IIB 

111TH CONGRESS 

2D SESSION H. R. 4347 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 23, 2010 

Received 

SEPTEMBER 29, 2010 

Read twice and referred to the Committee on Indian Affairs 

AN ACT 

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

tribes, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 


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1 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

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

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

4 of 2010’’. 

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

6 this Act is as follows: 

Sec. 1. Short title; table of contents. 

TITLE I—INDIAN SELF-DETERMINATION 

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

Sec. 102. Contracts by Secretary of 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. 

7 TITLE I—INDIAN SELF8 DETERMINATION 

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

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

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

14 the following: 

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

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

18 and the appropriate Secretary for the planning, conduct, 

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1 wise provided to Indian tribes and members of Indian 

2 tribes pursuant to Federal law, subject to the condition 

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

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

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

7 or 

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

9 subject to any Federal procurement law (including 

10 regulations);’’. 

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

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

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

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

18 Secretary under subsection (a)’’; and 

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

22 415.’’. 

23 (c) APPLICATION OF OTHER PROVISIONS.—Sections 

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

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

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

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

5 to compacts and funding agreements entered into under 

6 title IV. 

7 SEC. 102. CONTRACTS BY SECRETARY OF INTERIOR. 

8 Section 102 of the Indian Self-Determination and 

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

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

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

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

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

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

16 ‘‘(f) GOOD FAITH REQUIREMENT.—In the negotia17 tion of contracts and funding agreements, the Secretary 

18 shall— 

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

20 maximize implementation of the self-determination 

21 policy; and 

22 ‘‘(2) carry out this Act in a manner that maxi23 mizes the policy of tribal self-determination, in a 

24 manner consistent with the purposes specified in sec25 tion 3. 


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1 ‘‘(g) RULE OF CONSTRUCTION.—Each provision of 

2 this Act and each provision of a contract or funding agree3 ment shall be liberally construed for the benefit of the In4 dian tribe participating in self-determination, and any am5 biguity shall be resolved in favor of the Indian tribe.’’. 

6 SEC. 103. ADMINISTRATIVE PROVISIONS. 

7 Section 105 of the Indian Self-Determination and 

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

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

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

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

12 102 and 103’’; and 

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

14 ‘‘(m) INTERPRETATION BY SECRETARY.—Except as 

15 otherwise provided by law, the Secretary shall interpret 

16 all Federal laws (including regulations) and Executive or17 ders in a manner that facilitates, to the maximum extent 

18 practicable— 

19 ‘‘(1) the inclusion in self-determination con20 tracts and funding agreements of— 

21 ‘‘(A) applicable programs, services, func22 tions, and activities (or portions thereof); and 

23 ‘‘(B) funds associated with those pro24 grams, services, functions, and activities; 


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

2 contracts and funding agreements; and 

3 ‘‘(3) the achievement of tribal health objec4 tives.’’. 

5 SEC. 104. CONTRACT FUNDING AND INDIRECT COSTS. 

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

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

8 is amended— 

9 (1) in subparagraph (A)— 

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

11 inserting ‘‘; and’’; and 

12 (B) in clause (ii), by striking ‘‘expense re13 lated to the overhead incurred’’ and inserting 

14 ‘‘expense incurred by the governing body of the 

15 Indian tribe or tribal organization and any 

16 overhead expense incurred’’; 

17 (2) by redesignating subparagraph (B) as sub18 paragraph (C); and 

19 (3) by inserting after subparagraph (A) the fol20 lowing: 

21 ‘‘(B) In calculating the reimbursement rate 

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

23 not less than 50 percent of the expenses de24 scribed in subparagraph (A)(ii) that are in25 curred by the governing body of an Indian tribe 


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1 or tribal organization relating to a Federal pro2 gram, function, service, or activity carried out 

3 pursuant to the contract shall be considered to 

4 be reasonable and allowable.’’. 

5 SEC. 105. CONTRACT OR GRANT SPECIFICATIONS. 

6 Section 108 of the Indian Self-Determination and 

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

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

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

10 ‘‘contain’’; and 

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

12 agreement contained in subsection (c), by inserting 

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

14 the Indian Self-Determination and Education Assist15 ance Act (25 U.S.C. 450f),’’ before ‘‘such other pro16 visions’’. 

17 TITLE II—TRIBAL SELF18 GOVERNANCE 

19 SEC. 201. TRIBAL SELF-GOVERNANCE. 

20 Title IV of the Indian Self-Determination and Edu21 cation Assistance Act (25 U.S.C. 458aa et seq.) is amend22 ed to read as follows: 


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1 ‘‘TITLE IV—TRIBAL SELF2 GOVERNANCE 

3 ‘‘SEC. 401. DEFINITIONS. 

4 ‘‘In this title: 

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

6 self-governance compact entered into under section 

7 404. 

8 ‘‘(2) CONSTRUCTION PROGRAM; CONSTRUCTION

9 PROJECT.—The term ‘construction program’ or ‘con10 struction project’ means a tribal undertaking relat11 ing to the administration, planning, environmental 

12 determination, design, construction, repair, improve13 ment, or expansion of roads, bridges, buildings, 

14 structures, systems, or other facilities for purposes 

15 of housing, law enforcement, detention, sanitation, 

16 water supply, education, administration, community, 

17 health, irrigation, agriculture, conservation, flood 

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

19 tribal purposes. 

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

21 means the Department of the Interior. 

22 ‘‘(4) FUNDING AGREEMENT.—The term ‘fund23 ing agreement’ means a funding agreement entered 

24 into under section 405. 


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

2 ‘gross mismanagement’ means a significant viola3 tion, shown by a preponderance of the evidence, of 

4 a compact, funding agreement, or statutory or regu5 latory requirement applicable to Federal funds— 

6 ‘‘(A) for a program administered by an In7 dian tribe; or 

8 ‘‘(B) under a compact or funding agree9 ment that results in a significant reduction of 

10 funds available for the programs assumed by an 

11 Indian tribe. 

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

13 term ‘inherent Federal function’ means a Federal 

14 function that may not legally be delegated to an In15 dian tribe. 

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

17 any program, function, service, or activity (or por18 tion thereof) within the Department that is included 

19 in a funding agreement. 

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

21 the Secretary of the Interior. 

22 ‘‘(9) SELF-GOVERNANCE.—The term ‘self-gov23 ernance’ means the Tribal Self-Governance Program 

24 established under section 402. 


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

2 means an Indian tribe’s portion of all funds and re3 sources that— 

4 ‘‘(A) support any program within the Bu5 reau of Indian Affairs, the Office of Special 

6 Trustee, or the Office of the Assistant Sec7 retary for Indian Affairs; and 

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

9 the performance of an inherent Federal func10 tion. 

11 ‘‘SEC. 402. ESTABLISHMENT. 

12 ‘‘The Secretary shall establish and carry out a pro13 gram within the Department to be known as the ‘Tribal 

14 Self-Governance Program’. 

15 ‘‘SEC. 403. SELECTION OF PARTICIPATING INDIAN TRIBES. 

16 ‘‘(a) IN GENERAL.— 

17 ‘‘(1) PARTICIPANTS.— 

18 ‘‘(A) IN GENERAL.—The Secretary, acting 

19 through the Director of the Office of Self-Gov20 ernance, may select up to 50 new Indian tribes 

21 per year from those eligible under subsection 

22 (b) to participate in self-governance. 

23 ‘‘(B) JOINT PARTICIPATION.—On the re24 quest of each participating Indian tribe, 2 or 

25 more otherwise eligible Indian tribes may be 


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1 treated as a single Indian tribe for the purpose 

2 of participating in self-governance. 

3 ‘‘(2) OTHER AUTHORIZED INDIAN TRIBE OR

4 TRIBAL ORGANIZATION.—If an Indian tribe author5 izes another Indian tribe or a tribal organization to 

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

7 this title, the authorized Indian tribe or tribal orga8 nization shall have the rights and responsibilities of 

9 the authorizing Indian tribe (except as otherwise 

10 provided in the authorizing resolution). 

11 ‘‘(3) JOINT PARTICIPATION.—2 or more Indian 

12 tribes that are not otherwise eligible under sub13 section (b) may be treated as a single Indian tribe 

14 for the purpose of participating in self-governance as 

15 a tribal organization if— 

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

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

18 least 1 of the Indian tribes participating in the 

19 tribal organization, is eligible under subsection 

20 (b). 

21 ‘‘(4) TRIBAL WITHDRAWAL FROM A TRIBAL OR22 GANIZATION.— 

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

24 withdraws from participation in a tribal organi25 zation, in whole or in part, shall be entitled to 


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1 participate in self-governance if the Indian tribe 

2 is eligible under subsection (b). 

3 ‘‘(B) EFFECT OF WITHDRAWAL.—If an In4 dian tribe withdraws from participation in a 

5 tribal organization, the Indian tribe shall be en6 titled to its tribal share of funds and resources 

7 supporting the programs that the Indian tribe 

8 is entitled to carry out under the compact and 

9 funding agreement of the Indian tribe. 

10 ‘‘(C) PARTICIPATION IN SELF-GOVERN11 ANCE.—The withdrawal of an Indian tribe from 

12 a tribal organization shall not affect the eligi13 bility of the tribal organization to participate in 

14 self-governance on behalf of 1 or more other In15 dian tribes, if the tribal organization still quali16 fies under subsection (b). 

17 ‘‘(D) WITHDRAWAL PROCESS.— 

18 ‘‘(i) IN GENERAL.—An Indian tribe 

19 may, by tribal resolution, fully or partially 

20 withdraw its tribal share of any program 

21 in a funding agreement from a partici22 pating tribal organization. 

23 ‘‘(ii) NOTIFICATION.—The Indian 

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1 lution described in clause (i) to the Sec2 retary. 

3 ‘‘(iii) EFFECTIVE DATE.— 

4 ‘‘(I) IN GENERAL.—A withdrawal 

5 under clause (i) shall become effective 

6 on the date that is specified in the 

7 tribal resolution and mutually agreed 

8 upon by the Secretary, the with9 drawing Indian tribe, and the tribal 

10 organization that signed the compact 

11 and funding agreement on behalf of 

12 the withdrawing Indian tribe or tribal 

13 organization. 

14 ‘‘(II) NO SPECIFIED DATE.—In 

15 the absence of a date specified in the 

16 resolution, the withdrawal shall be17 come effective on— 

18 ‘‘(aa) the earlier of— 

19 ‘‘(AA) 1 year after the 

20 date of submission of the re21 quest; and 

22 ‘‘(BB) the date on 

23 which the funding agree24 ment expires; or 


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1 ‘‘(bb) such date as may be 

2 mutually agreed upon by the Sec3 retary, the withdrawing Indian 

4 tribe, and the tribal organization 

5 that signed the compact and 

6 funding agreement on behalf of 

7 the withdrawing Indian tribe or 

8 tribal organization. 

9 ‘‘(E) DISTRIBUTION OF FUNDS.—If an In10 dian tribe or tribal organization eligible to enter 

11 into a self-determination contract under title I 

12 or a compact or funding agreement under this 

13 title fully or partially withdraws from a partici14 pating tribal organization, the withdrawing In15 dian tribe— 

16 ‘‘(i) may elect to enter into a self-de17 termination contract or compact, in which 

18 case— 

19 ‘‘(I) the withdrawing Indian tribe 

20 or tribal organization shall be entitled 

21 to its tribal share of unexpended 

22 funds and resources supporting the 

23 programs that the Indian tribe will be 

24 carrying out under its own self-deter25 mination contract or compact and 


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1 funding agreement (calculated on the 

2 same basis as the funds were initially 

3 allocated to the funding agreement of 

4 the tribal organization); and 

5 ‘‘(II) the funds referred to in 

6 subclause (I) shall be withdrawn by 

7 the Secretary from the funding agree8 ment of the tribal organization and 

9 transferred to the withdrawing Indian 

10 tribe, on the condition that sections 

11 102 and 105(i), as appropriate, shall 

12 apply to the withdrawing Indian tribe; 

13 or 

14 ‘‘(ii) may elect not to enter into a self15 determination contract or compact, in 

16 which case all unexpended funds and re17 sources associated with the withdrawing 

18 Indian tribe’s returned programs (cal19 culated on the same basis as the funds 

20 were initially allocated to the funding 

21 agreement of the tribal organization) shall 

22 be returned by the tribal organization to 

23 the Secretary for operation of the pro24 grams included in the withdrawal. 


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1 ‘‘(F) RETURN TO MATURE CONTRACT STA2 TUS.—If an Indian tribe elects to operate all or 

3 some programs carried out under a compact or 

4 funding agreement under this title through a 

5 self-determination contract under title I, at the 

6 option of the Indian tribe, the resulting self-de7 termination contract shall be a mature self-de8 termination contract as long as the Indian tribe 

9 meets the requirements set forth in section 

10 4(h). 

11 ‘‘(b) ELIGIBILITY.—To be eligible to participate in 

12 self-governance, an Indian tribe shall— 

13 ‘‘(1) successfully complete the planning phase 

14 described in subsection (c); 

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

16 resolution or other official action by the tribal gov17 erning body; and 

18 ‘‘(3) demonstrate, for the 3 fiscal years pre19 ceding the date on which the Indian tribe requests 

20 participation, financial stability and financial man21 agement capability as evidenced by the Indian tribe 

22 having no uncorrected significant and material audit 

23 exceptions in the required annual audit of its self24 determination or self-governance agreements with 

25 any Federal agency. 


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1 ‘‘(c) PLANNING PHASE.— 

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

3 begin participation in self-governance shall complete 

4 a planning phase as provided in this subsection. 

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

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

7 the Indian tribe; and 

8 ‘‘(B) include— 

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

10 ‘‘(ii) internal tribal government plan11 ning, training, and organizational prepara12 tion. 

13 ‘‘(d) GRANTS.— 

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

15 of appropriations, an Indian tribe or tribal organiza16 tion that meets the requirements of paragraphs (2) 

17 and (3) of subsection (b) shall be eligible for 

18 grants— 

19 ‘‘(A) to plan for participation in self-gov20 ernance; and 

21 ‘‘(B) to negotiate the terms of participa22 tion by the Indian tribe or tribal organization 

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

24 and a funding agreement. 


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1 ‘‘(2) RECEIPT OF GRANT NOT REQUIRED.—Re2 ceipt of a grant under paragraph (1) shall not be a 

3 requirement of participation in self-governance. 

4 ‘‘SEC. 404. COMPACTS. 

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

6 and enter into a written compact with each Indian tribe 

7 participating in self-governance in a manner consistent 

8 with the trust responsibility of the Federal Government, 

9 treaty obligations, and the government-to-government re10 lationship between Indian tribes and the United States. 

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

12 shall— 

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

14 government-to-government relationship between the 

15 Indian tribe and the Secretary; and 

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

17 shall control during the term of the compact. 

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

19 may be amended only by agreement of the parties. 

20 ‘‘(d) EFFECTIVE DATE.—The effective date of a com21 pact under subsection (a) shall be— 

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

23 by the parties; or 

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


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

2 shall remain in effect— 

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

4 or 

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

6 retrocession, or reassumption. 

7 ‘‘(f) EXISTING COMPACTS.—An Indian tribe partici8 pating in self-governance under this title, as in effect on 

9 the date of enactment of the Department of the Interior 

10 Tribal Self-Governance Act of 2010, shall have the option 

11 at any time after that date— 

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

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

14 compact are not directly contrary to any express 

15 provision of this title; or 

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

17 consistent with this title. 

18 ‘‘SEC. 405. FUNDING AGREEMENTS. 

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

20 and enter into a written funding agreement with the gov21 erning body of an Indian tribe or tribal organization in 

22 a manner consistent with the trust responsibility of the 

23 Federal Government, treaty obligations, and the govern24 ment-to-government relationship between Indian tribes 

25 and the United States. 


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1 ‘‘(b) INCLUDED PROGRAMS.— 

2 ‘‘(1) BUREAU OF INDIAN AFFAIRS AND OFFICE

3 OF SPECIAL TRUSTEE.— 

4 ‘‘(A) IN GENERAL.—A funding agreement 

5 shall, as determined by the Indian tribe, au6 thorize the Indian tribe to plan, conduct, con7 solidate, administer, and receive full tribal 

8 share funding for all programs carried out by 

9 the Bureau of Indian Affairs, the Office of the 

10 Assistant Secretary for Indian Affairs, and the 

11 Office of the Special Trustee, without regard to 

12 the agency or office within which the program 

13 is performed (including funding for agency, 

14 area, and central office functions in accordance 

15 with section 409(c)), that— 

16 ‘‘(i) are provided for in the Act of 

17 April 16, 1934 (25 U.S.C. 452 et seq.); 

18 ‘‘(ii) the Secretary administers for the 

19 benefit of Indians under the Act of Novem20 ber 2, 1921 (25 U.S.C. 13), or any subse21 quent Act; 

22 ‘‘(iii) the Secretary administers for 

23 the benefit of Indians with appropriations 

24 made to agencies other than the Depart25 ment of the Interior; or 


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1 ‘‘(iv) are provided for the benefit of 

2 Indians because of their status as Indians. 

3 ‘‘(B) INCLUSIONS.—Programs described in 

4 subparagraph (A) shall include all programs 

5 with respect to which Indian tribes or Indians 

6 are primary or significant beneficiaries. 

7 ‘‘(2) DISCRETIONARY PROGRAMS OF SPECIAL

8 SIGNIFICANCE.— 

9 ‘‘(A) IN GENERAL.—A funding agreement 

10 under subsection (a) may, in accordance with 

11 such additional terms as the parties consider to 

12 be appropriate, include programs, services, 

13 functions, and activities (or portions thereof), 

14 administered by the Secretary, in addition to 

15 programs described in paragraphs (1) and (3), 

16 that are of special geographical, historical, or 

17 cultural significance to the Indian tribe. 

18 ‘‘(B) GOVERNING PROVISIONS.—A funding 

19 agreement described in subparagraph (A), in20 cluding the additional terms, shall be governed 

21 by this title, except that, subject to the discre22 tion of the Secretary— 

23 ‘‘(i) in accordance with section 

24 406(d), the Indian tribe may have realloca25 tion, consolidation, and redesign authority 


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1 over any program assumed under this 

2 paragraph; 

3 ‘‘(ii) notwithstanding section 408, the 

4 Secretary may require special terms and 

5 conditions regarding a construction pro6 gram or project assumed under this para7 graph; 

8 ‘‘(iii) all Federal regulations that oth9 erwise govern the operation of any pro10 gram assumed under this paragraph apply 

11 to the Indian tribe, unless a specific regu12 lation is waived by the Secretary under the 

13 procedures set forth in section 410(b)(2), 

14 which waiver request may be denied upon 

15 a specific finding by the Secretary that the 

16 waiver is prohibited by Federal law or is 

17 inconsistent with the express provisions of 

18 the funding agreement; and 

19 ‘‘(iv) a stable base budget, as de20 scribed in paragraph (7)(B), may be pro21 vided for any program assumed under this 

22 paragraph. 

23 ‘‘(3) PROGRAMS OTHERWISE AVAILABLE.—A 

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1 duct, consolidate, administer, and receive full tribal 

2 share funding for any program administered by the 

3 Department other than through the Bureau of In4 dian Affairs, the Office of the Assistant Secretary 

5 for Indian Affairs, or the Office of the Special 

6 Trustee, that the Secretary has determined is other7 wise available to Indian tribes or Indians under sec8 tion 102. Nothing in this paragraph may be con9 strued to provide any Indian tribe with a preference 

10 with respect to the opportunity of that Indian tribe 

11 to administer programs, services, functions, or ac12 tivities, or portions thereof, unless that preference is 

13 otherwise provided for by law. 

14 ‘‘(4) COMPETITIVE BIDDING.—Nothing in this 

15 section— 

16 ‘‘(A) supersedes any express statutory re17 quirement for competitive bidding; or 

18 ‘‘(B) prohibits the inclusion in a funding 

19 agreement of a program in which non-Indians 

20 have an incidental or legally identifiable inter21 est. 

22 ‘‘(5) EXCLUDED FUNDING.—A funding agree23 ment shall not authorize an Indian tribe to plan, 

24 conduct, administer, or receive tribal share funding 

25 under any program that— 


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1 ‘‘(A) is provided under the Tribally Con2 trolled Colleges and Universities Assistance Act 

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

4 ‘‘(B) is provided for elementary and sec5 ondary schools under the formula developed 

6 under section 1127 of the Education Amend7 ments of 1978 (25 U.S.C. 2007). 

8 ‘‘(6) SERVICES, FUNCTIONS, AND RESPONSIBIL9 ITIES.—A funding agreement shall specify— 

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

11 funding agreement; 

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

13 the funding agreement; and 

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

15 and the Secretary under the funding agreement. 

16 ‘‘(7) BASE BUDGET.— 

17 ‘‘(A) IN GENERAL.—A funding agreement 

18 pursuant to paragraphs (1) and (3) shall, at 

19 the option of the Indian tribe, provide for a sta20 ble base budget specifying the recurring funds 

21 (which may include funds available under sec22 tion 106(a)) to be transferred to the Indian 

23 tribe, for such period as the Indian tribe speci24 fies in the funding agreement, subject to annual 


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1 adjustment only to reflect changes in congres2 sional appropriations. 

3 ‘‘(B) DISCRETIONARY PROGRAMS OF SPE4 CIAL SIGNIFICANCE.—Upon agreement by the 

5 Secretary, a funding agreement under para6 graph (2) may also provide for a stable base 

7 budget. 

8 ‘‘(8) NO WAIVER OF TRUST RESPONSIBILITY.— 

9 A funding agreement shall prohibit the Secretary 

10 from waiving, modifying, or diminishing in any way 

11 the trust responsibility of the United States with re12 spect to Indian tribes and individual Indians that ex13 ists under treaties, Executive orders, court decisions, 

14 and other laws. 

15 ‘‘(c) AMENDMENT.—The Secretary shall not revise, 

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

17 funding agreement without the consent of the Indian tribe, 

18 unless such terms are required by Federal law. 

19 ‘‘(d) EFFECTIVE DATE.—A funding agreement shall 

20 become effective on the date specified in the funding 

21 agreement. 

22 ‘‘(e) EXISTING AND SUBSEQUENT FUNDING AGREE23 MENTS.— 

24 ‘‘(1) SUBSEQUENT FUNDING AGREEMENTS.— 

25 Absent notification from an Indian tribe that the InVerDate Mar 15 2010 01:00 Oct 01, 2010 Jkt 089200 PO 00000 Frm 00025 Fmt 6652 Sfmt 6201 E:\BILLS\H4347.RFS H4347

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1 dian tribe is withdrawing or retroceding the oper2 ation of 1 or more programs identified in a funding 

3 agreement under paragraph (1) or (3) of subsection 

4 (b), or unless otherwise agreed to by the parties to 

5 the funding agreement or by the nature of any non6 continuing program, service, function, or activity 

7 contained in a funding agreement— 

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

9 full force and effect until a subsequent funding 

10 agreement is executed, with funding paid annu11 ally for each fiscal year the agreement is in ef12 fect; and 

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

14 agreement shall be retroactive to the end of the 

15 term of the preceding funding agreement for 

16 the purposes of calculating the amount of fund17 ing to which the Indian tribe is entitled. 

18 ‘‘(2) DISPUTES.—Disputes over the implemen19 tation of paragraph (1)(A) shall be subject to section 

20 407(c). 

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

22 Indian tribe that was participating in self-govern23 ance under this title on the date of enactment of the 

24 Department of the Interior Tribal Self-Governance 


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1 Act of 2010 shall have the option at any time after 

2 that date— 

3 ‘‘(A) to retain its existing funding agree4 ment (in whole or in part) to the extent that 

5 the provisions of that funding agreement are 

6 not directly contrary to any express provision of 

7 this title; or 

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

9 in a manner consistent with this title. 

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

11 Indian tribe may, at the discretion of the Indian 

12 tribe, negotiate with the Secretary for a funding 

13 agreement with a term that exceeds 1 year. 

14 ‘‘SEC. 406. GENERAL PROVISIONS. 

15 ‘‘(a) APPLICABILITY.—An Indian tribe and the Sec16 retary shall include in any compact or funding agreement 

17 provisions that reflect the requirements of this title. 

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

19 participating in self-governance shall ensure that internal 

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

21 and procedures, conflicts of interest in the administration 

22 of programs. 

23 ‘‘(c) AUDITS.— 


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

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

3 funding agreement under this title. 

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

5 apply cost principles under the applicable Office of 

6 Management and Budget circular, except as modi7 fied by— 

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

9 106; or 

10 ‘‘(B) any exemptions to applicable Office 

11 of Management and Budget circulars subse12 quently granted by the Office of Management 

13 and Budget. 

14 ‘‘(3) FEDERAL CLAIMS.—Any claim by the Fed15 eral Government against an Indian tribe relating to 

16 funds received under a funding agreement based on 

17 any audit under this subsection shall be subject to 

18 section 106(f). 

19 ‘‘(d) REDESIGN AND CONSOLIDATION.—An Indian 

20 tribe may redesign or consolidate programs or reallocate 

21 funds for programs in any manner that the Indian tribe 

22 determines to be in the best interest of the Indian commu23 nity being served, so long as that the redesign or consoli24 dation does not have the effect of denying eligibility for 

25 services to population groups otherwise eligible to be 


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1 served under applicable Federal law, except that, with re2 spect to the reallocation, consolidation, and redesign of 

3 programs described in section 405(b)(2), a joint agree4 ment between the Secretary and the Indian tribe shall be 

5 required. 

6 ‘‘(e) RETROCESSION.— 

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

8 or partially retrocede to the Secretary any program 

9 under a compact or funding agreement. 

10 ‘‘(2) EFFECTIVE DATE.— 

11 ‘‘(A) AGREEMENT.—Unless an Indian 

12 tribe rescinds a request for retrocession under 

13 paragraph (1), the retrocession shall become ef14 fective on the date specified by the parties in 

15 the compact or funding agreement. 

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

17 a specification of an effective date in the com18 pact or funding agreement, the retrocession 

19 shall become effective on— 

20 ‘‘(i) the earlier of— 

21 ‘‘(I) 1 year after the date on 

22 which the request is submitted; and 

23 ‘‘(II) the date on which the fund24 ing agreement expires; or 


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

2 agreed upon by the Secretary and the In3 dian tribe. 

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

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

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

7 title, the Indian tribe— 

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

9 Secretary for funds under section 102, except that 

10 the Indian tribe shall be eligible for new programs 

11 on the same basis as other Indian tribes; and 

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

13 of programs in accordance with the compact or 

14 funding agreement. 

15 ‘‘(g) RECORDS.— 

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

17 specifies otherwise in the compact or funding agree18 ment, records of an Indian tribe shall not be consid19 ered to be Federal records for purposes of chapter 

20 5 of title 5, United States Code. 

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

22 tribe shall— 

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

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

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1 cess to the records to enable the Department to 

2 meet the requirements of sections 3101 through 

3 3106 of title 44, United States Code. 

4 ‘‘SEC. 407. PROVISIONS RELATED TO THE SECRETARY. 

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

6 shall include a provision to monitor the performance of 

7 trust functions by the Indian tribe through the annual 

8 trust evaluation. 

9 ‘‘(b) REASSUMPTION.— 

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

11 agreement shall include provisions for the Secretary 

12 to reassume a program and associated funding if 

13 there is a specific finding relating to that program 

14 of— 

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

16 natural resources, or public health and safety 

17 that— 

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

19 the Indian tribe; and 

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

21 out the compact or funding agreement; or 

22 ‘‘(B) gross mismanagement with respect to 

23 funds transferred to an Indian tribe under a 

24 compact or funding agreement, as determined 


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1 by the Secretary in consultation with the In2 spector General, as appropriate. 

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

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

5 unless— 

6 ‘‘(A) the Secretary first provides written 

7 notice and a hearing on the record to the In8 dian tribe; and 

9 ‘‘(B) the Indian tribe does not take correc10 tive action to remedy the mismanagement of 

11 the funds or programs, or the imminent jeop12 ardy to a trust asset, natural resource, or pub13 lic health and safety. 

14 ‘‘(3) EXCEPTION.— 

15 ‘‘(A) IN GENERAL.—Notwithstanding para16 graph (2), the Secretary may, on written notice 

17 to the Indian tribe, immediately reassume oper18 ation of a program if— 

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

20 imminent and substantial jeopardy and ir21 reparable harm to a trust asset, a natural 

22 resource, or the public health and safety 

23 caused by an act or omission of the Indian 

24 tribe; and 


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1 ‘‘(ii) the imminent and substantial 

2 jeopardy, and irreparable harm to the trust 

3 asset, natural resource, or public health 

4 and safety arises out of a failure by the In5 dian tribe to carry out the terms of an ap6 plicable compact or funding agreement. 

7 ‘‘(B) REASSUMPTION.—If the Secretary re8 assumes operation of a program under subpara9 graph (A), the Secretary shall provide the In10 dian tribe with a hearing on the record not 

11 later than 10 days after the date of reassump12 tion. 

13 ‘‘(c) INABILITY TO AGREE ON COMPACT OR FUNDING

14 AGREEMENT.— 

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

16 participating Indian tribe are unable to agree, in 

17 whole or in part, on the terms of a compact or fund18 ing agreement (including funding levels), the Indian 

19 tribe may submit a final offer to the Secretary. 

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

21 days after the date of delivery of a final offer to the 

22 designated officials under paragraph (4), the Sec23 retary shall review and make a determination with 

24 respect to the final offer. 


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

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

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

4 the Secretary. 

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

6 shall designate 1 or more appropriate officials in the 

7 Department to receive a copy of the final offer de8 scribed in paragraph (1). 

9 ‘‘(5) NO TIMELY DETERMINATION.—If the Sec10 retary fails to make a determination with respect to 

11 a final offer within the period specified in paragraph 

12 (2), the Secretary shall be deemed to have agreed to 

13 the offer. 

14 ‘‘(6) REJECTION OF FINAL OFFER.— 

15 ‘‘(A) IN GENERAL.—If the Secretary re16 jects a final offer (or 1 or more provisions or 

17 funding levels in a final offer), the Secretary 

18 shall— 

19 ‘‘(i) provide timely written notification 

20 to the Indian tribe that contains a specific 

21 finding that clearly demonstrates, or that 

22 is supported by a controlling legal author23 ity, that— 

24 ‘‘(I) the amount of funds pro25 posed in the final offer exceeds the 


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1 applicable funding level to which the 

2 Indian tribe is entitled under this title 

3 because the final offer would reduce 

4 the funds that any other Indian tribe 

5 or tribal organization is entitled to re6 ceive under Federal law; 

7 ‘‘(II) the program that is the 

8 subject of the final offer is an inher9 ent Federal function or is subject to 

10 the discretion of the Secretary under 

11 section 405(b)(2); 

12 ‘‘(III) the Indian tribe cannot 

13 carry out the program in a manner 

14 that would not result in significant 

15 danger or risk to the public health; 

16 ‘‘(IV) the Indian tribe is not eli17 gible to participate in self-governance 

18 under section 403(b); or 

19 ‘‘(V) the funding agreement 

20 would violate a Federal statute or reg21 ulation; 

22 ‘‘(ii) provide technical assistance to 

23 overcome the objections stated in the noti24 fication required by clause (i); 

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


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1 ‘‘(I) a hearing on the record with 

2 the right to engage in full discovery 

3 relevant to any issue raised in the 

4 matter; and 

5 ‘‘(II) the opportunity for appeal 

6 on the objections raised (except that 

7 the Indian tribe may, in lieu of filing 

8 such appeal, directly proceed to ini9 tiate an action in a United States dis10 trict court under section 110(a)); and 

11 ‘‘(iv) provide the Indian tribe the op12 tion of entering into the severable portions 

13 of a final proposed compact or funding 

14 agreement (including a lesser funding 

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

16 reject, subject to any additional alterations 

17 necessary to conform the compact or fund18 ing agreement to the severed provisions. 

19 ‘‘(B) EFFECT OF EXERCISING CERTAIN

20 OPTION.—If an Indian tribe exercises the op21 tion specified in subparagraph (A)(iv)— 

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

23 right to appeal the rejection by the Sec24 retary under this section; and 


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1 ‘‘(ii) clauses (i), (ii), and (iii) of sub2 paragraph (A) shall apply only to the por3 tion of the proposed final compact or fund4 ing agreement that was rejected by the 

5 Secretary. 

6 ‘‘(d) BURDEN OF PROOF.—In any administrative ac7 tion, hearing, or appeal or civil action brought under this 

8 section, the Secretary shall have the burden of dem9 onstrating— 

10 ‘‘(1) by a preponderance of the evidence, the va11 lidity of the grounds for a reassumption under sub12 section (b); and 

13 ‘‘(2) by clear and convincing evidence, the 

14 grounds for rejecting a final offer made under sub15 section (c). 

16 ‘‘(e) GOOD FAITH.— 

17 ‘‘(1) IN GENERAL.—In the negotiation of com18 pacts and funding agreements, the Secretary shall at 

19 all times negotiate in good faith to maximize imple20 mentation of the self-governance policy. 

21 ‘‘(2) POLICY.—The Secretary shall carry out 

22 this title in a manner that maximizes the policy of 

23 tribal self-governance. 

24 ‘‘(f) SAVINGS.— 


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1 ‘‘(1) IN GENERAL.—To the extent that pro2 grams carried out for the benefit of Indian tribes 

3 and tribal organizations under this title reduce the 

4 administrative or other responsibilities of the Sec5 retary with respect to the operation of Indian pro6 grams and result in savings that have not otherwise 

7 been included in the amount of tribal shares and 

8 other funds determined under section 409(c), except 

9 for funding agreements entered into for programs 

10 under section 405(b)(2), the Secretary shall make 

11 such savings available to the Indian tribes or tribal 

12 organizations for the provision of additional services 

13 to program beneficiaries in a manner equitable to di14 rectly served, contracted, and compacted programs. 

15 ‘‘(2) DISCRETIONARY PROGRAMS OF SPECIAL

16 SIGNIFICANCE.—For any savings generated as a re17 sult of the assumption of a program by an Indian 

18 tribe under section 405(b)(2), such savings shall be 

19 made available to that Indian tribe. 

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

21 not waive, modify, or diminish in any way the trust re22 sponsibility of the United States with respect to Indian 

23 tribes and individual Indians that exists under treaties, 

24 Executive orders, other laws, or court decisions. 


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

2 final agency action and relates to an appeal within the 

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

4 made by— 

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

6 position at a higher organizational level within the 

7 Department than the level of the departmental agen8 cy in which the decision that is the subject of the 

9 appeal was made; or 

10 ‘‘(2) an administrative law judge. 

11 ‘‘(i) RULES OF CONSTRUCTION.—Each provision of 

12 this title and each provision of a compact or funding 

13 agreement shall be liberally construed for the benefit of 

14 the Indian tribe participating in self-governance, and any 

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

16 ‘‘SEC. 408. CONSTRUCTION PROGRAMS AND PROJECTS. 

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

18 tribal self-governance may carry out construction projects 

19 under this title. 

20 ‘‘(b) TRIBAL OPTION TO CARRY OUT CERTAIN FED21 ERAL ENVIRONMENTAL ACTIVITIES.—In carrying out a 

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

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

24 some Federal responsibilities under the National Environ25 mental Policy Act of 1969 (42 U.S.C. 4321 et seq.), the 


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

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

3 would apply if the Secretary were to undertake a construc4 tion project, by adopting a resolution— 

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

6 represent the Indian tribe and to assume the status 

7 of a responsible Federal official under those Acts or 

8 regulations; and 

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

10 States courts for the purpose of enforcing the re11 sponsibilities of the certifying tribal officer assuming 

12 the status of a responsible Federal official under 

13 those Acts or regulations. 

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

15 (b), nothing in this Act authorizes the Secretary to include 

16 in any compact or funding agreement duties of the Sec17 retary under the National Environmental Policy Act (42 

18 U.S.C. 4321 et seq.), the National Historic Preservation 

19 Act (16 U.S.C. 470 et seq.), and other related provisions 

20 of law that are inherent Federal functions. 

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

22 construction project under this title, an Indian tribe 

23 shall— 

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

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1 ing standards, and applicable Federal guidelines re2 garding design, space, and operational standards, 

3 appropriate for the particular project; and 

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

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

6 in which the facility will be built; and 

7 ‘‘(B) certify that— 

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

9 work required by the specific construction 

10 involved; and 

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

12 plans and specifications meet or exceed the 

13 applicable construction and safety codes. 

14 ‘‘(e) TRIBAL ACCOUNTABILITY.— 

15 ‘‘(1) IN GENERAL.—In carrying out a construc16 tion project under this title, an Indian tribe shall as17 sume responsibility for the successful completion of 

18 the construction project and of a facility that is usa19 ble for the purpose for which the Indian tribe re20 ceived funding. 

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

22 project carried out by an Indian tribe under this 

23 title, the Indian tribe and the Secretary shall nego24 tiate a provision to be included in the funding agree25 ment that identifies— 


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1 ‘‘(A) the approximate start and completion 

2 dates for the project, which may extend over a 

3 period of 1 or more years; 

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

5 including the scope of work, references to de6 sign criteria, and other terms and conditions; 

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

8 and the Secretary for the project; 

9 ‘‘(D) how project-related environmental 

10 considerations will be addressed; 

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

12 project; 

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

14 comply with the codes referenced in subsection 

15 (c)(1) and applicable Federal laws and regula16 tions; 

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

18 will bear any additional costs necessary to meet 

19 changes in scope, or errors or omissions in de20 sign and construction; and 

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

22 issue a certificate of occupancy, if requested by 

23 the Indian tribe, based upon the review and 

24 verification by the Secretary, to the satisfaction 

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1 cured upon completion the review and approval 

2 of the plans and specifications, sufficiency of 

3 design, life safety, and code compliance by 

4 qualified, licensed, and independent architects 

5 and engineers. 

6 ‘‘(f) FUNDING.— 

7 ‘‘(1) IN GENERAL.—Funding appropriated for 

8 construction projects carried out under this title 

9 shall be included in funding agreements as annual or 

10 semiannual advance payments at the option of the 

11 Indian tribe. 

12 ‘‘(2) ADVANCE PAYMENTS.—The Secretary 

13 shall include all associated project contingency funds 

14 with each advance payment, and the Indian tribe 

15 shall be responsible for the management of such con16 tingency funds. 

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

18 tribe, construction project funding proposals shall be nego19 tiated pursuant to the statutory process in section 105, 

20 and any resulting construction project agreement shall be 

21 incorporated into the funding agreement as addenda. 

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

23 ‘‘(1) IN GENERAL.—The Secretary shall have— 

24 ‘‘(A) at least 1 opportunity to review and 

25 verify, to the satisfaction of the Secretary, that 


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1 project planning and design documents pre2 pared by the Indian tribe in advance of initial 

3 construction are in conformity with the obliga4 tions of the Indian tribe under subsection (c); 

5 and 

6 ‘‘(B) before the project planning and de7 sign documents are implemented, at least 1 op8 portunity to review and verify to the satisfac9 tion of the Secretary that subsequent document 

10 amendments which result in a significant 

11 change in construction are in conformity with 

12 the obligations of the Indian tribe under sub13 section (c). 

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

15 the Secretary with project progress and financial re16 ports not less than semiannually. 

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

18 conduct onsite project oversight visits semiannually 

19 or on an alternate schedule agreed to by the Sec20 retary and the Indian tribe. 

21 ‘‘(i) APPLICATION OF OTHER LAWS.—Unless other22 wise agreed to by the Indian tribe and except as otherwise 

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

24 Procurement Policy Act (41 U.S.C. 401 et seq.), the Fed25 eral Acquisition Regulations issued pursuant to that Act, 


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1 or any other law or regulation pertaining to Federal pro2 curement (including Executive orders) shall apply to any 

3 construction program or project carried out under this 

4 title. 

5 ‘‘(j) FUTURE FUNDING.—Upon completion of a facil6 ity constructed under this title, the Secretary shall include 

7 the facility among those eligible for annual operation and 

8 maintenance funding support comparable to that provided 

9 for similar facilities funded by the Department as annual 

10 appropriations are available and to the extent that the fa11 cility size and complexity and other factors do not exceed 

12 the funding formula criteria for comparable buildings. 

13 ‘‘SEC. 409. PAYMENT. 

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

15 body of an Indian tribe and under the terms of an applica16 ble funding agreement, the Secretary shall provide funding 

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

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

19 the Indian tribe, a funding agreement shall provide for 

20 an advance annual payment to an Indian tribe. 

21 ‘‘(c) AMOUNT.— 

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

23 and sections 405 and 406, the Secretary shall pro24 vide funds to the Indian tribe under a funding 

25 agreement for programs in an amount that is equal 


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1 to the amount that the Indian tribe would have been 

2 entitled to receive under contracts and grants under 

3 this Act (including amounts for direct program and 

4 contract support costs and, in addition, any funds 

5 that are specifically or functionally related to the 

6 provision by the Secretary of services and benefits to 

7 the Indian tribe or its members) without regard to 

8 the organization level within the Department at 

9 which the programs are carried out. 

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

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

12 to, another Indian tribe. 

13 ‘‘(d) TIMING.— 

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

15 any compact or funding agreement entered into 

16 under this title, the Secretary shall transfer to the 

17 Indian tribe all funds provided for in the funding 

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

19 funding for periods covered by joint resolution 

20 adopted by Congress making continuing appropria21 tions, to the extent permitted by such resolution. 

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

23 the date of enactment of the Department of the In24 terior Tribal Self-Governance Act of 2010, in any in25 stance in which a funding agreement requires an anVerDate Mar 15 2010 01:00 Oct 01, 2010 Jkt 089200 PO 00000 Frm 00046 Fmt 6652 Sfmt 6201 E:\BILLS\H4347.RFS H4347

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1 nual transfer of funding to be made at the beginning 

2 of a fiscal year or requires semiannual or other peri3 odic transfers of funding to be made commencing at 

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

5 shall be made not later than 10 days after the ap6 portionment of such funds by the Office of Manage7 ment and Budget to the Department, unless the 

8 funding agreement provides otherwise. 

9 ‘‘(e) AVAILABILITY.—Funds for trust services to indi10 vidual Indians shall be available under a funding agree11 ment only to the extent that the same services that would 

12 have been provided by the Secretary are provided to indi13 vidual Indians by the Indian tribe. 

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

15 may provide for multiyear funding. 

16 ‘‘(g) LIMITATIONS ON AUTHORITY OF THE SEC17 RETARY.—The Secretary shall not— 

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

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

20 service unit office or other funds due under this title 

21 for programs eligible under paragraph (1) or (3) of 

22 section 405(b), except as required by Federal law; 

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

24 transfer over a period of years; or 


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

2 this title— 

3 ‘‘(A) to make funding available for self4 governance monitoring or administration by the 

5 Secretary; 

6 ‘‘(B) in subsequent years, except as nec7 essary as a result of— 

8 ‘‘(i) a reduction in appropriations 

9 from the previous fiscal year for the pro10 gram to be included in a compact or fund11 ing agreement; 

12 ‘‘(ii) a congressional directive in legis13 lation or an accompanying report; 

14 ‘‘(iii) a tribal authorization; 

15 ‘‘(iv) a change in the amount of pass16 through funds subject to the terms of the 

17 funding agreement; or 

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

19 program for which the funds were pro20 vided; 

21 ‘‘(C) to pay for Federal functions, includ22 ing— 

23 ‘‘(i) Federal pay costs; 

24 ‘‘(ii) Federal employee retirement ben25 efits; 


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1 ‘‘(iii) automated data processing; 

2 ‘‘(iv) technical assistance; and 

3 ‘‘(v) monitoring of activities under 

4 this title; or 

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

6 displaced by self-determination contracts under 

7 this Act or self-governance under this title. 

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

9 elects to carry out a compact or funding agreement with 

10 the use of Federal personnel, Federal supplies (including 

11 supplies available from Federal warehouse facilities), Fed12 eral supply sources (including lodging, airline transpor13 tation, and other means of transportation, including the 

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

15 resources (including supplies, services, and resources 

16 available to the Secretary under any procurement con17 tracts in which the Department is eligible to participate), 

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

19 transfer such personnel, supplies, or resources to the In20 dian tribe under this title. 

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

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

23 due under a compact or funding agreement authorized 

24 under this title. 

25 ‘‘(j) INTEREST OR OTHER INCOME.— 


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

2 interest or income earned on any funds paid under 

3 a compact or funding agreement to carry out gov4 ernmental purposes. 

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

6 retention of interest or income under paragraph (1) 

7 shall not diminish the amount of funds an Indian 

8 tribe is entitled to receive under a funding agree9 ment in the year the interest or income is earned or 

10 in any subsequent fiscal year. 

11 ‘‘(3) INVESTMENT STANDARD.—Funds trans12 ferred under this title shall be managed by the In13 dian tribe using the prudent investment standard, 

14 provided that the Secretary shall not be liable for 

15 any investment losses of funds managed by the In16 dian tribe that are not otherwise guaranteed or in17 sured by the Federal Government. 

18 ‘‘(k) CARRYOVER OF FUNDS.— 

19 ‘‘(1) IN GENERAL.—Notwithstanding any provi20 sion of an appropriations Act, all funds paid to an 

21 Indian tribe in accordance with a compact or fund22 ing agreement shall remain available until expended. 

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

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

25 next, the carryover shall not diminish the amount of 


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1 funds the Indian tribe is entitled to receive under a 

2 funding agreement in that fiscal year or any subse3 quent fiscal year. 

4 ‘‘(l) LIMITATION OF COSTS.— 

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

6 be obligated to continue performance that requires 

7 an expenditure of funds in excess of the amount of 

8 funds transferred under a compact or funding agree9 ment. 

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

11 time the Indian tribe has reason to believe that the 

12 total amount provided for a specific activity under a 

13 compact or funding agreement is insufficient, the In14 dian tribe shall provide reasonable notice of such in15 sufficiency to the Secretary. 

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

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

18 increase the amount of funds transferred under the 

19 funding agreement, the Indian tribe may suspend 

20 performance of the activity until such time as addi21 tional funds are transferred. 

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

23 reduces any programs, services, or funds of, or pro24 vided to, another Indian tribe. 


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1 ‘‘(m) DISTRIBUTION OF FUNDS.—The Office of Self2 Governance shall be responsible for distribution of all Bu3 reau of Indian Affairs funds provided under this title un4 less otherwise agreed by the parties to an applicable fund5 ing agreement. 

6 ‘‘SEC. 410. FACILITATION. 

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

8 law, the Secretary shall interpret each Federal law and 

9 regulation in a manner that facilitates— 

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

11 agreements; and 

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

13 ‘‘(b) REGULATION WAIVER.— 

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

15 to the Secretary a written request for a waiver of 

16 applicability of a Federal regulation, including— 

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

18 the regulation sought to be waived; and 

19 ‘‘(B) the basis for the request. 

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

21 Not later than 120 days after receipt by the Sec22 retary and the designated officials under paragraph 

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

24 shall approve or deny the requested waiver in writ25 ing to the Indian tribe. 


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

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

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

4 the Secretary. 

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

6 shall designate 1 or more appropriate officials in the 

7 Department to receive a copy of the waiver request 

8 described in paragraph (1). 

9 ‘‘(5) GROUND FOR DENIAL.—The Secretary 

10 may deny a request under paragraph (1)— 

11 ‘‘(A) for a program eligible under para12 graph (1) or (3) of section 405(b), only upon a 

13 specific finding by the Secretary that the identi14 fied text in the regulation may not be waived 

15 because such a waiver is prohibited by Federal 

16 law; and 

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

18 405(b)(2), upon a specific finding by the Sec19 retary that the waiver is prohibited by Federal 

20 law or is inconsistent with the express provi21 sions of the funding agreement. 

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

23 the Secretary fails to approve or deny a waiver re24 quest within the period required under paragraph 


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

2 the request. 

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

4 under this section shall be final for the Department. 

5 ‘‘SEC. 411. DISCLAIMERS. 

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

7 authority of the Secretary in a manner that authorizes the 

8 Secretary to enter into any agreement under section 

9 405— 

10 ‘‘(1) with respect to an inherent Federal func11 tion; 

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

13 program explicitly prohibits the type of participation 

14 sought by the Indian tribe (without regard to wheth15 er 1 or more Indian tribes are identified in the au16 thorizing law); or 

17 ‘‘(3) that limits or reduces in any way the serv18 ices, contracts, or funds that any other Indian tribe 

19 or tribal organization is eligible to receive under sec20 tion 102 or any other applicable Federal law. 

21 ‘‘SEC. 412. DISCRETIONARY APPLICATION OF OTHER SEC22 TIONS. 

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

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

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


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1 incorporated in any compact or funding agreement under 

2 this title. 

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

4 subsection (a) shall— 

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

6 in full in this title; 

7 ‘‘(2) supplement or replace any related provi8 sion in this title; and 

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

10 this title. 

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

12 incorporation at the negotiation stage of a compact or 

13 funding agreement, the incorporation shall— 

14 ‘‘(1) be effective immediately; and 

15 ‘‘(2) control the negotiation and resulting com16 pact and funding agreement. 

17 ‘‘SEC. 413. FUNDING NEEDS. 

18 ‘‘(a) REQUIREMENT OF ANNUAL BUDGET RE19 QUEST.— 

20 ‘‘(1) IN GENERAL.—The President shall iden21 tify in a report to accompany the annual budget re22 quest submitted to Congress under section 1105 of 

23 title 31, United States Code, all amounts necessary 

24 to fully fund all funding agreements entered into 

25 under this Act. 


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1 ‘‘(2) DUTY OF SECRETARY.—The Secretary 

2 shall identify in a report to accompany each budget 

3 request the amount of funds that are sufficient for 

4 planning and negotiation grants and sufficient to 

5 cover any shortfall in funding identified under sub6 section (b). 

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

8 this subsection authorizes the Secretary to reduce 

9 the programs, services, or funds to an Indian tribe. 

10 ‘‘(b) PRESENT FUNDING; SHORTFALLS.— 

11 ‘‘(1) IN GENERAL.—In each report described in 

12 subsection (a)(2), the Secretary shall identify the 

13 level of need presently funded and any shortfall in 

14 funding (including direct program costs, tribal 

15 shares, and contract support costs) for each Indian 

16 tribe, directly by the Secretary, under self-deter17 mination contracts, or compacts, or funding agree18 ments. 

19 ‘‘(2) SCHEDULE.— 

20 ‘‘(A) FIRST REPORT.—The first report re21 quired under subsection (a)(1) shall be— 

22 ‘‘(i) limited to the Bureau of Indian 

23 Affairs agency office; and 

24 ‘‘(ii) due on February 1, 2012. 


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1 ‘‘(B) SECOND REPORT.—The second re2 port required under subsection (a)(1) shall— 

3 ‘‘(i) include all funding at the Bureau 

4 of Indian Affairs agency and regional of5 fices; and 

6 ‘‘(ii) due on February 1, 2013. 

7 ‘‘(C) SUBSEQUENT REPORT.—Beginning 

8 with the third report required under subsection 

9 (a)(1), which shall be due on February 1, 2014, 

10 all reports required under subsection (a)(1) 

11 shall include all funding at the Bureau of In12 dian Affairs agency, regional, and central of13 fices, the Office of the Assistant Secretary for 

14 Indian Affairs, and the Office of the Special 

15 Trustee. 

16 ‘‘SEC. 414. REPORTS. 

17 ‘‘(a) IN GENERAL.— 

18 ‘‘(1) REQUIREMENT.—Not later than February 

19 1 of each year, the Secretary shall submit to Con20 gress a report regarding the administration of this 

21 title. 

22 ‘‘(2) ANALYSIS.—A report under paragraph (1) 

23 shall include a detailed analysis of unmet need for 

24 each Indian tribe, regardless of whether the Indian 

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1 determination contracts under title I, or under com2 pacts and funding agreements authorized under this 

3 title. 

4 ‘‘(3) NO ADDITIONAL REPORTING REQUIRE5 MENTS.—In preparing reports under paragraph (1), 

6 the Secretary may not impose any reporting require7 ments on participating Indian tribes not otherwise 

8 provided by this title. 

9 ‘‘(b) CONTENTS.—Each report under subsection 

10 (a)(1) shall— 

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

12 funding agreements, annual audit reports, and data 

13 of the Secretary regarding the disposition of Federal 

14 funds; 

15 ‘‘(2) identify— 

16 ‘‘(A) the relative costs and benefits of self17 governance; 

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

19 specifically or functionally related to the provi20 sion by the Secretary of services and benefits to 

21 self-governance Indian tribes and members of 

22 Indian tribes; 

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

24 tribe and the corresponding reduction in the 

25 Federal employees and workload; 


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1 ‘‘(D) the funding formula for individual 

2 tribal shares of all Central Office funds, to3 gether with the comments of affected Indian 

4 tribes, developed under subsection (d); and 

5 ‘‘(E) amounts expended in the preceding 

6 fiscal year to carry out inherent Federal func7 tions, including an identification of inherent 

8 Federal functions; 

9 ‘‘(3) contain a description of the methods used 

10 to determine the individual tribal share of funds con11 trolled by all components of the Department (includ12 ing funds assessed by any other Federal agency) for 

13 inclusion in compacts or funding agreements; 

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

16 comment period of not less than 30 days); and 

17 ‘‘(5) include the separate views and comments 

18 of each Indian tribe or tribal organization. 

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

20 ‘‘(1) IN GENERAL.—In order to optimize oppor21 tunities for Indian tribes participating in self-govern22 ance under this title, the Secretary shall— 

23 ‘‘(A) review all programs administered by 

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1 ant Secretary for Indian Affairs, or the Office 

2 of Special Trustee, without regard to the agen3 cy or office concerned; and 

4 ‘‘(B) not later than January 1 of each 

5 year, submit to Congress— 

6 ‘‘(i) a list of all such programs that 

7 the Secretary determines, with the concur8 rence of Indian tribes participating in self9 governance under this title, are eligible to 

10 be included in a funding agreement at the 

11 request of a participating Indian tribe; and 

12 ‘‘(ii) a list of all such programs for 

13 which Indian tribes have requested to in14 clude in a funding agreement under para15 graph (2) or (3) of section 405(b), indi16 cating whether each request was granted 

17 or denied, and stating the grounds for any 

18 denial. 

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

20 shall establish programmatic targets, after consulta21 tion with Indian tribes participating in self-govern22 ance, to encourage bureaus of the Department to en23 sure that a significant portion of the programs iden24 tified in paragraph (1) are included in funding 

25 agreements. 


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1 ‘‘(3) PUBLICATION.—The lists and targets 

2 under paragraphs (1) and (2) shall be— 

3 ‘‘(A) published in the Federal Register; 

4 and 

5 ‘‘(B) made available to Indian tribes. 

6 ‘‘(4) ANNUAL REVIEW.— 

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

8 annually review and publish in the Federal Reg9 ister, after consultation with Indian tribes par10 ticipating in self-governance, revised lists and 

11 programmatic targets. 

12 ‘‘(B) CONTENTS.—The revised lists and 

13 programmatic targets shall include all programs 

14 that were eligible for contracting in the original 

15 list published in the Federal Register in 1995, 

16 except for programs specifically determined not 

17 to be contractible as a matter of law. 

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

19 later than February 1, 2012, the Secretary shall, in con20 sultation with Indian tribes, develop a funding formula to 

21 determine the individual tribal share of funds controlled 

22 by the Central Office of the Bureau of Indian Affairs, the 

23 Office of the Special Trustee, and the Office of the Assist24 ant Secretary for Indian Affairs for inclusion in the com25 pacts. 


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1 ‘‘SEC. 415. REGULATIONS. 

2 ‘‘(a) IN GENERAL.— 

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

4 after the date of enactment of the Department of 

5 the Interior Tribal Self-Governance Act of 2010, the 

6 Secretary shall initiate procedures under subchapter 

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

8 negotiate and promulgate such regulations as are 

9 necessary to carry out this title. 

10 ‘‘(2) PUBLICATION OF PROPOSED REGULA11 TIONS.—Proposed regulations to implement this title 

12 shall be published in the Federal Register not later 

13 than 18 months after the date of enactment of the 

14 Department of the Interior Tribal Self-Governance 

15 Act of 2010. 

16 ‘‘(3) EXPIRATION OF AUTHORITY.—The author17 ity to promulgate regulations under paragraph (1) 

18 shall expire on the date that is 24 months after the 

19 date of enactment of the Department of the Interior 

20 Tribal Self-Governance Act of 2010. 

21 ‘‘(b) COMMITTEE.— 

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

23 committee established pursuant to section 565 of 

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

25 shall have as its members only representatives of the 

26 Federal Government and tribal government. 


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1 ‘‘(2) LEAD AGENCY.—Among the Federal rep2 resentatives described in paragraph (1), the Office of 

3 Self-Governance shall be the lead agency for the De4 partment. 

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

6 shall adapt the negotiated rulemaking procedures to the 

7 unique context of self-governance and the government-to8 government relationship between the United States and 

9 Indian tribes. 

10 ‘‘(d) EFFECT.— 

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

12 regulation that is inconsistent with this Act. 

13 ‘‘(2) CONFLICTING PROVISIONS.—This title 

14 shall supersede any conflicting provision of law (in15 cluding any conflicting regulations). 

16 ‘‘(3) EFFECTIVENESS WITHOUT REGARD TO

17 REGULATIONS.—The lack of promulgated regula18 tions on an issue shall not limit the effect or imple19 mentation of this title. 

20 ‘‘SEC. 416. EFFECT OF CIRCULARS, POLICIES, MANUALS, 

21 GUIDANCES, AND RULES. 

22 ‘‘Unless expressly agreed to by a participating Indian 

23 tribe in a compact or funding agreement, the participating 

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


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1 policy, manual, guidance, or rule adopted by the Depart2 ment, except for— 

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

4 and 

5 ‘‘(2) regulations promulgated pursuant to sec6 tion 415. 

7 ‘‘SEC. 417. APPEALS. 

8 ‘‘Except as provided in section 407(d), in any admin9 istrative action, appeal, or civil action for judicial review 

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

11 the Secretary shall have the burden of proof of dem12 onstrating by a preponderance of the evidence— 

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

14 and 

15 ‘‘(2) the consistency of the decision with the re16 quirements and policies of this title. 

17 ‘‘SEC. 418. APPLICATION OF OTHER PROVISIONS. 

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

19 Related Agencies Appropriations Act, 1991 (Public Law 

20 101–512; 104 Stat. 1959), shall apply to compacts and 

21 funding agreements entered into under this title. 


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1 ‘‘SEC. 419. AUTHORIZATION OF APPROPRIATIONS. 

2 ‘‘There are authorized to be appropriated such sums 

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

Passed the House of Representatives September 22, 

2010. 

Attest: LORRAINE C. MILLER, 

Clerk. 


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