IB 

Union Calendar No. 348 

111TH CONGRESS 

2D SESSION H. R. 4347 

[Report No. 111–603] 

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 

SEPTEMBER 16, 2010 

Additional sponsors: Mr. HEINRICH, Mr. KILDEE, Mr. YOUNG of Alaska, Mrs. 

NAPOLITANO, Mr. FALEOMAVAEGA, Mr. SABLAN, Mr. COLE, Ms. RICHARDSON, Mr. CLAY, Mr. HONDA, Mr. LARSEN of Washington, Mr. INSLEE, Mr. REHBERG, and Mr. PETERSON

SEPTEMBER 16, 2010 

Reported with an amendment, committed to the Committee of the Whole 

House on the State of the Union, and ordered to be printed 

[Strike out all after the enacting clause and insert the part printed in italic] 

[For text of introduced bill, see copy of bill as introduced on December 16, 2009] 


srobinson on DSKHWCL6B1PROD with BILLS
2 

•HR 4347 RH

A BILL 

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

tribes, and for other purposes. 


srobinson on DSKHWCL6B1PROD with BILLS
3 

•HR 4347 RH

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 ‘‘De5 partment of the Interior Tribal Self-Governance Act of 

6 2010’’. 

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

8 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. 

9 TITLE I—INDIAN SELF10 DETERMINATION 

11 SEC. 101. DEFINITIONS; REPORTING AND AUDIT REQUIRE12 MENTS; APPLICATION OF PROVISIONS. 

13 (a) DEFINITIONS.—Section 4 of the Indian Self-Deter14 mination and Education Assistance Act (25 U.S.C. 450b) 

15 is amended by striking subsection (j) and inserting the fol16 lowing: 

17 ‘‘(j) ‘self-determination contract’ means a con18 tract entered into (or a grant or cooperative agree19 ment used under section 9) under title I between a 


srobinson on DSKHWCL6B1PROD with BILLS
4 

•HR 4347 RH

1 tribal organization and the appropriate Secretary for 

2 the planning, conduct, and administration of pro3 grams or services that are otherwise provided to In4 dian tribes and members of Indian tribes pursuant to 

5 Federal law, subject to the condition that, except as 

6 provided in section 105(a)(3), no contract entered 

7 into (or grant or cooperative agreement used under 

8 section 9) under title I shall be— 

9 ‘‘(1) considered to be a procurement con10 tract; or 

11 ‘‘(2) subject to any Federal procurement 

12 law (including regulations);’’. 

13 (b) REPORTING AND AUDIT REQUIREMENTS.—Section 

14 5(b) of the Indian Self-Determination and Education As15 sistance Act (25 U.S.C. 450c(b)) is amended by striking 

16 ‘‘after completion of the project or undertaking referred to 

17 in the preceding subsection of this section’’ and inserting 

18 ‘‘after the date on which a report is submitted to the Sec19 retary under subsection (a)’’. 

20 (c) APPLICATION OF OTHER PROVISIONS.—Sections 4, 

21 5, 6, 7, 102(c), 104, 105(a)(1), 105(f), 110 and 111 of the 

22 Indian Self-Determination and Education Assistance Act, 

23 as amended (25 U.S.C. 450 et seq.) (Public Law 93–638, 

24 as amended, 88 Stat. 2203) and section 314 of the Depart25 ment of the Interior and Related Agencies Appropriations 


srobinson on DSKHWCL6B1PROD with BILLS
5 

•HR 4347 RH

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

2 compacts and funding agreements entered into under title 

3 IV. 

4 SEC. 102. CONTRACTS BY SECRETARY OF INTERIOR. 

5 Section 102 of the Indian Self-Determination and 

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

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

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

9 that’’ and inserting ‘‘economic enterprises (as defined 

10 in section 3 of the Indian Financing Act of 1974 (25 

11 U.S.C. 1452)), except that’’; 

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

13 following: 

14 ‘‘(e) APPEALS.—In any appeal (including civil ac15 tions) involving decisions made by the Secretary under this 

16 title, the Secretary shall have the burden of proof of dem17 onstrating, by a preponderance of the evidence— 

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

19 made; and 

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

21 provisions and policies of this title.’’; and 

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

23 ‘‘(f) GOOD FAITH REQUIREMENT.—In the negotiation 

24 of compacts and funding agreements, the Secretary shall at 

25 all times negotiate in good faith to maximize implementaVerDate Mar 15 2010 22:24 Sep 16, 2010 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6203 E:\BILLS\H4347.RH H4347

srobinson on DSKHWCL6B1PROD with BILLS
6 

•HR 4347 RH

1 tion of the self-governance policy. The Secretary shall carry 

2 out this title in a manner that maximizes the policy of trib3 al self-governance, in a manner consistent with the purposes 

4 specified in section 3 of the Tribal Self-Governance Amend5 ments of 2000 (Public Law 106–260; 25 U.S.C. 458aaa 

6 note).’’. 

7 SEC. 103. ADMINISTRATIVE PROVISIONS. 

8 Section 105 of the Indian Self-Determination and 

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

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

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

12 ‘‘of this Act’’ and inserting ‘‘pursuant to sections 102 

13 and 103’’; 

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

15 following: 

16 ‘‘(j) REDESIGN AND CONSOLIDATION.—If an Indian 

17 tribe can demonstrate, for the previous three fiscal years, 

18 the financial stability and financial management capa19 bility as evidenced by the Indian tribe having no material 

20 audit exceptions in the required annual audit of the self21 determination contracts of the Indian tribe, then the Indian 

22 tribe may redesign or consolidate programs, services, func23 tions, and activities (or portions thereof) included in a 

24 funding agreement under this title and reallocate or redirect 

25 funds for such programs, services, functions, and activities 


srobinson on DSKHWCL6B1PROD with BILLS
7 

•HR 4347 RH

1 (or portions thereof) that are eligible to be included in Con2 solidated Tribal Government Programs in any manner that 

3 the Indian tribe determines to be in the best interest of the 

4 health and welfare of the Indian community being served, 

5 only if the redesign or consolidation does not have the effect 

6 of denying eligibility for services to population groups oth7 erwise eligible to be served under applicable Federal law.’’; 

8 and 

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

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

11 otherwise provided by law, the Secretary shall interpret all 

12 Federal laws (including regulations) and Executive orders 

13 in a manner that facilitates, to the maximum extent prac14 ticable— 

15 ‘‘(1) the inclusion in self-determination contracts 

16 and funding agreements of— 

17 ‘‘(A) applicable programs, services, func18 tions, and activities (or portions thereof); and 

19 ‘‘(B) funds associated with those programs, 

20 services, functions, and activities; 

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

22 contracts and funding agreements; and 

23 ‘‘(3) the achievement of tribal health objectives.’’. 


srobinson on DSKHWCL6B1PROD with BILLS
8 

•HR 4347 RH

1 SEC. 104. CONTRACT FUNDING AND INDIRECT COSTS. 

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

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

4 is amended— 

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

6 and inserting a semicolon; 

7 (2) in clause (ii), by striking ‘‘expense related to 

8 the overhead incurred’’ and inserting in lieu thereof 

9 ‘‘expenses incurred by the governing body of the In10 dian tribe or tribal organization and overhead in11 curred’’; 

12 (3) in clause (ii), by striking the comma at the 

13 end and inserting ‘‘; and’’; and 

14 (4) by inserting after clause (ii) the following: 

15 ‘‘(iii) not less than 50 percent of the expenses in16 curred by the governing body of a Indian tribe or 

17 tribal organization relating to a Federal program, 

18 function, service, or activity pursuant to the contract 

19 (which expenses shall be considered to be reasonable 

20 and allowable without documentation for the purpose 

21 of this paragraph), except that in the case of a Indian 

22 tribe or tribal organization which derives all or sub23 stantially all of its program revenue from other gov24 ernments or organizations, not less than 100 percent 

25 of such expenses shall be considered to be reasonable 

26 and allowable without documentation.’’. 


srobinson on DSKHWCL6B1PROD with BILLS
9 

•HR 4347 RH

1 SEC. 105. CONTRACT OR GRANT SPECIFICATIONS. 

2 Section 108 of the Indian Self-Determination and 

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

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

5 subsections (a) and (b) of section 102,’’ before ‘‘con6 tain’’; and 

7 (2) in subsection (f)(2)(A)(ii) of the model agree8 ment contained in subsection (c), by inserting ‘‘sub9 ject to subsections (a) and (b) of section 102 of the In10 dian Self-Determination and Education Assistance 

11 Act (25 U.S.C. 450f),’’ before ‘‘such other provisions’’. 

12 TITLE II—TRIBAL SELF13 GOVERNANCE 

14 SEC. 201. TRIBAL SELF-GOVERNANCE. 

15 Title IV of the Indian Self-Determination and Edu16 cation Assistance Act (25 U.S.C. 450 et seq.) is amended 

17 to read as follows: 

18 ‘‘TITLE IV—TRIBAL SELF19 GOVERNANCE 

20 ‘‘SEC. 401. DEFINITIONS. 

21 ‘‘In this title: 

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

23 self-governance compact entered into under section 

24 404. 

25 ‘‘(2) CONSTRUCTION PROGRAM.—The term ‘con26 struction program’ or ‘construction project’ means a 


srobinson on DSKHWCL6B1PROD with BILLS
10 

•HR 4347 RH

1 tribal undertaking relating to the administration, 

2 planning, environmental determination, design, con3 struction, repair, improvement, or expansion of roads, 

4 bridges, buildings, structures, systems, or other facili5 ties for purposes of housing, law enforcement, deten6 tion, sanitation, water supply, education, administra7 tion, community, health, irrigation, agriculture, con8 servation, flood control, transportation, or port facili9 ties, or for other tribal purposes. 

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

11 means the Department of the Interior. 

12 ‘‘(4) FUNDING AGREEMENT.—The term ‘funding 

13 agreement’ means a funding agreement entered into 

14 under section 405. 

15 ‘‘(5) GROSS MISMANAGEMENT.—The term ‘gross 

16 mismanagement’ means a significant violation, 

17 shown by a preponderance of the evidence, of a com18 pact, funding agreement, or statutory or regulatory 

19 requirement applicable to Federal funds— 

20 ‘‘(A) for a program administered by an In21 dian tribe; or 

22 ‘‘(B) under a compact or funding agreement 

23 that results in a significant reduction of funds 

24 available for the programs assumed by an In25 dian tribe. 


srobinson on DSKHWCL6B1PROD with BILLS
11 

•HR 4347 RH

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

2 program, function, service, or activity (or portion 

3 thereof) within the Department of the Interior that is 

4 included in a funding agreement. 

5 ‘‘(7) INHERENT FEDERAL FUNCTION.—The term 

6 ‘inherent Federal function’ means a Federal function 

7 that may not legally be delegated to an Indian tribe. 

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

9 the Secretary of the Interior. 

10 ‘‘(9) SELF-GOVERNANCE.—The term ‘self-govern11 ance’ means the program of self-governance estab12 lished under section 402. 

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

14 means an Indian tribe’s portion of all funds and re15 sources that support any program within the Bureau 

16 of Indian Affairs, the Office of Special Trustee, and 

17 the Office of the Assistant Secretary for Indian Af18 fairs and that are not required by the Secretary for 

19 the performance of an inherent Federal function. 

20 ‘‘SEC. 402. ESTABLISHMENT. 

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

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

23 Program’. 

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

25 ‘‘(a) IN GENERAL.— 


srobinson on DSKHWCL6B1PROD with BILLS
12 

•HR 4347 RH

1 ‘‘(1) PARTICIPANTS.— 

2 ‘‘(A) The Secretary, acting through the Di3 rector of the Office of Self-Governance, may select 

4 up to 50 new Indian tribes per year from those 

5 eligible under subsection (b) to participate in 

6 self-governance. 

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

8 more otherwise eligible Indian tribes may be 

9 treated as a single Indian tribe for the purpose 

10 of participating in self-governance. 

11 ‘‘(2) OTHER AUTHORIZED INDIAN TRIBE OR

12 TRIBAL ORGANIZATION.—If an Indian tribe author13 izes another Indian tribe or a tribal organization to 

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

15 this title, the authorized Indian tribe or tribal organi16 zation shall have the rights and responsibilities of the 

17 authorizing Indian tribe (except as otherwise pro18 vided in the authorizing resolution). 

19 ‘‘(3) JOINT PARTICIPATION.—Two or more In20 dian tribes that are not otherwise eligible under sub21 section (b) may be treated as a single Indian tribe for 

22 the purpose of participating in self-governance as a 

23 tribal organization if— 

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


srobinson on DSKHWCL6B1PROD with BILLS
13 

•HR 4347 RH

1 ‘‘(B) the tribal organization itself or at least 

2 one of the Indian tribes participating in the 

3 tribal organization is eligible under subsection 

4 (b). 

5 ‘‘(4) TRIBAL WITHDRAWAL FROM A TRIBAL OR6 GANIZATION.— 

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

8 withdraws from participation in a tribal organi9 zation, in whole or in part, shall be entitled to 

10 participate in self-governance if the Indian tribe 

11 is eligible under subsection (b). 

12 ‘‘(B) EFFECT OF WITHDRAWAL.—If an In13 dian tribe withdraws from participation in a 

14 tribal organization, the Indian tribe shall be en15 titled to its tribal share of funds and resources 

16 supporting the programs that the Indian tribe is 

17 entitled to carry out under the compact and 

18 funding agreement of the Indian tribe. 

19 ‘‘(C) PARTICIPATION IN SELF-GOVERN20 ANCE.—The withdrawal of an Indian tribe from 

21 a tribal organization shall not affect the eligi22 bility of the tribal organization to participate in 

23 self-governance on behalf of one or more other In24 dian tribes provided that the tribal organization 

25 still qualifies under subsection (b). 


srobinson on DSKHWCL6B1PROD with BILLS
14 

•HR 4347 RH

1 ‘‘(D) WITHDRAWAL PROCESS.— 

2 ‘‘(i) IN GENERAL.—An Indian tribe 

3 may, by tribal resolution, fully or partially 

4 withdraw its tribal share of any program 

5 in a funding agreement from a partici6 pating tribal organization. The Indian tribe 

7 shall provide a copy of the tribal resolution 

8 to the Secretary. 

9 ‘‘(ii) EFFECTIVE DATE.— 

10 ‘‘(I) IN GENERAL.—A withdrawal 

11 under clause (i) shall become effective 

12 on the date specified in the tribal reso13 lution and that is mutually agreed 

14 upon by the Secretary, the with15 drawing Indian tribe, and the tribal 

16 organization that signed the compact 

17 and funding agreement on behalf of the 

18 withdrawing Indian tribe or tribal or19 ganization. 

20 ‘‘(II) NO SPECIFIED DATE.—In 

21 the absence of a date specified in the 

22 resolution, the withdrawal shall become 

23 effective on— 

24 ‘‘(aa) the earlier of— 


srobinson on DSKHWCL6B1PROD with BILLS
15 

•HR 4347 RH

1 ‘‘(AA) 1 year after the 

2 date of submission of the re3 quest; or 

4 ‘‘(BB) the date on which 

5 the funding agreement ex6 pires; or 

7 ‘‘(bb) such date as may be 

8 mutually agreed upon by the Sec9 retary, the withdrawing Indian 

10 tribe, and the tribal organization 

11 that signed the compact and fund12 ing agreement on behalf of the 

13 withdrawing Indian tribe or trib14 al organization. 

15 ‘‘(E) DISTRIBUTION OF FUNDS.—If an In16 dian tribe or tribal organization eligible to enter 

17 into a self-determination contract under title I 

18 or a compact or funding agreement under this 

19 title fully or partially withdraws from a partici20 pating tribal organization, the withdrawing In21 dian tribe— 

22 ‘‘(i) may elect to enter a self-deter23 mination contract or compact, in which 

24 case— 


srobinson on DSKHWCL6B1PROD with BILLS
16 

•HR 4347 RH

1 ‘‘(I) the withdrawing Indian tribe 

2 or tribal organization shall be entitled 

3 to its tribal share of unexpended funds 

4 and resources supporting the programs 

5 that the Indian tribe will be carrying 

6 out under its own self-determination 

7 contract or compact and funding 

8 agreement (calculated on the same 

9 basis as the funds were initially allo10 cated to the funding agreement of the 

11 tribal organization); and 

12 ‘‘(II) the funds referred to in sub13 clause (I) shall be withdrawn by the 

14 Secretary from the funding agreement 

15 of the tribal organization and trans16 ferred to the withdrawing Indian tribe, 

17 on the condition that the provisions of 

18 sections 102 and 105(i), as appro19 priate, shall apply to the withdrawing 

20 Indian tribe; or 

21 ‘‘(ii) may elect not to enter a self-deter22 mination contract or compact, in which 

23 case all funds not obligated by the tribal or24 ganization associated with the withdrawing 

25 Indian tribe’s returned programs, less closeVerDate Mar 15 2010 22:24 Sep 16, 2010 Jkt 089200 PO 00000 Frm 00016 Fmt 6652 Sfmt 6203 E:\BILLS\H4347.RH H4347

srobinson on DSKHWCL6B1PROD with BILLS
17 

•HR 4347 RH

1 out costs, shall be returned by the tribal or2 ganization to the Secretary for operation of 

3 the programs included in the withdrawal. 

4 ‘‘(F) RETURN TO MATURE CONTRACT STA5 TUS.—If an Indian tribe elects to operate all or 

6 some programs carried out under a compact or 

7 funding agreement under this title through a 

8 self-determination contract under title I, at the 

9 option of the Indian tribe, the resulting self-de10 termination contract shall be a mature self-deter11 mination contract as long as the Indian tribe 

12 meets the requirements set forth in section 4(h) 

13 of this Act. 

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

15 self-governance, an Indian tribe shall— 

16 ‘‘(1) successfully complete the planning phase de17 scribed in subsection (c); 

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

19 resolution or other official action by the tribal gov20 erning body; and 

21 ‘‘(3) demonstrate, for the 3 fiscal years preceding 

22 the date on which the Indian tribe requests participa23 tion, financial stability and financial management 

24 capability as evidenced by the Indian tribe having no 

25 uncorrected significant and material audit exceptions 


srobinson on DSKHWCL6B1PROD with BILLS
18 

•HR 4347 RH

1 in the required annual audit of its self-determination 

2 or self-governance agreements with any Federal agen3 cy. 

4 ‘‘(c) PLANNING PHASE.— 

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

6 begin participation in self-governance shall complete 

7 a planning phase in accordance with this subsection. 

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

9 ‘‘(A) shall be conducted to the satisfaction of 

10 the Indian tribe; and 

11 ‘‘(B) shall include— 

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

13 ‘‘(ii) internal tribal government plan14 ning and organizational preparation. 

15 ‘‘(d) GRANTS.— 

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

17 appropriations, an Indian tribe or tribal organiza18 tion that meets the requirements of paragraphs (2) 

19 and (3) of subsection (b) shall be eligible for grants— 

20 ‘‘(A) to plan for participation in self-gov21 ernance; and 

22 ‘‘(B) to negotiate the terms of participation 

23 by the Indian tribe or tribal organization in self24 governance, as set forth in a compact and a 

25 funding agreement. 


srobinson on DSKHWCL6B1PROD with BILLS
19 

•HR 4347 RH

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 and 

6 enter into a written compact with each Indian tribe partici7 pating in self-governance in a manner consistent with the 

8 trust responsibility of the Federal Government, treaty obli9 gations, and the government-to-government relationship be10 tween 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 by 

23 the parties; or 

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


srobinson on DSKHWCL6B1PROD with BILLS
20 

•HR 4347 RH

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

2 remain in effect for so long as permitted by Federal law 

3 or until termination by written agreement, retrocession, or 

4 reassumption. 

5 ‘‘(f) EXISTING COMPACTS.—An Indian tribe partici6 pating in self-governance under this title, as in effect on 

7 the date of the enactment of the Department of the Interior 

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

9 at any time after that date— 

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

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

12 compact are not directly contrary to any express pro13 vision of this title; or 

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

15 consistent with this title. 

16 ‘‘SEC. 405. FUNDING AGREEMENTS. 

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

18 enter into a written funding agreement with the governing 

19 body of an Indian tribe or tribal organization in a manner 

20 consistent with the trust responsibility of the Federal Gov21 ernment, treaty obligations, and the government-to-govern22 ment relationship between Indian tribes and the United 

23 States. 

24 ‘‘(b) INCLUDED PROGRAMS.— 


srobinson on DSKHWCL6B1PROD with BILLS
21 

•HR 4347 RH

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

2 OF SPECIAL TRUSTEE.— 

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

4 shall, as determined by the Indian tribe, author5 ize the Indian tribe to plan, conduct, consolidate, 

6 administer, and receive full tribal share funding 

7 for all programs carried out by the Bureau of 

8 Indian Affairs, the Office of the Assistant Sec9 retary for Indian Affairs, and the Office of Spe10 cial Trustee, without regard to the agency or of11 fice within which the program is performed (in12 cluding funding for agency, area, and central of13 fice functions in accordance with subsection 

14 409(c)), that— 

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

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

17 ‘‘(ii) the Secretary administers for the 

18 benefit of Indians under the Act of Novem19 ber 2, 1921 (25 U.S.C. 13), or any subse20 quent Act; 

21 ‘‘(iii) the Secretary administers for the 

22 benefit of Indians with appropriations 

23 made to agencies other than the Department 

24 of the Interior; or 


srobinson on DSKHWCL6B1PROD with BILLS
22 

•HR 4347 RH

1 ‘‘(iv) are provided for the benefit of In2 dians 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.—A funding agreement under sub9 section (a) may, in accordance with such additional 

10 terms as the parties consider to be appropriate, in11 clude programs, services, functions, and activities (or 

12 portions thereof), administered by the Secretary, in 

13 addition to programs described in paragraphs (1) 

14 and (3), that are of special geographic, historical, or 

15 cultural significance to the Indian tribe. Such agree16 ments, including the additional terms, shall be gov17 erned by the provisions of this title, except that, sub18 ject to the discretion of the Secretary— 

19 ‘‘(A) the Indian tribe may have realloca20 tion, consolidation, and redesign authority over 

21 any program assumed under this paragraph (2); 

22 ‘‘(B) the Secretary may reassume any pro23 gram and associated funding assumed under this 

24 paragraph (2) upon a specific finding by the 


srobinson on DSKHWCL6B1PROD with BILLS
23 

•HR 4347 RH

1 Secretary of a gross violation by the Indian tribe 

2 of the terms of the funding agreement; 

3 ‘‘(C) the Secretary may require special 

4 terms and conditions regarding a construction 

5 program or project assumed under this para6 graph (2) notwithstanding the provisions of sec7 tion 408; 

8 ‘‘(D) all Federal regulations that otherwise 

9 govern the operation of any program assumed 

10 under this paragraph (2) apply to the Indian 

11 tribe unless a specific regulation is waived by the 

12 Secretary under the procedures set forth in sec13 tion 410(b)(2), which waiver request may be de14 nied upon a specific finding by the Secretary 

15 that the waiver is prohibited by Federal law or 

16 is inconsistent with the express provisions of the 

17 funding agreement; and 

18 ‘‘(E) a stable base budget, as described in 

19 paragraph (7), may be provided for any pro20 gram assumed under this paragraph (2). 

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

22 funding agreement shall, as determined by the Indian 

23 tribe, authorize the Indian tribe to plan, conduct, 

24 consolidate, administer, and receive full tribal share 

25 funding for any program administered by the DepartVerDate Mar 15 2010 22:24 Sep 16, 2010 Jkt 089200 PO 00000 Frm 00023 Fmt 6652 Sfmt 6203 E:\BILLS\H4347.RH H4347

srobinson on DSKHWCL6B1PROD with BILLS
24 

•HR 4347 RH

1 ment of the Interior other than through the Bureau 

2 of Indian Affairs, the Office of the Assistant Secretary 

3 for Indian Affairs, or the Office of the Special Trust4 ee, that is otherwise available to Indian tribes or In5 dians under section 102 of this Act. 

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

7 section— 

8 ‘‘(A) supersedes any express statutory re9 quirement for competitive bidding; or 

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

11 agreement of a program in which non-Indians 

12 have an incidental or legally identifiable inter13 est. 

14 ‘‘(5) EXCLUDED FUNDING.—A funding agree15 ment shall not authorize an Indian tribe to plan, con16 duct, administer, or receive tribal share funding 

17 under any program that— 

18 ‘‘(A) is provided under the Tribally Con19 trolled College or University Assistance Act of 

20 1978 (25 U.S.C. 1801 et seq.); and 

21 ‘‘(B) is provided for elementary and sec22 ondary schools under the formula developed 

23 under section 1127 of the Education Amend24 ments of 1978 (25 U.S.C. 2007). 


srobinson on DSKHWCL6B1PROD with BILLS
25 

•HR 4347 RH

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 pur10 suant to subsections (b)(1) and (b)(3) shall, at the op11 tion of the Indian tribe, provide for a stable base 

12 budget specifying the recurring funds (including 

13 funds available under section 106(a)) to be trans14 ferred to the Indian tribe, for such period as the In15 dian tribe specifies in the funding agreement, subject 

16 to annual adjustment only to reflect changes in con17 gressional appropriations. Upon agreement by the 

18 Secretary, a funding agreement under subsection 

19 (b)(2) may also provide for a stable base budget sub20 ject to the terms of this provision. 

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

22 funding agreement shall prohibit the Secretary from 

23 waiving, modifying, or diminishing in any way the 

24 trust responsibility of the United States with respect 

25 to Indian tribes and individual Indians that exists 


srobinson on DSKHWCL6B1PROD with BILLS
26 

•HR 4347 RH

1 under treaties, Executive orders, court decisions, and 

2 other laws. 

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

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

5 funding agreement without the consent of the Indian tribe, 

6 unless such terms are required by Federal law. 

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

8 become effective on the date specified in the funding agree9 ment. 

10 ‘‘(e) EXISTING AND SUBSEQUENT FUNDING AGREE11 MENTS.— 

12 ‘‘(1) SUBSEQUENT FUNDING AGREEMENTS.—Ab13 sent notification from an Indian tribe that it is with14 drawing or retroceding the operation of one or more 

15 programs identified in a funding agreement under 

16 subsections (b)(1) or (b)(3), or unless otherwise agreed 

17 to by the parties to the funding agreement— 

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

19 full force and effect until a subsequent funding 

20 agreement is executed, with funding paid annu21 ally for each fiscal year the agreement is in effect 

22 or by the nature of any noncontinuing program, 

23 services, functions, or activities contained in a 

24 funding agreement; and 


srobinson on DSKHWCL6B1PROD with BILLS
27 

•HR 4347 RH

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

2 agreement shall be retroactive to the end of the 

3 term of the preceding funding agreement for the 

4 purposes of calculating the amount of funding to 

5 which the Indian tribe is entitled. 

6 ‘‘(2) DISPUTES.—Disputes over the implementa7 tion of paragraph (1)(A) shall be subject to section 

8 407(c). 

9 ‘‘(3) EXISTING FUNDING AGREEMENTS.—An In10 dian tribe that was participating in self-governance 

11 under this title on the date of enactment of the De12 partment of the Interior Tribal Self-Governance Act 

13 of 2010 shall have the option at any time after that 

14 date— 

15 ‘‘(A) to retain its existing funding agree16 ment (in whole or in part) to the extent that the 

17 provisions of that funding agreement are not di18 rectly contrary to any express provision of this 

19 title; or 

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

21 in a manner consistent with this title. 

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

23 Indian tribe may, at the discretion of the Indian 

24 tribe, negotiate with the Secretary for a funding 

25 agreement with a term that exceeds one year. 


srobinson on DSKHWCL6B1PROD with BILLS
28 

•HR 4347 RH

1 ‘‘SEC. 406. GENERAL PROVISIONS. 

2 ‘‘(a) APPLICABILITY.—An Indian tribe and the Sec3 retary shall include in any compact or funding agreement 

4 provisions that reflect the requirements of this title. 

5 ‘‘(b) CONFLICTS OF INTEREST.—An Indian tribe par6 ticipating in self-governance shall ensure that internal 

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

8 and procedures, conflicts of interest in the administration 

9 of programs. 

10 ‘‘(c) AUDITS.— 

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

12 title 31, United States Code, shall apply to a funding 

13 agreement under this title. 

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

15 apply cost principles under the applicable Office of 

16 Management and Budget circular, except as modified 

17 by— 

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

19 106 of this Act; or 

20 ‘‘(B) any exemptions to applicable Office of 

21 Management and Budget circulars subsequently 

22 granted by the Office of Management and Budg23 et. 

24 ‘‘(3) FEDERAL CLAIMS.—Any claim by the Fed25 eral Government against the Indian tribe relating to 

26 funds received under a funding agreement based on 


srobinson on DSKHWCL6B1PROD with BILLS
29 

•HR 4347 RH

1 any audit under this subsection shall be subject to the 

2 provisions of section 106(f). 

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

4 tribe may redesign or consolidate programs or reallocate 

5 funds for programs in any manner that the Indian tribe 

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

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

8 not have the effect of denying eligibility for services to popu9 lation groups otherwise eligible to be served under applica10 ble Federal law, except that, with respect to the reallocation, 

11 consolidation, and redesign of programs described in section 

12 405(b)(2), a joint agreement between the Secretary and the 

13 Indian tribe shall be required. 

14 ‘‘(e) RETROCESSION.— 

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

16 or partially retrocede to the Secretary any program 

17 under a compact or funding agreement. 

18 ‘‘(2) EFFECTIVE DATE.— 

19 ‘‘(A) AGREEMENT.—Unless the Indian tribe 

20 rescinds the request for retrocession, such ret21 rocession shall become effective on the date speci22 fied by the parties in the compact or funding 

23 agreement. 

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

25 specification of an effective date in the compact 


srobinson on DSKHWCL6B1PROD with BILLS
30 

•HR 4347 RH

1 or funding agreement, the retrocession shall be2 come effective on— 

3 ‘‘(i) the earlier of— 

4 ‘‘(I) one year after the date of sub5 mission of such request; or 

6 ‘‘(II) the date on which the fund7 ing agreement expires; or 

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

9 agreed upon by the Secretary and the In10 dian tribe. 

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

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

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

14 title, the Indian tribe— 

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

16 Secretary for funds under section 102, except that 

17 such Indian tribe shall be eligible for new programs 

18 on the same basis as other Indian tribes; and 

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

20 of programs in accordance with the compact or fund21 ing agreement. 

22 ‘‘(g) RECORDS.— 

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

24 specifies otherwise in the compact or funding agree25 ment, records of an Indian tribe shall not be considVerDate Mar 15 2010 22:24 Sep 16, 2010 Jkt 089200 PO 00000 Frm 00030 Fmt 6652 Sfmt 6203 E:\BILLS\H4347.RH H4347

srobinson on DSKHWCL6B1PROD with BILLS
31 

•HR 4347 RH

1 ered Federal records for purposes of chapter 5 of title 

2 5, United States Code. 

3 ‘‘(2) RECORDKEEPING SYSTEM.—An Indian tribe 

4 shall— 

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

6 ‘‘(B) on 30 days’ notice, provide the Sec7 retary with reasonable access to the records to 

8 enable the Department to meet the requirements 

9 of sections 3101 through 3106 of title 44, United 

10 States Code. 

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

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

13 shall include a provision to monitor the performance of 

14 trust functions by the Indian tribe through the annual trust 

15 evaluation. 

16 ‘‘(b) REASSUMPTION.— 

17 ‘‘(1) IN GENERAL.—A compact or funding agree18 ment shall include provisions for the Secretary to re19 assume a program and associated funding if there is 

20 a specific finding relating to that program of— 

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

22 natural resources, or public health and safety 

23 that— 

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

25 the Indian tribe; and 


srobinson on DSKHWCL6B1PROD with BILLS
32 

•HR 4347 RH

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

2 out the compact or funding agreement; or 

3 ‘‘(B) gross mismanagement with respect to 

4 funds transferred to an Indian tribe under a 

5 compact or funding agreement, as determined by 

6 the Secretary in consultation with the Inspector 

7 General, as appropriate. 

8 ‘‘(2) PROHIBITION.—The Secretary shall not re9 assume operation of a program in whole or part un10 less— 

11 ‘‘(A) the Secretary first provides written no12 tice and a hearing on the record to the Indian 

13 tribe; and 

14 ‘‘(B) the Indian tribe does not take correc15 tive action to remedy the mismanagement of the 

16 funds or programs, or the imminent jeopardy to 

17 a trust asset, natural resource, or public health 

18 and safety. 

19 ‘‘(3) EXCEPTION.— 

20 ‘‘(A) IN GENERAL.—Notwithstanding para21 graph (2), the Secretary may, on written notice 

22 to the Indian tribe, immediately reassume oper23 ation of a program if— 

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

25 both imminent and substantial jeopardy 


srobinson on DSKHWCL6B1PROD with BILLS
33 

•HR 4347 RH

1 and irreparable harm to a trust asset, a 

2 natural resource, or the public health and 

3 safety caused by an act or omission of the 

4 Indian tribe; and 

5 ‘‘(ii) the imminent and substantial 

6 jeopardy, and irreparable harm to the trust 

7 asset, natural resource, or public health and 

8 safety arises out of a failure by the Indian 

9 tribe to carry out the terms of its compact 

10 or funding agreement. 

11 ‘‘(B) REASSUMPTION.—If the Secretary re12 assumes operation of a program under subpara13 graph (A), the Secretary shall provide the Indian 

14 tribe with a hearing on the record not later than 

15 10 days after the date of reassumption. 

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

17 AGREEMENT.— 

18 ‘‘(1) FINAL OFFER.—If the Secretary and a par19 ticipating Indian tribe are unable to agree, in whole 

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

21 agreement (including funding levels), the Indian tribe 

22 may submit a final offer to the Secretary. 

23 ‘‘(2) DETERMINATION.—Not more than 45 days 

24 after the date of submission of a final offer, or as oth25 erwise agreed to by the Indian tribe, the Secretary 


srobinson on DSKHWCL6B1PROD with BILLS
34 

•HR 4347 RH

1 shall review and make a determination with respect 

2 to the final offer. 

3 ‘‘(3) NO TIMELY DETERMINATION.—If the Sec4 retary fails to make a determination with respect to 

5 a final offer within the time specified in paragraph 

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

7 the offer. 

8 ‘‘(4) REJECTION OF FINAL OFFER.— 

9 ‘‘(A) IN GENERAL.—If the Secretary rejects 

10 a final offer (or one or more provisions or fund11 ing levels in a final offer), the Secretary shall— 

12 ‘‘(i) provide timely written notification 

13 to the Indian tribe that contains a specific 

14 finding that clearly demonstrates, or that is 

15 supported by a controlling legal authority, 

16 that— 

17 ‘‘(I) the amount of funds proposed 

18 in the final offer exceeds the applicable 

19 funding level to which the Indian tribe 

20 is entitled under this title because it 

21 would reduce the funds that any other 

22 Indian tribe or tribal organization is 

23 entitled to receive under Federal law; 

24 ‘‘(II) the program that is the sub25 ject of the final offer is an inherent 


srobinson on DSKHWCL6B1PROD with BILLS
35 

•HR 4347 RH

1 Federal function or is subject to the 

2 discretion of the Secretary under sec3 tion 405(b)(2); 

4 ‘‘(III) the Indian tribe cannot 

5 carry out the program in a manner 

6 that would not result in significant 

7 danger or risk to the public health; 

8 ‘‘(IV) the Indian tribe is not eligi9 ble to participate in self-governance 

10 under section 403(b); or 

11 ‘‘(V) the funding agreement would 

12 violate Federal statute or regulation; 

13 ‘‘(ii) provide technical assistance to 

14 overcome the objections stated in the notifi15 cation required by clause (i); 

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

17 hearing on the record with the right to en18 gage in full discovery relevant to any issue 

19 raised in the matter and the opportunity 

20 for appeal on the objections raised (except 

21 that the Indian tribe may, in lieu of filing 

22 such appeal, directly proceed to initiate an 

23 action in a Federal district court under sec24 tion 110(a)); and 


srobinson on DSKHWCL6B1PROD with BILLS
36 

•HR 4347 RH

1 ‘‘(iv) provide the Indian tribe the op2 tion of entering into the severable portions 

3 of a final proposed compact or funding 

4 agreement (including a lesser funding 

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

6 reject, subject to any additional alterations 

7 necessary to conform the compact or fund8 ing agreement to the severed provisions. 

9 ‘‘(B) EFFECT OF EXERCISING CERTAIN OP10 TION.—If an Indian tribe exercises the option 

11 specified in subparagraph (A)(iv)— 

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

13 right to appeal the rejection by the Sec14 retary under this section; and 

15 ‘‘(ii) clauses (i), (ii), and (iii) of sub16 paragraph (A) shall apply only to the por17 tion of the proposed final compact or fund18 ing agreement that was rejected by the Sec19 retary. 

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

21 hearing or appeal or civil action brought under this section, 

22 the Secretary shall have the burden of demonstrating by a 

23 preponderance of the evidence the validity of the grounds 

24 for rejecting a final offer made under subsection (c) or the 

25 grounds for a reassumption under subsection (b). 


srobinson on DSKHWCL6B1PROD with BILLS
37 

•HR 4347 RH

1 ‘‘(e) GOOD FAITH.— 

2 ‘‘(1) IN GENERAL.—In the negotiation of com3 pacts and funding agreements, the Secretary shall at 

4 all times negotiate in good faith to maximize imple5 mentation of the self-governance policy. 

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

7 title in a manner that maximizes the policy of tribal 

8 self-governance. 

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

10 out for the benefit of Indian tribes and tribal organizations 

11 under this title reduce the administrative or other respon12 sibilities of the Secretary with respect to the operation of 

13 Indian programs and result in savings that have not other14 wise been included in the amount of tribal shares and other 

15 funds determined under section 409(c), except for programs 

16 entered into funding agreements under section 405(b)(2), 

17 the Secretary shall make such savings available to the In18 dian tribes or tribal organizations for the provision of addi19 tional services to program beneficiaries in a manner equi20 table to directly served, contracted, and compacted pro21 grams. For any savings generated as a result of the assump22 tion of a program by an Indian tribe under section 

23 405(b)(2), such savings shall be made available to that In24 dian tribe. 


srobinson on DSKHWCL6B1PROD with BILLS
38 

•HR 4347 RH

1 ‘‘(g) TRUST RESPONSIBILITY.—The Secretary may not 

2 waive, modify, or diminish in any way the trust responsi3 bility of the United States with respect to Indian tribes and 

4 individual Indians that exists under treaties, Executive or5 ders, other laws, or court decisions. 

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

7 final agency action and relates to an appeal within the De8 partment conducted under subsection (c)(4) may be made— 

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

10 a position at a higher organizational level within the 

11 Department than the level of the departmental agency 

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

13 was made; or 

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

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

16 this title and each provision of a compact or funding agree17 ment shall be liberally construed for the benefit of the In18 dian tribe participating in self-governance, and any ambi19 guity shall be resolved in favor of the Indian tribe. 

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

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

22 tribal self-governance may carry out construction projects 

23 under this title. 

24 ‘‘(b) TRIBAL OPTION TO CARRY OUT CERTAIN FED25 ERAL ENVIRONMENTAL ACTIVITIES.—In carrying out a 


srobinson on DSKHWCL6B1PROD with BILLS
39 

•HR 4347 RH

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

2 subject to the Secretary’s agreement, elect to assume some 

3 Federal responsibilities under the National Environmental 

4 Policy Act of 1969 (42 U.S.C. 4321 et seq.), the National 

5 Historic Preservation Act (16 U.S.C. 470 et seq.), and re6 lated provisions of law and regulations that would apply 

7 if the Secretary were to undertake a construction project, 

8 by adopting a resolution— 

9 ‘‘(1) designating a certifying tribal officer to rep10 resent the Indian tribe and to assume the status of a 

11 responsible Federal official under such laws; and 

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

13 courts for the purpose of enforcing the responsibilities 

14 of the certifying tribal officer assuming the status of 

15 a responsible Federal official under such laws. 

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

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

18 in any compact or funding agreement duties of the Sec19 retary under the National Environmental Policy Act, the 

20 National Historic Preservation Act, and other related pro21 visions of law that are inherent Federal functions. 

22 ‘‘(d) CODES AND STANDARDS.—In carrying out a con23 struction project under this title, an Indian tribe shall— 

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

25 and tribal building codes architectural and engineerVerDate Mar 15 2010 22:24 Sep 16, 2010 Jkt 089200 PO 00000 Frm 00039 Fmt 6652 Sfmt 6203 E:\BILLS\H4347.RH H4347

srobinson on DSKHWCL6B1PROD with BILLS
40 

•HR 4347 RH

1 ing standards and applicable Federal guidelines re2 garding design, space, and operational standards, ap3 propriate for the particular project; and 

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

5 licensed to practice in the State in which the facility 

6 will be built and who certify— 

7 ‘‘(A) that they are qualified to perform the 

8 work required by the specific construction in9 volved; and 

10 ‘‘(B) upon completion of design, that the 

11 plans and specifications meet or exceed the ap12 plicable construction and safety codes. 

13 ‘‘(e) TRIBAL ACCOUNTABILITY.— 

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

15 under this title, an Indian tribe shall assume respon16 sibility for the successful completion of the construc17 tion project and of a facility that is usable for the 

18 purpose for which it was funded. 

19 ‘‘(2) For each construction project carried out by 

20 an Indian tribe under this title, the Indian tribe and 

21 the Secretary shall negotiate a provision to be in22 cluded in the funding agreement that identifies— 

23 ‘‘(A) the approximate start and completion 

24 dates for the project, which may extend over a 

25 period of one or more years; 


srobinson on DSKHWCL6B1PROD with BILLS
41 

•HR 4347 RH

1 ‘‘(B) a general description of the project, in2 cluding the scope of work, references to design 

3 criteria, and other terms and conditions; 

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

5 and the Secretary for the project; 

6 ‘‘(D) how project-related environmental con7 siderations will be addressed; 

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

9 project; 

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

11 comply with the codes referenced in subsection 

12 (c)(1) and applicable Federal laws, statutes, and 

13 regulations; 

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

15 will bear any additional costs necessary to meet 

16 changes in scope, or errors or omissions in de17 sign and construction; and 

18 ‘‘(H) the agreement of the Secretary to issue 

19 a certificate of occupancy, if requested by the In20 dian tribes, based upon the review and 

21 verification by the Secretary, to his or her satis22 faction, that the Indian tribe has secured upon 

23 completion the review and approval of the plans 

24 and specifications, sufficiency of design, life safeVerDate Mar 15 2010 22:24 Sep 16, 2010 Jkt 089200 PO 00000 Frm 00041 Fmt 6652 Sfmt 6203 E:\BILLS\H4347.RH H4347

srobinson on DSKHWCL6B1PROD with BILLS
42 

•HR 4347 RH

1 ty, and code compliance by qualified, licensed, 

2 and independent architects and engineers. 

3 ‘‘(f) FUNDING.—Funding appropriated for construc4 tion projects carried out under this title shall be included 

5 in funding agreements as annual or semiannual advance 

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

7 shall include all associated project contingency funds with 

8 each advance payment. The Indian tribe shall be respon9 sible for the management of such contingency funds. 

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

11 tribe, construction project funding proposals shall be nego12 tiated pursuant to the statutory process in section 450j(m) 

13 of title 25 and any resulting construction project agreement 

14 shall be incorporated into the funding agreement as ad15 denda. 

16 ‘‘(h) FEDERAL REVIEW AND VERIFICATION.—The Sec17 retary shall have at least one opportunity to review and 

18 verify, to the satisfaction of the Secretary, that project plan19 ning and design documents prepared by the Indian tribe 

20 in advance of initial construction are in conformity with 

21 the obligations of the Indian tribe under subsection (c) and, 

22 before they are implemented, at least one opportunity to 

23 review and verify to the satisfaction of the Secretary that 

24 subsequent document amendments which result in a signifi25 cant change in construction are in conformity with the obliVerDate Mar 15 2010 22:24 Sep 16, 2010 Jkt 089200 PO 00000 Frm 00042 Fmt 6652 Sfmt 6203 E:\BILLS\H4347.RH H4347

srobinson on DSKHWCL6B1PROD with BILLS
43 

•HR 4347 RH

1 gations of the Indian tribe under subsection (c). The Indian 

2 tribe shall provide the Secretary with project progress and 

3 financial reports not less than semiannually. The Secretary 

4 may conduct onsite project oversight visits semiannually or 

5 on an alternate schedule agreed to by the Secretary and the 

6 Indian tribe. 

7 ‘‘(i) APPLICATION OF OTHER LAWS.—Unless otherwise 

8 agreed to by the Indian tribe, no provision of the Office 

9 of Federal Procurement Policy Act (41 U.S.C. 401 et seq.), 

10 the Federal Acquisition Regulations issued pursuant there11 to, or any other law or regulation pertaining to Federal 

12 procurement (including Executive orders) shall apply to 

13 any construction program or project carried out under this 

14 title. 

15 ‘‘(j) FUTURE FUNDING.—Upon completion of a facil16 ity constructed under this title, the Secretary shall include 

17 the facility among those eligible for annual operation and 

18 maintenance funding support comparable to that provided 

19 for similar facilities funded by the Department as annual 

20 appropriations are available and to the extent that the fa21 cility size and complexity and other factors do not exceed 

22 the funding formula criteria for comparable buildings. 

23 ‘‘SEC. 409. PAYMENT. 

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

25 body of the Indian tribe and under the terms of an agreeVerDate Mar 15 2010 22:24 Sep 16, 2010 Jkt 089200 PO 00000 Frm 00043 Fmt 6652 Sfmt 6203 E:\BILLS\H4347.RH H4347

srobinson on DSKHWCL6B1PROD with BILLS
44 

•HR 4347 RH

1 ment, the Secretary shall provide funding to the Indian 

2 tribe to carry out the funding agreement. 

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

4 the Indian tribe, a funding agreement shall provide for an 

5 advance annual payment to an Indian tribe. 

6 ‘‘(c) AMOUNT.— 

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

8 sections 405 and 406, the Secretary shall provide 

9 funds to the Indian tribe under a funding agreement 

10 for programs in an amount that is equal to the 

11 amount that the Indian tribe would have been entitled 

12 to receive under contracts and grants under this Act 

13 (including amounts for direct program and contract 

14 support costs and, in addition, any funds that are 

15 specifically or functionally related to the provision by 

16 the Secretary of services and benefits to the Indian 

17 tribe or its members) without regard to the organiza18 tion level within the Department in which the pro19 grams are carried out. 

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

21 shall be construed to reduce funds of or provided to 

22 another Indian tribe. 

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

24 or funding agreement entered into under this part, the Sec25 retary shall transfer to the Indian tribe all funds provided 


srobinson on DSKHWCL6B1PROD with BILLS
45 

•HR 4347 RH

1 for in the funding agreement, pursuant to subsection (c), 

2 and provide funding for periods covered by joint resolution 

3 adopted by Congress making continuing appropriations, to 

4 the extent permitted by such resolution. Within 12 months 

5 from the date of enactment of this bill, in any instance 

6 where a funding agreement requires an annual transfer of 

7 funding to be made at the beginning of a fiscal year, or 

8 requires semiannual or other periodic transfers of funding 

9 to be made commencing at the beginning of a fiscal year, 

10 the first such transfer shall be made not later than 10 days 

11 after the apportionment of such funds by the Office of Man12 agement and Budget to the Department, unless the funding 

13 agreement provides otherwise. 

14 ‘‘(e) AVAILABILITY.—Funds for trust services to indi15 vidual Indians shall be available under a funding agree16 ment only to the extent that the same services that would 

17 have been provided by the Secretary are provided to indi18 vidual Indians by the Indian tribe. 

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

20 may provide for multiyear funding. 

21 ‘‘(g) LIMITATIONS ON AUTHORITY OF THE SEC22 RETARY.—The Secretary shall not— 

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

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

25 service unit office or other funds due under this title 


srobinson on DSKHWCL6B1PROD with BILLS
46 

•HR 4347 RH

1 for programs eligible under section 405(b)(1) or 

2 (b)(3), except as required by Federal law; 

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

4 transfer over a period of years; or 

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

6 this title— 

7 ‘‘(A) to make funding available for self-gov8 ernance monitoring or administration by the 

9 Secretary; 

10 ‘‘(B) in subsequent years, except as nec11 essary as a result of— 

12 ‘‘(i) a reduction in appropriations 

13 from the previous fiscal year for the pro14 gram to be included in a compact or fund15 ing agreement; 

16 ‘‘(ii) a congressional directive in legis17 lation or an accompanying report; 

18 ‘‘(iii) a tribal authorization; 

19 ‘‘(iv) a change in the amount of pass20 through funds subject to the terms of the 

21 funding agreement; or 

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

23 program for which the funds were provided; 

24 ‘‘(C) to pay for Federal functions, includ25 ing— 


srobinson on DSKHWCL6B1PROD with BILLS
47 

•HR 4347 RH

1 ‘‘(i) Federal pay costs; 

2 ‘‘(ii) Federal employee retirement bene3 fits; 

4 ‘‘(iii) automated data processing; 

5 ‘‘(iv) technical assistance; and 

6 ‘‘(v) monitoring of activities under this 

7 title; or 

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

9 displaced by self-determination contracts under 

10 this Act or self-governance under this title. 

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

12 to carry out a compact or funding agreement with the use 

13 of Federal personnel, Federal supplies (including supplies 

14 available from Federal warehouse facilities), Federal supply 

15 sources (including lodging, airline transportation, and 

16 other means of transportation including the use of inter17 agency motor pool vehicles), or other Federal resources (in18 cluding supplies, services, and resources available to the 

19 Secretary under any procurement contracts in which the 

20 Department is eligible to participate), the Secretary shall, 

21 as soon as practicable, transfer such personnel, or acquire 

22 such supplies, or resources to the Indian tribe under this 

23 title. 

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

25 United States Code, shall apply to the transfer of funds due 


srobinson on DSKHWCL6B1PROD with BILLS
48 

•HR 4347 RH

1 under a compact or funding agreement authorized under 

2 this title. 

3 ‘‘(j) INTEREST OR OTHER INCOME.— 

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

5 interest or income earned on any funds paid under 

6 a compact or funding agreement to carry out govern7 mental purposes. 

8 ‘‘(2) NO EFFECT ON OTHER AMOUNTS.—The re9 tention of interest or income under paragraph (1) 

10 shall not diminish the amount of funds an Indian 

11 tribe is entitled to receive under a funding agreement 

12 in the year the interest or income is earned or in any 

13 subsequent fiscal year. 

14 ‘‘(3) INVESTMENT STANDARD.—Funds trans15 ferred under this title shall be managed by the Indian 

16 tribe using the prudent investment standard, provided 

17 that the Secretary shall not be liable for any invest18 ment losses of funds managed by the Indian tribe 

19 which are not otherwise guaranteed or insured by the 

20 Federal Government. 

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. 


srobinson on DSKHWCL6B1PROD with BILLS
49 

•HR 4347 RH

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 be 

9 obligated to continue performance that requires an ex10 penditure of funds in excess of the amount of funds 

11 transferred under a compact or funding agreement. 

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

13 the Indian tribe has reason to believe that the total 

14 amount provided for a specific activity under a com15 pact or funding agreement is insufficient, the Indian 

16 tribe shall provide reasonable notice of such insuffi17 ciency to the Secretary. 

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

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

20 increase the amount of funds transferred under the 

21 funding agreement, the Indian tribe may suspend 

22 performance of the activity until such time as addi23 tional funds are transferred. 

24 ‘‘(m) DISTRIBUTION OF FUNDS.—The Office of Self25 Governance shall be responsible for distribution of all BuVerDate Mar 15 2010 22:24 Sep 16, 2010 Jkt 089200 PO 00000 Frm 00049 Fmt 6652 Sfmt 6203 E:\BILLS\H4347.RH H4347

srobinson on DSKHWCL6B1PROD with BILLS
50 

•HR 4347 RH

1 reau of Indian Affairs funds provided under this title unless 

2 otherwise agreed by the parties. 

3 ‘‘SEC. 410. FACILITATION. 

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

5 law, the Secretary shall interpret each Federal law and reg6 ulation in a manner that facilitates— 

7 ‘‘(1) the inclusion of programs in funding agree8 ments; and 

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

10 ‘‘(b) REGULATION WAIVER.— 

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

12 written request for a waiver to the Secretary identi13 fying the specific text in regulation sought to be 

14 waived and the basis for the request. 

15 ‘‘(2) DETERMINATION BY THE SECRETARY.—Not 

16 later than 120 days after receipt by the Secretary of 

17 a request under paragraph (1), the Secretary shall 

18 approve or deny the requested waiver in writing to 

19 the Indian tribe. 

20 ‘‘(3) GROUND FOR DENIAL.—The Secretary may 

21 deny a request under paragraph (1)— 

22 ‘‘(A) for a program eligible under sections 

23 405(b)(1) and 405(b)(3) only upon a specific 

24 finding by the Secretary that the identified text 


srobinson on DSKHWCL6B1PROD with BILLS
51 

•HR 4347 RH

1 in the regulation may not be waived because 

2 such a waiver is prohibited by Federal law; and 

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

4 405(b)(2), on a specific finding by the Secretary 

5 that the identified text in the regulation may not 

6 be waived because such a waiver is prohibited 

7 under Federal law. 

8 ‘‘(4) FAILURE TO MAKE DETERMINATION.—If the 

9 Secretary fails to approve or deny a waiver request 

10 within the time required under paragraph (2), the 

11 Secretary shall be deemed to have approved the re12 quest. 

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

14 be final for the Department. 

15 ‘‘SEC. 411. DISCLAIMERS. 

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

17 authority of the Secretary so as to authorize the Secretary 

18 to enter into any agreement under section 405— 

19 ‘‘(1) with respect to an inherent Federal func20 tion; 

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

22 program explicitly prohibits the type of participation 

23 sought by the Indian tribe (without regard to whether 

24 one or more Indian tribes are identified in the au25 thorizing law); or 


srobinson on DSKHWCL6B1PROD with BILLS
52 

•HR 4347 RH

1 ‘‘(3) which limits or reduces in any way the 

2 services, contracts, or funds that any other Indian 

3 tribe or tribal organization is eligible to receive under 

4 section 102 or any other applicable Federal law. 

5 ‘‘SEC. 412. DISCRETIONARY APPLICATION OF OTHER SEC6 TIONS. 

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

8 Indian tribe or Indian tribes, any of the provisions of title 

9 I shall be incorporated in any Department compact or 

10 funding agreement. 

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

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

13 out in full in this title; and 

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

15 any related provision in this title and to apply to 

16 any agency otherwise governed by this title. 

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

18 incorporation at the negotiation stage of a compact or fund19 ing agreement, the incorporation— 

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

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

22 compact and funding agreement. 

23 ‘‘SEC. 413. FUNDING NEEDS. 

24 ‘‘(a) REQUIREMENT OF ANNUAL BUDGET REQUEST.— 


srobinson on DSKHWCL6B1PROD with BILLS
53 

•HR 4347 RH

1 ‘‘(1) IN GENERAL.—The President shall identify 

2 in a report to accompany the annual budget request 

3 submitted to Congress under section 1105 of title 31, 

4 United States Code, all amounts necessary to fully 

5 fund all funding agreements entered into under this 

6 Act. 

7 ‘‘(2) DUTY OF SECRETARY.—The Secretary shall 

8 identify in a report which accompanies each budget 

9 request the amount of funds that are sufficient for 

10 planning and negotiation grants and sufficient to 

11 cover any shortfall in funding identified under sub12 section (b). 

13 ‘‘(3) RULE OF CONSTRUCTION.—Nothing in this 

14 subsection authorizes the Secretary to reduce the 

15 amount of funds that an Indian tribe is otherwise en16 titled to receive under a funding agreement or other 

17 applicable law. 

18 ‘‘(b) PRESENT FUNDING; SHORTFALLS.—In each re19 port identified in subsection (a), the Secretary shall identify 

20 the level of need presently funded and any shortfall in fund21 ing (including direct program costs, tribal shares, and con22 tract support costs) for each Indian tribe, either directly 

23 by the Secretary, under self-determination contracts, or 

24 under compacts and funding agreements. The first report 

25 identified in subsection (a) shall be limited to the Bureau 


srobinson on DSKHWCL6B1PROD with BILLS
54 

•HR 4347 RH

1 of Indian Affairs agency office and shall be due on Feb2 ruary 1, 2012. The next report due on February 1, 2013, 

3 shall include all funding at the Bureau of Indian Affairs 

4 agency and regional offices. The next report due on Feb5 ruary 1, 2014, and all subsequent reports, shall include all 

6 funding at the Bureau of Indian Affairs agency, regional, 

7 and central offices, the Office of the Assistant Secretary for 

8 Indian Affairs, and the Office of the Special Trustee. 

9 ‘‘SEC. 414. REPORTS. 

10 ‘‘(a) IN GENERAL.— 

11 ‘‘(1) REQUIREMENT.—On February 1 of each 

12 year, the Secretary shall submit to Congress a report 

13 regarding the administration of this title. 

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

15 shall include a detailed analysis of tribal unmet need 

16 for each Indian tribe, whether the Indian tribe is 

17 served directly by the Secretary, under self-determina18 tion contracts under title I, or under compacts and 

19 funding agreements authorized under this title. 

20 ‘‘(3) NO ADDITIONAL REPORTING REQUIRE21 MENTS.—In preparing reports under paragraph (1), 

22 the Secretary may not impose any reporting require23 ments on participating Indian tribes not otherwise 

24 provided by this title. 


srobinson on DSKHWCL6B1PROD with BILLS
55 

•HR 4347 RH

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

2 shall— 

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

4 funding agreements, annual audit reports, and data 

5 of the Secretary regarding the disposition of Federal 

6 funds; 

7 ‘‘(2) identify— 

8 ‘‘(A) the relative costs and benefits of self9 governance; 

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

11 specifically or functionally related to the provi12 sion by the Secretary of services and benefits to 

13 self-governance Indian tribes and members of In14 dian tribes; 

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

16 tribe and the corresponding reduction in the 

17 Federal employees and workload; 

18 ‘‘(D) the funding formula for individual 

19 tribal shares of all Central Office funds, together 

20 with the comments of affected Indian tribes, de21 veloped under subsection (d); and 

22 ‘‘(E) amounts expended in the preceding fis23 cal year to carry out inherent Federal functions, 

24 including an identification of inherent Federal 

25 functions; 


srobinson on DSKHWCL6B1PROD with BILLS
56 

•HR 4347 RH

1 ‘‘(3) contain a description of the methods used to 

2 determine the individual tribal share of funds con3 trolled by all components of the Department (includ4 ing funds assessed by any other Federal agency) for 

5 inclusion in compacts or funding agreements; 

6 ‘‘(4) before being submitted to Congress, be dis7 tributed to the Indian tribes for comment (with a 

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

9 ‘‘(5) include the separate views and comments of 

10 each Indian tribe or tribal organization. 

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

12 ‘‘(1) IN GENERAL.—In order to optimize oppor13 tunities for Indian tribes participating in self-govern14 ance under this title, the Secretary shall— 

15 ‘‘(A) review all programs administered by 

16 the Department, other than through the Bureau 

17 of Indian Affairs, the Office of the Assistant Sec18 retary for Indian Affairs, or the Office of Special 

19 Trustee, without regard to the agency or office 

20 concerned; and 

21 ‘‘(B) not later than January 1 of each year, 

22 submit to Congress— 

23 ‘‘(i) a list of all such programs that the 

24 Secretary determines, with the concurrence 

25 of Indian tribes participating in self-govVerDate Mar 15 2010 22:24 Sep 16, 2010 Jkt 089200 PO 00000 Frm 00056 Fmt 6652 Sfmt 6203 E:\BILLS\H4347.RH H4347

srobinson on DSKHWCL6B1PROD with BILLS
57 

•HR 4347 RH

1 ernance under this title, are eligible to be 

2 included in a funding agreement at the re3 quest of a participating Indian tribe; and 

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

5 which Indian tribes have requested to in6 clude in a funding agreement under section 

7 405(b)(2) or 405(b)(3), indicating whether 

8 each request was granted or denied, and 

9 stating the grounds for any denial. 

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

11 shall establish programmatic targets, after consulta12 tion with Indian tribes participating in self-govern13 ance, to encourage bureaus of the Department to en14 sure that a significant portion of the programs identi15 fied in paragraph (1) are included in funding agree16 ments. 

17 ‘‘(3) PUBLICATION.—The lists and targets under 

18 paragraphs (1) and (2) shall be published in the Fed19 eral Register and made available to any Indian tribe 

20 participating in self-governance. 

21 ‘‘(4) ANNUAL REVIEW.— 

22 ‘‘(A) IN GENERAL.—The Secretary shall an23 nually review and publish in the Federal Reg24 ister, after consultation with Indian tribes parVerDate Mar 15 2010 22:24 Sep 16, 2010 Jkt 089200 PO 00000 Frm 00057 Fmt 6652 Sfmt 6203 E:\BILLS\H4347.RH H4347

srobinson on DSKHWCL6B1PROD with BILLS
58 

•HR 4347 RH

1 ticipating in self-governance, revised lists and 

2 programmatic targets. 

3 ‘‘(B) CONTENTS.—The revised lists and pro4 grammatic targets shall include all programs 

5 that were eligible for contracting in the original 

6 list published in the Federal Register in 1995, 

7 except for programs specifically determined not 

8 to be contractible as a matter of law. 

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

10 than February 1, 2012, the Secretary shall, in consultation 

11 with Indian tribes, develop a funding formula to determine 

12 the individual tribal share of funds controlled by the Cen13 tral Office of the Bureau of Indian Affairs and the Office 

14 of the Special Trustee and the Office of the Assistant Sec15 retary for Indian Affairs for inclusion in the compacts. 

16 ‘‘SEC. 415. REGULATIONS. 

17 ‘‘(a) IN GENERAL.— 

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

19 after the date of the enactment of the Department of 

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

21 Secretary shall initiate procedures under subchapter 

22 III of chapter 5 of title 5, United States Code, to ne23 gotiate and promulgate such regulations as are nec24 essary to carry out the amendments made by this 

25 title. 


srobinson on DSKHWCL6B1PROD with BILLS
59 

•HR 4347 RH

1 ‘‘(2) PUBLICATION OF PROPOSED REGULA2 TIONS.—Proposed regulations to implement the 

3 amendments shall be published in the Federal Reg4 ister not later than 18 months after the date of the 

5 enactment of this title. 

6 ‘‘(3) EXPIRATION OF AUTHORITY.—The author7 ity to promulgate regulations under paragraph (1) 

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

9 date of the enactment of this title. 

10 ‘‘(b) COMMITTEE.— 

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

12 committee established pursuant to section 565 of title 

13 5, United States Code, to carry out this section shall 

14 have as its members only Federal and tribal govern15 ment representatives. 

16 ‘‘(2) LEAD AGENCY.—Among the Federal rep17 resentatives, the Office of Self-Governance shall be the 

18 lead agency for the Department. 

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

20 shall adapt the negotiated rulemaking procedures to the 

21 unique context of self-governance and the government-to22 government relationship between the United States and In23 dian tribes. 

24 ‘‘(d) EFFECT.— 


srobinson on DSKHWCL6B1PROD with BILLS
60 

•HR 4347 RH

1 ‘‘(1) REPEAL.—The Secretary is authorized to 

2 repeal any regulation inconsistent with the provisions 

3 of this Act. 

4 ‘‘(2) CONFLICTING PROVISIONS.—The provisions 

5 of this title shall supersede any conflicting provisions 

6 of law (including any conflicting regulations). 

7 ‘‘(3) EFFECTIVENESS WITHOUT REGARD TO REG8 ULATIONS.—The lack of promulgated regulations on 

9 an issue shall not limit the effect or the implementa10 tion of this title. 

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

12 GUIDANCES, AND RULES. 

13 ‘‘Unless expressly agreed to by a participating Indian 

14 tribe in the compact or funding agreement, the partici15 pating Indian tribe shall not be subject to any agency cir16 cular, policy, manual, guidance, or rule adopted by the De17 partment, except for— 

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

19 and 

20 ‘‘(2) regulations promulgated under section 415. 

21 ‘‘SEC. 417. APPEALS. 

22 ‘‘In any administrative appeal or civil action for judi23 cial review of any decision made by the Secretary under 

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

25 demonstrating by a preponderance of the evidence— 


srobinson on DSKHWCL6B1PROD with BILLS
61 

•HR 4347 RH

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

2 and 

3 ‘‘(2) the consistency of the decision with the pro4 visions and policies of this title. 

5 ‘‘SEC. 418. AUTHORIZATION OF APPROPRIATIONS. 

6 ‘‘There are authorized to be appropriated such sums 

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


srobinson on DSKHWCL6B1PROD with BILLS
Union Calendar No. 348 

111TH CONGRESS 

2D SESSION H. R. 4347 

[Report No. 111–603] 

A BILL 

To amend the Indian Self-Determination and Eduernance by Indian tribes, and for other purposes. cation Assistance Act to provide further self-govSEPTEMBER 16, 2010 

Reported with an amendment, committed to the Comand ordered to be printed mittee of the Whole House on the State of the Union, 


srobinson on DSKHWCL6B1PROD with BILLS