II

106TH CONGRESS

1ST SESSION S. 979

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 and Mr. MCCAIN) introduced the following bill;

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

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’’.

6 SEC. 2. FINDINGS.

7 Congress finds that—

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

9 from the inherent sovereignty of Indian tribes and

10 nations;
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1 (2) the United States recognizes a special gov2 ernment-to-government relationship with Indian

3 tribes, including the right of the Indian tribes to

4 self-governance, as reflected in the Constitution,

5 treaties, Federal statutes, and the course of dealings

6 of the United States with Indian tribes;

7 (3) although progress has been made, the Fed8 eral bureaucracy, with its centralized rules and regu9 lations, has eroded tribal self-governance and domi10 nates tribal affairs;

11 (4) the Tribal Self-Governance Demonstration

12 Project, established under title III of the Indian

13 Self-Determination and Education Assistance Act

14 (25 U.S.C. 450f note) was designed to improve and

15 perpetuate the government-to-government relation16 ship between Indian tribes and the United States

17 and to strengthen tribal control over Federal fund18 ing and program management;

19 (5) although the Federal Government has made

20 considerable strides in improving Indian health care,

21 it has failed to fully meet its trust responsibilities

22 and to satisfy its obligations to the Indian tribes

23 under treaties and other laws; and

24 (6) Congress has reviewed the results of the

25 Tribal Self-Governance Demonstration Project and
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1 finds that transferring full control and funding to

2 tribal governments, upon tribal request, over deci3 sion making for Federal programs, services, func4 tions, and activities (or portions thereof)—

5 (A) is an appropriate and effective means

6 of implementing the Federal policy of govern7 ment-to-government relations with Indian

8 tribes; and

9 (B) strengthens the Federal policy of In10 dian self-determination.

11 SEC. 3. DECLARATION OF POLICY.

12 It is the policy of Congress—

13 (1) to permanently establish and implement

14 tribal self-governance within the Department of

15 Health and Human Services;

16 (2) to call for full cooperation from the Depart17 ment of Health and Human Services and its con18 stituent agencies in the implementation of tribal self19 governance—

20 (A) to enable the United States to main21 tain and improve its unique and continuing re22 lationship with, and responsibility to, Indian

23 tribes;

24 (B) to permit each Indian tribe to choose

25 the extent of its participation in self-governance
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1 in accordance with the provisions of the Indian

2 Self-Determination and Education Assistance

3 Act relating to the provision of Federal services

4 to Indian tribes;

5 (C) to ensure the continuation of the trust

6 responsibility of the United States to Indian

7 tribes and Indian individuals;

8 (D) to affirm and enable the United States

9 to fulfill its obligations to the Indian tribes

10 under treaties and other laws;

11 (E) to strengthen the government-to-gov12 ernment relationship between the United States

13 and Indian tribes through direct and meaning14 ful consultation with all tribes;

15 (F) to permit an orderly transition from

16 Federal domination of programs and services to

17 provide Indian tribes with meaningful authority,

18 control, funding, and discretion to plan, con19 duct, redesign, and administer programs, serv20 ices, functions, and activities (or portions there21 of) that meet the needs of the individual tribal

22 communities;

23 (G) to provide for a measurable parallel re24 duction in the Federal bureaucracy as pro-
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1 grams, services, functions, and activities (or

2 portion thereof) are assumed by Indian tribes;

3 (H) to encourage the Secretary to identify

4 all programs, services, functions, and activities

5 (or portions thereof) of the Department of

6 Health and Human Services that may be man7 aged by an Indian tribe under this Act and to

8 assist Indian tribes in assuming responsibility

9 for such programs, services, functions, and ac10 tivities (or portions thereof); and

11 (I) to provide Indian tribes with the ear12 liest opportunity to administer programs, serv13 ices, functions, and activities (or portions there14 of) from throughout the Department of Health

15 and Human Services.

16 SEC. 4. TRIBAL SELF-GOVERNANCE.

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

19 at the end the following:

20 ‘‘TITLE V—TRIBAL SELF21 GOVERNANCE

22 ‘‘SEC. 501. DEFINITIONS.

23 ‘‘(a) IN GENERAL.—In this title:

24 ‘‘(1) CONSTRUCTION PROJECT.—The term ‘con25 struction project’—
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1 ‘‘(A) means an organized noncontinuous

2 undertaking to complete a specific set of pre3 determined objectives for the planning, environ4 mental determination, design, construction, re5 pair, improvement, or expansion of buildings or

6 facilities, as described in a construction project

7 agreement; and

8 ‘‘(B) does not include construction pro9 gram administration and activities described in

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

11 that may otherwise be included in a funding

12 agreement under this title.

13 ‘‘(2) CONSTRUCTION PROJECT AGREEMENT.—

14 The term ‘construction project agreement’ means a

15 negotiated agreement between the Secretary and an

16 Indian tribe, that at a minimum—

17 ‘‘(A) establishes project phase start and

18 completion dates;

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

20 standards by which it will be accomplished;

21 ‘‘(C) identifies the responsibilities of the

22 Indian tribe and the Secretary;

23 ‘‘(D) addresses environmental consider24 ations;
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1 ‘‘(E) identifies the owner and operations

2 and maintenance entity of the proposed work;

3 ‘‘(F) provides a budget;

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

5 ‘‘(H) establishes the duration of the agree6 ment based on the time necessary to complete

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

8 more years.

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

10 term ‘inherent Federal functions’ means those Fed11 eral functions which cannot legally be delegated to

12 Indian tribes.

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

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

15 more separate Indian tribes that join together for

16 the purpose of participating in self-governance, in17 cluding a tribal organization.

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

19 ‘gross mismanagement’ means a significant, clear,

20 and convincing violation of a compact, funding

21 agreement, or regulatory, or statutory requirements

22 applicable to Federal funds transferred to an Indian

23 tribe by a compact or funding agreement that re24 sults in a significant reduction of funds available for
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1 the programs, services, functions, or activities (or

2 portions thereof) assumed by an Indian tribe.

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

4 the Secretary of Health and Human Services.

5 ‘‘(7) SELF-GOVERNANCE.—The term ‘self-gov6 ernance’ means the program of self-governance es7 tablished under section 502.

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

9 means an Indian tribe’s portion of all funds and re10 sources that support secretarial programs, services,

11 functions, and activities (or portions thereof) that

12 are not required by the Secretary for performance of

13 inherent Federal functions.

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

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

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

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

18 thereof) on its behalf under this title, the authorized In19 dian tribe, inter-tribal consortium, or tribal organization

20 shall have the rights and responsibilities of the authorizing

21 Indian tribe (except as otherwise provided in the author22 izing resolution or in this title). In such event, the term

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

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

25 organization.
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1 ‘‘SEC. 502. ESTABLISHMENT.

2 ‘‘The Secretary of Health and Human Services shall

3 establish and carry out a program within the Indian

4 Health Service of the Department of Health and Human

5 Services to be known as the ‘Tribal Self-Governance Pro6 gram’ in accordance with this title.

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

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

9 tribe that is participating in the Tribal Self-Governance

10 Demonstration Project under title III on the date of enact11 ment of this title may elect to participate in self-govern12 ance under this title under existing authority as reflected

13 in tribal resolution.

14 ‘‘(b) ADDITIONAL PARTICIPANTS.—

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

16 tribes participating in self-governance under sub17 section (a), each year an additional 50 Indian tribes

18 that meet the eligibility criteria specified in sub19 section (c) shall be entitled to participate in self-gov20 ernance.

21 ‘‘(2) TREATMENT OF CERTAIN INDIAN

22 TRIBES.—

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

24 has withdrawn from participation in an inter25 tribal consortium or tribal organization, in

26 whole or in part, shall be entitled to participate
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1 in self-governance provided the Indian tribe

2 meets the eligibility criteria specified in sub3 section (c).

4 ‘‘(B) EFFECT OF WITHDRAWAL.—If an In5 dian tribe has withdrawn from participation in

6 an inter-tribal consortium or tribal organiza7 tion, that Indian tribe shall be entitled to its

8 tribal share of funds supporting those pro9 grams, services, functions, and activities (or

10 portions thereof) that the Indian tribe will be

11 carrying out under the compact and funding

12 agreement of the Indian tribe.

13 ‘‘(C) PARTICIPATION IN SELF-GOVERN14 ANCE.—In no event shall the withdrawal of an

15 Indian tribe from an inter-tribal consortium or

16 tribal organization affect the eligibility of the

17 inter-tribal consortium or tribal organization to

18 participate in self-governance.

19 ‘‘(c) APPLICANT POOL.—

20 ‘‘(1) IN GENERAL.—The qualified applicant

21 pool for self-governance shall consist of each Indian

22 tribe that—

23 ‘‘(A) successfully completes the planning

24 phase described in subsection (d);
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1 ‘‘(B) has requested participation in self2 governance by resolution or other official action

3 by the governing body of each Indian tribe to

4 be served; and

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

6 period of 3 full fiscal years, financial stability

7 and financial management capability.

8 ‘‘(2) CRITERIA FOR DETERMINING FINANCIAL

9 STABILITY AND FINANCIAL MANAGEMENT CAPAC10 ITY.—For purposes of this subsection, evidence that,

11 during the 3-year period referred to in paragraph

12 (1)(C), an Indian tribe had no uncorrected signifi13 cant and material audit exceptions in the required

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

15 contracts or self-governance funding agreements

16 with any Federal agency shall be conclusive evidence

17 of the required stability and capability.

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

19 participation in self-governance shall complete a planning

20 phase. The planning phase shall be conducted to the satis21 faction of the Indian tribe and shall include—

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

23 ‘‘(2) internal tribal government planning and

24 organizational preparation relating to the adminis25 tration of health care programs.
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1 ‘‘(e) GRANTS.—Subject to the availability of appro2 priations, any Indian tribe meeting the requirements of

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

4 for grants—

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

6 and

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

8 the Indian tribe or tribal organization in self-govern9 ance, as set forth in a compact and a funding agree10 ment.

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

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

13 of participation in self-governance.

14 ‘‘SEC. 504. COMPACTS.

15 ‘‘(a) COMPACT REQUIRED.—The Secretary shall ne16 gotiate and enter into a written compact with each Indian

17 tribe participating in self-governance in a manner con18 sistent with the Federal Government’s trust responsibility,

19 treaty obligations, and the government-to-government re20 lationship between Indian tribes and the United States.

21 ‘‘(b) CONTENTS.—Each compact required under sub22 section (a) shall set forth the general terms of the govern23 ment-to-government relationship between the Indian tribe

24 and the Secretary, including such terms as the parties in-
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1 tend shall control year after year. Such compacts may only

2 be amended by mutual agreement of the parties.

3 ‘‘(c) EXISTING COMPACTS.—An Indian tribe partici4 pating in the Tribal Self-Governance Demonstration

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

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

7 enactment of this title to—

8 ‘‘(1) retain the Tribal Self-Governance Dem9 onstration Project compact of that Indian tribe (in

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

11 of that compact are not directly contrary to any ex12 press provision of this title; or

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

14 thereof under paragraph (1), negotiate a new com15 pact in a manner consistent with the requirements

16 of this title.

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

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

19 execution by the Indian tribe or another date agreed upon

20 by the parties, and shall remain in effect for so long as

21 permitted by Federal law or until terminated by mutual

22 written agreement, retrocession, or reassumption.

23 ‘‘SEC. 505. FUNDING AGREEMENTS.

24 ‘‘(a) FUNDING AGREEMENT REQUIRED.—The Sec25 retary shall negotiate and enter into a written funding
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1 agreement with each Indian tribe participating in self-gov2 ernance in a manner consistent with the Federal Govern3 ment’s trust responsibility, treaty obligations, and the gov4 ernment-to-government relationship between Indian tribes

5 and the United States.

6 ‘‘(b) CONTENTS.—

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

8 required under subsection (a) shall, as determined

9 by the Indian tribe, authorize the Indian tribe to

10 plan, conduct, consolidate, administer, and receive

11 full tribal share funding, including tribal shares of

12 discretionary Indian Health Service competitive

13 grants (excluding congressionally earmarked com14 petitive grants), for all programs, services, functions,

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

16 out for the benefit of Indians because of their status

17 as Indians without regard to the agency or office of

18 the Indian Health Service (or of such other agency)

19 within which the program, service, function, or activ20 ity (or portion thereof) is performed.

21 ‘‘(2) INCLUSION OF CERTAIN PROGRAMS, SERV22 ICES, FUNCTIONS, AND ACTIVITIES.—Such pro23 grams, services, functions, or activities (or portions

24 thereof) include all programs, services, functions, ac25 tivities (or portions thereof) with respect to which
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1 Indian tribes or Indians are primary or significant

2 beneficiaries, administered by the Department of

3 Health and Human Services through the Indian

4 Health Service and grants (which may be added to

5 a funding agreement after award of such grants)

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

7 central headquarters or national office functions ad8 ministered under the authority of—

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

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

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

12 596, chapter 147; 25 U.S.C. 452 et seq.);

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

14 674, chapter 658);

15 ‘‘(D) the Indian Health Care Improvement

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

17 ‘‘(E) the Indian Alcohol and Substance

18 Abuse Prevention and Treatment Act of 1986

19 (25 U.S.C. 2401 et seq.);

20 ‘‘(F) any other Act of Congress author21 izing any agency of the Department of Health

22 and Human Services to administer, carry out,

23 or provide financial assistance to such a pro24 gram, service, function or activity (or portions

25 thereof) described in this section; or
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1 ‘‘(G) any other Act of Congress author2 izing such a program, service, function, or ac3 tivity (or portions thereof) under which appro4 priations are made available to any agency

5 other than an agency within the Department of

6 Health and Human Services, in any case in

7 which the Secretary administers that program,

8 service, function, or activity (or portion there9 of).

10 ‘‘(c) INCLUSION IN COMPACT OR FUNDING AGREE11 MENT.—It shall not be a requirement that an Indian tribe

12 or Indians be identified in the authorizing statute for a

13 program or element of a program to be eligible for inclu14 sion in a compact or funding agreement under this title.

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

16 agreement under this title shall set forth—

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

18 services, functions, and activities (or portions there19 of) to be performed or administered; and

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

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

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

23 those funds to be provided on a recurring basis;

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

25 the funds;
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1 ‘‘(D) the responsibilities of the Secretary;

2 and

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

4 which the Indian tribe and the Secretary agree.

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

6 notification from an Indian tribe that is withdrawing or

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

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

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

10 parties, each funding agreement shall remain in full force

11 and effect until a subsequent funding agreement is exe12 cuted, and the terms of the subsequent funding agreement

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

14 funding agreement.

15 ‘‘(f) EXISTING FUNDING AGREEMENTS.—Each In16 dian tribe participating in the Tribal Self-Governance

17 Demonstration Project established under title III on the

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

19 any time thereafter to—

20 ‘‘(1) retain the Tribal Self-Governance Dem21 onstration Project funding agreement of that Indian

22 tribe (in whole or in part) to the extent that the pro23 visions of that compact are not directly contrary to

24 any express provision of this title; or
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1 ‘‘(2) instead of retaining a funding agreement

2 portion thereof under paragraph (1), negotiate a

3 new funding agreement in a manner consistent with

4 the requirements of this title.

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

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

7 base budget specifying the recurring funds (including, for

8 purposes of this provision, funds available under section

9 106(a)) to be transferred to such Indian tribe, for such

10 period as may be specified in the funding agreement, sub11 ject to annual adjustment only to reflect changes in con12 gressional appropriations by sub-sub activity excluding

13 earmarks.

14 ‘‘SEC. 506. GENERAL PROVISIONS.

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

16 shall apply to compacts and funding agreements nego17 tiated under this title and an Indian tribe may, at its op18 tion, include provisions that reflect such requirements in

19 a compact or funding agreement.

20 ‘‘(b) CONFLICTS OF INTEREST.—Indian tribes par21 ticipating in self-governance under this title shall ensure

22 that internal measures are in place to address conflicts

23 of interest in the administration of self-governance pro24 grams, services, functions, or activities (or portions there25 of).
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1 ‘‘(c) AUDITS.—

2 ‘‘(1) SINGLE AGENCY AUDIT ACT.—The provi3 sions of chapter 75 of title 31, United States Code,

4 requiring a single agency audit report shall apply to

5 funding agreements under this title.

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

7 apply cost principles under the applicable Office of

8 Management and Budget Circular, except as modi9 fied by section 106, or by any exemptions to applica10 ble Office of Management and Budget Circulars sub11 sequently granted by the Office of Management and

12 Budget. No other audit or accounting standards

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

14 Federal Government against the Indian tribe relat15 ing to funds received under a funding agreement

16 based on any audit under this subsection shall be

17 subject to the provisions of section 106(f).

18 ‘‘(d) RECORDS.—

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

20 specifies otherwise in the compact or funding agree21 ment, records of the Indian tribe shall not be consid22 ered Federal records for purposes of chapter 5 of

23 title 5, United States Code.

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

25 tribe shall maintain a recordkeeping system, and,
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1 after 30 days advance notice, provide the Secretary

2 with reasonable access to such records to enable the

3 Department of Health and Human Services to meet

4 its minimum legal recordkeeping system require5 ments under sections 3101 through 3106 of title 44,

6 United States Code.

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

8 tribe may redesign or consolidate programs, services, func9 tions, and activities (or portions thereof) included in a

10 funding agreement under section 313 and reallocate or re11 direct funds for such programs, services, functions, and

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

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

14 and welfare of the Indian community being served, only

15 if the redesign or consolidation does not have the effect

16 of denying eligibility for services to population groups oth17 erwise eligible to be served.

18 ‘‘(f) RETROCESSION.—An Indian tribe may retro19 cede, fully or partially, to the Secretary programs, serv20 ices, functions, or activities (or portions thereof) included

21 in the compact or funding agreement. Unless the Indian

22 tribe rescinds the request for retrocession, such retroces23 sion will become effective within the timeframe specified

24 by the parties in the compact or funding agreement. In
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1 the absence of such a specification, such retrocession shall

2 become effective on—

3 ‘‘(1) the earlier of—

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

5 such request; or

6 ‘‘(B) the date on which the funding agree7 ment expires; or

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

9 by the Secretary and the Indian tribe.

10 ‘‘(g) WITHDRAWAL.—

11 ‘‘(1) PROCESS.—

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

13 fully or partially withdraw from a participating

14 inter-tribal consortium or tribal organization its

15 share of any program, function, service, or ac16 tivity (or portions thereof) included in a com17 pact or funding agreement.

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

19 referred to in subparagraph (A) shall become

20 effective within the timeframe specified in the

21 resolution which authorizes transfer to the par22 ticipating tribal organization or inter-tribal con23 sortium. In the absence of a specific timeframe

24 set forth in the resolution, such withdrawal

25 shall become effective on—
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1 ‘‘(i) the earlier of—

2 ‘‘(I) 1 year after the date of sub3 mission of such request; or

4 ‘‘(II) the date on which the fund5 ing agreement expires; or

6 ‘‘(ii) such date as may be mutually

7 agreed upon by the Secretary, the with8 drawing Indian tribe, and the participating

9 tribal organization or inter-tribal consor10 tium that has signed the compact or fund11 ing agreement on behalf of the with12 drawing Indian tribe, inter-tribal consor13 tium, or tribal organization.

14 ‘‘(2) DISTRIBUTION OF FUNDS.—When an In15 dian tribe or tribal organization eligible to enter into

16 a self-determination contract under title I or a com17 pact or funding agreement under this title fully or

18 partially withdraws from a participating inter-tribal

19 consortium or tribal organization—

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

21 organization shall be entitled to its tribal share

22 of funds supporting those programs, services,

23 functions, or activities (or portions thereof) that

24 the Indian tribe will be carrying out under its

25 own self-determination contract or compact and
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1 funding agreement (calculated on the same

2 basis as the funds were initially allocated in the

3 funding agreement of the inter-tribal consor4 tium or tribal organization); and

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

6 (A) shall be transferred from the funding agree7 ment of the inter-tribal consortium or tribal or8 ganization, on the condition that the provisions

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

10 apply to that withdrawing Indian tribe.

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

12 If an Indian tribe elects to operate all or some pro13 grams, services, functions, or activities (or portions

14 thereof) carried out under a compact or funding

15 agreement under this title through a self-determina16 tion contract under title I, at the option of the In17 dian tribe, the resulting self-determination contract

18 shall be a mature self-determination contract.

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

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

21 title or under the compact or funding agreement, the In22 dian tribe shall not be entitled to contract with the Sec23 retary for such funds under section 102, except that such

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

25 basis as other Indian tribes.
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1 ‘‘SEC. 507. PROVISIONS RELATING TO THE SECRETARY.

2 ‘‘(a) MANDATORY PROVISIONS.—

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

4 funding agreements negotiated between the Sec5 retary and an Indian tribe shall include a provision

6 that requires the Indian tribe to report on health

7 status and service delivery—

8 ‘‘(A) to the extent such data is not other9 wise available to the Secretary and specific

10 funds for this purpose are provided by the Sec11 retary under the funding agreement; and

12 ‘‘(B) if such reporting shall impose mini13 mal burdens on the participating Indian tribe

14 and such requirements are promulgated under

15 section 517.

16 ‘‘(2) REASSUMPTION.—

17 ‘‘(A) IN GENERAL.—Contracts or funding

18 agreements negotiated between the Secretary

19 and an Indian tribe shall include a provision

20 authorizing the Secretary to reassume operation

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

22 portions thereof) and associated funding if

23 there is a specific finding relative to that pro24 gram, service, function, or activity (or portion

25 thereof) of—
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1 ‘‘(i) imminent endangerment of the

2 public health caused by an act or omission

3 of the Indian tribe, and the imminent

4 endangerment arises out of a failure to

5 carry out the compact or funding agree6 ment; or

7 ‘‘(ii) gross mismanagement with re8 spect to funds transferred to a tribe by a

9 compact or funding agreement, as deter10 mined by the Secretary in consultation

11 with the Inspector General, as appropriate.

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

13 not reassume operation of a program, service,

14 function, or activity (or portions thereof)

15 unless—

16 ‘‘(i) the Secretary has first provided

17 written notice and a hearing on the record

18 to the Indian tribe; and

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

20 corrective action to remedy the imminent

21 endangerment to public health or gross

22 mismanagement.

23 ‘‘(C) EXCEPTION.—

24 ‘‘(i) IN GENERAL.—Notwithstanding

25 subparagraph (B), the Secretary may,
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1 upon written notification to the Indian

2 tribe, immediately reassume operation of a

3 program, service, function, or activity (or

4 portion thereof) if—

5 ‘‘(I) the Secretary makes a find6 ing of imminent substantial and irrep7 arable endangerment of the public

8 health caused by an act or omission of

9 the Indian tribe; and

10 ‘‘(II) the endangerment arises

11 out of a failure to carry out the com12 pact or funding agreement.

13 ‘‘(ii) REASSUMPTION.—If the Sec14 retary reassumes operation of a program,

15 service, function, or activity (or portion

16 thereof) under this subparagraph, the Sec17 retary shall provide the Indian tribe with a

18 hearing on the record not later than 10

19 days after such reassumption.

20 ‘‘(D) HEARINGS.—In any hearing or ap21 peal involving a decision to reassume operation

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

23 portion thereof), the Secretary shall have the

24 burden of proof of demonstrating by clear and
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1 convincing evidence the validity of the grounds

2 for the reassumption.

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

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

5 or in part, on the terms of a compact or funding agree6 ment (including funding levels), the Indian tribe may sub7 mit a final offer to the Secretary. Not more than 45 days

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

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

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

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

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

13 deemed agreed to by the Secretary.

14 ‘‘(c) REJECTION OF FINAL OFFERS.—

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

16 offer made under subsection (b) (or 1 or more provi17 sions or funding levels in such offer), the Secretary

18 shall provide—

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

20 Indian tribe that contains a specific finding

21 that clearly demonstrates, or that is supported

22 by a controlling legal authority, that—

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

24 the final offer exceeds the applicable fund-
28

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1 ing level to which the Indian tribe is enti2 tled under this title;

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

4 activity (or portion thereof) that is the

5 subject of the final offer is an inherent

6 Federal function that cannot legally be del7 egated to an Indian tribe;

8 ‘‘(iii) the Indian tribe cannot carry

9 out the program, function, service, or ac10 tivity (or portion thereof) in a manner that

11 would not result in significant danger or

12 risk to the public health; or

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

14 participate in self-governance under section

15 503;

16 ‘‘(B) technical assistance to overcome the

17 objections stated in the notification required by

18 subparagraph (A);

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

20 record with the right to engage in full discovery

21 relevant to any issue raised in the matter and

22 the opportunity for appeal on the objections

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

24 of filing such appeal, directly proceed to initiate
29

•S 979 IS

1 an action in a Federal district court pursuant

2 to section 110(a); and

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

4 entering into the severable portions of a final

5 proposed compact or funding agreement, or

6 provision thereof, (including a lesser funding

7 amount, if any), that the Secretary did not re8 ject, subject to any additional alterations nec9 essary to conform the compact or funding

10 agreement to the severed provisions.

11 ‘‘(2) EFFECT OF EXERCISING CERTAIN OP12 TION.—If an Indian tribe exercises the option speci13 fied in paragraph (1)(D), that Indian tribe shall re14 tain the right to appeal the Secretary’s rejection

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

16 (C) of that paragraph shall only apply to that por17 tion of the proposed final compact, funding agree18 ment, or provision thereof that was rejected by the

19 Secretary.

20 ‘‘(d) BURDEN OF PROOF.—With respect to any hear21 ing or appeal or civil action conducted pursuant to this

22 section, the Secretary shall have the burden of dem23 onstrating by clear and convincing evidence the validity

24 of the grounds for rejecting the offer (or a provision there25 of) made under subsection (b).
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1 ‘‘(e) GOOD FAITH.—In the negotiation of compacts

2 and funding agreements the Secretary shall at all times

3 negotiate in good faith to maximize implementation of the

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

5 title in a manner that maximizes the policy of tribal self6 governance, in a manner consistent with the purposes

7 specified in section 3 of the Tribal Self-Governance

8 Amendments of 1999.

9 ‘‘(f) SAVINGS.—To the extent that programs, func10 tions, services, or activities (or portions thereof) carried

11 out by Indian tribes under this title reduce the administra12 tive or other responsibilities of the Secretary with respect

13 to the operation of Indian programs and result in savings

14 that have not otherwise been included in the amount of

15 tribal shares and other funds determined under section

16 508(c), the Secretary shall make such savings available

17 to the Indian tribes, inter-tribal consortia, or tribal organi18 zations for the provision of additional services to program

19 beneficiaries in a manner equitable to directly served, con20 tracted, and compacted programs.

21 ‘‘(g) TRUST RESPONSIBILITY.—The Secretary is pro22 hibited from waiving, modifying, or diminishing in any

23 way the trust responsibility of the United States with re24 spect to Indian tribes and individual Indians that exists
31

•S 979 IS

1 under treaties, Executive orders, other laws, or court deci2 sions.

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

4 final agency action and relates to an appeal within the

5 Department of Health and Human Services conducted

6 under subsection (c) shall be made either—

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

8 a position at a higher organizational level within the

9 Department than the level of the departmental agen10 cy in which the decision that is the subject of the

11 appeal was made; or

12 ‘‘(2) by an administrative judge.

13 ‘‘SEC. 508. TRANSFER OF FUNDS.

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

15 compact or funding agreement entered into under this

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

17 funds provided for in the funding agreement, pursuant to

18 subsection (c), and provide funding for periods covered by

19 joint resolution adopted by Congress making continuing

20 appropriations, to the extent permitted by such resolu21 tions. In any instance where a funding agreement requires

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

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

24 transfers of funding to be made commencing at the begin25 ning of a fiscal year, the first such transfer shall be made
32

•S 979 IS

1 not later than 10 days after the apportionment of such

2 funds by the Office of Management and Budget to the

3 Department, unless the funding agreement provides other4 wise.

5 ‘‘(b) MULTIYEAR FUNDING.—The Secretary may em6 ploy, upon tribal request, multiyear funding agreements.

7 References in this title to funding agreements shall include

8 such multiyear funding agreements.

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

10 Health and Human Services shall provide funds under a

11 funding agreement under this title in an amount equal to

12 the amount that the Indian tribe would have been entitled

13 to receive under self-determination contracts under this

14 Act, including amounts for direct program costs specified

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

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

17 including any funds that are specifically or functionally

18 related to the provision by the Secretary of services and

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

20 regard to the organizational level within the Department

21 where such functions are carried out.

22 ‘‘(d) PROHIBITIONS.—

23 ‘‘(1) IN GENERAL.—Except as provided in para24 graph (2), the Secretary is expressly prohibited

25 from—
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1 ‘‘(A) failing or refusing to transfer to an

2 Indian tribe its full share of any central, head3 quarters, regional, area, or service unit office or

4 other funds due under this Act, except as re5 quired by Federal law;

6 ‘‘(B) withholding portions of such funds

7 for transfer over a period of years; and

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

9 the amount of funds that the Secretary is au10 thorized to use under this title—

11 ‘‘(i) to make funding available for

12 self-governance monitoring or administra13 tion by the Secretary;

14 ‘‘(ii) in subsequent years, except pur15 suant to—

16 ‘‘(I) a reduction in appropria17 tions from the previous fiscal year for

18 the program or function to be in19 cluded in a compact or funding agree20 ment;

21 ‘‘(II) a congressional directive in

22 legislation or accompanying report;

23 ‘‘(III) a tribal authorization;
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•S 979 IS

1 ‘‘(IV) a change in the amount of

2 pass-through funds subject to the

3 terms of the funding agreement; or

4 ‘‘(V) completion of a project, ac5 tivity, or program for which such

6 funds were provided;

7 ‘‘(iii) to pay for Federal functions, in8 cluding Federal pay costs, Federal em9 ployee retirement benefits, automated data

10 processing, technical assistance, and moni11 toring of activities under this Act; or

12 ‘‘(iv) to pay for costs of Federal per13 sonnel displaced by self-determination con14 tracts under this Act or self-governance;

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

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

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

18 section 105(c)(2).

19 ‘‘(e) OTHER RESOURCES.—In the event an Indian

20 tribe elects to carry out a compact or funding agreement

21 with the use of Federal personnel, Federal supplies (in22 cluding supplies available from Federal warehouse facili23 ties), Federal supply sources (including lodging, airline

24 transportation, and other means of transportation includ25 ing the use of interagency motor pool vehicles) or other
35

•S 979 IS

1 Federal resources (including supplies, services, and re2 sources available to the Secretary under any procurement

3 contracts in which the Department is eligible to partici4 pate), to the extent allowable under law, the Secretary

5 shall acquire and transfer such personnel, supplies, or re6 sources to the Indian tribe.

7 ‘‘(f) REIMBURSEMENT TO INDIAN HEALTH SERV8 ICE.—With respect to functions transferred by the Indian

9 Health Service to an Indian tribe, the Indian Health Serv10 ice is authorized to provide goods and services to the In11 dian tribe, on a reimbursable basis, including payment in

12 advance with subsequent adjustment. The reimbursements

13 received from those goods and services, along with the

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

15 may be credited to the same or subsequent appropriation

16 account which provided the funding, such amounts to re17 main available until expended.

18 ‘‘(g) PROMPT PAYMENT ACT.—Chapter 39 of title

19 31, United States Code, shall apply to the transfer of

20 funds due under a compact or funding agreement author21 ized under this title.

22 ‘‘(h) INTEREST OR OTHER INCOME ON TRANS23 FERS.—An Indian tribe is entitled to retain interest

24 earned on any funds paid under a compact or funding

25 agreement to carry out governmental or health purposes
36

•S 979 IS

1 and such interest shall not diminish the amount of funds

2 the Indian tribe is authorized to receive under its funding

3 agreement in the year the interest is earned or in any sub4 sequent fiscal year. Funds transferred under this title

5 shall be managed using the prudent investment standard.

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

7 Indian tribe in accordance with a compact or funding

8 agreement shall remain available until expended. In the

9 event that an Indian tribe elects to carry over funding

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

11 the amount of funds the Indian tribe is authorized to re12 ceive under its funding agreement in that or any subse13 quent fiscal year.

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

15 other program income earned by an Indian tribe shall be

16 treated as supplemental funding to that negotiated in the

17 funding agreement. The Indian tribe may retain all such

18 income and expend such funds in the current year or in

19 future years except to the extent that the Indian Health

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

21 otherwise for medicare and medicaid receipts. Such funds

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

23 of funds the Indian tribe is authorized to receive under

24 its funding agreement in the year the program income is

25 received or for any subsequent fiscal year.
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1 ‘‘(k) LIMITATION OF COSTS.—An Indian tribe shall

2 not be obligated to continue performance that requires an

3 expenditure of funds in excess of the amount of funds

4 transferred under a compact or funding agreement. If at

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

6 total amount provided for a specific activity in the com7 pact or funding agreement is insufficient the Indian tribe

8 shall provide reasonable notice of such insufficiency to the

9 Secretary. If the Secretary does not increase the amount

10 of funds transferred under the funding agreement, the In11 dian tribe may suspend performance of the activity until

12 such time as additional funds are transferred.

13 ‘‘SEC. 509. CONSTRUCTION PROJECTS.

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

15 tribal self-governance may carry out construction projects

16 under this title if they elect to assume all Federal respon17 sibilities under the National Environmental Policy Act of

18 1969 (42 U.S.C. 4321 et seq.), the National Historic

19 Preservation Act (16 U.S.C. 470 et seq.), and related pro20 visions of law that would apply if the Secretary were to

21 undertake a construction project, by adopting a

22 resolution—

23 ‘‘(1) designating a certifying officer to rep24 resent the Indian tribe and to assume the status of

25 a responsible Federal official under such laws; and
38

•S 979 IS

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

2 court for the purpose of enforcement of the respon3 sibilities of the responsible Federal official under

4 such environmental laws.

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

6 shall be negotiated pursuant to the statutory process in

7 section 105(m) and resulting construction project agree8 ments shall be incorporated into funding agreements as

9 addenda.

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

11 the Secretary shall agree upon and specify appropriate

12 building codes and architectural and engineering stand13 ards (including health and safety) which shall be in con14 formity with nationally recognized standards for com15 parable projects.

16 ‘‘(d) RESPONSIBILITY FOR COMPLETION.—The In17 dian tribe shall assume responsibility for the successful

18 completion of the construction project in accordance with

19 the negotiated construction project agreement.

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

21 carried out under this title shall be included in funding

22 agreements as annual advance payments, with semiannual

23 payments at the option of the Indian tribe. Annual ad24 vance and semiannual payment amounts shall be deter25 mined based on mutually agreeable project schedules re-
39

•S 979 IS

1 flecting work to be accomplished within the advance pay2 ment period, work accomplished and funds expended in

3 previous payment periods, and the total prior payments.

4 The Secretary shall include associated project contingency

5 funds with each advance payment installment. The Indian

6 tribe shall be responsible for the management of the con7 tingency funds included in funding agreements.

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

9 1 opportunity to approve project planning and design doc10 uments prepared by the Indian tribe in advance of con11 struction of the facilities specified in the scope of work

12 for each negotiated construction project agreement or

13 amendment thereof which results in a significant change

14 in the original scope of work. The Indian tribe shall pro15 vide the Secretary with project progress and financial re16 ports not less than semiannually. The Secretary may con17 duct onsite project oversight visits semiannually or on an

18 alternate schedule agreed to by the Secretary and the In19 dian tribe.

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

21 by contractors and subcontractors in the construction, al22 teration, or repair, including painting or decorating of a

23 building or other facilities in connection with construction

24 projects undertaken by self-governance Indian tribes

25 under this Act, shall be paid wages at not less than those
40

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1 prevailing wages on similar construction in the locality as

2 determined by the Indian tribe.

3 ‘‘(h) APPLICATION OF OTHER LAWS.—Unless other4 wise agreed to by the Indian tribe, no provision of the Of5 fice of Federal Procurement Policy Act, the Federal Ac6 quisition Regulations issued pursuant thereto, or any

7 other law or regulation pertaining to Federal procurement

8 (including Executive orders) shall apply to any construc9 tion project conducted under this title.

10 ‘‘SEC. 510. FEDERAL PROCUREMENT LAWS AND REGULA11 TIONS.

12 ‘‘Notwithstanding any other provision of law, unless

13 expressly agreed to by the participating Indian tribe, the

14 compacts and funding agreements entered into under this

15 title shall not be subject to Federal contracting or coopera16 tive agreement laws and regulations (including Executive

17 orders and the regulations relating to procurement issued

18 by the Secretary), except to the extent that such laws ex19 pressly apply to Indian tribes.

20 ‘‘SEC. 511. CIVIL ACTIONS.

21 ‘‘(a) CONTRACT DEFINED.—For the purposes of sec22 tion 110, the term ‘contract’ shall include compacts and

23 funding agreements entered into under this title.

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

25 2103 of the Revised Statutes (25 U.S.C. 81) and section
41

•S 979 IS

1 16 of the Act of June 18, 1934 (48 Stat. 987; chapter

2 576; 25 U.S.C. 476), shall not apply to attorney and other

3 professional contracts entered into by Indian tribes par4 ticipating in self-governance under this title.

5 ‘‘(c) REFERENCES.—All references in this Act to sec6 tion 1 of the Act of June 26, 1936 (49 Stat. 1967; chapter

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

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

9 82a).

10 ‘‘SEC. 512. FACILITATION.

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

12 otherwise provided by law, the Secretary shall interpret

13 all Federal laws, Executive orders and regulations in a

14 manner that will facilitate—

15 ‘‘(1) the inclusion of programs, services, func16 tions, and activities (or portions thereof) and funds

17 associated therewith, in the agreements entered into

18 under this section;

19 ‘‘(2) the implementation of compacts and fund20 ing agreements entered into under this title; and

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

22 objectives.

23 ‘‘(b) REGULATION WAIVER.—

24 ‘‘(1) IN GENERAL.—An Indian tribe may sub25 mit a written request to waive application of a regu-
42

•S 979 IS

1 lation for a compact or funding agreement entered

2 into with the Indian Health Service under this title,

3 to the Secretary identifying the applicable Federal

4 regulation sought to be waived and the basis for the

5 request.

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

7 receipt by the Secretary of a written request by an

8 Indian tribe to waive application of a regulation for

9 a compact or funding agreement entered into under

10 this title, the Secretary shall either approve or deny

11 the requested waiver in writing. A denial may be

12 made only upon a specific finding by the Secretary

13 that identified language in the regulation may not be

14 waived because such waiver is prohibited by Federal

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

16 not later than 90 days after receipt shall be deemed

17 an approval of such request. The Secretary’s deci18 sion shall be final for the Department.

19 ‘‘(c) ACCESS TO FEDERAL PROPERTY.—In connec20 tion with any compact or funding agreement executed pur21 suant to this title or an agreement negotiated under the

22 Tribal Self-Governance Demonstration Project established

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

24 Tribal Self-Governance Amendments of 1999, upon the re25 quest of an Indian tribe, the Secretary—
43

•S 979 IS

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

2 school buildings, hospitals, and other facilities and

3 all equipment therein or appertaining thereto and

4 other personal property owned by the Government

5 within the Secretary’s jurisdiction under such terms

6 and conditions as may be agreed upon by the Sec7 retary and the Indian tribe for their use and mainte8 nance;

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

10 personal or real property found to be excess to the

11 needs of any agency of the Department, or the Gen12 eral Services Administration, except that—

13 ‘‘(A) subject to the provisions of subpara14 graph (B), title to property and equipment fur15 nished by the Federal Government for use in

16 the performance of the compact or funding

17 agreement or purchased with funds under any

18 compact or funding agreement shall, unless oth19 erwise requested by the Indian tribe, vest in the

20 appropriate Indian tribe;

21 ‘‘(B) if property described in subparagraph

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

23 of retrocession, withdrawal, or reassumption, at

24 the option of the Secretary upon the retroces25 sion, withdrawal, or reassumption, title to such
44

•S 979 IS

1 property and equipment shall revert to the De2 partment of Health and Human Services; and

3 ‘‘(C) all property referred to in subpara4 graph (A) shall remain eligible for replacement,

5 maintenance, and improvement on the same

6 basis as if title to such property were vested in

7 the United States; and

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

9 personal or real property for donation to an Indian

10 tribe if the Secretary determines the property is ap11 propriate for use by the Indian tribe for any purpose

12 for which a compact or funding agreement is author13 ized under this title.

14 ‘‘(d) MATCHING OR COST-PARTICIPATION REQUIRE15 MENT.—All funds provided under compacts, funding

16 agreements, or grants made pursuant to this Act, shall

17 be treated as non-Federal funds for purposes of meeting

18 matching or cost participation requirements under any

19 other Federal or non-Federal program.

20 ‘‘(e) STATE FACILITATION.—States are hereby au21 thorized and encouraged to enact legislation, and to enter

22 into agreements with Indian tribes to facilitate and supple23 ment the initiatives, programs, and policies authorized by

24 this title and other Federal laws benefiting Indians and

25 Indian tribes.
45

•S 979 IS

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

2 this title and each provision of a compact or funding

3 agreement shall be liberally construed for the benefit of

4 the Indian tribe participating in self-governance and any

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

6 ‘‘SEC. 513. BUDGET REQUEST.

7 ‘‘(a) IN GENERAL.—

8 ‘‘(1) IN GENERAL.—The President shall iden9 tify in the annual budget request submitted to Con10 gress under section 1105 of title 31, United States

11 Code, all funds necessary to fully fund all funding

12 agreements authorized under this title, including

13 funds specifically identified to fund tribal base budg14 ets. All funds so appropriated shall be apportioned

15 to the Indian Health Service. Such funds shall be

16 provided to the Office of Tribal Self-Governance

17 which shall be responsible for distribution of all

18 funds provided under section 505.

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

20 this subsection shall be construed to authorize the

21 Indian Health Service to reduce the amount of funds

22 that a self-governance tribe is otherwise entitled to

23 receive under its funding agreement or other appli24 cable law, whether or not such funds are appor-
46

•S 979 IS

1 tioned to the Office of Tribal Self-Governance under

2 this section.

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

4 budget request, the President shall identify the level of

5 need presently funded and any shortfall in funding (in6 cluding direct program and contract support costs) for

7 each Indian tribe, either directly by the Secretary of

8 Health and Human Services, under self-determination

9 contracts, or under compacts and funding agreements au10 thorized under this title.

11 ‘‘SEC. 514. REPORTS.

12 ‘‘(a) ANNUAL REPORT.—

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

14 of each year after the date of enactment of the Trib15 al Self-Governance Amendments of 1999, the Sec16 retary shall submit to the Committee on Indian Af17 fairs of the Senate and the Committee on Resources

18 of the House of Representatives a written report re19 garding the administration of this title.

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

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

22 need being presently funded or unfunded for each

23 Indian tribe, either directly by the Secretary, under

24 self-determination contracts under title I, or under

25 compacts and funding agreements authorized under
47

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1 this Act. In compiling reports pursuant to this sec2 tion, the Secretary may not impose any reporting re3 quirements on participating Indian tribes or tribal

4 organizations, not otherwise provided in this Act.

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

6 shall—

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

8 funding agreements, annual audit reports, and data

9 of the Secretary regarding the disposition of Federal

10 funds; and

11 ‘‘(2) identify—

12 ‘‘(A) the relative costs and benefits of self13 governance;

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

15 specifically or functionally related to the provi16 sion by the Secretary of services and benefits to

17 self-governance Indian tribes and their mem18 bers;

19 ‘‘(C) the funds transferred to each self20 governance Indian tribe and the corresponding

21 reduction in the Federal bureaucracy;

22 ‘‘(D) the funding formula for individual

23 tribal shares of all headquarters funds, together

24 with the comments of affected Indian tribes or
48

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1 tribal organizations, developed under subsection

2 (c); and

3 ‘‘(E) amounts expended in the preceding

4 fiscal year to carry out inherent Federal func5 tions, including an identification of those func6 tions by type and location;

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

8 methods (or any revisions thereof) used to determine

9 the individual tribal share of funds controlled by all

10 components of the Indian Health Service (including

11 funds assessed by any other Federal agency) for in12 clusion in self-governance compacts or funding

13 agreements;

14 ‘‘(3) before being submitted to Congress, be dis15 tributed to the Indian tribes for comment (with a

16 comment period of no less than 30 days, beginning

17 on the date of distribution); and

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

19 of the Indian tribes or tribal organizations.

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

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

22 the Tribal Self-Governance Amendments of 1999, the Sec23 retary shall, after consultation with Indian tribes, submit

24 a written report to the Committee on Resources of the

25 House of Representatives and the Committee on Indian
49

•S 979 IS

1 Affairs of the Senate which describes the method or meth2 ods used to determine the individual tribal share of funds

3 controlled by all components of the Indian Health Service

4 (including funds assessed by any other Federal agency)

5 for inclusion in self-governance compacts or funding

6 agreements.

7 ‘‘SEC. 515. DISCLAIMERS.

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

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

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

11 Indian tribe under this or other applicable Federal law.

12 Any Indian tribe that alleges that a compact or funding

13 agreement is in violation of this section may apply the pro14 visions of section 110.

15 ‘‘(b) FEDERAL TRUST AND TREATY RESPONSIBIL16 ITIES.—Nothing in this Act shall be construed to diminish

17 in any way the trust responsibility of the United States

18 to Indian tribes and individual Indians that exists under

19 treaties, Executive orders, or other laws and court deci20 sions.

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

22 2(2) of the Act of July 5, 1935 (49 Stat. 450, chapter

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

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

25 contract, compact, annual funding agreement, grant, or
50

•S 979 IS

1 cooperative agreement under this Act shall not be consid2 ered an employer.

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

4 Indian Health Service under this Act shall neither bill nor

5 charge those Indians who may have the economic means

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

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

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

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

10 106 (c) through (k), and 111 of this Act and section 314

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

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

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

14 with this title, shall apply to compacts and funding agree15 ments authorized by this title.

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

17 of a participating Indian tribe, any other provision of title

18 I, to the extent such provision is not in conflict with this

19 title, shall be made a part of a funding agreement or com20 pact entered into under this title. The Secretary is obli21 gated to include such provision at the option of the partici22 pating Indian tribe or tribes. If such provision is incor23 porated it shall have the same force and effect as if it

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

25 tribe requests such incorporation at the negotiation stage
51

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1 of a compact or funding agreement, such incorporation

2 shall be deemed effective immediately and shall control the

3 negotiation and resulting compact and funding agreement.

4 ‘‘SEC. 517. REGULATIONS.

5 ‘‘(a) IN GENERAL.—

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

7 after the date of enactment of the Tribal Self-Gov8 ernance Amendments of 1999, the Secretary shall

9 initiate procedures under subchapter III of chapter

10 5 of title 5, United States Code, to negotiate and

11 promulgate such regulations as are necessary to

12 carry out this title.

13 ‘‘(2) PUBLICATION OF PROPOSED REGULA14 TIONS.—Proposed regulations to implement this title

15 shall be published in the Federal Register by the

16 Secretary no later than 1 year after the date of en17 actment of the Tribal Self-Governance Amendments

18 of 1999.

19 ‘‘(3) EXPIRATION OF AUTHORITY.—The author20 ity to promulgate regulations under paragraph (1)

21 shall expire 21 months after the date of enactment

22 of the Tribal Self-Governance Amendments of 1999.

23 ‘‘(b) COMMITTEE.—

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

25 committee established pursuant to section 565 of
52

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

2 shall have as its members only Federal and tribal

3 government representatives, a majority of whom

4 shall be nominated by and be representatives of In5 dian tribes with funding agreements under this Act.

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

7 confer with, and accommodate participation by, rep8 resentatives of Indian tribes, inter-tribal consortia,

9 tribal organizations, and individual tribal members.

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

11 of Health and Human Services shall adapt the negotiated

12 rulemaking procedures to the unique context of self-gov13 ernance and the government-to-government relationship

14 between the United States and Indian tribes.

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

16 shall not limit the effect of this title.

17 ‘‘(e) EFFECT OF CIRCULARS, POLICIES, MANUALS,

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

19 the participating Indian tribe in the compact or funding

20 agreement, the participating Indian tribe shall not be sub21 ject to any agency circular, policy, manual, guidance, or

22 rule adopted by the Indian Health Service, except as pro23 vided in section 105(g).
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1 ‘‘SEC. 518. APPEALS.

2 ‘‘In any appeal (including civil actions) involving deci3 sions made by the Secretary under this title, the Secretary

4 shall have the burden of proof of demonstrating by clear

5 and convincing evidence—

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

7 made; and

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

9 provisions and policies of this title.

10 ‘‘SEC. 519. AUTHORIZATION OF APPROPRIATIONS.

11 ‘‘There are authorized to be appropriated such sums

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

13 SEC. 5. TRIBAL SELF-GOVERNANCE DEPARTMENT.

14 The Indian Self-Determination and Education Assist15 ance Act (25 U.S.C. 450 et seq.) is amended by adding

16 at the end the following:

17 ‘‘TITLE VI—TRIBAL SELF-GOV18 ERNANCE—DEPARTMENT OF

19 HEALTH AND HUMAN SERV20 ICES

21 ‘‘SEC. 601. DEFINITIONS.

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

23 apply the definitions contained in title V.

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

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

26 means any agency or other organizational unit of the
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1 Department of Health and Human Services, other

2 than the Indian Health Service.

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

4 the Secretary of Health and Human Services.

5 ‘‘SEC. 602. DEMONSTRATION PROJECT FEASIBILITY.

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

7 to determine the feasibility of a tribal self-governance

8 demonstration project for appropriate programs, services,

9 functions, and activities (or portions thereof) of the agen10 cy.

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

12 the Secretary shall consider—

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

14 and program beneficiaries of such a demonstration

15 project;

16 ‘‘(2) statutory, regulatory, or other impedi17 ments to implementation of such a demonstration

18 project;

19 ‘‘(3) strategies for implementing such a dem20 onstration project;

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

22 such a demonstration project;

23 ‘‘(5) methods to assure quality and account24 ability in such a demonstration project; and
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1 ‘‘(6) such other issues that may be determined

2 by the Secretary or developed through consultation

3 pursuant to section 605.

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

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

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

7 and the Committee on Resources of the House of Rep8 resentatives. The report shall contain—

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

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

11 activities (or portions thereof) within each agency

12 with respect to which it would be feasible to include

13 in a tribal self-governance demonstration project;

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

15 activities (or portions thereof) included in the list

16 provided pursuant to paragraph (2) that could be in17 cluded in a tribal self-governance demonstration

18 project without amending statutes, or waiving regu19 lations that the Secretary may not waive;

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

21 order to include those programs, services, functions,

22 and activities (or portions thereof) included in the

23 list provided pursuant to paragraph (2) but not in24 cluded in the list provided pursuant to paragraph
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1 (3) in a tribal self-governance demonstration project;

2 and

3 ‘‘(5) any separate views of tribes and other en4 tities consulted pursuant to section 603 related to

5 the information provided pursuant to paragraphs (1)

6 through (4).

7 ‘‘SEC. 603. CONSULTATION.

8 ‘‘(a) STUDY PROTOCOL.—

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

10 The Secretary shall consult with Indian tribes to de11 termine a protocol for consultation under subsection

12 (b) prior to consultation under such subsection with

13 the other entities described in such subsection.

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

15 protocol shall require, at a minimum, that—

16 ‘‘(A) the government-to-government rela17 tionship with Indian tribes forms the basis for

18 the consultation process;

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

20 jointly conduct the consultations required by

21 this section; and

22 ‘‘(C) the consultation process allows for

23 separate and direct recommendations from the

24 Indian tribes and other entities described in

25 subsection (b).
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1 ‘‘(b) CONDUCTING STUDY.—In conducting the study

2 under this title, the Secretary shall consult with Indian

3 tribes, States, counties, municipalities, program bene4 ficiaries, and interested public interest groups, and may

5 consult with other entities as appropriate.

6 ‘‘SEC. 604. AUTHORIZATION OF APPROPRIATIONS.

7 ‘‘There are authorized to be appropriated for fiscal

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

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

10 expended.’’.

11 SEC. 6. AMENDMENTS CLARIFYING CIVIL PROCEEDINGS.

12 (a) BURDEN OF PROOF IN DISTRICT COURT AC13 TIONS.—Section 102(e)(1) of the Indian Self-Determina14 tion and Education Assistance Act (25 U.S.C. 450f(e)(1))

15 is amended by inserting after ‘‘subsection (b)(3)’’ the fol16 lowing: ‘‘or any civil action conducted pursuant to section

17 110(a)’’.

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

19 subsection (a) shall apply to any proceedings commenced

20 after October 25, 1994.

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

22 SUPPLIES.

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

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

25 amended—
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1 (1) by striking ‘‘deemed an executive agency’’

2 and inserting ‘‘deemed an executive agency and part

3 of the Indian Health Service’’; and

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

5 request of an Indian tribe, the Secretary shall enter

6 into an agreement for the acquisition, on behalf of

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

8 available to the Secretary from the General Services

9 Administration or other Federal agencies that are

10 not directly available to the Indian tribe under this

11 section or any other Federal law, including acquisi12 tions from prime vendors. All such acquisitions shall

13 be undertaken through the most efficient and speedy

14 means practicable, including electronic ordering ar15 rangements.

16 SEC. 8. REPEAL.

17 (a) IN GENERAL.—Title III of the Indian Self-Deter18 mination and Education Assistance Act (25 U.S.C. 450f

19 note) is hereby repealed.

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

21 on October 1, 1999.

22 SEC. 9. SAVINGS PROVISION.

23 Funds appropriated for title III of the Indian Self24 Determination and Education Assistance Act (25 U.S.C.
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1 450f note) shall be available for use under title V of such

2 Act.

Æ