I 

111TH CONGRESS 

1ST SESSION H. R. 4347 

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

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

IN THE HOUSE OF REPRESENTATIVES 

DECEMBER 16, 2009 

Mr. BOREN (for himself and Mr. WALZ) introduced the following bill; which 

was referred to the Committee on Natural Resources 

A BILL 

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

tribes, and for other purposes. 

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

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

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

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

6 of 2009’’. 

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

8 this Act is as follows: 

Sec. 1. Short title; table of contents. 

TITLE I—INDIAN SELF-DETERMINATION 


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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. 

1 TITLE I—INDIAN SELF2 DETERMINATION 

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

5 (a) DEFINITIONS.—Section 4 of the Indian Self-De6 termination and Education Assistance Act (25 U.S.C. 

7 450b) is amended by striking subsection (j) and inserting 

8 the following: 

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

10 entered into (or a grant or cooperative agreement used 

11 under section 9) under title I between a tribal organization 

12 and the appropriate Secretary for the planning, conduct, 

13 and administration of programs or services that are other14 wise provided to Indian tribes and members of Indian 

15 tribes pursuant to Federal law, subject to the condition 

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

17 entered into (or grant or cooperative agreement used 

18 under section 9) under title I shall be— 

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

20 or 


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1 ‘‘(2) subject to any Federal procurement law 

2 (including regulations);’’. 

3 (b) REPORTING AND AUDIT REQUIREMENTS.—Sec4 tion 5(b) of the Indian Self-Determination and Education 

5 Assistance Act (25 U.S.C. 450c(b)) is amended by striking 

6 ‘‘after completion of the project or undertaking referred 

7 to in the preceding subsection of this section’’ and insert8 ing ‘‘after the date on which a report is submitted to the 

9 Secretary under subsection (a)’’. 

10 (c) APPLICATION OF OTHER PROVISIONS.—Sections 

11 4, 5, 6, 7, 102(c), 104, 105(a)(1), 105(f), 110 and 111 

12 of the Indian Self-Determination and Education Assist13 ance Act, as amended (25 U.S.C. 450 et seq.) (Public Law 

14 93–638, as amended, 88 Stat. 2203) and section 314 of 

15 the Department of the Interior and Related Agencies Ap16 propriations Act, 1991 (Public Law 101–512; 104 Stat. 

17 1959), apply to compacts and funding agreements entered 

18 into under title IV. 

19 SEC. 102. CONTRACTS BY SECRETARY OF INTERIOR. 

20 Section 102 of the Indian Self-Determination and 

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

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

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

24 that’’ and inserting ‘‘economic enterprises (as deVerDate Nov 24 2008 21:20 Jan 19, 2010 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H4347.IH H4347

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1 fined in section 3 of the Indian Financing Act of 

2 1974 (25 U.S.C. 1452)), except that’’; 

3 (2) by striking subsection (e) and inserting the 

4 following: 

5 ‘‘(e) APPEALS.—In any appeal (including civil ac6 tions) involving decisions made by the Secretary under this 

7 title, the Secretary shall have the burden of proof of dem8 onstrating, by clear and convincing evidence— 

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

10 made; and 

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

12 the provisions and policies of this title.’’; and 

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

14 ‘‘(f) GOOD FAITH REQUIREMENT.—In the negotia15 tion of compacts and funding agreements, the Secretary 

16 shall at all times negotiate in good faith to maximize im17 plementation of the self-governance policy. The Secretary 

18 shall carry out this title in a manner that maximizes the 

19 policy of tribal self-governance, in a manner consistent 

20 with the purposes specified in section 3 of the Tribal Self21 Governance Amendments of 2000 (Public Law 106–260; 

22 25 U.S.C. 458aaa note).’’. 

23 SEC. 103. ADMINISTRATIVE PROVISIONS. 

24 Section 105 of the Indian Self-Determination and 

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


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

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

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

4 102 and 103’’; 

5 (2) by striking subsection (j) and inserting the 

6 following: 

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

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

10 funding agreement under this title and reallocate or redi11 rect funds for such programs, services, functions, and ac12 tivities (or portions thereof) that are eligible to be included 

13 in Consolidated Tribal Government Programs in any man14 ner that the Indian tribe determines to be in the best in15 terest of the health and welfare of the Indian community 

16 being served, only if the redesign or consolidation does not 

17 have the effect of denying eligibility for services to popu18 lation groups otherwise eligible to be served under applica19 ble Federal law;’’; and 

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

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

22 otherwise provided by law, the Secretary shall interpret 

23 all Federal laws (including regulations) and Executive or24 ders in a manner that facilitates, to the maximum extent 

25 practicable— 


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1 ‘‘(1) the inclusion in self-determination con2 tracts and funding agreements of— 

3 ‘‘(A) applicable programs, services, func4 tions, and activities (or portions thereof); and 

5 ‘‘(B) funds associated with those pro6 grams, services, functions, and activities; 

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

8 contracts and funding agreements; and 

9 ‘‘(3) the achievement of tribal health objec10 tives.’’. 

11 SEC. 104. CONTRACT FUNDING AND INDIRECT COSTS. 

12 Section 106(a)(3)(A) of the Indian Self-Determina13 tion and Education Assistance Act (25 U.S.C. 450j– 

14 1(a)(3)(A)) is amended— 

15 (1) in clause (i), by striking ‘‘, and’’ at the end 

16 and inserting a semicolon; 

17 (2) in clause (ii), by striking the comma at the 

18 end and inserting ‘‘; and’’; and 

19 (3) by inserting after clause (ii) the following: 

20 ‘‘(iii) not less than 50 percent of the 

21 expenses incurred by the governing body of 

22 a tribe or tribal organization relating to a 

23 Federal program, function, service, or ac24 tivity pursuant to the contract (which ex25 penses shall be considered to be reasonable 


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1 and allowable without documentation for 

2 the purpose of this paragraph), except that 

3 in the case of a tribe or tribal organization 

4 which derives all or substantially all of its 

5 program revenue from other governments 

6 or organizations, not less than 100 percent 

7 of such expenses shall be considered to be 

8 reasonable and allowable without docu9 mentation.’’. 

10 SEC. 105. CONTRACT OR GRANT SPECIFICATIONS. 

11 Section 108 of the Indian Self-Determination and 

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

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

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

15 ‘‘contain’’; and 

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

17 agreement contained in subsection (c), by inserting 

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

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


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1 TITLE II—TRIBAL SELF2 GOVERNANCE 

3 SEC. 201. TRIBAL SELF-GOVERNANCE. 

4 Title IV of the Indian Self-Determination and Edu5 cation Assistance Act (25 U.S.C. 450 et seq.) is amended 

6 to read as follows: 

7 ‘‘TITLE IV—TRIBAL SELF8 GOVERNANCE 

9 ‘‘SEC. 401. DEFINITIONS. 

10 ‘‘In this title: 

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

12 self-governance compact entered into under section 

13 404. 

14 ‘‘(2) CONSTRUCTION PROGRAM.—The term 

15 ‘construction program’ or ‘construction project’ 

16 means a tribal undertaking relating to the adminis17 tration, planning, environmental determination, de18 sign, construction, repair, improvement, or expan19 sion of roads, bridges, buildings, structures, systems, 

20 or other facilities for purposes of housing, law en21 forcement, detention, sanitation, water supply, edu22 cation, administration, community, health, irriga23 tion, agriculture, conservation, flood control, trans24 portation, or port facilities, or for other tribal pur25 poses. 


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

2 means the Department of the Interior. 

3 ‘‘(4) FUNDING AGREEMENT.—The term ‘fund4 ing agreement’ means a funding agreement entered 

5 into under section 405. 

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

7 ‘gross mismanagement’ means a significant viola8 tion, shown by clear and convincing evidence, of a 

9 compact, funding agreement, or statutory or regu10 latory requirement applicable to Federal funds— 

11 ‘‘(A) for a program administered by an In12 dian tribe; or 

13 ‘‘(B) under a compact or funding agree14 ment that results in a significant reduction of 

15 funds available for the programs assumed by an 

16 Indian tribe. 

17 ‘‘(6) PROGRAM.—The term ‘program’ means 

18 any program, function, service, or activity (or por19 tion thereof) within the Department of the Interior 

20 that is included in a funding agreement. 

21 ‘‘(7) INHERENT FEDERAL FUNCTION.—The 

22 term ‘inherent Federal function’ means a Federal 

23 function that cannot legally be delegated to an In24 dian tribe. 


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

2 the Secretary of the Interior. 

3 ‘‘(9) SELF-GOVERNANCE.—The term ‘self-gov4 ernance’ means the program of self-governance es5 tablished under section 402. 

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

7 means an Indian tribe’s portion of all funds and re8 sources that support secretarial programs that are 

9 not required by the Secretary for the performance of 

10 inherent Federal functions. 

11 ‘‘SEC. 402. ESTABLISHMENT. 

12 ‘‘The Secretary shall carry out a program within the 

13 Department to be known as the ‘Tribal Self-Governance 

14 Program’. 

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

16 ‘‘(a) IN GENERAL.— 

17 ‘‘(1) PARTICIPANTS.— 

18 ‘‘(A) The Secretary, acting through the Di19 rector of the Office of Self-Governance, may se20 lect up to 50 new Indian tribes per year from 

21 those eligible under subsection (b) to participate 

22 in self-governance. 

23 ‘‘(B) If each Indian tribe requests, two or 

24 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.—Two or more In12 dian 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 one of the Indian tribes participating in 

19 the tribal organization is eligible under sub20 section (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 one or more other 

15 Indian tribes provided that the tribal organiza16 tion still qualifies 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. The Indian 

23 tribe shall provide a copy of the tribal reso24 lution to the Secretary. 

25 ‘‘(ii) EFFECTIVE DATE.— 


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1 ‘‘(I) IN GENERAL.—A withdrawal 

2 under clause (i) shall become effective 

3 on the date specified in the tribal res4 olution and that is mutually agreed 

5 upon by the Secretary, the with6 drawing Indian tribe, and the tribal 

7 organization that signed the compact 

8 and funding agreement on behalf of 

9 the withdrawing Indian tribe or tribal 

10 organization. 

11 ‘‘(II) NO SPECIFIED DATE.—In 

12 the absence of a date specified in the 

13 resolution, the withdrawal shall be14 come effective on— 

15 ‘‘(aa) the earlier of— 

16 ‘‘(AA) 1 year after the 

17 date of submission of the re18 quest; or 

19 ‘‘(BB) the date on 

20 which the funding agree21 ment expires; or 

22 ‘‘(bb) such date as may be 

23 mutually agreed upon by the Sec24 retary, the withdrawing Indian 

25 tribe, and the tribal organization 


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1 that signed the compact and 

2 funding agreement on behalf of 

3 the withdrawing Indian tribe or 

4 tribal organization. 

5 ‘‘(E) DISTRIBUTION OF FUNDS.—If an In6 dian tribe or tribal organization eligible to enter 

7 into a self-determination contract under title I 

8 or a compact or funding agreement under this 

9 title fully or partially withdraws from a partici10 pating tribal organization, the withdrawing In11 dian tribe— 

12 ‘‘(i) may elect to enter a self-deter13 mination contract or compact, in which 

14 case— 

15 ‘‘(I) the withdrawing Indian tribe 

16 or tribal organization shall be entitled 

17 to its tribal share of unexpended 

18 funds and resources supporting the 

19 programs that the Indian tribe will be 

20 carrying out under its own self-deter21 mination contract or compact and 

22 funding agreement (calculated on the 

23 same basis as the funds were initially 

24 allocated to the funding agreement of 

25 the tribal organization); and 


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1 ‘‘(II) the funds referred to in 

2 subclause (I) shall be withdrawn by 

3 the Secretary from the funding agree4 ment of the tribal organization and 

5 transferred to the withdrawing Indian 

6 tribe, on the condition that the provi7 sions of sections 102 and 105(i), as 

8 appropriate, shall apply to the with9 drawing Indian tribe; or 

10 ‘‘(ii) may elect not to enter a self-de11 termination contract or compact, in which 

12 case all funds not obligated by the tribal 

13 organization associated with the with14 drawing Indian tribe’s returned programs, 

15 less close-out costs, shall be returned by 

16 the tribal organization to the Secretary for 

17 operation of the programs included in the 

18 withdrawal. 

19 ‘‘(F) RETURN TO MATURE CONTRACT STA20 TUS.—If an Indian tribe elects to operate all or 

21 some programs carried out under a compact or 

22 funding agreement under this title through a 

23 self-determination contract under title I, at the 

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1 termination contract as long as the tribe meets 

2 the requirements set forth in section 4(h) of 

3 this Act. 

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

5 self-governance, an Indian tribe shall— 

6 ‘‘(1) successfully complete the planning phase 

7 described in subsection (c); 

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

9 resolution or other official action by the tribal gov10 erning body; and 

11 ‘‘(3) demonstrate, for the 3 fiscal years pre12 ceding the date on which the Indian tribe requests 

13 participation, financial stability and financial man14 agement capability as evidenced by the Indian tribe 

15 having no uncorrected significant and material audit 

16 exceptions in the required annual audit of its self17 determination or self-governance agreements with 

18 any Federal agency. 

19 ‘‘(c) PLANNING PHASE.— 

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

21 begin participation in self-governance shall complete 

22 a planning phase in accordance with this subsection. 

23 ‘‘(2) ACTIVITIES.—The planning phase— 

24 ‘‘(A) shall be conducted to the satisfaction 

25 of the Indian tribe; and 


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1 ‘‘(B) shall include— 

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

3 ‘‘(ii) internal tribal government plan4 ning and organizational preparation. 

5 ‘‘(d) GRANTS.— 

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

7 of appropriations, an Indian tribe or tribal organiza8 tion that meets the requirements of paragraphs (2) 

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

10 grants— 

11 ‘‘(A) to plan for participation in self-gov12 ernance; and 

13 ‘‘(B) to negotiate the terms of participa14 tion by the Indian tribe or tribal organization 

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

16 and a funding agreement. 

17 ‘‘(2) RECEIPT OF GRANT NOT REQUIRED.—Re18 ceipt of a grant under paragraph (1) shall not be a 

19 requirement of participation in self-governance. 

20 ‘‘SEC. 404. COMPACTS. 

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

22 and enter into a written compact with each Indian tribe 

23 participating in self-governance in a manner consistent 

24 with the trust responsibility of the Federal Government, 


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

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

4 shall— 

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

6 government-to-government relationship between the 

7 Indian tribe and the Secretary; and 

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

9 shall control during the term of the compact. 

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

11 may be amended only by agreement of the parties. 

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

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

15 by the parties; or 

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

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

18 shall remain in effect for so long as permitted by Federal 

19 law or until termination by written agreement, retroces20 sion, or reassumption. 

21 ‘‘(f) EXISTING COMPACTS.—An Indian tribe partici22 pating in self-governance under this title, as in effect on 

23 the date of the enactment of the Department of the Inte24 rior Tribal Self-Governance Act of 2009, shall have the 

25 option at any time after that date— 


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

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

3 compact are not directly contrary to any express 

4 provision of this title; or 

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

6 consistent with this title. 

7 ‘‘SEC. 405. FUNDING AGREEMENTS. 

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

9 and enter into a written funding agreement with the gov10 erning body of an Indian tribe or tribal organization in 

11 a manner consistent with the trust responsibility of the 

12 Federal Government, treaty obligations, and the govern13 ment-to-government relationship between Indian tribes 

14 and the United States. 

15 ‘‘(b) INCLUDED PROGRAMS.— 

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

17 OF SPECIAL TRUSTEE.— 

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

19 shall, as determined by the Indian tribe, au20 thorize the Indian tribe to plan, conduct, con21 solidate, administer, and receive full tribal 

22 share funding for all programs carried out by 

23 the Bureau of Indian Affairs and Office of Spe24 cial Trustee, without regard to the agency or 

25 office within which the program is performed 


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1 (including funding for agency, area, and central 

2 office functions in accordance with subsection 

3 409(c)), that— 

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

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

6 ‘‘(ii) the Secretary administers for the 

7 benefit of Indians under the Act of Novem8 ber 2, 1921 (25 U.S.C. 13), or any subse9 quent Act; 

10 ‘‘(iii) the Secretary administers for 

11 the benefit of Indians with appropriations 

12 made to agencies other than the Depart13 ment of the Interior; or 

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

15 Indians because of their status as Indians. 

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

17 subparagraph (A) shall include all programs 

18 with respect to which Indian tribes or Indians 

19 are primary or significant beneficiaries. 

20 ‘‘(2) DEMONSTRATION PROJECT.—The fol21 lowing programs, functions, services, and activities 

22 (or portions thereof) carried out by the Secretary or 

23 delegates of the Secretary shall be included in a con24 tract or compact under either title I or title IV of 

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1 onstration basis for fiscal years 2011 through 2014, 

2 and only with respect to the particular Indian tribe 

3 identified in each subparagraph below: 

4 ‘‘(A) HOOPA VALLEY TRIBE.—Programs, 

5 services, functions, and activities (or portions 

6 thereof) carried out under Public Law 102–575 

7 for the purpose of restoring the Trinity River 

8 fishery. 

9 ‘‘(B) QUINAULT INDIAN NATION.—Pro10 grams, services, functions, and activities (or 

11 portions thereof) related to development, oper12 ation, and maintenance of the National Salmon 

13 Hatchery located on the Quinault Reservation. 

14 ‘‘(C) LUMMI NATION.—Notwithstanding 

15 any other provision of this title, programs, serv16 ices, functions, and activities (or portions there17 of) under the education provisions of Public 

18 Laws 95–561, 98–511, 99–99, and 100–297, 

19 and part 32 of title 25, Code of Federal Regu20 lations, excluding the formula developed pursu21 ant to section 1128 of the Education Amend22 ments of 1978 (25 U.S.C. 2008). 

23 ‘‘(3) DISCRETIONARY PROGRAMS.—A funding 

24 agreement under subsection (a) may, in accordance 

25 with such additional terms as the parties consider to 


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1 be appropriate, include programs, services, func2 tions, and activities (or portions thereof), adminis3 tered by the Secretary, in addition to programs de4 scribed in paragraphs (1) and (2), that are of special 

5 geographic, historical, or cultural significance to the 

6 Indian tribe. 

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

8 section— 

9 ‘‘(A) supersedes any express statutory re10 quirement for competitive bidding; or 

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

12 agreement of a program in which non-Indians 

13 have an incidental or legally identifiable inter14 est. 

15 ‘‘(5) EXCLUDED FUNDING.—A funding agree16 ment shall not authorize an Indian tribe to plan, 

17 conduct, administer, or receive tribal share funding 

18 under any program that— 

19 ‘‘(A) is provided under the Tribally Con20 trolled College or University Assistance Act of 

21 1978 (25 U.S.C. 1801 et seq.); and 

22 ‘‘(B) is provided for elementary and sec23 ondary schools under the formula developed 

24 under section 1127 of the Education Amend25 ments of 1978 (25 U.S.C. 2007). 


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1 ‘‘(6) SERVICES, FUNCTIONS, AND RESPONSIBIL2 ITIES.—A funding agreement shall specify— 

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

4 funding agreement; 

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

6 the funding agreement; and 

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

8 and the Secretary under the funding agreement. 

9 ‘‘(7) BASE BUDGET.—A funding agreement 

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

11 a stable base budget specifying the recurring funds 

12 (including funds available under section 106(a)) to 

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

14 the Indian tribe specifies in the funding agreement, 

15 subject to annual adjustment only to reflect changes 

16 in congressional appropriations. 

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

18 A funding agreement shall prohibit the Secretary 

19 from waiving, modifying, or diminishing in any way 

20 the trust responsibility of the United States with re21 spect to Indian tribes and individual Indians that ex22 ists under treaties, Executive orders, court decisions, 

23 and other laws. 

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

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


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1 funding agreement without the consent of the Indian tribe, 

2 unless such terms are specifically required by Federal stat3 ute to apply to agreements under this title. 

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

5 become effective on the date specified in the funding 

6 agreement. 

7 ‘‘(e) EXISTING AND SUBSEQUENT FUNDING AGREE8 MENTS.— 

9 ‘‘(1) SUBSEQUENT FUNDING AGREEMENTS.— 

10 Absent notification from an Indian tribe that it is 

11 withdrawing or retroceding the operation of one or 

12 more programs identified in a funding agreement, or 

13 unless otherwise agreed to by the parties to the 

14 funding agreement— 

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

16 full force and in effect until a subsequent fund17 ing agreement is executed; and 

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

19 agreement shall be retroactive to the end of the 

20 term of the preceding funding agreement for 

21 the purposes of calculating the amount of fund22 ing to which the Indian tribe is entitled. 

23 ‘‘(2) DISPUTES.—Disputes over the implemen24 tation of paragraph (1)(A) shall be subject to section 

25 407(c). 


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

2 Indian tribe that was participating in self-govern3 ance under this title on the date of enactment of the 

4 Department of the Interior Tribal Self-Governance 

5 Act of 2009 shall have the option at any time after 

6 that date— 

7 ‘‘(A) to retain its existing funding agree8 ment (in whole or in part) to the extent that 

9 the provisions of that funding agreement are 

10 not directly contrary to any express provision of 

11 this title; or 

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

13 in a manner consistent with this title. 

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

15 Indian tribe may, at the discretion of the Indian 

16 tribe, negotiate with the Secretary for a funding 

17 agreement with a term that exceeds one year. 

18 ‘‘SEC. 406. GENERAL PROVISIONS. 

19 ‘‘(a) APPLICABILITY.—An Indian tribe may include 

20 in any compact or funding agreement provisions that re21 flect the requirements of this title. 

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

23 participating in self-governance shall ensure that internal 

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


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1 and procedures, conflicts of interest in the administration 

2 of programs. 

3 ‘‘(c) AUDITS.— 

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

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

6 funding agreement under this title. 

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

8 apply cost principles under the applicable Office of 

9 Management and Budget circular, except as modi10 fied by— 

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

12 106 of this Act; or 

13 ‘‘(B) any exemptions to applicable Office 

14 of Management and Budget circulars subse15 quently granted by the Office of Management 

16 and Budget. 

17 ‘‘(3) FEDERAL CLAIMS.—Any claim by the Fed18 eral Government against the Indian tribe relating to 

19 funds received under a funding agreement based on 

20 any audit under this subsection shall be subject to 

21 the provisions of section 106(f). 

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

23 tribe may redesign or consolidate programs or reallocate 

24 funds for programs in any manner that the Indian tribe 

25 deems to be in the best interest of the Indian community 


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1 being served, so long as the redesign or consolidation does 

2 not have the effect of denying eligibility for services to 

3 population groups otherwise eligible to be served under ap4 plicable Federal law. 

5 ‘‘(e) RETROCESSION.— 

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

7 or partially retrocede to the Secretary any program 

8 under a compact or funding agreement. 

9 ‘‘(2) EFFECTIVE DATE.— 

10 ‘‘(A) AGREEMENT.—Unless the Indian 

11 tribe rescinds the request for retrocession, such 

12 retrocession shall become effective on the date 

13 specified by the parties in the compact or fund14 ing agreement. 

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

16 a specification of an effective date in the com17 pact or funding agreement, the retrocession 

18 shall become effective on— 

19 ‘‘(i) the earlier of— 

20 ‘‘(I) one year after the date of 

21 submission of such request; or 

22 ‘‘(II) the date on which the fund23 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 such 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 Federal records for purposes of chapter 5 of 

20 title 5, United States Code. 

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

22 tribe shall— 

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

24 ‘‘(B) on 30 days’ notice, provide the Sec25 retary with reasonable access to the records to 


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1 enable the Department to meet the require2 ments of sections 3101 through 3106 of title 

3 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 physical trust 

16 asset, natural resources, or public health and 

17 safety 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 mismanagement of the 

11 funds or the imminent jeopardy to a physical 

12 trust asset, natural resource, or public health 

13 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 both imminent and substantial jeopardy 

21 and irreparable harm to a physical trust 

22 asset, a natural resource, or the public 

23 health and safety caused by an act or 

24 omission of the Indian tribe; and 


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1 ‘‘(ii) the imminent and substantial 

2 jeopardy, and irreparable harm to the 

3 physical trust asset, natural resource, or 

4 public health and safety arises out of a 

5 failure by the Indian tribe to carry out its 

6 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 45 

21 days after the date of submission of a final offer, or 

22 as otherwise agreed to by the Indian tribe, the Sec23 retary shall review and make a determination with 

24 respect to the final offer. 


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1 ‘‘(3) NO TIMELY DETERMINATION.—If the Sec2 retary fails to make a determination with respect to 

3 a final offer within the time specified in paragraph 

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

5 the offer. 

6 ‘‘(4) REJECTION OF FINAL OFFER.— 

7 ‘‘(A) IN GENERAL.—If the Secretary re8 jects a final offer (or one or more provisions or 

9 funding levels in a final offer), the Secretary 

10 shall— 

11 ‘‘(i) provide timely written notification 

12 to the Indian tribe that contains a specific 

13 finding that clearly demonstrates, or that 

14 is supported by a controlling legal author15 ity, that— 

16 ‘‘(I) the amount of funds pro17 posed in the final offer exceeds the 

18 applicable funding level to which the 

19 Indian tribe is entitled under this 

20 title; 

21 ‘‘(II) the program that is the 

22 subject of the final offer is an inher23 ent Federal function; 

24 ‘‘(III) the Indian tribe cannot 

25 carry out the program in a manner 


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1 that would not result in significant 

2 danger or risk to the public health; 

3 ‘‘(IV) the Indian tribe is not eli4 gible to participate in self-governance 

5 under section 403(b); or 

6 ‘‘(V) the funding agreement 

7 would violate Federal statute or regu8 lation; 

9 ‘‘(ii) provide technical assistance to 

10 overcome the objections stated in the noti11 fication required by clause (i); 

12 ‘‘(iii) provide the Indian tribe with a 

13 hearing on the record with the right to en14 gage in full discovery relevant to any issue 

15 raised in the matter and the opportunity 

16 for appeal on the objections raised (except 

17 that the Indian tribe may, in lieu of filing 

18 such appeal, directly proceed to initiate an 

19 action in a Federal district court under 

20 section 110(a)); and 

21 ‘‘(iv) provide the Indian tribe the op22 tion of entering into the severable portions 

23 of a final proposed compact or funding 

24 agreement (including a lesser funding 

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


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1 reject, subject to any additional alterations 

2 necessary to conform the compact or fund3 ing agreement to the severed provisions. 

4 ‘‘(B) EFFECT OF EXERCISING CERTAIN

5 OPTION.—If an Indian tribe exercises the op6 tion specified in subparagraph (A)(iv)— 

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

8 right to appeal the rejection by the Sec9 retary under this section; and 

10 ‘‘(ii) clauses (i), (ii), and (iii) of sub11 paragraph (A) shall apply only to the por12 tion of the proposed final compact or fund13 ing agreement that was rejected by the 

14 Secretary. 

15 ‘‘(d) BURDEN OF PROOF.—In any administrative 

16 hearing or appeal or civil action brought under this sec17 tion, the Secretary shall have the burden of demonstrating 

18 by clear and convincing evidence the validity of the 

19 grounds for rejecting a final offer made under subsection 

20 (c) or the grounds for a reassumption under subsection 

21 (b). 

22 ‘‘(e) GOOD FAITH.— 

23 ‘‘(1) IN GENERAL.—In the negotiation of com24 pacts and funding agreements, the Secretary shall at 


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1 all times negotiate in good faith to maximize imple2 mentation of the self-governance policy. 

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

4 this title in a manner that maximizes the policy of 

5 tribal self-governance. 

6 ‘‘(f) SAVINGS.—To the extent that programs carried 

7 out by Indian tribes and tribal organizations under this 

8 title reduce the administrative or other responsibilities of 

9 the Secretary with respect to the operation of Indian pro10 grams and result in savings that have not otherwise been 

11 included in the amount of tribal shares and other funds 

12 determined under section 409(c), the Secretary shall make 

13 such savings available to the Indian tribes or tribal organi14 zations for the provision of additional services to program 

15 beneficiaries in a manner equitable to directly served, con16 tracted, and compacted programs. 

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

18 not waive, modify, or diminish in any way the trust re19 sponsibility of the United States with respect to Indian 

20 tribes and individual Indians that exists under treaties, 

21 Executive orders, other laws, or court decisions. 

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

23 final agency action and relates to an appeal within the 

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

25 made— 


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

2 a position at a higher organizational level within the 

3 Department than the level of the departmental agen4 cy in which the decision that is the subject of the 

5 appeal was made; or 

6 ‘‘(2) by an administrative law judge. 

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

8 this title and each provision of a compact or funding 

9 agreement shall be liberally construed for the benefit of 

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

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

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

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

14 tribal self-governance may carry out construction projects 

15 under this title. 

16 ‘‘(b) TRIBAL OPTION TO CARRY OUT CERTAIN FED17 ERAL ENVIRONMENTAL ACTIVITIES.—In carrying out a 

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

19 in its discretion, elect to assume some or all Federal re20 sponsibilities under the National Environmental Policy 

21 Act of 1969 (42 U.S.C. 4321 et seq.), the National His22 toric Preservation Act (16 U.S.C. 470 et seq.), and related 

23 provisions of law that would apply if the Secretary were 

24 to undertake a construction project, by adopting a resolu25 tion— 


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

2 represent the Indian tribe and to assume the status 

3 of a responsible Federal official under such laws; 

4 and 

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

6 courts for the purpose of enforcing the responsibil7 ities of the certifying tribal officer assuming the sta8 tus of a responsible Federal official under such laws. 

9 ‘‘(c) CODES AND STANDARDS.—In carrying out a 

10 construction project under this title, an Indian tribe 

11 shall— 

12 ‘‘(1) adhere to appropriate building codes and 

13 architectural and engineering standards (including 

14 health and safety) in conformity with nationally rec15 ognized standards for comparable projects; and 

16 ‘‘(2) use only architects and engineers who are 

17 State licensed and bonded and who certify that— 

18 ‘‘(A) they are qualified to perform the 

19 work required by the specific construction in20 volved; and 

21 ‘‘(B) the plans and specifications meet or 

22 exceed the applicable health and safety codes 

23 and standards. 

24 ‘‘(d) TRIBAL ACCOUNTABILITY.— 


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1 ‘‘(1) In carrying out a construction project 

2 under this title, an Indian tribe shall assume respon3 sibility for the successful completion of the construc4 tion project. 

5 ‘‘(2) For each construction project carried out 

6 by an Indian tribe under this title, the Indian tribe 

7 and the Secretary shall negotiate a provision to be 

8 included in the funding agreement that identifies— 

9 ‘‘(A) the approximate start and completion 

10 dates for the project, which may extend over a 

11 period of one or more years; 

12 ‘‘(B) a general description of the project; 

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

14 and the Secretary for the project; 

15 ‘‘(D) how project-related environmental 

16 considerations will be addressed; 

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

18 project; and 

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

20 comply with applicable Federal laws, statutes, 

21 and regulations. 

22 ‘‘(e) FUNDING.—Funding appropriated for construc23 tion projects carried out under this title shall be included 

24 in funding agreements as annual or semiannual advance 

25 payments at the option of the Indian tribe. The Secretary 


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1 shall include all associated project contingency funds with 

2 each advance payment. The Indian tribe shall be respon3 sible for the management of such contingency funds. 

4 ‘‘(f) NEGOTIATIONS.—At the option of the Indian 

5 tribe, construction project funding proposals shall be nego6 tiated pursuant to the statutory process in section 450j(m) 

7 of title 25 and any resulting construction project agree8 ment shall be incorporated into the funding agreement as 

9 addenda. 

10 ‘‘(g) FEDERAL REVIEW AND APPROVAL.—The Sec11 retary shall have at least one opportunity to review and 

12 approve project planning and design documents prepared 

13 by the Indian tribe in advance of initial construction, and, 

14 before they are implemented, at least one opportunity to 

15 review and approve subsequent document amendments 

16 which result in a significant change in construction. The 

17 Indian tribe shall provide the Secretary with project 

18 progress and financial reports not less than semiannually. 

19 The Secretary may conduct onsite project oversight visits 

20 semiannually or on an alternate schedule agreed to by the 

21 Secretary and the Indian tribe. 

22 ‘‘(h) APPLICATION OF OTHER LAWS.—Unless other23 wise agreed to by the Indian tribe, no provision of the Of24 fice of Federal Procurement Policy Act (41 U.S.C. 401 

25 et seq.), the Federal Acquisition Regulations issued pursuVerDate Nov 24 2008 21:20 Jan 19, 2010 Jkt 089200 PO 00000 Frm 00039 Fmt 6652 Sfmt 6201 E:\BILLS\H4347.IH H4347

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1 ant thereto, or any other law or regulation pertaining to 

2 Federal procurement (including Executive orders) shall 

3 apply to any construction program or project carried out 

4 under this title. 

5 ‘‘SEC. 409. PAYMENT. 

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

7 body of the Indian tribe and under the terms of an agree8 ment, the Secretary shall provide funding to the Indian 

9 tribe to carry out the funding agreement. 

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

11 the Indian tribe, a funding agreement shall provide for 

12 an advance annual payment to an Indian tribe. 

13 ‘‘(c) AMOUNT.—Subject to subsection (e) and sec14 tions 405 and 406 of this title, the Secretary shall provide 

15 funds to the Indian tribe under a funding agreement for 

16 programs in an amount that is equal to the amount that 

17 the Indian tribe would have been entitled to receive under 

18 contracts and grants under this Act (including amounts 

19 for direct program and contract support costs and, in ad20 dition, any funds that are specifically or functionally re21 lated to the provision by the Secretary of services and ben22 efits to the Indian tribe or its members) without regard 

23 to the organization level within the Department in which 

24 the programs are carried out. 


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1 ‘‘(d) TIMING.—Pursuant to the terms of any compact 

2 or funding agreement entered into under this part, the 

3 Secretary shall transfer to the Indian tribe all funds pro4 vided for in the funding agreement, pursuant to subsection 

5 (c), and provide funding for periods covered by joint reso6 lution adopted by Congress making continuing appropria7 tions, to the extent permitted by such resolution. Within 

8 12 months from the date of enactment of this bill, in any 

9 instance where a funding agreement requires an annual 

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

11 year, or requires semiannual or other periodic transfers 

12 of funding to be made commencing at the beginning of 

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

14 than 10 days after the apportionment of such funds by 

15 the Office of Management and Budget to the Department, 

16 unless the funding agreement provides otherwise. 

17 ‘‘(e) AVAILABILITY.—Funds for trust services to indi18 vidual Indians shall be available under a funding agree19 ment only to the extent that the same services that would 

20 have been provided by the Secretary are provided to indi21 vidual Indians by the Indian tribe. 

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

23 may provide for multiyear funding. 

24 ‘‘(g) LIMITATIONS ON AUTHORITY OF THE SEC25 RETARY.—The Secretary shall not— 


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

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

3 service unit office or other funds due under this 

4 title, except as required by Federal law; 

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

6 transfer over a period of years; or 

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

8 this title— 

9 ‘‘(A) to make funding available for self10 governance monitoring or administration by the 

11 Secretary; 

12 ‘‘(B) in subsequent years, except as nec13 essary as a result of— 

14 ‘‘(i) a reduction in appropriations 

15 from the previous fiscal year for the pro16 gram to be included in a compact or fund17 ing agreement; 

18 ‘‘(ii) a congressional directive in legis19 lation or an accompanying report; 

20 ‘‘(iii) a tribal authorization; 

21 ‘‘(iv) a change in the amount of pass22 through funds subject to the terms of the 

23 funding agreement; or 


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

2 program for which the funds were pro3 vided; 

4 ‘‘(C) to pay for Federal functions, includ5 ing— 

6 ‘‘(i) Federal pay costs; 

7 ‘‘(ii) Federal employee retirement ben8 efits; 

9 ‘‘(iii) automated data processing; 

10 ‘‘(iv) technical assistance; and 

11 ‘‘(v) monitoring of activities under 

12 this title; or 

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

14 displaced by self-determination contracts under 

15 this Act or self-governance under this title. 

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

17 elects to carry out a compact or funding agreement with 

18 the use of Federal personnel, Federal supplies (including 

19 supplies available from Federal warehouse facilities), Fed20 eral supply sources (including lodging, airline transpor21 tation, and other means of transportation including the 

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

23 resources (including supplies, services, and resources 

24 available to the Secretary under any procurement con25 tracts in which the Department is eligible to participate), 


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1 the Secretary shall acquire and transfer such personnel, 

2 supplies, or resources to the Indian tribe under this title. 

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

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

5 due under a compact or funding agreement authorized 

6 under this title. 

7 ‘‘(j) INTEREST OR OTHER INCOME.— 

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

9 interest or income earned on any funds paid under 

10 a compact or funding agreement to carry out gov11 ernmental purposes. 

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

13 retention of interest or income under paragraph (1) 

14 shall not diminish the amount of funds an Indian 

15 tribe is entitled to receive under a funding agree16 ment in the year the interest or income is earned or 

17 in any subsequent fiscal year. 

18 ‘‘(3) INVESTMENT STANDARD.—Funds trans19 ferred under this title shall be managed using the 

20 prudent investment standard. 

21 ‘‘(k) CARRYOVER OF FUNDS.— 

22 ‘‘(1) IN GENERAL.—Notwithstanding any provi23 sion of an Act of appropriation, all funds paid to an 

24 Indian tribe in accordance with a compact or fund25 ing agreement shall remain available until expended. 


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

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

3 next, the carryover shall not diminish the amount of 

4 funds the Indian tribe is entitled to receive under a 

5 funding agreement in that fiscal year or any subse6 quent fiscal year. 

7 ‘‘(l) LIMITATION OF COSTS.— 

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

9 be obligated to continue performance that requires 

10 an expenditure of funds in excess of the amount of 

11 funds transferred under a compact or funding agree12 ment. 

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

14 time the Indian tribe has reason to believe that the 

15 total amount provided for a specific activity under a 

16 compact or funding agreement is insufficient, the In17 dian tribe shall provide reasonable notice of such in18 sufficiency to the Secretary. 

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

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

21 increase the amount of funds transferred under the 

22 funding agreement, the Indian tribe may suspend 

23 performance of the activity until such time as addi24 tional funds are transferred. 


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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. 

5 ‘‘SEC. 410. FACILITATION. 

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

7 law, the Secretary shall interpret each Federal law and 

8 regulation in a manner that facilitates— 

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

10 agreements; and 

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

12 ‘‘(b) REGULATION WAIVER.— 

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

14 written request for a waiver to the Secretary identi15 fying the specific text in regulation sought to be 

16 waived and the basis for the request. 

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

18 Not later than 120 days after receipt by the Sec19 retary of a request under paragraph (1), the Sec20 retary shall approve or deny the requested waiver in 

21 writing to the Indian tribe. 

22 ‘‘(3) GROUND FOR DENIAL.—The Secretary 

23 may deny a request under paragraph (1) only upon 

24 a specific finding by the Secretary that the identified 


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1 text in the regulation may not be waived because 

2 such a waiver is prohibited by Federal law. 

3 ‘‘(4) FAILURE TO MAKE DETERMINATION.—If 

4 the Secretary fails to approve or deny a waiver re5 quest within the time required under paragraph (2), 

6 the Secretary shall be deemed to have approved the 

7 request. 

8 ‘‘(5) FINALITY.—The Secretary’s decision shall 

9 be final for the Department. 

10 ‘‘SEC. 411. DISCLAIMERS. 

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

12 authority of the Secretary so as to authorize the Secretary 

13 to enter into any agreement under section 405(b)(2) or 

14 405(b)(3)— 

15 ‘‘(1) with respect to an inherent Federal func16 tion; 

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

18 program explicitly prohibits the type of participation 

19 sought by the Indian tribe (without regard to wheth20 er one or more Indian tribes are identified in the au21 thorizing law); or 

22 ‘‘(3) limits or reduces in any way the services, 

23 contracts, or funds that any other Indian tribe or 

24 tribal organization is eligible to receive under section 

25 102 or any other applicable Federal law. 


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1 ‘‘SEC. 412. DISCRETIONARY APPLICATION OF OTHER SEC2 TIONS. 

3 ‘‘(a) IN GENERAL.—At the option of a participating 

4 Indian tribe or Indian tribes, any or all of the provisions 

5 of title I shall be incorporated in any Department compact 

6 or funding agreement. 

7 ‘‘(b) EFFECT.—Each incorporated provision— 

8 ‘‘(1) shall have the same force and effect as if 

9 set out in full in this title; and 

10 ‘‘(2) shall be deemed to supplement or replace 

11 any related provision in this title and to apply to any 

12 agency otherwise governed by this title. 

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

14 incorporation at the negotiation stage of a compact or 

15 funding agreement, the incorporation— 

16 ‘‘(1) shall be deemed effective immediately; and 

17 ‘‘(2) shall control the negotiation and resulting 

18 compact and funding agreement. 

19 ‘‘SEC. 413. FUNDING NEEDS. 

20 ‘‘(a) REQUIREMENT OF ANNUAL BUDGET RE21 QUEST.— 

22 ‘‘(1) IN GENERAL.—The President shall iden23 tify in the annual budget request submitted to Con24 gress under section 1105 of title 31, United States 

25 Code, all funds necessary to fully fund all funding 

26 agreements authorized under this Act. 


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

2 shall identify in each budget request the amount of 

3 funds that are sufficient for planning and negotia4 tion grants and sufficient to cover any shortfall in 

5 funding identified under subsection (b). 

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

7 this subsection authorizes the Secretary to reduce 

8 the amount of funds that an Indian tribe is other9 wise entitled to receive under a funding agreement 

10 or other applicable law. 

11 ‘‘(b) PRESENT FUNDING; SHORTFALLS.—In each re12 port identified in subsection (a), the Secretary shall iden13 tify the level of need presently funded and any shortfall 

14 in funding (including direct program costs, tribal shares, 

15 and contract support costs) for each Indian tribe, either 

16 directly by the Secretary, under self-determination con17 tracts, or under compacts and funding agreements. The 

18 first report identified in subsection (a) shall be limited to 

19 the area office and shall be due on January 1, 2011. The 

20 next report due on January 1, 2012, shall include all fund21 ing at the area and regional offices. The next report due 

22 on January 1, 2013, and all subsequent reports, shall in23 clude all funding at the area, regional, and central offices. 

24 ‘‘SEC. 414. REPORTS. 

25 ‘‘(a) IN GENERAL.— 


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

2 year, the Secretary shall submit to Congress a re3 port regarding the administration of this title. 

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

5 shall include a detailed analysis of tribal unmet need 

6 for each Indian tribe, either directly by the Sec7 retary, under self-determination contracts under title 

8 I, or under compacts and funding agreements au9 thorized under this title. 

10 ‘‘(3) NO ADDITIONAL REPORTING REQUIRE11 MENTS.—In preparing reports under paragraph (1), 

12 the Secretary may not impose any reporting require13 ments on participating Indian tribes not otherwise 

14 provided by this title. 

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

16 shall— 

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

18 funding agreements, annual audit reports, and data 

19 of the Secretary regarding the disposition of Federal 

20 funds; 

21 ‘‘(2) identify— 

22 ‘‘(A) the relative costs and benefits of self23 governance; 

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

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1 sion by the Secretary of services and benefits to 

2 self-governance Indian tribes and members of 

3 Indian tribes; 

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

5 tribe and the corresponding reduction in the 

6 Federal employees and workload; 

7 ‘‘(D) the funding formula for individual 

8 tribal shares of all Central Office funds, to9 gether with the comments of affected Indian 

10 tribes, developed under subsection (d); and 

11 ‘‘(E) amounts expended in the preceding 

12 fiscal year to carry out inherent Federal func13 tions, including an identification of inherent 

14 Federal functions by type and location; 

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

16 to determine the individual tribal share of funds con17 trolled by all components of the Department (includ18 ing funds assessed by any other Federal agency) for 

19 inclusion in compacts or funding agreements; 

20 ‘‘(4) before being submitted to Congress, be dis21 tributed to the Indian tribes for comment (with a 

22 comment period of no less than 30 days); and 

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

24 of each Indian tribe or tribal organization. 

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


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1 ‘‘(1) IN GENERAL.—In order to optimize oppor2 tunities for including non-Bureau of Indian Affairs 

3 and non-Office of Special Trustee programs in 

4 agreements with Indian tribes participating in self5 governance under this title, the Secretary shall— 

6 ‘‘(A) review all programs administered by 

7 the Department, other than through the Bu8 reau of Indian Affairs or Office of Special 

9 Trustee, without regard to the agency or office 

10 concerned; and 

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

12 year, submit to Congress— 

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

14 the Secretary determines, with the concur15 rence of Indian tribes participating in self16 governance under this title, are eligible to 

17 be included in a funding agreement at the 

18 request of a participating Indian tribe; and 

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

20 which Indian tribes have requested to in21 clude in a funding agreement under section 

22 405(b)(3) due to the special geographic, 

23 historical, or cultural significance of the 

24 program to the Indian tribe, indicating 

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1 nied, and stating the grounds for any de2 nial. 

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

4 shall establish programmatic targets, after consulta5 tion with Indian tribes participating in self-govern6 ance, to encourage bureaus of the Department to en7 sure that a significant portion of those programs are 

8 included in funding agreements. 

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

10 under paragraphs (1) and (2) shall be published in 

11 the Federal Register and made available to any In12 dian tribe participating in self-governance. 

13 ‘‘(4) ANNUAL REVIEW.— 

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

15 annually review and publish in the Federal Reg16 ister, after consultation with Indian tribes par17 ticipating in self-governance, revised lists and 

18 programmatic targets. 

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

20 programmatic targets shall include all programs 

21 that were eligible for contracting in the original 

22 list published in the Federal Register in 1995, 

23 except for programs specifically determined not 

24 to be contractible as a matter of law. 


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

2 later than January 1, 2011, the Secretary shall, in con3 sultation with Indian tribes, develop a funding formula to 

4 determine the individual tribal share of funds controlled 

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

6 the Office of the Special Trustee for inclusion in the com7 pacts. 

8 ‘‘SEC. 415. REGULATIONS. 

9 ‘‘(a) IN GENERAL.— 

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

11 after the date of the enactment of the Department 

12 of the Interior Tribal Self-Governance Act of 2009, 

13 the Secretary shall initiate procedures under sub14 chapter III of chapter 5 of title 5, United States 

15 Code, to negotiate and promulgate such regulations 

16 as are necessary to carry out the amendments made 

17 by this title. 

18 ‘‘(2) PUBLICATION OF PROPOSED REGULA19 TIONS.—Proposed regulations to implement the 

20 amendments shall be published in the Federal Reg21 ister not later than 18 months after the date of the 

22 enactment of this title. 

23 ‘‘(3) EXPIRATION OF AUTHORITY.—The author24 ity to promulgate regulations under paragraph (1) 


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

2 date of the enactment of this title. 

3 ‘‘(b) COMMITTEE.— 

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

5 committee established pursuant to section 565 of 

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

7 shall have as its members only Federal and tribal 

8 government representatives. 

9 ‘‘(2) LEAD AGENCY.—Among the Federal rep10 resentatives, the Office of Self-Governance shall be 

11 the lead agency for the Department. 

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

13 shall adapt the negotiated rulemaking procedures to the 

14 unique context of self-governance and the government-to15 government relationship between the United States and 

16 Indian tribes. 

17 ‘‘(d) EFFECT.— 

18 ‘‘(1) REPEAL.—All regulatory provisions under 

19 part 1000 of title 25, Code of Federal Regulations, 

20 inconsistent with this title are repealed on the date 

21 of the enactment of the Department of the Interior 

22 Tribal Self-Governance Act of 2009. 

23 ‘‘(2) EFFECTIVENESS WITHOUT REGARD TO

24 REGULATIONS.—The lack of promulgated regula25 tions shall not limit the effect of this title. 


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

2 GUIDANCES, AND RULES. 

3 ‘‘Unless expressly agreed to by a participating Indian 

4 tribe in the compact or funding agreement, the partici5 pating Indian tribe shall not be subject to any agency cir6 cular, policy, manual, guidance, or rule adopted by the De7 partment, except for— 

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

9 and 

10 ‘‘(2) regulations promulgated under section 

11 415. 

12 ‘‘SEC. 417. APPEALS. 

13 ‘‘In any administrative appeal or civil action for judi14 cial review of any decision made by the Secretary under 

15 this title, the Secretary shall have the burden of proof of 

16 demonstrating by clear and convincing evidence— 

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

18 and 

19 ‘‘(2) the consistency of the decision with the 

20 provisions and policies of this title. 

21 ‘‘SEC. 418. AUTHORIZATION OF APPROPRIATIONS. 

22 ‘‘There are authorized to be appropriated such sums 

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

Æ 


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