

12 Indian tribe its full share of any central, head13 quarters, regional, area, or service unit office or

14 other funds due under this Act, except as re15 quired by Federal law;

16 ‘‘(B) withholding portions of such funds for

17 transfer over a period of years; and

18 ‘‘(C) reducing the amount of funds required

19 under this Act—

20 ‘‘(i) to make funding available for self21 governance monitoring or administration

22 by the Secretary;

23 ‘‘(ii) in subsequent years, except pursu24 ant to—
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1 ‘‘(I) a reduction in appropria2 tions from the previous fiscal year for

3 the program or function to be included

4 in a compact or funding agreement;

5 ‘‘(II) a congressional directive in

6 legislation or accompanying report;

7 ‘‘(III) a tribal authorization;

8 ‘‘(IV) a change in the amount of

9 pass-through funds subject to the terms

10 of the funding agreement; or

11 ‘‘(V) completion of a project, ac12 tivity, or program for which such

13 funds were provided;

14 ‘‘(iii) to pay for Federal functions, in15 cluding Federal pay costs, Federal employee

16 retirement benefits, automated data proc17 essing, technical assistance, and monitoring

18 of activities under this Act; or

19 ‘‘(iv) to pay for costs of Federal per20 sonnel displaced by self-determination con21 tracts under this Act or self-governance;

22 ‘‘(2) EXCEPTION.—The funds described in para23 graph (1)(C) may be increased by the Secretary if

24 necessary to carry out this Act or as provided in sec25 tion 105(c)(2).
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1 ‘‘(e) OTHER RESOURCES.—In the event an Indian

2 tribe elects to carry out a compact or funding agreement

3 with the use of Federal personnel, Federal supplies (includ4 ing supplies available from Federal warehouse facilities),

5 Federal supply sources (including lodging, airline transpor6 tation, and other means of transportation including the use

7 of interagency motor pool vehicles) or other Federal re8 sources (including supplies, services, and resources avail9 able to the Secretary under any procurement contracts in

10 which the Department is eligible to participate), the Sec11 retary shall acquire and transfer such personnel, supplies,

12 or resources to the Indian tribe.

13 ‘‘(f) REIMBURSEMENT TO INDIAN HEALTH SERVICE.—

14 With respect to functions transferred by the Indian Health

15 Service to an Indian tribe, the Indian Health Service shall

16 provide goods and services to the Indian tribe, on a reim17 bursable basis, including payment in advance with subse18 quent adjustment. The reimbursements received from those

19 goods and services, along with the funds received from the

20 Indian tribe pursuant to this title, may be credited to the

21 same or subsequent appropriation account which provided

22 the funding, such amounts to remain available until ex23 pended.

24 ‘‘(g) PROMPT PAYMENT ACT.—Chapter 39 of title 31,

25 United States Code, shall apply to the transfer of funds due
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1 under a compact or funding agreement authorized under

2 this title.

3 ‘‘(h) INTEREST OR OTHER INCOME ON TRANSFERS.—

4 An Indian tribe is entitled to retain interest earned on any

5 funds paid under a compact or funding agreement to carry

6 out governmental or health purposes and such interest shall

7 not diminish the amount of funds the Indian tribe is au8 thorized to receive under its funding agreement in the year

9 the interest is earned or in any subsequent fiscal year.

10 Funds transferred under this title shall be managed using

11 the prudent investment standard.

12 ‘‘(i) CARRYOVER OF FUNDS.—All funds paid to an In13 dian tribe in accordance with a compact or funding agree14 ment shall remain available until expended. In the event

15 that an Indian tribe elects to carry over funding from 1

16 year to the next, such carryover shall not diminish the

17 amount of funds the Indian tribe is authorized to receive

18 under its funding agreement in that or any subsequent fis19 cal year.

20 ‘‘(j) PROGRAM INCOME.—All medicare, medicaid, or

21 other program income earned by an Indian tribe shall be

22 treated as supplemental funding to that negotiated in the

23 funding agreement. The Indian tribe may retain all such

24 income and expend such funds in the current year or in

25 future years except to the extent that the Indian Health
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1 Care Improvement Act (25 U.S.C. 1601 et seq.) provides

2 otherwise for medicare and medicaid receipts. Such funds

3 shall not result in any offset or reduction in the amount

4 of funds the Indian tribe is authorized to receive under its

5 funding agreement in the year the program income is re6 ceived or for any subsequent fiscal year.

7 ‘‘(k) LIMITATION OF COSTS.—An Indian tribe shall

8 not be obligated to continue performance that requires an

9 expenditure of funds in excess of the amount of funds trans10 ferred under a compact or funding agreement. If at any

11 time the Indian tribe has reason to believe that the total

12 amount provided for a specific activity in the compact or

13 funding agreement is insufficient the Indian tribe shall pro14 vide reasonable notice of such insufficiency to the Secretary.

15 If the Secretary does not increase the amount of funds

16 transferred under the funding agreement, the Indian tribe

17 may suspend performance of the activity until such time

18 as additional funds are transferred.

19 ‘‘SEC. 509. CONSTRUCTION PROJECTS.

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

21 tribal self-governance may carry out construction projects

22 under this title if they elect to assume all Federal respon23 sibilities under the National Environmental Policy Act of

24 1969 (42 U.S.C. 4321 et seq.), the National Historic Preser25 vation Act (16 U.S.C. 470 et seq.), and related provisions
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1 of law that would apply if the Secretary were to undertake

2 a construction project, by adopting a resolution—

3 ‘‘(1) designating a certifying officer to represent

4 the Indian tribe and to assume the status of a respon5 sible Federal official under such laws; and

6 ‘‘(2) accepting the jurisdiction of the Federal

7 court for the purpose of enforcement of the responsibil8 ities of the responsible Federal official under such en9 vironmental laws.

10 ‘‘(b) NEGOTIATIONS.—Construction project proposals

11 shall be negotiated pursuant to the statutory process in sec12 tion 105(m) and resulting construction project agreements

13 shall be incorporated into funding agreements as addenda.

14 ‘‘(c) CODES AND STANDARDS.—The Indian tribe and

15 the Secretary shall agree upon and specify appropriate

16 building codes and architectural and engineering standards

17 (including health and safety) which shall be in conformity

18 with nationally recognized standards for comparable

19 projects.

20 ‘‘(d) RESPONSIBILITY FOR COMPLETION.—The Indian

21 tribe shall assume responsibility for the successful comple22 tion of the construction project in accordance with the nego23 tiated construction project agreement.

24 ‘‘(e) FUNDING.—Funding for construction projects car25 ried out under this title shall be included in funding agree-
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1 ments as annual advance payments, with semiannual pay2 ments at the option of the Indian tribe. Annual advance

3 and semiannual payment amounts shall be determined

4 based on mutually agreeable project schedules reflecting

5 work to be accomplished within the advance payment pe6 riod, work accomplished and funds expended in previous

7 payment periods, and the total prior payments. The Sec8 retary shall include associated project contingency funds

9 with each advance payment installment. The Indian tribe

10 shall be responsible for the management of the contingency

11 funds included in funding agreements.

12 ‘‘(f) APPROVAL.—The Secretary shall have at least 1

13 opportunity to approve project planning and design docu14 ments prepared by the Indian tribe in advance of construc15 tion of the facilities specified in the scope of work for each

16 negotiated construction project agreement or amendment

17 thereof which results in a significant change in the original

18 scope of work. The Indian tribe shall provide the Secretary

19 with project progress and financial reports not less than

20 semiannually. The Secretary may conduct onsite project

21 oversight visits semiannually or on an alternate schedule

22 agreed to by the Secretary and the Indian tribe.

23 ‘‘(g) WAGES.—All laborers and mechanics employed by

24 contractors and subcontractors in the construction, alter25 ation, or repair, including painting or decorating of a
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1 building or other facilities in connection with construction

2 projects undertaken by self-governance Indian tribes under

3 this Act, shall be paid wages at not less than those pre4 vailing wages on similar construction in the locality as de5 termined by the Indian tribe.

6 ‘‘(h) APPLICATION OF OTHER LAWS.—Unless other7 wise agreed to by the Indian tribe, no provision of the Office

8 of Federal Procurement Policy Act, the Federal Acquisition

9 Regulations issued pursuant thereto, or any other law or

10 regulation pertaining to Federal procurement (including

11 Executive orders) shall apply to any construction project

12 conducted under this title.

13 ‘‘SEC. 510. FEDERAL PROCUREMENT LAWS AND REGULA14 TIONS.

15 ‘‘Notwithstanding any other provision of law, unless

16 expressly agreed to by the participating Indian tribe, the

17 compacts and funding agreements entered into under this

18 title shall not be subject to Federal contracting or coopera19 tive agreement laws and regulations (including Executive

20 orders and the regulations relating to procurement issued

21 by the Secretary), except to the extent that such laws ex22 pressly apply to Indian tribes.
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1 ‘‘SEC. 511. CIVIL ACTIONS.

2 ‘‘(a) CONTRACT DEFINED.—For the purposes of section

3 110, the term ‘contract’ shall include compacts and funding

4 agreements entered into under this title.

5 ‘‘(b) APPLICABILITY OF CERTAIN LAWS.—Section 2103

6 of the Revised Statutes (25 U.S.C. 81) and section 16 of

7 the Act of June 18, 1934 (48 Stat. 987; chapter 576; 25

8 U.S.C. 476), shall not apply to attorney and other profes9 sional contracts entered into by Indian tribes participating

10 in self-governance under this title.

11 ‘‘(c) REFERENCES.—All references in this Act to sec12 tion 1 of the Act of June 26, 1936 (49 Stat. 1967; chapter

13 831) are hereby deemed to include the first section of the

14 Act of July 3, 1952 (66 Stat. 323, chapter 549; 25 U.S.C.

15 82a).

16 ‘‘SEC. 512. FACILITATION.

17 ‘‘(a) SECRETARIAL INTERPRETATION.—Except as oth18 erwise provided by law, the Secretary shall interpret all

19 Federal laws, Executive orders and regulations in a manner

20 that will facilitate—

21 ‘‘(1) the inclusion of programs, services, func22 tions, and activities (or portions thereof) and funds

23 associated therewith, in the agreements entered into

24 under this section;

25 ‘‘(2) the implementation of compacts and fund26 ing agreements entered into under this title; and
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1 ‘‘(3) the achievement of tribal health goals and

2 objectives.

3 ‘‘(b) REGULATION WAIVER.—

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

5 a written request to waive application of a regulation

6 promulgated under section 517 or the authorities

7 specified in section 505(b) for a compact or funding

8 agreement entered into with the Indian Health Serv9 ice under this title, to the Secretary identifying the

10 applicable Federal regulation sought to be waived and

11 the basis for the request.

12 ‘‘(2) APPROVAL.—Not later than 90 days after

13 receipt by the Secretary of a written request by an

14 Indian tribe to waive application of a regulation for

15 a compact or funding agreement entered into under

16 this title, the Secretary shall either approve or deny

17 the requested waiver in writing. A denial may be

18 made only upon a specific finding by the Secretary

19 that identified language in the regulation may not be

20 waived because such waiver is prohibited by Federal

21 law. A failure to approve or deny a waiver request

22 not later than 90 days after receipt shall be deemed

23 an approval of such request. The Secretary’s decision

24 shall be final for the Department.
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1 ‘‘(c) ACCESS TO FEDERAL PROPERTY.—In connection

2 with any compact or funding agreement executed pursuant

3 to this title or an agreement negotiated under the Tribal

4 Self-Governance Demonstration Project established under

5 title III, as in effect before the enactment of the Tribal Self6 Governance Amendments of 1999, upon the request of an

7 Indian tribe, the Secretary—

8 ‘‘(1) shall permit an Indian tribe to use existing

9 school buildings, hospitals, and other facilities and all

10 equipment therein or appertaining thereto and other

11 personal property owned by the Government within

12 the Secretary’s jurisdiction under such terms and con13 ditions as may be agreed upon by the Secretary and

14 the Indian tribe for their use and maintenance;

15 ‘‘(2) may donate to an Indian tribe title to any

16 personal or real property found to be excess to the

17 needs of any agency of the Department, or the Gen18 eral Services Administration, except that—

19 ‘‘(A) subject to the provisions of subpara20 graph (B), title to property and equipment fur21 nished by the Federal Government for use in the

22 performance of the compact or funding agree23 ment or purchased with funds under any com24 pact or funding agreement shall, unless otherwise
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1 requested by the Indian tribe, vest in the appro2 priate Indian tribe;

3 ‘‘(B) if property described in subparagraph

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

5 of retrocession, withdrawal, or reassumption, at

6 the option of the Secretary upon the retrocession,

7 withdrawal, or reassumption, title to such prop8 erty and equipment shall revert to the Depart9 ment of Health and Human Services; and

10 ‘‘(C) all property referred to in subpara11 graph (A) shall remain eligible for replacement,

12 maintenance, and improvement on the same

13 basis as if title to such property were vested in

14 the United States; and

15 ‘‘(3) shall acquire excess or surplus Government

16 personal or real property for donation to an Indian

17 tribe if the Secretary determines the property is ap18 propriate for use by the Indian tribe for any purpose

19 for which a compact or funding agreement is author20 ized under this title.

21 ‘‘(d) MATCHING OR COST-PARTICIPATION REQUIRE22 MENT.—All funds provided under compacts, funding agree23 ments, or grants made pursuant to this Act, shall be treated

24 as non-Federal funds for purposes of meeting matching or
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1 cost participation requirements under any other Federal or

2 non-Federal program.

3 ‘‘(e) STATE FACILITATION.—States are hereby author4 ized and encouraged to enact legislation, and to enter into

5 agreements with Indian tribes to facilitate and supplement

6 the initiatives, programs, and policies authorized by this

7 title and other Federal laws benefiting Indians and Indian

8 tribes.

9 ‘‘(f) RULES OF CONSTRUCTION.—Each provision of

10 this title and each provision of a compact or funding agree11 ment shall be liberally construed for the benefit of the In12 dian tribe participating in self-governance and any ambi13 guity shall be resolved in favor of the Indian tribe.

14 ‘‘SEC. 513. BUDGET REQUEST.

15 ‘‘(a) REQUIREMENT OF ANNUAL BUDGET REQUEST.—

16 ‘‘(1) IN GENERAL.—The President shall identify

17 in the annual budget request submitted to Congress

18 under section 1105 of title 31, United States Code, all

19 funds necessary to fully fund all funding agreements

20 authorized under this title, including funds specifi21 cally identified to fund tribal base budgets. All funds

22 so appropriated shall be apportioned to the Indian

23 Health Service. Such funds shall be provided to the

24 Office of Tribal Self-Governance which shall be re-
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1 sponsible for distribution of all funds provided under

2 section 505.

3 ‘‘(2) RULE OF CONSTRUCTION.—Nothing in this

4 subsection shall be construed to authorize the Indian

5 Health Service to reduce the amount of funds that a

6 self-governance tribe is otherwise entitled to receive

7 under its funding agreement or other applicable law,

8 whether or not such funds are apportioned to the Of9 fice of Tribal Self-Governance under this section.

10 ‘‘(b) PRESENT FUNDING; SHORTFALLS.—In such

11 budget request, the President shall identify the level of need

12 presently funded and any shortfall in funding (including

13 direct program and contract support costs) for each Indian

14 tribe, either directly by the Secretary of Health and Human

15 Services, under self-determination contracts, or under com16 pacts and funding agreements authorized under this title.

17 ‘‘SEC. 514. REPORTS.

18 ‘‘(a) ANNUAL REPORT.—

19 ‘‘(1) IN GENERAL.—Not later than January 1 of

20 each year after the date of enactment of the Tribal

21 Self-Governance Amendments of 1999, the Secretary

22 shall submit to the Committee on Indian Affairs of

23 the Senate and the Committee on Resources of the

24 House of Representatives a written report regarding

25 the administration of this title.
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1 ‘‘(2) ANALYSIS.—The report under paragraph

2 (1) shall include a detailed analysis of the level of

3 need being presently funded or unfunded for each In4 dian tribe, either directly by the Secretary, under self5 determination contracts under title I, or under com6 pacts and funding agreements authorized under this

7 Act. In compiling reports pursuant to this section, the

8 Secretary may not impose any reporting require9 ments on participating Indian tribes or tribal organi10 zations, not otherwise provided in this Act.

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

12 shall—

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

14 funding agreements, annual audit reports, and data

15 of the Secretary regarding the disposition of Federal

16 funds; and

17 ‘‘(2) identify—

18 ‘‘(A) the relative costs and benefits of self19 governance;

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

21 specifically or functionally related to the provi22 sion by the Secretary of services and benefits to

23 self-governance Indian tribes and their members;
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1 ‘‘(C) the funds transferred to each self-gov2 ernance Indian tribe and the corresponding re3 duction in the Federal bureaucracy;

4 ‘‘(D) the funding formula for individual

5 tribal shares of all headquarters funds, together

6 with the comments of affected Indian tribes or

7 tribal organizations, developed under subsection

8 (c); and

9 ‘‘(E) amounts expended in the preceding fis10 cal year to carry out inherent Federal functions,

11 including an identification of those functions by

12 type and location;

13 ‘‘(3) contain a description of the method or

14 methods (or any revisions thereof) used to determine

15 the individual tribal share of funds controlled by all

16 components of the Indian Health Service (including

17 funds assessed by any other Federal agency) for inclu18 sion in self-governance compacts or funding agree19 ments;

20 ‘‘(4) 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, beginning on

23 the date of distribution); and

24 ‘‘(5) include the separate views and comments of

25 the Indian tribes or tribal organizations.
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1 ‘‘(c) REPORT ON FUND DISTRIBUTION METHOD.—Not

2 later than 180 days after the date of enactment of the Tribal

3 Self-Governance Amendments of 1999, the Secretary shall,

4 after consultation with Indian tribes, submit a written re5 port to the Committee on Resources of the House of Rep6 resentatives and the Committee on Indian Affairs of the

7 Senate that describes the method or methods used to deter8 mine the individual tribal share of funds controlled by all

9 components of the Indian Health Service (including funds

10 assessed by any other Federal agency) for inclusion in self11 governance compacts or funding agreements.

12 ‘‘SEC. 515. DISCLAIMERS.

13 ‘‘(a) NO FUNDING REDUCTION.—Nothing in this title

14 shall be construed to limit or reduce in any way the funding

15 for any program, project, or activity serving an Indian

16 tribe under this or other applicable Federal law. Any In17 dian tribe that alleges that a compact or funding agreement

18 is in violation of this section may apply the provisions of

19 section 110.

20 ‘‘(b) FEDERAL TRUST AND TREATY RESPONSIBIL21 ITIES.—Nothing in this Act shall be construed to diminish

22 in any way the trust responsibility of the United States

23 to Indian tribes and individual Indians that exists under

24 treaties, Executive orders, or other laws and court decisions.
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1 ‘‘(c) TRIBAL EMPLOYMENT.—For purposes of section

2 2(2) of the Act of July 5, 1935 (49 Stat. 450, chapter 372)

3 (commonly known as the ‘National Labor Relations Act’),

4 an Indian tribe carrying out a self-determination contract,

5 compact, annual funding agreement, grant, or cooperative

6 agreement under this Act shall not be considered an em7 ployer.

8 ‘‘(d) OBLIGATIONS OF THE UNITED STATES.—The In9 dian Health Service under this Act shall neither bill nor

10 charge those Indians who may have the economic means

11 to pay for services, nor require any Indian tribe to do so.

12 ‘‘SEC. 516. APPLICATION OF OTHER SECTIONS OF THE ACT.

13 ‘‘(a) MANDATORY APPLICATION.—All provisions of sec14 tions 5(b), 6, 7, 102 (c) and (d), 104, 105 (k) and (l), 106

15 (a) through (k), and 111 of this Act and section 314 of Pub16 lic Law 101–512 (coverage under chapter 171 of title 28,

17 United States Code, commonly known as the ‘Federal Tort

18 Claims Act’), to the extent not in conflict with this title,

19 shall apply to compacts and funding agreements authorized

20 by this title.

21 ‘‘(b) DISCRETIONARY APPLICATION.—At the request of

22 a participating Indian tribe, any other provision of title

23 I, to the extent such provision is not in conflict with this

24 title, shall be made a part of a funding agreement or com25 pact entered into under this title. The Secretary is obligated
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1 to include such provision at the option of the participating

2 Indian tribe or tribes. If such provision is incorporated it

3 shall have the same force and effect as if it were set out

4 in full in this title. In the event an Indian tribe requests

5 such incorporation at the negotiation stage of a compact

6 or funding agreement, such incorporation shall be deemed

7 effective immediately and shall control the negotiation and

8 resulting compact and funding agreement.

9 ‘‘SEC. 517. REGULATIONS.

10 ‘‘(a) IN GENERAL.—

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

12 after the date of enactment of the Tribal Self-Govern13 ance Amendments of 1999, the Secretary shall initiate

14 procedures under subchapter III of chapter 5 of title

15 5, United States Code, to negotiate and promulgate

16 such regulations as are necessary to carry out this

17 title.

18 ‘‘(2) PUBLICATION OF PROPOSED REGULA19 TIONS.—Proposed regulations to implement this title

20 shall be published in the Federal Register by the Sec21 retary no later than 1 year after the date of enact22 ment of the Tribal Self-Governance Amendments of

23 1999.

24 ‘‘(3) EXPIRATION OF AUTHORITY.—The author25 ity to promulgate regulations under paragraph (1)
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1 shall expire 21 months after the date of enactment of

2 the Tribal Self-Governance Amendments of 1999.

3 ‘‘(b) COMMITTEE.—

4 ‘‘(1) IN GENERAL.—A negotiated rulemaking

5 committee established pursuant to section 565 of title

6 5, United States Code, to carry out this section shall

7 have as its members only Federal and tribal govern8 ment representatives, a majority of whom shall be

9 nominated by and be representatives of Indian tribes

10 with funding agreements under this Act.

11 ‘‘(2) REQUIREMENTS.—The committee shall con12 fer with, and accommodate participation by, rep13 resentatives of Indian tribes, inter-tribal consortia,

14 tribal organizations, and individual tribal members.

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

16 shall adapt the negotiated rulemaking procedures to the

17 unique context of self-governance and the government-to18 government relationship between the United States and In19 dian tribes.

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

21 shall not limit the effect of this title.

22 ‘‘(e) EFFECT OF CIRCULARS, POLICIES, MANUALS,

23 GUIDANCES, AND RULES.—Unless expressly agreed to by

24 the participating Indian tribe in the compact or funding

25 agreement, the participating Indian tribe shall not be sub-
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1 ject to any agency circular, policy, manual, guidance, or

2 rule adopted by the Indian Health Service, except for the

3 eligibility provisions of section 105(g) and regulations pro4 mulgated under section 517.

5 ‘‘SEC. 518. APPEALS.

6 ‘‘In any appeal (including civil actions) involving de7 cisions made by the Secretary under this title, the Secretary

8 shall have the burden of proof of demonstrating by clear

9 and convincing evidence—

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

11 made; and

12 ‘‘(2) that the decision is fully consistent with

13 provisions and policies of this title.

14 ‘‘SEC. 519. AUTHORIZATION OF APPROPRIATIONS.

15 ‘‘(a) IN GENERAL.—There are authorized to be appro16 priated such sums as may be necessary to carry out this

17 title.

18 ‘‘(b) ASSUMPTION OF NEW OR EXPANDED PRO19 GRAMS.—

20 ‘‘(1) IN GENERAL.—Notwithstanding any other

21 provision of law, in fiscal year 2000 the Secretary

22 may enter into contracts, compacts, or annual fund23 ing agreements with an Indian tribe or tribal organi24 zation to operate a new or expanded program, service,

25 function, or activity of the Indian Health Service
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1 pursuant to the Indian Self-Determination and Edu2 cation Assistance Act (25 U.S.C. 450 et seq.) only

3 if—

4 ‘‘(A) and to the extent that, sufficient con5 tract support costs are appropriated and are spe6 cifically earmarked for the assumption of new or

7 expanded programs, functions, services, or activi8 ties; and

9 ‘‘(B) the Indian Health Service determines

10 that the percentage of contract support costs pro11 vided to existing contractors will not be reduced

12 as a result of the assumption of any new or ex13 panded programs, functions, services, or activi14 ties under this title.

15 ‘‘(2) RULE OF CONSTRUCTION.—Nothing in this

16 subsection shall be construed to affect the allocation of

17 funds other than contract support cost funds.’’.

18 SEC. 5. TRIBAL SELF-GOVERNANCE DEPARTMENT.

19 The Indian Self-Determination and Education Assist20 ance Act (25 U.S.C. 450 et seq.) is amended by adding at

21 the end the following:
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1 ‘‘TITLE VI—TRIBAL SELF-GOV2 ERNANCE—DEPARTMENT OF

3 HEALTH AND HUMAN SERV4 ICES

5 ‘‘SEC. 601. DEFINITIONS.

6 ‘‘(a) IN GENERAL.—In this title, the Secretary may

7 apply the definitions contained in title V.

8 ‘‘(b) OTHER DEFINITIONS.—In this title:

9 ‘‘(1) AGENCY.—The term the term ‘agency’

10 means any agency or other organizational unit of the

11 Department of Health and Human Services, other

12 than the Indian Health Service.

13 ‘‘(2) SECRETARY.—The term ‘Secretary’ means

14 the Secretary of Health and Human Services.

15 ‘‘SEC. 602. DEMONSTRATION PROJECT FEASIBILITY.

16 ‘‘(a) STUDY.—The Secretary shall conduct a study to

17 determine the feasibility of a tribal self-governance dem18 onstration project for appropriate programs, services, func19 tions, and activities (or portions thereof) of the agency.

20 ‘‘(b) CONSIDERATIONS.—In conducting the study, the

21 Secretary shall consider—

22 ‘‘(1) the probable effects on specific programs

23 and program beneficiaries of such a demonstration

24 project;
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1 ‘‘(2) statutory, regulatory, or other impediments

2 to implementation of such a demonstration project;

3 ‘‘(3) strategies for implementing such a dem4 onstration project;

5 ‘‘(4) probable costs or savings associated with

6 such a demonstration project;

7 ‘‘(5) methods to assure quality and account8 ability in such a demonstration project; and

9 ‘‘(6) such other issues that may be determined by

10 the Secretary or developed through consultation pur11 suant to section 603.

12 ‘‘(c) REPORT.—Not later than 18 months after the date

13 of enactment of this title, the Secretary shall submit a re14 port to the Committee on Indian Affairs of the Senate and

15 the Committee on Resources of the House of Representatives.

16 The report shall contain—

17 ‘‘(1) the results of the study under this section;

18 ‘‘(2) a list of programs, services, functions, and

19 activities (or portions thereof) within each agency

20 with respect to which it would be feasible to include

21 in a tribal self-governance demonstration project;

22 ‘‘(3) a list of programs, services, functions, and

23 activities (or portions thereof) included in the list

24 provided pursuant to paragraph (2) that could be in25 cluded in a tribal self-governance demonstration
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1 project without amending statutes, or waiving regula2 tions that the Secretary may not waive;

3 ‘‘(4) a list of legislative actions required in order

4 to include those programs, services, functions, and ac5 tivities (or portions thereof) included in the list pro6 vided pursuant to paragraph (2) but not included in

7 the list provided pursuant to paragraph (3) in a trib8 al self-governance demonstration project; and

9 ‘‘(5) any separate views of tribes and other enti10 ties consulted pursuant to section 603 related to the

11 information provided pursuant to paragraphs (1)

12 through (4).

13 ‘‘SEC. 603. CONSULTATION.

14 ‘‘(a) STUDY PROTOCOL.—

15 ‘‘(1) CONSULTATION WITH INDIAN TRIBES.—The

16 Secretary shall consult with Indian tribes to deter17 mine a protocol for consultation under subsection (b)

18 prior to consultation under such subsection with the

19 other entities described in such subsection.

20 ‘‘(2) REQUIREMENTS FOR PROTOCOL.—The pro21 tocol shall require, at a minimum, that—

22 ‘‘(A) the government-to-government relation23 ship with Indian tribes forms the basis for the

24 consultation process;
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1 ‘‘(B) the Indian tribes and the Secretary

2 jointly conduct the consultations required by this

3 section; and

4 ‘‘(C) the consultation process allows for sep5 arate and direct recommendations from the In6 dian tribes and other entities described in sub7 section (b).

8 ‘‘(b) CONDUCTING STUDY.—In conducting the study

9 under this title, the Secretary shall consult with Indian

10 tribes, States, counties, municipalities, program bene11 ficiaries, and interested public interest groups, and may

12 consult with other entities as appropriate.

13 ‘‘SEC. 604. AUTHORIZATION OF APPROPRIATIONS.

14 ‘‘There are authorized to be appropriated for fiscal

15 years 2000 and 2001 such sums as may be necessary to

16 carry out this title. Such sums shall remain available until

17 expended.’’.

18 SEC. 6. AMENDMENTS CLARIFYING CIVIL PROCEEDINGS.

19 (a) BURDEN OF PROOF IN DISTRICT COURT AC20 TIONS.—Section 102(e)(1) of the Indian Self-Determination

21 and Education Assistance Act (25 U.S.C. 450f(e)(1)) is

22 amended by inserting after ‘‘subsection (b)(3)’’ the fol23 lowing: ‘‘or any civil action conducted pursuant to section

24 110(a)’’.
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1 (b) EFFECTIVE DATE.—The amendments made by sub2 section (a) shall apply to any proceedings commenced after

3 October 25, 1994.

4 SEC. 7. SPEEDY ACQUISITION OF GOODS, SERVICES, OR

5 SUPPLIES.

6 Section 105(k) of the Indian Self-Determination and

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

8 (1) by striking ‘‘deemed an executive agency’’

9 and inserting ‘‘deemed an executive agency and part

10 of the Indian Health Service’’; and

11 (2) by adding at the end the following: ‘‘At the

12 request of an Indian tribe, the Secretary shall enter

13 into an agreement for the acquisition, on behalf of the

14 Indian tribe, of any goods, services, or supplies avail15 able to the Secretary from the General Services Ad16 ministration or other Federal agencies that are not

17 directly available to the Indian tribe under this sec18 tion or any other Federal law, including acquisitions

19 from prime vendors. All such acquisitions shall be un20 dertaken through the most efficient and speedy means

21 practicable, including electronic ordering arrange22 ments.
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1 SEC. 8. PATIENT RECORDS.

2 Section 105 of the Indian Self-Determination and

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

4 adding at the end the following:

5 ‘‘(o) PATIENT RECORDS.—

6 ‘‘(1) IN GENERAL.—At the option of an Indian

7 tribe or tribal organization, patient records may be

8 deemed to be Federal records under those provisions

9 of title 44, United States Code, that are commonly re10 ferred to as the ‘Federal Records Act of 1950’ for the

11 limited purposes of making such records eligible for

12 storage by Federal Records Centers to the same extent

13 and in the same manner as other Department of

14 Health and Human Services patient records.

15 ‘‘(2) TREATMENT OF RECORDS.—Patient records

16 that are deemed to be Federal records under those pro17 visions of title 44, United States Code, that are com18 monly referred to as the ‘Federal Records Act of 1950’

19 pursuant to this subsection shall not be considered

20 Federal records for the purposes of chapter 5 of title

21 5, United States Code.’’.

22 SEC. 9. RECOVERY ACTIONS.

23 Section 105 of the Indian Self-Determination and

24 Education Assistance Act (25 U.S.C. 450j) is amended by

25 adding at the end the following:

26 ‘‘(p) RECOVERY ACTIONS.—
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1 ‘‘(1) CREDITING OF FACILITY ACCOUNTS.—All

2 funds recovered under the first section of Public Law

3 87-693 (42 U.S.C. 2651) that are related to health

4 care provided by a tribally-administered facility or

5 program of the Indian Health Service, whether pro6 vided before or after the facility’s or program’s trans7 fer to tribal administration, shall be credited to the

8 account of the facility or program providing the serv9 ice and shall be available without fiscal year limita10 tion.

11 ‘‘(2) TREATMENT OF TRIBES AND ORGANIZA12 TIONS.—For purposes of the first section of Public

13 Law 87-693 (42 U.S.C. 2651), an Indian tribe or

14 tribal organization carrying out a contract, compact,

15 grant, or cooperative agreement pursuant to this Act

16 shall be deemed to be the United States and shall have

17 the same right to recover as the United States for the

18 reasonable value of past or future care and treatment

19 provided under such contract, compact, grant, or co20 operative agreement. Nothing in this paragraph shall

21 be construed to affect a tribe’s or tribal organization’s

22 right to recover under any other applicable Federal,

23 State, or tribal law.’’.
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1 SEC. 10. ANNUAL REPORTS.

2 Section 106 of the Indian Self-Determination and

3 Education Assistance Act (25 U.S.C. 450j-1) is amended—

4 (1) by redesignating subsections (c) through (n)

5 as subsections (d) through (o), respectively; and

6 (2) by inserting after subsection (b), the fol7 lowing:

8 ‘‘(c) ANNUAL REPORTS.—Not later than May 15 of

9 each year, the Secretary shall prepare and submit to Con10 gress an annual report on the implementation of this Act.

11 Such report shall include—

12 ‘‘(1) an accounting of the total amounts of funds

13 provided for each program and the budget activity for

14 direct program costs and contract support costs of

15 tribal organizations under self-determination;

16 ‘‘(2) an accounting of any deficiency in funds

17 needed to provide required contract support costs to

18 all contractors for the fiscal year for which the report

19 is being submitted;

20 ‘‘(3) the indirect cost rate and type of rate for

21 each tribal organization that has been negotiated with

22 the appropriate Secretary;

23 ‘‘(4) the direct cost base and type of base from

24 which the indirect cost rate is determined for each

25 tribal organization;
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1 ‘‘(5) the indirect cost pool amounts and the types

2 of costs included in the indirect cost pool; and

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

4 needed to maintain the preexisting level of services to

5 any Indian tribes affected by contracting activities

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

7 funds needed for transitional purposes to enable con8 tractors to convert from a Federal fiscal year account9 ing cycle, as authorized by section 105(d).’’.

10 SEC. 11. REPEAL.

11 (a) IN GENERAL.—Title III of the Indian Self-Deter12 mination and Education Assistance Act (25 U.S.C. 450f

13 note) is repealed.

14 (b) EFFECTIVE DATE.—This section shall take effect

15 on October 1, 1999.

16 SEC. 12. SAVINGS PROVISION.

17 Funds appropriated for title III of the Indian Self18 Determination and Education Assistance Act (25 U.S.C.

19 450f note) shall be available for use under title V of such

20 Act.