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[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4347 Engrossed in House (EH)]

111th CONGRESS
  2d Session
                                H. R. 4347

_______________________________________________________________________

                                 AN ACT

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

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Department of the 
Interior Tribal Self-Governance Act of 2010''.
    (b) Table of Contents.--The table of contents of this Act is as 
follows:

Sec. 1. Short title; table of contents.
                   TITLE I--INDIAN SELF-DETERMINATION

Sec. 101. Definitions; reporting and audit requirements; application of 
                            provisions.
Sec. 102. Contracts by Secretary of Interior.
Sec. 103. Administrative provisions.
Sec. 104. Contract funding and indirect costs.
Sec. 105. Contract or grant specifications.
                    TITLE II--TRIBAL SELF-GOVERNANCE

Sec. 201. Tribal self-governance.

                   TITLE I--INDIAN SELF-DETERMINATION

SEC. 101. DEFINITIONS; REPORTING AND AUDIT REQUIREMENTS; APPLICATION OF 
              PROVISIONS.

    (a) Definitions.--Section 4 of the Indian Self-Determination and 
Education Assistance Act (25 U.S.C. 450b) is amended by striking 
subsection (j) and inserting the following:
    ``(j) `self-determination contract' means a contract entered into 
under title I (or a grant or cooperative agreement used under section 
9) between a tribal organization and the appropriate Secretary for the 
planning, conduct, and administration of programs or services that are 
otherwise provided to Indian tribes and members of Indian tribes 
pursuant to Federal law, subject to the condition that, except as 
provided in section 105(a)(3), no contract entered into under title I 
(or grant or cooperative agreement used under section 9) shall be--
            ``(1) considered to be a procurement contract; or
            ``(2) except as provided in section 107(a)(1), subject to 
        any Federal procurement law (including regulations);''.
    (b) Reporting and Audit Requirements.--Section 5(b) of the Indian 
Self-Determination and Education Assistance Act (25 U.S.C. 450c(b)) is 
amended--
            (1) by striking ``after completion of the project or 
        undertaking referred to in the preceding subsection of this 
        section'' and inserting ``after the retention period for the 
        report that is submitted to the Secretary under subsection 
        (a)''; and
            (2) by adding at the end the following: ``The retention 
        period shall be defined in regulations promulgated by the 
        Secretary pursuant to section 415.''.
    (c) Application of Other Provisions.--Sections 4, 5, 6, 7, 102(c), 
104, 105(a)(1), 105(f), 110, and 111 of the Indian Self-Determination 
and Education Assistance Act, as amended (25 U.S.C. 450 et seq.) 
(Public Law 93-638; 88 Stat. 2203) and section 314 of the Department of 
the Interior and Related Agencies Appropriations Act, 1991 (Public Law 
101-512; 104 Stat. 1959), apply to compacts and funding agreements 
entered into under title IV.

SEC. 102. CONTRACTS BY SECRETARY OF INTERIOR.

    Section 102 of the Indian Self-Determination and Education 
Assistance Act (25 U.S.C. 450f) is amended--
            (1) in subsection (c)(2), by striking ``economic 
        enterprises'' and all that follows through ``except that'' and 
        inserting ``economic enterprises (as defined in section 3 of 
        the Indian Financing Act of 1974 (25 U.S.C. 1452)), except 
        that''; and
            (2) by adding at the end the following:
    ``(f) Good Faith Requirement.--In the negotiation of contracts and 
funding agreements, the Secretary shall--
            ``(1) at all times negotiate in good faith to maximize 
        implementation of the self-determination policy; and
            ``(2) carry out this Act in a manner that maximizes the 
        policy of tribal self-determination, in a manner consistent 
        with the purposes specified in section 3.
    ``(g) Rule of Construction.--Each provision of this Act and each 
provision of a contract or funding agreement shall be liberally 
construed for the benefit of the Indian tribe participating in self-
determination, and any ambiguity shall be resolved in favor of the 
Indian tribe.''.

SEC. 103. ADMINISTRATIVE PROVISIONS.

    Section 105 of the Indian Self-Determination and Education 
Assistance Act (25 U.S.C. 450j) is amended--
            (1) in subsection (b), in the first sentence, by striking 
        ``pursuant to'' and all that follows through ``of this Act'' 
        and inserting ``pursuant to sections 102 and 103''; and
            (2) by adding at the end the following:
    ``(m) Interpretation by Secretary.--Except as otherwise provided by 
law, the Secretary shall interpret all Federal laws (including 
regulations) and Executive orders in a manner that facilitates, to the 
maximum extent practicable--
            ``(1) the inclusion in self-determination contracts and 
        funding agreements of--
                    ``(A) applicable programs, services, functions, and 
                activities (or portions thereof); and
                    ``(B) funds associated with those programs, 
                services, functions, and activities;
            ``(2) the implementation of self-determination contracts 
        and funding agreements; and
            ``(3) the achievement of tribal health objectives.''.

SEC. 104. CONTRACT FUNDING AND INDIRECT COSTS.

    Section 106(a)(3) of the Indian Self-Determination and Education 
Assistance Act (25 U.S.C. 450j-1(a)(3)) is amended--
            (1) in subparagraph (A)--
                    (A) in clause (i), by striking ``, and'' and 
                inserting ``; and''; and
                    (B) in clause (ii), by striking ``expense related 
                to the overhead incurred'' and inserting ``expense 
                incurred by the governing body of the Indian tribe or 
                tribal organization and any overhead expense 
                incurred'';
            (2) by redesignating subparagraph (B) as subparagraph (C); 
        and
            (3) by inserting after subparagraph (A) the following:
                    ``(B) In calculating the reimbursement rate for 
                expenses described in subparagraph (A)(ii), not less 
                than 50 percent of the expenses described in 
                subparagraph (A)(ii) that are incurred by the governing 
                body of an Indian tribe or tribal organization relating 
                to a Federal program, function, service, or activity 
                carried out pursuant to the contract shall be 
                considered to be reasonable and allowable.''.

SEC. 105. CONTRACT OR GRANT SPECIFICATIONS.

    Section 108 of the Indian Self-Determination and Education 
Assistance Act (25 U.S.C. 450l) is amended--
            (1) in subsection (a)(2), by inserting ``subject to 
        subsections (a) and (b) of section 102,'' before ``contain''; 
        and
            (2) in subsection (f)(2)(A)(ii) of the model agreement 
        contained in subsection (c), by inserting ``subject to 
        subsections (a) and (b) of section 102 of the Indian Self-
        Determination and Education Assistance Act (25 U.S.C. 450f),'' 
        before ``such other provisions''.

                    TITLE II--TRIBAL SELF-GOVERNANCE

SEC. 201. TRIBAL SELF-GOVERNANCE.

    Title IV of the Indian Self-Determination and Education Assistance 
Act (25 U.S.C. 458aa et seq.) is amended to read as follows:

                   ``TITLE IV--TRIBAL SELF-GOVERNANCE

``SEC. 401. DEFINITIONS.

    ``In this title:
            ``(1) Compact.--The term `compact' means a self-governance 
        compact entered into under section 404.
            ``(2) Construction program; construction project.--The term 
        `construction program' or `construction project' means a tribal 
        undertaking relating to the administration, planning, 
        environmental determination, design, construction, repair, 
        improvement, or expansion of roads, bridges, buildings, 
        structures, systems, or other facilities for purposes of 
        housing, law enforcement, detention, sanitation, water supply, 
        education, administration, community, health, irrigation, 
        agriculture, conservation, flood control, transportation, or 
        port facilities, or for other tribal purposes.
            ``(3) Department.--The term `Department' means the 
        Department of the Interior.
            ``(4) Funding agreement.--The term `funding agreement' 
        means a funding agreement entered into under section 405.
            ``(5) Gross mismanagement.--The term `gross mismanagement' 
        means a significant violation, shown by a preponderance of the 
        evidence, of a compact, funding agreement, or statutory or 
        regulatory requirement applicable to Federal funds--
                    ``(A) for a program administered by an Indian 
                tribe; or
                    ``(B) under a compact or funding agreement that 
                results in a significant reduction of funds available 
                for the programs assumed by an Indian tribe.
            ``(6) Inherent federal function.--The term `inherent 
        Federal function' means a Federal function that may not legally 
        be delegated to an Indian tribe.
            ``(7) Program.--The term `program' means any program, 
        function, service, or activity (or portion thereof) within the 
        Department that is included in a funding agreement.
            ``(8) Secretary.--The term `Secretary' means the Secretary 
        of the Interior.
            ``(9) Self-governance.--The term `self-governance' means 
        the Tribal Self-Governance Program established under section 
        402.
            ``(10) Tribal share.--The term `tribal share' means an 
        Indian tribe's portion of all funds and resources that--
                    ``(A) support any program within the Bureau of 
                Indian Affairs, the Office of Special Trustee, or the 
                Office of the Assistant Secretary for Indian Affairs; 
                and
                    ``(B) are not required by the Secretary for the 
                performance of an inherent Federal function.

``SEC. 402. ESTABLISHMENT.

    ``The Secretary shall establish and carry out a program within the 
Department to be known as the `Tribal Self-Governance Program'.

``SEC. 403. SELECTION OF PARTICIPATING INDIAN TRIBES.

    ``(a) In General.--
            ``(1) Participants.--
                    ``(A) In general.--The Secretary, acting through 
                the Director of the Office of Self-Governance, may 
                select up to 50 new Indian tribes per year from those 
                eligible under subsection (b) to participate in self-
                governance.
                    ``(B) Joint participation.--On the request of each 
                participating Indian tribe, 2 or more otherwise 
                eligible Indian tribes may be treated as a single 
                Indian tribe for the purpose of participating in self-
                governance.
            ``(2) Other authorized indian tribe or tribal 
        organization.--If an Indian tribe authorizes another Indian 
        tribe or a tribal organization to plan for or carry out a 
        program on its behalf under this title, the authorized Indian 
        tribe or tribal organization shall have the rights and 
        responsibilities of the authorizing Indian tribe (except as 
        otherwise provided in the authorizing resolution).
            ``(3) Joint participation.--2 or more Indian tribes that 
        are not otherwise eligible under subsection (b) may be treated 
        as a single Indian tribe for the purpose of participating in 
        self-governance as a tribal organization if--
                    ``(A) each Indian tribe so requests; and
                    ``(B) the tribal organization itself, or at least 1 
                of the Indian tribes participating in the tribal 
                organization, is eligible under subsection (b).
            ``(4) Tribal withdrawal from a tribal organization.--
                    ``(A) In general.--An Indian tribe that withdraws 
                from participation in a tribal organization, in whole 
                or in part, shall be entitled to participate in self-
                governance if the Indian tribe is eligible under 
                subsection (b).
                    ``(B) Effect of withdrawal.--If an Indian tribe 
                withdraws from participation in a tribal organization, 
                the Indian tribe shall be entitled to its tribal share 
                of funds and resources supporting the programs that the 
                Indian tribe is entitled to carry out under the compact 
                and funding agreement of the Indian tribe.
                    ``(C) Participation in self-governance.--The 
                withdrawal of an Indian tribe from a tribal 
                organization shall not affect the eligibility of the 
                tribal organization to participate in self-governance 
                on behalf of 1 or more other Indian tribes, if the 
                tribal organization still qualifies under subsection 
                (b).
                    ``(D) Withdrawal process.--
                            ``(i) In general.--An Indian tribe may, by 
                        tribal resolution, fully or partially withdraw 
                        its tribal share of any program in a funding 
                        agreement from a participating tribal 
                        organization.
                            ``(ii) Notification.--The Indian tribe 
                        shall provide a copy of the tribal resolution 
                        described in clause (i) to the Secretary.
                            ``(iii) Effective date.--
                                    ``(I) In general.--A withdrawal 
                                under clause (i) shall become effective 
                                on the date that is specified in the 
                                tribal resolution and mutually agreed 
                                upon by the Secretary, the withdrawing 
                                Indian tribe, and the tribal 
                                organization that signed the compact 
                                and funding agreement on behalf of the 
                                withdrawing Indian tribe or tribal 
                                organization.
                                    ``(II) No specified date.--In the 
                                absence of a date specified in the 
                                resolution, the withdrawal shall become 
                                effective on--
                                            ``(aa) the earlier of--

                                                    ``(AA) 1 year after 
                                                the date of submission 
                                                of the request; and

                                                    ``(BB) the date on 
                                                which the funding 
                                                agreement expires; or

                                            ``(bb) such date as may be 
                                        mutually agreed upon by the 
                                        Secretary, the withdrawing 
                                        Indian tribe, and the tribal 
                                        organization that signed the 
                                        compact and funding agreement 
                                        on behalf of the withdrawing 
                                        Indian tribe or tribal 
                                        organization.
                    ``(E) Distribution of funds.--If an Indian tribe or 
                tribal organization eligible to enter into a self-
                determination contract under title I or a compact or 
                funding agreement under this title fully or partially 
                withdraws from a participating tribal organization, the 
                withdrawing Indian tribe--
                            ``(i) may elect to enter into a self-
                        determination contract or compact, in which 
                        case--
                                    ``(I) the withdrawing Indian tribe 
                                or tribal organization shall be 
                                entitled to its tribal share of 
                                unexpended funds and resources 
                                supporting the programs that the Indian 
                                tribe will be carrying out under its 
                                own self-determination contract or 
                                compact and funding agreement 
                                (calculated on the same basis as the 
                                funds were initially allocated to the 
                                funding agreement of the tribal 
                                organization); and
                                    ``(II) the funds referred to in 
                                subclause (I) shall be withdrawn by the 
                                Secretary from the funding agreement of 
                                the tribal organization and transferred 
                                to the withdrawing Indian tribe, on the 
                                condition that sections 102 and 105(i), 
                                as appropriate, shall apply to the 
                                withdrawing Indian tribe; or
                            ``(ii) may elect not to enter into a self-
                        determination contract or compact, in which 
                        case all unexpended funds and resources 
                        associated with the withdrawing Indian tribe's 
                        returned programs (calculated on the same basis 
                        as the funds were initially allocated to the 
                        funding agreement of the tribal organization) 
                        shall be returned by the tribal organization to 
                        the Secretary for operation of the programs 
                        included in the withdrawal.
                    ``(F) Return to mature contract status.--If an 
                Indian tribe elects to operate all or some programs 
                carried out under a compact or funding agreement under 
                this title through a self-determination contract under 
                title I, at the option of the Indian tribe, the 
                resulting self-determination contract shall be a mature 
                self-determination contract as long as the Indian tribe 
                meets the requirements set forth in section 4(h).
    ``(b) Eligibility.--To be eligible to participate in self-
governance, an Indian tribe shall--
            ``(1) successfully complete the planning phase described in 
        subsection (c);
            ``(2) request participation in self-governance by 
        resolution or other official action by the tribal governing 
        body; and
            ``(3) demonstrate, for the 3 fiscal years preceding the 
        date on which the Indian tribe requests participation, 
        financial stability and financial management capability as 
        evidenced by the Indian tribe having no uncorrected significant 
        and material audit exceptions in the required annual audit of 
        its self-determination or self-governance agreements with any 
        Federal agency.
    ``(c) Planning Phase.--
            ``(1) In general.--An Indian tribe seeking to begin 
        participation in self-governance shall complete a planning 
        phase as provided in this subsection.
            ``(2) Activities.--The planning phase shall--
                    ``(A) be conducted to the satisfaction of the 
                Indian tribe; and
                    ``(B) include--
                            ``(i) legal and budgetary research; and
                            ``(ii) internal tribal government planning, 
                        training, and organizational preparation.
    ``(d) Grants.--
            ``(1) In general.--Subject to the availability of 
        appropriations, an Indian tribe or tribal organization that 
        meets the requirements of paragraphs (2) and (3) of subsection 
        (b) shall be eligible for grants--
                    ``(A) to plan for participation in self-governance; 
                and
                    ``(B) to negotiate the terms of participation by 
                the Indian tribe or tribal organization in self-
                governance, as set forth in a compact and a funding 
                agreement.
            ``(2) Receipt of grant not required.--Receipt of a grant 
        under paragraph (1) shall not be a requirement of participation 
        in self-governance.

``SEC. 404. COMPACTS.

    ``(a) In General.--The Secretary shall negotiate and enter into a 
written compact with each Indian tribe participating in self-governance 
in a manner consistent with the trust responsibility of the Federal 
Government, treaty obligations, and the government-to-government 
relationship between Indian tribes and the United States.
    ``(b) Contents.--A compact under subsection (a) shall--
            ``(1) specify and affirm the general terms of the 
        government-to-government relationship between the Indian tribe 
        and the Secretary; and
            ``(2) include such terms as the parties intend shall 
        control during the term of the compact.
    ``(c) Amendment.--A compact under subsection (a) may be amended 
only by agreement of the parties.
    ``(d) Effective Date.--The effective date of a compact under 
subsection (a) shall be--
            ``(1) the date of the execution of the compact by the 
        parties; or
            ``(2) another date agreed upon by the parties.
    ``(e) Duration.--A compact under subsection (a) shall remain in 
effect--
            ``(1) for so long as permitted by Federal law; or
            ``(2) until termination by written agreement, retrocession, 
        or reassumption.
    ``(f) Existing Compacts.--An Indian tribe participating in self-
governance under this title, as in effect on the date of enactment of 
the Department of the Interior Tribal Self-Governance Act of 2010, 
shall have the option at any time after that date--
            ``(1) to retain its negotiated compact (in whole or in 
        part) to the extent that the provisions of the compact are not 
        directly contrary to any express provision of this title; or
            ``(2) to negotiate a new compact in a manner consistent 
        with this title.

``SEC. 405. FUNDING AGREEMENTS.

    ``(a) In General.--The Secretary shall negotiate and enter into a 
written funding agreement with the governing body of an Indian tribe or 
tribal organization in a manner consistent with the trust 
responsibility of the Federal Government, treaty obligations, and the 
government-to-government relationship between Indian tribes and the 
United States.
    ``(b) Included Programs.--
            ``(1) Bureau of indian affairs and office of special 
        trustee.--
                    ``(A) In general.--A funding agreement shall, as 
                determined by the Indian tribe, authorize the Indian 
                tribe to plan, conduct, consolidate, administer, and 
                receive full tribal share funding for all programs 
                carried out by the Bureau of Indian Affairs, the Office 
                of the Assistant Secretary for Indian Affairs, and the 
                Office of the Special Trustee, without regard to the 
                agency or office within which the program is performed 
                (including funding for agency, area, and central office 
                functions in accordance with section 409(c)), that--
                            ``(i) are provided for in the Act of April 
                        16, 1934 (25 U.S.C. 452 et seq.);
                            ``(ii) the Secretary administers for the 
                        benefit of Indians under the Act of November 2, 
                        1921 (25 U.S.C. 13), or any subsequent Act;
                            ``(iii) the Secretary administers for the 
                        benefit of Indians with appropriations made to 
                        agencies other than the Department of the 
                        Interior; or
                            ``(iv) are provided for the benefit of 
                        Indians because of their status as Indians.
                    ``(B) Inclusions.--Programs described in 
                subparagraph (A) shall include all programs with 
                respect to which Indian tribes or Indians are primary 
                or significant beneficiaries.
            ``(2) Discretionary programs of special significance.--
                    ``(A) In general.--A funding agreement under 
                subsection (a) may, in accordance with such additional 
                terms as the parties consider to be appropriate, 
                include programs, services, functions, and activities 
                (or portions thereof), administered by the Secretary, 
                in addition to programs described in paragraphs (1) and 
                (3), that are of special geographical, historical, or 
                cultural significance to the Indian tribe.
                    ``(B) Governing provisions.--A funding agreement 
                described in subparagraph (A), including the additional 
                terms, shall be governed by this title, except that, 
                subject to the discretion of the Secretary--
                            ``(i) in accordance with section 406(d), 
                        the Indian tribe may have reallocation, 
                        consolidation, and redesign authority over any 
                        program assumed under this paragraph;
                            ``(ii) notwithstanding section 408, the 
                        Secretary may require special terms and 
                        conditions regarding a construction program or 
                        project assumed under this paragraph;
                            ``(iii) all Federal regulations that 
                        otherwise govern the operation of any program 
                        assumed under this paragraph apply to the 
                        Indian tribe, unless a specific regulation is 
                        waived by the Secretary under the procedures 
                        set forth in section 410(b)(2), which waiver 
                        request may be denied upon a specific finding 
                        by the Secretary that the waiver is prohibited 
                        by Federal law or is inconsistent with the 
                        express provisions of the funding agreement; 
                        and
                            ``(iv) a stable base budget, as described 
                        in paragraph (7)(B), may be provided for any 
                        program assumed under this paragraph.
            ``(3) Programs otherwise available.--A funding agreement 
        shall, as determined by the Indian tribe, authorize the Indian 
        tribe to plan, conduct, consolidate, administer, and receive 
        full tribal share funding for any program administered by the 
        Department other than through the Bureau of Indian Affairs, the 
        Office of the Assistant Secretary for Indian Affairs, or the 
        Office of the Special Trustee, that the Secretary has 
        determined is otherwise available to Indian tribes or Indians 
        under section 102. Nothing in this paragraph may be construed 
        to provide any Indian tribe with a preference with respect to 
        the opportunity of that Indian tribe to administer programs, 
        services, functions, or activities, or portions thereof, unless 
        that preference is otherwise provided for by law.
            ``(4) Competitive bidding.--Nothing in this section--
                    ``(A) supersedes any express statutory requirement 
                for competitive bidding; or
                    ``(B) prohibits the inclusion in a funding 
                agreement of a program in which non-Indians have an 
                incidental or legally identifiable interest.
            ``(5) Excluded funding.--A funding agreement shall not 
        authorize an Indian tribe to plan, conduct, administer, or 
        receive tribal share funding under any program that--
                    ``(A) is provided under the Tribally Controlled 
                Colleges and Universities Assistance Act of 1978 (25 
                U.S.C. 1801 et seq.); and
                    ``(B) is provided for elementary and secondary 
                schools under the formula developed under section 1127 
                of the Education Amendments of 1978 (25 U.S.C. 2007).
            ``(6) Services, functions, and responsibilities.--A funding 
        agreement shall specify--
                    ``(A) the services to be provided under the funding 
                agreement;
                    ``(B) the functions to be performed under the 
                funding agreement; and
                    ``(C) the responsibilities of the Indian tribe and 
                the Secretary under the funding agreement.
            ``(7) Base budget.--
                    ``(A) In general.--A funding agreement pursuant to 
                paragraphs (1) and (3) shall, at the option of the 
                Indian tribe, provide for a stable base budget 
                specifying the recurring funds (which may include funds 
                available under section 106(a)) to be transferred to 
                the Indian tribe, for such period as the Indian tribe 
                specifies in the funding agreement, subject to annual 
                adjustment only to reflect changes in congressional 
                appropriations.
                    ``(B) Discretionary programs of special 
                significance.--Upon agreement by the Secretary, a 
                funding agreement under paragraph (2) may also provide 
                for a stable base budget.
            ``(8) No waiver of trust responsibility.--A funding 
        agreement shall prohibit the Secretary from waiving, modifying, 
        or diminishing in any way the trust responsibility of the 
        United States with respect to Indian tribes and individual 
        Indians that exists under treaties, Executive orders, court 
        decisions, and other laws.
    ``(c) Amendment.--The Secretary shall not revise, amend, or require 
additional terms in a new or subsequent funding agreement without the 
consent of the Indian tribe, unless such terms are required by Federal 
law.
    ``(d) Effective Date.--A funding agreement shall become effective 
on the date specified in the funding agreement.
    ``(e) Existing and Subsequent Funding Agreements.--
            ``(1) Subsequent funding agreements.--Absent notification 
        from an Indian tribe that the Indian tribe is withdrawing or 
        retroceding the operation of 1 or more programs identified in a 
        funding agreement under paragraph (1) or (3) of subsection (b), 
        or unless otherwise agreed to by the parties to the funding 
        agreement or by the nature of any noncontinuing program, 
        service, function, or activity contained in a funding 
        agreement--
                    ``(A) a funding agreement shall remain in full 
                force and effect until a subsequent funding agreement 
                is executed, with funding paid annually for each fiscal 
                year the agreement is in effect; and
                    ``(B) the term of the subsequent funding agreement 
                shall be retroactive to the end of the term of the 
                preceding funding agreement for the purposes of 
                calculating the amount of funding to which the Indian 
                tribe is entitled.
            ``(2) Disputes.--Disputes over the implementation of 
        paragraph (1)(A) shall be subject to section 407(c).
            ``(3) Existing funding agreements.--An Indian tribe that 
        was participating in self-governance under this title on the 
        date of enactment of the Department of the Interior Tribal 
        Self-Governance Act of 2010 shall have the option at any time 
        after that date--
                    ``(A) to retain its existing funding agreement (in 
                whole or in part) to the extent that the provisions of 
                that funding agreement are not directly contrary to any 
                express provision of this title; or
                    ``(B) to negotiate a new funding agreement in a 
                manner consistent with this title.
            ``(4) Multiyear funding agreements.--An Indian tribe may, 
        at the discretion of the Indian tribe, negotiate with the 
        Secretary for a funding agreement with a term that exceeds 1 
        year.

``SEC. 406. GENERAL PROVISIONS.

    ``(a) Applicability.--An Indian tribe and the Secretary shall 
include in any compact or funding agreement provisions that reflect the 
requirements of this title.
    ``(b) Conflicts of Interest.--An Indian tribe participating in 
self-governance shall ensure that internal measures are in place to 
address, pursuant to tribal law and procedures, conflicts of interest 
in the administration of programs.
    ``(c) Audits.--
            ``(1) Single agency audit act.--Chapter 75 of title 31, 
        United States Code, shall apply to a funding agreement under 
        this title.
            ``(2) Cost principles.--An Indian tribe shall apply cost 
        principles under the applicable Office of Management and Budget 
        circular, except as modified by--
                    ``(A) any provision of law, including section 106; 
                or
                    ``(B) any exemptions to applicable Office of 
                Management and Budget circulars subsequently granted by 
                the Office of Management and Budget.
            ``(3) Federal claims.--Any claim by the Federal Government 
        against an Indian tribe relating to funds received under a 
        funding agreement based on any audit under this subsection 
        shall be subject to section 106(f).
    ``(d) Redesign and Consolidation.--An Indian tribe may redesign or 
consolidate programs or reallocate funds for programs in any manner 
that the Indian tribe determines to be in the best interest of the 
Indian community being served, so long as that the redesign or 
consolidation does not have the effect of denying eligibility for 
services to population groups otherwise eligible to be served under 
applicable Federal law, except that, with respect to the reallocation, 
consolidation, and redesign of programs described in section 405(b)(2), 
a joint agreement between the Secretary and the Indian tribe shall be 
required.
    ``(e) Retrocession.--
            ``(1) In general.--An Indian tribe may fully or partially 
        retrocede to the Secretary any program under a compact or 
        funding agreement.
            ``(2) Effective date.--
                    ``(A) Agreement.--Unless an Indian tribe rescinds a 
                request for retrocession under paragraph (1), the 
                retrocession shall become effective on the date 
                specified by the parties in the compact or funding 
                agreement.
                    ``(B) No agreement.--In the absence of a 
                specification of an effective date in the compact or 
                funding agreement, the retrocession shall become 
                effective on--
                            ``(i) the earlier of--
                                    ``(I) 1 year after the date on 
                                which the request is submitted; and
                                    ``(II) the date on which the 
                                funding agreement expires; or
                            ``(ii) such date as may be mutually agreed 
                        upon by the Secretary and the Indian tribe.
    ``(f) Nonduplication.--A funding agreement shall provide that, for 
the period for which, and to the extent to which, funding is provided 
to an Indian tribe under this title, the Indian tribe--
            ``(1) shall not be entitled to contract with the Secretary 
        for funds under section 102, except that the Indian tribe shall 
        be eligible for new programs on the same basis as other Indian 
        tribes; and
            ``(2) shall be responsible for the administration of 
        programs in accordance with the compact or funding agreement.
    ``(g) Records.--
            ``(1) In general.--Unless an Indian tribe specifies 
        otherwise in the compact or funding agreement, records of an 
        Indian tribe shall not be considered to be Federal records for 
        purposes of chapter 5 of title 5, United States Code.
            ``(2) Recordkeeping system.--An Indian tribe shall--
                    ``(A) maintain a recordkeeping system; and
                    ``(B) on a notice period of not less than 30 days, 
                provide the Secretary with reasonable access to the 
                records to enable the Department to meet the 
                requirements of sections 3101 through 3106 of title 44, 
                United States Code.

``SEC. 407. PROVISIONS RELATED TO THE SECRETARY.

    ``(a) Trust Evaluations.--A funding agreement shall include a 
provision to monitor the performance of trust functions by the Indian 
tribe through the annual trust evaluation.
    ``(b) Reassumption.--
            ``(1) In general.--A compact or funding agreement shall 
        include provisions for the Secretary to reassume a program and 
        associated funding if there is a specific finding relating to 
        that program of--
                    ``(A) imminent jeopardy to a trust asset, natural 
                resources, or public health and safety that--
                            ``(i) is caused by an act or omission of 
                        the Indian tribe; and
                            ``(ii) arises out of a failure to carry out 
                        the compact or funding agreement; or
                    ``(B) gross mismanagement with respect to funds 
                transferred to an Indian tribe under a compact or 
                funding agreement, as determined by the Secretary in 
                consultation with the Inspector General, as 
                appropriate.
            ``(2) Prohibition.--The Secretary shall not reassume 
        operation of a program, in whole or part, unless--
                    ``(A) the Secretary first provides written notice 
                and a hearing on the record to the Indian tribe; and
                    ``(B) the Indian tribe does not take corrective 
                action to remedy the mismanagement of the funds or 
                programs, or the imminent jeopardy to a trust asset, 
                natural resource, or public health and safety.
            ``(3) Exception.--
                    ``(A) In general.--Notwithstanding paragraph (2), 
                the Secretary may, on written notice to the Indian 
                tribe, immediately reassume operation of a program if--
                            ``(i) the Secretary makes a finding of 
                        imminent and substantial jeopardy and 
                        irreparable harm to a trust asset, a natural 
                        resource, or the public health and safety 
                        caused by an act or omission of the Indian 
                        tribe; and
                            ``(ii) the imminent and substantial 
                        jeopardy, and irreparable harm to the trust 
                        asset, natural resource, or public health and 
                        safety arises out of a failure by the Indian 
                        tribe to carry out the terms of an applicable 
                        compact or funding agreement.
                    ``(B) Reassumption.--If the Secretary reassumes 
                operation of a program under subparagraph (A), the 
                Secretary shall provide the Indian tribe with a hearing 
                on the record not later than 10 days after the date of 
                reassumption.
    ``(c) Inability to Agree on Compact or Funding Agreement.--
            ``(1) Final offer.--If the Secretary and a participating 
        Indian tribe are unable to agree, in whole or in part, on the 
        terms of a compact or funding agreement (including funding 
        levels), the Indian tribe may submit a final offer to the 
        Secretary.
            ``(2) Determination.--Not more than 60 days after the date 
        of delivery of a final offer to the designated officials under 
        paragraph (4), the Secretary shall review and make a 
        determination with respect to the final offer.
            ``(3) Extensions.--The deadline described in paragraph (2) 
        may be extended for any length of time, as agreed upon by both 
        the Indian tribe and the Secretary.
            ``(4) Designated officials.--The Secretary shall designate 
        1 or more appropriate officials in the Department to receive a 
        copy of the final offer described in paragraph (1).
            ``(5) No timely determination.--If the Secretary fails to 
        make a determination with respect to a final offer within the 
        period specified in paragraph (2), the Secretary shall be 
        deemed to have agreed to the offer.
            ``(6) Rejection of final offer.--
                    ``(A) In general.--If the Secretary rejects a final 
                offer (or 1 or more provisions or funding levels in a 
                final offer), the Secretary shall--
                            ``(i) provide timely written notification 
                        to the Indian tribe that contains a specific 
                        finding that clearly demonstrates, or that is 
                        supported by a controlling legal authority, 
                        that--
                                    ``(I) the amount of funds proposed 
                                in the final offer exceeds the 
                                applicable funding level to which the 
                                Indian tribe is entitled under this 
                                title because the final offer would 
                                reduce the funds that any other Indian 
                                tribe or tribal organization is 
                                entitled to receive under Federal law;
                                    ``(II) the program that is the 
                                subject of the final offer is an 
                                inherent Federal function or is subject 
                                to the discretion of the Secretary 
                                under section 405(b)(2);
                                    ``(III) the Indian tribe cannot 
                                carry out the program in a manner that 
                                would not result in significant danger 
                                or risk to the public health;
                                    ``(IV) the Indian tribe is not 
                                eligible to participate in self-
                                governance under section 403(b); or
                                    ``(V) the funding agreement would 
                                violate a Federal statute or 
                                regulation;
                            ``(ii) provide technical assistance to 
                        overcome the objections stated in the 
                        notification required by clause (i);
                            ``(iii) provide the Indian tribe with--
                                    ``(I) a hearing on the record with 
                                the right to engage in full discovery 
                                relevant to any issue raised in the 
                                matter; and
                                    ``(II) the opportunity for appeal 
                                on the objections raised (except that 
                                the Indian tribe may, in lieu of filing 
                                such appeal, directly proceed to 
                                initiate an action in a United States 
                                district court under section 110(a)); 
                                and
                            ``(iv) provide the Indian tribe the option 
                        of entering into the severable portions of a 
                        final proposed compact or funding agreement 
                        (including a lesser funding amount, if any), 
                        that the Secretary did not reject, subject to 
                        any additional alterations necessary to conform 
                        the compact or funding agreement to the severed 
                        provisions.
                    ``(B) Effect of exercising certain option.--If an 
                Indian tribe exercises the option specified in 
                subparagraph (A)(iv)--
                            ``(i) the Indian tribe shall retain the 
                        right to appeal the rejection by the Secretary 
                        under this section; and
                            ``(ii) clauses (i), (ii), and (iii) of 
                        subparagraph (A) shall apply only to the 
                        portion of the proposed final compact or 
                        funding agreement that was rejected by the 
                        Secretary.
    ``(d) Burden of Proof.--In any administrative action, hearing, or 
appeal or civil action brought under this section, the Secretary shall 
have the burden of demonstrating--
            ``(1) by a preponderance of the evidence, the validity of 
        the grounds for a reassumption under subsection (b); and
            ``(2) by clear and convincing evidence, the grounds for 
        rejecting a final offer made under subsection (c).
    ``(e) Good Faith.--
            ``(1) In general.--In the negotiation of compacts and 
        funding agreements, the Secretary shall at all times negotiate 
        in good faith to maximize implementation of the self-governance 
        policy.
            ``(2) Policy.--The Secretary shall carry out this title in 
        a manner that maximizes the policy of tribal self-governance.
    ``(f) Savings.--
            ``(1) In general.--To the extent that programs carried out 
        for the benefit of Indian tribes and tribal organizations under 
        this title reduce the administrative or other responsibilities 
        of the Secretary with respect to the operation of Indian 
        programs and result in savings that have not otherwise been 
        included in the amount of tribal shares and other funds 
        determined under section 409(c), except for funding agreements 
        entered into for programs under section 405(b)(2), the 
        Secretary shall make such savings available to the Indian 
        tribes or tribal organizations for the provision of additional 
        services to program beneficiaries in a manner equitable to 
        directly served, contracted, and compacted programs.
            ``(2) Discretionary programs of special significance.--For 
        any savings generated as a result of the assumption of a 
        program by an Indian tribe under section 405(b)(2), such 
        savings shall be made available to that Indian tribe.
    ``(g) Trust Responsibility.--The Secretary may not waive, modify, 
or diminish in any way the trust responsibility of the United States 
with respect to Indian tribes and individual Indians that exists under 
treaties, Executive orders, other laws, or court decisions.
    ``(h) Decisionmaker.--A decision that constitutes final agency 
action and relates to an appeal within the Department conducted under 
subsection (c)(4) may be made by--
            ``(1) an official of the Department who holds a position at 
        a higher organizational level within the Department than the 
        level of the departmental agency in which the decision that is 
        the subject of the appeal was made; or
            ``(2) an administrative law judge.
    ``(i) Rules of Construction.--Each provision of this title and each 
provision of a compact or funding agreement shall be liberally 
construed for the benefit of the Indian tribe participating in self-
governance, and any ambiguity shall be resolved in favor of the Indian 
tribe.

``SEC. 408. CONSTRUCTION PROGRAMS AND PROJECTS.

    ``(a) In General.--Indian tribes participating in tribal self-
governance may carry out construction projects under this title.
    ``(b) Tribal Option to Carry Out Certain Federal Environmental 
Activities.--In carrying out a construction project under this title, 
an Indian tribe may, subject to the agreement of the Secretary, elect 
to assume some Federal responsibilities under the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), the National 
Historic Preservation Act (16 U.S.C. 470 et seq.), and related 
provisions of law and regulations that would apply if the Secretary 
were to undertake a construction project, by adopting a resolution--
            ``(1) designating a certifying tribal officer to represent 
        the Indian tribe and to assume the status of a responsible 
        Federal official under those Acts or regulations; and
            ``(2) accepting the jurisdiction of the United States 
        courts for the purpose of enforcing the responsibilities of the 
        certifying tribal officer assuming the status of a responsible 
        Federal official under those Acts or regulations.
    ``(c) Savings Clause.--Notwithstanding subsection (b), nothing in 
this Act authorizes the Secretary to include in any compact or funding 
agreement duties of the Secretary under the National Environmental 
Policy Act (42 U.S.C. 4321 et seq.), the National Historic Preservation 
Act (16 U.S.C. 470 et seq.), and other related provisions of law that 
are inherent Federal functions.
    ``(d) Codes and Standards.--In carrying out a construction project 
under this title, an Indian tribe shall--
            ``(1) adhere to applicable Federal, State, local, and 
        tribal building codes, architectural and engineering standards, 
        and applicable Federal guidelines regarding design, space, and 
        operational standards, appropriate for the particular project; 
        and
            ``(2) use only architects and engineers who--
                    ``(A) are licensed to practice in the State in 
                which the facility will be built; and
                    ``(B) certify that--
                            ``(i) they are qualified to perform the 
                        work required by the specific construction 
                        involved; and
                            ``(ii) upon completion of design, the plans 
                        and specifications meet or exceed the 
                        applicable construction and safety codes.
    ``(e) Tribal Accountability.--
            ``(1) In general.--In carrying out a construction project 
        under this title, an Indian tribe shall assume responsibility 
        for the successful completion of the construction project and 
        of a facility that is usable for the purpose for which the 
        Indian tribe received funding.
            ``(2) Requirements.--For each construction project carried 
        out by an Indian tribe under this title, the Indian tribe and 
        the Secretary shall negotiate a provision to be included in the 
        funding agreement that identifies--
                    ``(A) the approximate start and completion dates 
                for the project, which may extend over a period of 1 or 
                more years;
                    ``(B) a general description of the project, 
                including the scope of work, references to design 
                criteria, and other terms and conditions;
                    ``(C) the responsibilities of the Indian tribe and 
                the Secretary for the project;
                    ``(D) how project-related environmental 
                considerations will be addressed;
                    ``(E) the amount of funds provided for the project;
                    ``(F) the obligations of the Indian tribe to comply 
                with the codes referenced in subsection (c)(1) and 
                applicable Federal laws and regulations;
                    ``(G) the agreement of the parties over who will 
                bear any additional costs necessary to meet changes in 
                scope, or errors or omissions in design and 
                construction; and
                    ``(H) the agreement of the Secretary to issue a 
                certificate of occupancy, if requested by the Indian 
                tribe, based upon the review and verification by the 
                Secretary, to the satisfaction of the Secretary, that 
                the Indian tribe has secured upon completion the review 
                and approval of the plans and specifications, 
                sufficiency of design, life safety, and code compliance 
                by qualified, licensed, and independent architects and 
                engineers.
    ``(f) Funding.--
            ``(1) In general.--Funding appropriated for construction 
        projects carried out under this title shall be included in 
        funding agreements as annual or semiannual advance payments at 
        the option of the Indian tribe.
            ``(2) Advance payments.--The Secretary shall include all 
        associated project contingency funds with each advance payment, 
        and the Indian tribe shall be responsible for the management of 
        such contingency funds.
    ``(g) Negotiations.--At the option of the Indian tribe, 
construction project funding proposals shall be negotiated pursuant to 
the statutory process in section 105, and any resulting construction 
project agreement shall be incorporated into the funding agreement as 
addenda.
    ``(h) Federal Review and Verification.--
            ``(1) In general.--The Secretary shall have--
                    ``(A) at least 1 opportunity to review and verify, 
                to the satisfaction of the Secretary, that project 
                planning and design documents prepared by the Indian 
                tribe in advance of initial construction are in 
                conformity with the obligations of the Indian tribe 
                under subsection (c); and
                    ``(B) before the project planning and design 
                documents are implemented, at least 1 opportunity to 
                review and verify to the satisfaction of the Secretary 
                that subsequent document amendments which result in a 
                significant change in construction are in conformity 
                with the obligations of the Indian tribe under 
                subsection (c).
            ``(2) Reports.--The Indian tribe shall provide the 
        Secretary with project progress and financial reports not less 
        than semiannually.
            ``(3) Oversight visits.--The Secretary may conduct onsite 
        project oversight visits semiannually or on an alternate 
        schedule agreed to by the Secretary and the Indian tribe.
    ``(i) Application of Other Laws.--Unless otherwise agreed to by the 
Indian tribe and except as otherwise provided in this Act, no provision 
of the Office of Federal Procurement Policy Act (41 U.S.C. 401 et 
seq.), the Federal Acquisition Regulations issued pursuant to that Act, 
or any other law or regulation pertaining to Federal procurement 
(including Executive orders) shall apply to any construction program or 
project carried out under this title.
    ``(j) Future Funding.--Upon completion of a facility constructed 
under this title, the Secretary shall include the facility among those 
eligible for annual operation and maintenance funding support 
comparable to that provided for similar facilities funded by the 
Department as annual appropriations are available and to the extent 
that the facility size and complexity and other factors do not exceed 
the funding formula criteria for comparable buildings.

``SEC. 409. PAYMENT.

    ``(a) In General.--At the request of the governing body of an 
Indian tribe and under the terms of an applicable funding agreement, 
the Secretary shall provide funding to the Indian tribe to carry out 
the funding agreement.
    ``(b) Advance Annual Payment.--At the option of the Indian tribe, a 
funding agreement shall provide for an advance annual payment to an 
Indian tribe.
    ``(c) Amount.--
            ``(1) In general.--Subject to subsection (e) and sections 
        405 and 406, the Secretary shall provide funds to the Indian 
        tribe under a funding agreement for programs in an amount that 
        is equal to the amount that the Indian tribe would have been 
        entitled to receive under contracts and grants under this Act 
        (including amounts for direct program and contract support 
        costs and, in addition, any funds that are specifically or 
        functionally related to the provision by the Secretary of 
        services and benefits to the Indian tribe or its members) 
        without regard to the organization level within the Department 
        at which the programs are carried out.
            ``(2) Savings clause.--Nothing in this section reduces 
        programs, services, or funds of, or provided to, another Indian 
        tribe.
    ``(d) Timing.--
            ``(1) In general.--Pursuant to the terms of any compact or 
        funding agreement entered into under this title, the Secretary 
        shall transfer to the Indian tribe all funds provided for in 
        the funding agreement, pursuant to subsection (c), and provide 
        funding for periods covered by joint resolution adopted by 
        Congress making continuing appropriations, to the extent 
        permitted by such resolution.
            ``(2) Transfers.--Not later than 1 year after the date of 
        enactment of the Department of the Interior Tribal Self-
        Governance Act of 2010, in any instance in which a funding 
        agreement requires an annual transfer of funding to be made at 
        the beginning of a fiscal year or requires semiannual or other 
        periodic transfers of funding to be made commencing at the 
        beginning of a fiscal year, the first such transfer shall be 
        made not later than 10 days after the apportionment of such 
        funds by the Office of Management and Budget to the Department, 
        unless the funding agreement provides otherwise.
    ``(e) Availability.--Funds for trust services to individual Indians 
shall be available under a funding agreement only to the extent that 
the same services that would have been provided by the Secretary are 
provided to individual Indians by the Indian tribe.
    ``(f) Multiyear Funding.--A funding agreement may provide for 
multiyear funding.
    ``(g) Limitations on Authority of the Secretary.--The Secretary 
shall not--
            ``(1) fail to transfer to an Indian tribe its full share of 
        any central, headquarters, regional, area, or service unit 
        office or other funds due under this title for programs 
        eligible under paragraph (1) or (3) of section 405(b), except 
        as required by Federal law;
            ``(2) withhold any portion of such funds for transfer over 
        a period of years; or
            ``(3) reduce the amount of funds required under this 
        title--
                    ``(A) to make funding available for self-governance 
                monitoring or administration by the Secretary;
                    ``(B) in subsequent years, except as necessary as a 
                result of--
                            ``(i) a reduction in appropriations from 
                        the previous fiscal year for the program to be 
                        included in a compact or funding agreement;
                            ``(ii) a congressional directive in 
                        legislation or an accompanying report;
                            ``(iii) a tribal authorization;
                            ``(iv) a change in the amount of pass-
                        through funds subject to the terms of the 
                        funding agreement; or
                            ``(v) completion of an activity under a 
                        program for which the funds were provided;
                    ``(C) to pay for Federal functions, including--
                            ``(i) Federal pay costs;
                            ``(ii) Federal employee retirement 
                        benefits;
                            ``(iii) automated data processing;
                            ``(iv) technical assistance; and
                            ``(v) monitoring of activities under this 
                        title; or
                    ``(D) to pay for costs of Federal personnel 
                displaced by self-determination contracts under this 
                Act or self-governance under this title.
    ``(h) Federal Resources.--If an Indian tribe elects to carry out a 
compact or funding agreement with the use of Federal personnel, Federal 
supplies (including supplies available from Federal warehouse 
facilities), Federal supply sources (including lodging, airline 
transportation, and other means of transportation, including the use of 
interagency motor pool vehicles), or other Federal resources (including 
supplies, services, and resources available to the Secretary under any 
procurement contracts in which the Department is eligible to 
participate), the Secretary shall, as soon as practicable, acquire and 
transfer such personnel, supplies, or resources to the Indian tribe 
under this title.
    ``(i) Prompt Payment Act.--Chapter 39 of title 31, United States 
Code, shall apply to the transfer of funds due under a compact or 
funding agreement authorized under this title.
    ``(j) Interest or Other Income.--
            ``(1) In general.--An Indian tribe may retain interest or 
        income earned on any funds paid under a compact or funding 
        agreement to carry out governmental purposes.
            ``(2) No effect on other amounts.--The retention of 
        interest or income under paragraph (1) shall not diminish the 
        amount of funds an Indian tribe is entitled to receive under a 
        funding agreement in the year the interest or income is earned 
        or in any subsequent fiscal year.
            ``(3) Investment standard.--Funds transferred under this 
        title shall be managed by the Indian tribe using the prudent 
        investment standard, provided that the Secretary shall not be 
        liable for any investment losses of funds managed by the Indian 
        tribe that are not otherwise guaranteed or insured by the 
        Federal Government.
    ``(k) Carryover of Funds.--
            ``(1) In general.--Notwithstanding any provision of an 
        appropriations Act, all funds paid to an Indian tribe in 
        accordance with a compact or funding agreement shall remain 
        available until expended.
            ``(2) Effect of carryover.--If an Indian tribe elects to 
        carry over funding from 1 year to the next, the carryover shall 
        not diminish the amount of funds the Indian tribe is entitled 
        to receive under a funding agreement in that fiscal year or any 
        subsequent fiscal year.
    ``(l) Limitation of Costs.--
            ``(1) In general.--An Indian tribe shall not be obligated 
        to continue performance that requires an expenditure of funds 
        in excess of the amount of funds transferred under a compact or 
        funding agreement.
            ``(2) Notice of insufficiency.--If at any time the Indian 
        tribe has reason to believe that the total amount provided for 
        a specific activity under a compact or funding agreement is 
        insufficient, the Indian tribe shall provide reasonable notice 
        of such insufficiency to the Secretary.
            ``(3) Suspension of performance.--If, after notice under 
        paragraph (2), the Secretary does not increase the amount of 
        funds transferred under the funding agreement, the Indian tribe 
        may suspend performance of the activity until such time as 
        additional funds are transferred.
            ``(4) Savings clause.--Nothing in this section reduces any 
        programs, services, or funds of, or provided to, another Indian 
        tribe.
    ``(m) Distribution of Funds.--The Office of Self-Governance shall 
be responsible for distribution of all Bureau of Indian Affairs funds 
provided under this title unless otherwise agreed by the parties to an 
applicable funding agreement.

``SEC. 410. FACILITATION.

    ``(a) In General.--Except as otherwise provided by law, the 
Secretary shall interpret each Federal law and regulation in a manner 
that facilitates--
            ``(1) the inclusion of programs in funding agreements; and
            ``(2) the implementation of funding agreements.
    ``(b) Regulation Waiver.--
            ``(1) Request.--An Indian tribe may submit to the Secretary 
        a written request for a waiver of applicability of a Federal 
        regulation, including--
                    ``(A) an identification of the specific text in the 
                regulation sought to be waived; and
                    ``(B) the basis for the request.
            ``(2) Determination by the secretary.--Not later than 120 
        days after receipt by the Secretary and the designated 
        officials under paragraph (4) of a request under paragraph (1), 
        the Secretary shall approve or deny the requested waiver in 
        writing to the Indian tribe.
            ``(3) Extensions.--The deadline described in paragraph (2) 
        may be extended for any length of time, as agreed upon by both 
        the Indian tribe and the Secretary.
            ``(4) Designated officials.--The Secretary shall designate 
        1 or more appropriate officials in the Department to receive a 
        copy of the waiver request described in paragraph (1).
            ``(5) Ground for denial.--The Secretary may deny a request 
        under paragraph (1)--
                    ``(A) for a program eligible under paragraph (1) or 
                (3) of section 405(b), only upon a specific finding by 
                the Secretary that the identified text in the 
                regulation may not be waived because such a waiver is 
                prohibited by Federal law; and
                    ``(B) for a program eligible under section 
                405(b)(2), upon a specific finding by the Secretary 
                that the waiver is prohibited by Federal law or is 
                inconsistent with the express provisions of the funding 
                agreement.
            ``(6) Failure to make determination.--If the Secretary 
        fails to approve or deny a waiver request within the period 
        required under paragraph (2), the Secretary shall be deemed to 
        have approved the request.
            ``(7) Finality.--A decision of the Secretary under this 
        section shall be final for the Department.

``SEC. 411. DISCLAIMERS.

    ``Nothing in this title expands or alters any statutory authority 
of the Secretary in a manner that authorizes the Secretary to enter 
into any agreement under section 405--
            ``(1) with respect to an inherent Federal function;
            ``(2) in a case in which the law establishing a program 
        explicitly prohibits the type of participation sought by the 
        Indian tribe (without regard to whether 1 or more Indian tribes 
        are identified in the authorizing law); or
            ``(3) that limits or reduces in any way the services, 
        contracts, or funds that any other Indian tribe or tribal 
        organization is eligible to receive under section 102 or any 
        other applicable Federal law.

``SEC. 412. DISCRETIONARY APPLICATION OF OTHER SECTIONS.

    ``(a) In General.--Except as otherwise provided in section 101(c), 
at the option of a participating Indian tribe or Indian tribes, any of 
the provisions of title I may be incorporated in any compact or funding 
agreement under this title.
    ``(b) Effect.--Each incorporated provision under subsection (a) 
shall--
            ``(1) have the same force and effect as if set out in full 
        in this title;
            ``(2) supplement or replace any related provision in this 
        title; and
            ``(3) apply to any agency otherwise governed by this title.
    ``(c) Effective Date.--If an Indian tribe requests incorporation at 
the negotiation stage of a compact or funding agreement, the 
incorporation shall--
            ``(1) be effective immediately; and
            ``(2) control the negotiation and resulting compact and 
        funding agreement.

``SEC. 413. FUNDING NEEDS.

    ``(a) Requirement of Annual Budget Request.--
            ``(1) In general.--The President shall identify in a report 
        to accompany the annual budget request submitted to Congress 
        under section 1105 of title 31, United States Code, all amounts 
        necessary to fully fund all funding agreements entered into 
        under this Act.
            ``(2) Duty of secretary.--The Secretary shall identify in a 
        report to accompany each budget request the amount of funds 
        that are sufficient for planning and negotiation grants and 
        sufficient to cover any shortfall in funding identified under 
        subsection (b).
            ``(3) Rule of construction.--Nothing in this subsection 
        authorizes the Secretary to reduce the programs, services, or 
        funds to an Indian tribe.
    ``(b) Present Funding; Shortfalls.--
            ``(1) In general.--In each report described in subsection 
        (a)(2), the Secretary shall identify the level of need 
        presently funded and any shortfall in funding (including direct 
        program costs, tribal shares, and contract support costs) for 
        each Indian tribe, directly by the Secretary, under self-
        determination contracts, or compacts, or funding agreements.
            ``(2) Schedule.--
                    ``(A) First report.--The first report required 
                under subsection (a)(1) shall be--
                            ``(i) limited to the Bureau of Indian 
                        Affairs agency office; and
                            ``(ii) due on February 1, 2012.
                    ``(B) Second report.--The second report required 
                under subsection (a)(1) shall--
                            ``(i) include all funding at the Bureau of 
                        Indian Affairs agency and regional offices; and
                            ``(ii) due on February 1, 2013.
                    ``(C) Subsequent report.--Beginning with the third 
                report required under subsection (a)(1), which shall be 
                due on February 1, 2014, all reports required under 
                subsection (a)(1) shall include all funding at the 
                Bureau of Indian Affairs agency, regional, and central 
                offices, the Office of the Assistant Secretary for 
                Indian Affairs, and the Office of the Special Trustee.

``SEC. 414. REPORTS.

    ``(a) In General.--
            ``(1) Requirement.--Not later than February 1 of each year, 
        the Secretary shall submit to Congress a report regarding the 
        administration of this title.
            ``(2) Analysis.--A report under paragraph (1) shall include 
        a detailed analysis of unmet need for each Indian tribe, 
        regardless of whether the Indian tribe is served directly by 
        the Secretary, under self-determination contracts under title 
        I, or under compacts and funding agreements authorized under 
        this title.
            ``(3) No additional reporting requirements.--In preparing 
        reports under paragraph (1), the Secretary may not impose any 
        reporting requirements on participating Indian tribes not 
        otherwise provided by this title.
    ``(b) Contents.--Each report under subsection (a)(1) shall--
            ``(1) be compiled from information contained in funding 
        agreements, annual audit reports, and data of the Secretary 
        regarding the disposition of Federal funds;
            ``(2) identify--
                    ``(A) the relative costs and benefits of self-
                governance;
                    ``(B) with particularity, all funds that are 
                specifically or functionally related to the provision 
                by the Secretary of services and benefits to self-
                governance Indian tribes and members of Indian tribes;
                    ``(C) the funds transferred to each Indian tribe 
                and the corresponding reduction in the Federal 
                employees and workload;
                    ``(D) the funding formula for individual tribal 
                shares of all Central Office funds, together with the 
                comments of affected Indian tribes, developed under 
                subsection (d); and
                    ``(E) amounts expended in the preceding fiscal year 
                to carry out inherent Federal functions, including an 
                identification of inherent Federal functions;
            ``(3) contain a description of the methods used to 
        determine the individual tribal share of funds controlled by 
        all components of the Department (including funds assessed by 
        any other Federal agency) for inclusion in compacts or funding 
        agreements;
            ``(4) before being submitted to Congress, be distributed to 
        the Indian tribes for comment (with a comment period of not 
        less than 30 days); and
            ``(5) include the separate views and comments of each 
        Indian tribe or tribal organization.
    ``(c) Report on Non-BIA, Non-OST Programs.--
            ``(1) In general.--In order to optimize opportunities for 
        Indian tribes participating in self-governance under this 
        title, the Secretary shall--
                    ``(A) review all programs administered by the 
                Department, other than through the Bureau of Indian 
                Affairs, the Office of the Assistant Secretary for 
                Indian Affairs, or the Office of Special Trustee, 
                without regard to the agency or office concerned; and
                    ``(B) not later than January 1 of each year, submit 
                to Congress--
                            ``(i) a list of all such programs that the 
                        Secretary determines, with the concurrence of 
                        Indian tribes participating in self-governance 
                        under this title, are eligible to be included 
                        in a funding agreement at the request of a 
                        participating Indian tribe; and
                            ``(ii) a list of all such programs for 
                        which Indian tribes have requested to include 
                        in a funding agreement under paragraph (2) or 
                        (3) of section 405(b), indicating whether each 
                        request was granted or denied, and stating the 
                        grounds for any denial.
            ``(2) Programmatic targets.--The Secretary shall establish 
        programmatic targets, after consultation with Indian tribes 
        participating in self-governance, to encourage bureaus of the 
        Department to ensure that a significant portion of the programs 
        identified in paragraph (1) are included in funding agreements.
            ``(3) Publication.--The lists and targets under paragraphs 
        (1) and (2) shall be--
                    ``(A) published in the Federal Register; and
                    ``(B) made available to Indian tribes.
            ``(4) Annual review.--
                    ``(A) In general.--The Secretary shall annually 
                review and publish in the Federal Register, after 
                consultation with Indian tribes participating in self-
                governance, revised lists and programmatic targets.
                    ``(B) Contents.--The revised lists and programmatic 
                targets shall include all programs that were eligible 
                for contracting in the original list published in the 
                Federal Register in 1995, except for programs 
                specifically determined not to be contractible as a 
                matter of law.
    ``(d) Report on Central Office Funds.--Not later than February 1, 
2012, the Secretary shall, in consultation with Indian tribes, develop 
a funding formula to determine the individual tribal share of funds 
controlled by the Central Office of the Bureau of Indian Affairs, the 
Office of the Special Trustee, and the Office of the Assistant 
Secretary for Indian Affairs for inclusion in the compacts.

``SEC. 415. REGULATIONS.

    ``(a) In General.--
            ``(1) Promulgation.--Not later than 90 days after the date 
        of enactment of the Department of the Interior Tribal Self-
        Governance Act of 2010, the Secretary shall initiate procedures 
        under subchapter III of chapter 5 of title 5, United States 
        Code, to negotiate and promulgate such regulations as are 
        necessary to carry out this title.
            ``(2) Publication of proposed regulations.--Proposed 
        regulations to implement this title shall be published in the 
        Federal Register not later than 18 months after the date of 
        enactment of the Department of the Interior Tribal Self-
        Governance Act of 2010.
            ``(3) Expiration of authority.--The authority to promulgate 
        regulations under paragraph (1) shall expire on the date that 
        is 24 months after the date of enactment of the Department of 
        the Interior Tribal Self-Governance Act of 2010.
    ``(b) Committee.--
            ``(1) Membership.--A negotiated rulemaking committee 
        established pursuant to section 565 of title 5, United States 
        Code, to carry out this section shall have as its members only 
        representatives of the Federal Government and tribal 
        government.
            ``(2) Lead agency.--Among the Federal representatives 
        described in paragraph (1), the Office of Self-Governance shall 
        be the lead agency for the Department.
    ``(c) Adaptation of Procedures.--The Secretary shall adapt the 
negotiated rulemaking procedures to the unique context of self-
governance and the government-to-government relationship between the 
United States and Indian tribes.
    ``(d) Effect.--
            ``(1) Repeal.--The Secretary may repeal any regulation that 
        is inconsistent with this Act.
            ``(2) Conflicting provisions.--This title shall supersede 
        any conflicting provision of law (including any conflicting 
        regulations).
            ``(3) Effectiveness without regard to regulations.--The 
        lack of promulgated regulations on an issue shall not limit the 
        effect or implementation of this title.

``SEC. 416. EFFECT OF CIRCULARS, POLICIES, MANUALS, GUIDANCES, AND 
              RULES.

    ``Unless expressly agreed to by a participating Indian tribe in a 
compact or funding agreement, the participating Indian tribe shall not 
be subject to any agency circular, policy, manual, guidance, or rule 
adopted by the Department, except for--
            ``(1) the eligibility provisions of section 105(g); and
            ``(2) regulations promulgated pursuant to section 415.

``SEC. 417. APPEALS.

    ``Except as provided in section 407(d), in any administrative 
action, appeal, or civil action for judicial review of any decision 
made by the Secretary under this title, the Secretary shall have the 
burden of proof of demonstrating by a preponderance of the evidence--
            ``(1) the validity of the grounds for the decision; and
            ``(2) the consistency of the decision with the requirements 
        and policies of this title.

``SEC. 418. APPLICATION OF OTHER PROVISIONS.

    ``Section 314 of the Department of the Interior and Related 
Agencies Appropriations Act, 1991 (Public Law 101-512; 104 Stat. 1959), 
shall apply to compacts and funding agreements entered into under this 
title.

``SEC. 419. AUTHORIZATION OF APPROPRIATIONS.

    ``There are authorized to be appropriated such sums as are 
necessary to carry out this title.''.

            Passed the House of Representatives September 22, 2010.

            Attest:

                                                                 Clerk.
111th CONGRESS

  2d Session

                               H. R. 4347

_______________________________________________________________________

                                 AN ACT

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