I

106TH CONGRESS

1ST SESSION H. R. 1167

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

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

IN THE HOUSE OF REPRESENTATIVES

MARCH 17, 1999

Mr. GEORGE MILLER of California (for himself, Mr. YOUNG of Alaska, Mr.

KILDEE, Mr. DEFAZIO, Mr. FALEOMAVAEGA, Mr. ABERCROMBIE, Mr.

ROMERO-BARCELO ́, Mr. UNDERWOOD, Mr. KENNEDY of Rhode Island,

Mr. INSLEE, Mr. HAYWORTH, Mr. MCDERMOTT, Ms. PELOSI, Mr.

BROWN of California, Mr. OBERSTAR, Mr. FILNER, Mr. PASTOR, Mr.

FRANK of Massachusetts, Mr. MARTINEZ, Ms. STABENOW, Mr. TOWNS,

Mrs. MINK of Hawaii, Mr. PICKERING, Mr. ALLEN, Mr. STUPAK, and

Mr. FROST) introduced the following bill; which was referred to the Committee on Resources

A BILL

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

Indian tribes, and for other purposes.

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

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Tribal Self-Governance

5 Amendments of 1999’’.
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1 SEC. 2. FINDINGS.

2 Congress finds that—

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

4 from the inherent sovereignty of Indian tribes and

5 nations;

6 (2) the United States recognizes a special gov7 ernment-to-government relationship with Indian

8 tribes, including the right of the Indian tribes to

9 self-governance, as reflected in the Constitution,

10 treaties, Federal statutes, and the course of dealings

11 of the United States with Indian tribes;

12 (3) although progress has been made, the Fed13 eral bureaucracy, with its centralized rules and regu14 lations, has eroded tribal self-governance and domi15 nates tribal affairs;

16 (4) the Tribal Self-Governance Demonstration

17 Project, established under title III of the Indian

18 Self-Determination and Education Assistance Act

19 (25 U.S.C. 450f note) was designed to improve and

20 perpetuate the government-to-government relation21 ship between Indian tribes and the United States

22 and to strengthen tribal control over Federal fund23 ing and program management;

24 (5) although the Federal Government has made

25 considerable strides in improving Indian health care,

26 it has failed to fully meet its trust responsibilities
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1 and to satisfy its obligations to the Indian tribes

2 under treaties and other laws; and

3 (6) Congress has reviewed the results of the

4 Tribal Self-Governance Demonstration Project and

5 finds that transferring full control and funding to

6 tribal governments, upon tribal request, over deci7 sion making for Federal programs, services, func8 tions, and activities (or portions thereof)—

9 (A) is an appropriate and effective means

10 of implementing the Federal policy of govern11 ment-to-government relations with Indian

12 tribes; and

13 (B) strengthens the Federal policy of In14 dian self-determination.

15 SEC. 3. DECLARATION OF POLICY.

16 It is the policy of Congress to—

17 (1) permanently establish and implement tribal

18 self-governance within the Department of Health

19 and Human Services;

20 (2) call for full cooperation from the Depart21 ment of Health and Human Services and its con22 stituent agencies in the implementation of tribal self23 governance—

24 (A) to enable the United States to main25 tain and improve its unique and continuing re-
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1 lationship with, and responsibility to, Indian

2 tribes;

3 (B) to permit each Indian tribe to choose

4 the extent of its participation in self-governance

5 in accordance with the provisions of the Indian

6 Self-Determination and Education Assistance

7 Act relating to the provision of Federal services

8 to Indian tribes;

9 (C) to ensure the continuation of the trust

10 responsibility of the United States to Indian

11 tribes and Indian individuals;

12 (D) to affirm and enable the United States

13 to fulfill its obligations to the Indian tribes

14 under treaties and other laws;

15 (E) to strengthen the government-to-gov16 ernment relationship between the United States

17 and Indian tribes through direct and meaning18 ful consultation with all tribes;

19 (F) to permit an orderly transition from

20 Federal domination of programs and services to

21 provide Indian tribes with meaningful authority,

22 control, funding, and discretion to plan, con23 duct, redesign, and administer programs, serv24 ices, functions, and activities (or portions there-
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1 of) that meet the needs of the individual tribal

2 communities;

3 (G) to provide for a measurable parallel re4 duction in the Federal bureaucracy as pro5 grams, services, functions, and activities (or

6 portions thereof) are assumed by Indian tribes;

7 (H) to encourage the Secretary to identify

8 all programs, services, functions, and activities

9 (or portions thereof) of the Department of

10 Health and Human Services that may be man11 aged by an Indian tribe under this Act and to

12 assist Indian tribes in assuming responsibility

13 for such programs, services, functions, and ac14 tivities (or portions thereof); and

15 (I) to provide Indian tribes with the ear16 liest opportunity to administer programs, serv17 ices, functions, and activities (or portions there18 of) from throughout the Department of Health

19 and Human Services.

20 SEC. 4. TRIBAL SELF-GOVERNANCE.

21 The Indian Self-Determination and Education Assist22 ance Act (25 U.S.C. 450 et seq.) is amended by adding

23 at the end the following new titles:
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1 ‘‘TITLE V—TRIBAL SELF2 GOVERNANCE

3 ‘‘SEC. 501. ESTABLISHMENT.

4 ‘‘The Secretary of Health and Human Services shall

5 establish and carry out a program within the Indian

6 Health Service of the Department of Health and Human

7 Services to be known as the ‘Tribal Self-Governance Pro8 gram’ in accordance with this title.

9 ‘‘SEC. 502. DEFINITIONS.

10 ‘‘(a) IN GENERAL.—For purposes of this title—

11 ‘‘(1) the term ‘construction project’ means an

12 organized noncontinuous undertaking to complete a

13 specific set of predetermined objectives for the plan14 ning, environmental determination, design, construc15 tion, repair, improvement, or expansion of buildings

16 or facilities, as described in a construction project

17 agreement. The term ‘construction project’ does not

18 mean construction program administration and ac19 tivities described in paragraphs (1) through (3) of

20 section 4(m), which may otherwise be included in a

21 funding agreement under this title;

22 ‘‘(2) the term ‘construction project agreement’

23 means a negotiated agreement between the Secretary

24 and an Indian tribe which at a minimum—
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1 ‘‘(A) establishes project phase start and

2 completion dates;

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

4 standards by which it will be accomplished;

5 ‘‘(C) identifies the responsibilities of the

6 Indian tribe and the Secretary;

7 ‘‘(D) addresses environmental consider8 ations;

9 ‘‘(E) identifies the owner and operations/

10 maintenance entity of the proposed work;

11 ‘‘(F) provides a budget;

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

13 ‘‘(H) establishes the duration of the agree14 ment based on the time necessary to complete

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

16 more years;

17 ‘‘(3) the term ‘inherent Federal functions’

18 means those Federal functions which cannot legally

19 be delegated to Indian tribes;

20 ‘‘(4) the term ‘inter-tribal consortium’ means a

21 coalition of two or more separate Indian tribes that

22 join together for the purpose of participating in self23 governance, including, but not limited to, a tribal or24 ganization;
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1 ‘‘(5) the term ‘gross mismanagement’ means a

2 significant, clear, and convincing violation of com3 pact, funding agreement, or regulatory, or statutory

4 requirements applicable to Federal funds transferred

5 to a tribe by a compact or funding agreement that

6 results in a significant reduction of funds available

7 for the programs, services, functions, or activities (or

8 portions thereof) assumed by an Indian tribe;

9 ‘‘(6) the term ‘tribal shares’ means an Indian

10 tribe’s portion of all funds and resources that sup11 port secretarial programs, services, functions, and

12 activities (or portions thereof) that are not required

13 by the Secretary for performance of inherent Fed14 eral functions;

15 ‘‘(7) the term ‘Secretary’ means the Secretary

16 of Health and Human Services; and

17 ‘‘(8) the term ‘self-governance’ means the pro18 gram established pursuant to section 501.

19 ‘‘(b) INDIAN TRIBE.—Where an Indian tribe has au20 thorized another Indian tribe, an inter-tribal consortium,

21 or a tribal organization to plan for or carry out programs,

22 services, functions, or activities (or portions thereof) on

23 its behalf under this title, the authorized Indian tribe,

24 inter-tribal consortium, or tribal organization shall have

25 the rights and responsibilities of the authorizing Indian
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1 tribe (except as otherwise provided in the authorizing reso2 lution or in this title). In such event, the term ‘Indian

3 tribe’ as used in this title shall include such other author4 ized Indian tribe, inter-tribal consortium, or tribal organi5 zation.

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

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

8 tribe that is participating in the Tribal Self-Governance

9 Demonstration Project under title III on the date of enact10 ment of this title may elect to participate in self-govern11 ance under this title under existing authority as reflected

12 in tribal resolutions.

13 ‘‘(b) ADDITIONAL PARTICIPANTS.—

14 ‘‘(1) In addition to those Indian tribes partici15 pating in self-governance under subsection (a), each

16 year an additional 50 Indian tribes that meet the eli17 gibility criteria specified in subsection (c) shall be

18 entitled to participate in self-governance.

19 ‘‘(2)(A) An Indian tribe that has withdrawn

20 from participation in an inter-tribal consortium or

21 tribal organization, in whole or in part, shall be enti22 tled to participate in self-governance provided the

23 Indian tribe meets the eligibility criteria specified in

24 subsection (c).
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1 ‘‘(B) If an Indian tribe has withdrawn from

2 participation in an inter-tribal consortium or tribal

3 organization, it shall be entitled to its tribal share

4 of funds supporting those programs, services, func5 tions, and activities (or portions thereof) that it will

6 be carrying out under its compact and funding

7 agreement.

8 ‘‘(C) In no event shall the withdrawal of an In9 dian tribe from an inter-tribal consortium or tribal

10 organization affect the eligibility of the inter-tribal

11 consortium or tribal organization to participate in

12 self-governance.

13 ‘‘(c) APPLICANT POOL.—The qualified applicant pool

14 for self-governance shall consist of each Indian tribe

15 that—

16 ‘‘(1) successfully completes the planning phase

17 described in subsection (d);

18 ‘‘(2) has requested participation in self-govern19 ance by resolution or other official action by the gov20 erning body (or bodies) of the Indian tribe or tribes

21 to be served; and

22 ‘‘(3) has demonstrated, for the previous 3 fiscal

23 years, financial stability and financial management

24 capability.
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1 Evidence that during such years the Indian tribe had no

2 uncorrected significant and material audit exceptions in

3 the required annual audit of the Indian tribe’s self-deter4 mination contracts or self-governance funding agreements

5 shall be conclusive evidence of the required stability and

6 capability for the purposes of this subsection.

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

8 participation in self-governance shall complete a planning

9 phase. The planning phase shall be conducted to the satis10 faction of the Indian tribe and shall include—

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

12 ‘‘(2) internal tribal government planning and

13 organizational preparation relating to the adminis14 tration of health care programs.

15 ‘‘(e) GRANTS.—Subject to the availability of appro16 priations, any Indian tribe meeting the requirements of

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

18 for grants—

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

20 and

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

22 the Indian tribe or tribal organization in self-govern23 ance, as set forth in a compact and a funding agree24 ment.
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1 ‘‘(f) RECEIPT OF GRANT NOT REQUIRED.—Receipt

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

3 of participation in self-governance.

4 ‘‘SEC. 504. COMPACTS.

5 ‘‘(a) COMPACT REQUIRED.—The Secretary shall ne6 gotiate and enter into a written compact with each Indian

7 tribe participating in self-governance in a manner con8 sistent with the Federal Government’s trust responsibility,

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

11 ‘‘(b) CONTENTS.—Each compact required under sub12 section (a) shall set forth the general terms of the govern13 ment-to-government relationship between the Indian tribe

14 and the Secretary, including such terms as the parties in15 tend shall control year after year. Such compacts may only

16 be amended by mutual agreement of the parties.

17 ‘‘(c) EXISTING COMPACTS.—An Indian tribe partici18 pating in the Tribal Self-Governance Demonstration

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

20 title shall have the option at any time thereafter to—

21 ‘‘(1) retain its Tribal Self-Governance Dem22 onstration Project compact (in whole or in part) to

23 the extent the provisions of such compact are not di24 rectly contrary to any express provision of this title,

25 or
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1 ‘‘(2) negotiate in lieu thereof (in whole or in

2 part) a new compact in conformity with this title.

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

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

5 execution by the Indian tribe or another date agreed upon

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

7 permitted by Federal law or until terminated by mutual

8 written agreement, retrocession, or reassumption.

9 ‘‘SEC. 505. FUNDING AGREEMENTS.

10 ‘‘(a) FUNDING AGREEMENT REQUIRED.—The Sec11 retary shall negotiate and enter into a written funding

12 agreement with each Indian tribe participating in self-gov13 ernance in a manner consistent with the Federal Govern14 ment’s trust responsibility, treaty obligations, and the gov15 ernment-to-government relationship between Indian tribes

16 and the United States.

17 ‘‘(b) CONTENTS.—Each funding agreement required

18 under subsection (a) shall, as determined by the Indian

19 tribe, authorize the Indian tribe to plan, conduct, consoli20 date, administer, and receive full tribal share funding, in21 cluding tribal shares of Indian Health Service competitive

22 grants (excluding congressionally earmarked competitive

23 grants), for all programs, services, functions, and activi24 ties (or portions thereof), that are carried out for the ben25 efit of Indians because of their status as Indians without
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1 regard to the agency or office of the Indian Health Service

2 within which the program, service, function, or activity (or

3 portion thereof) is performed. Such programs, services,

4 functions, or activities (or portions thereof) include all

5 programs, services, functions, activities (or portions there6 of) where Indian tribes or Indians are primary or signifi7 cant beneficiaries, administered by the Department of

8 Health and Human Services through the Indian Health

9 Service and grants (which may be added to a funding

10 agreement after award of such grants) and all local, field,

11 service unit, area, regional, and central headquarters or

12 national office functions administered under the authority

13 of—

14 ‘‘(1) the Act of November 2, 1921 (25 U.S.C.

15 13);

16 ‘‘(2) the Act of April 16, 1934 (25 U.S.C. 452

17 et seq.);

18 ‘‘(3) the Act of August 5, 1954 (68 Stat. 674);

19 ‘‘(4) the Indian Health Care Improvement Act

20 (25 U.S.C. 1601 et seq.);

21 ‘‘(5) the Indian Alcohol and Substance Abuse

22 Prevention and Treatment Act of 1986 (25 U.S.C.

23 2401 et seq.);

24 ‘‘(6) any other Act of Congress authorizing

25 agencies of the Department of Health and Human
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1 Services to administer, carry out, or provide finan2 cial assistance to such programs, functions, or activi3 ties (or portions thereof) described in this section; or

4 ‘‘(7) any other Act of Congress authorizing

5 such programs, functions, or activities (or portions

6 thereof) under which appropriations are made to

7 agencies other than agencies within the Department

8 of Health and Human services when the Secretary

9 administers such programs, functions, or activities

10 (or portions thereof).

11 ‘‘(c) INCLUSION IN COMPACT OR FUNDING AGREE12 MENT.—Indian tribes or Indians need not be identified in

13 the authorizing statute for a program or element of a pro14 gram to be eligible for inclusion in a compact or funding

15 agreement under this title.

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

17 agreement shall set forth terms that generally identify the

18 programs, services, functions, and activities (or portions

19 thereof) to be performed or administered, the general

20 budget category assigned, the funds to be provided, includ21 ing those to be provided on a recurring basis, the time

22 and method of transfer of the funds, the responsibilities

23 of the Secretary, and any other provisions to which the

24 Indian tribe and the Secretary agree.
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1 ‘‘(e) SUBSEQUENT FUNDING AGREEMENTS.—Absent

2 notification from an Indian tribe that is withdrawing or

3 retroceding the operation of one or more programs, serv4 ices, functions, or activities (or portions thereof) identified

5 in a funding agreement, or unless otherwise agreed to by

6 the parties, each funding agreement shall remain in full

7 force and effect until a subsequent funding agreement is

8 executed, and the terms of the subsequent funding agree9 ment shall be retroactive to the end of the term of the

10 preceding funding agreement.

11 ‘‘(f) EXISTING FUNDING AGREEMENTS.—Each In12 dian tribe participating in the Tribal Self-Governance

13 Demonstration Project established under title III on the

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

15 any time thereafter to—

16 ‘‘(1) retain its Tribal Self-Governance Dem17 onstration Project funding agreement (in whole or in

18 part) to the extent the provisions of such funding

19 agreement are not directly contrary to any express

20 provision of this title; or

21 ‘‘(2) adopt in lieu thereof (in whole or in part)

22 a new funding agreement in conformity with this

23 title.

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

25 Indian tribe, a funding agreement may provide for a stable
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1 base budget specifying the recurring funds (including, for

2 purposes of this provision, funds available under section

3 106(a) of the Act) to be transferred to such Indian tribe,

4 for such period as may be specified in the funding agree5 ment, subject to annual adjustment only to reflect changes

6 in congressional appropriations by sub-sub activity exclud7 ing earmarks.

8 ‘‘SEC. 506. GENERAL PROVISIONS.

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

10 shall apply to compacts and funding agreements nego11 tiated under this title and an Indian tribe may, at its op12 tion, include provisions that reflect such requirements in

13 a compact or funding agreement.

14 ‘‘(b) CONFLICTS OF INTEREST.—Indian tribes par15 ticipating in self-governance under this title shall ensure

16 that internal measures are in place to address conflicts

17 of interest in the administration of self-governance pro18 grams, services, functions, or activities (or portions there19 of).

20 ‘‘(c) AUDITS.—

21 ‘‘(1) SINGLE AGENCY AUDIT ACT.—The provi22 sions of chapter 75 of title 31, United States Code,

23 requiring a single agency audit report shall apply to

24 funding agreements under this title.
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1 ‘‘(2) COST PRINCIPLES.—An Indian tribe shall

2 apply cost principles under the applicable Office of

3 Management and Budget Circular, except as modi4 fied by section 106 or other provisions of law, or by

5 any exemptions to applicable Office of Management

6 and Budget Circulars subsequently granted by Of7 fice of Management and Budget. No other audit or

8 accounting standards shall be required by the Sec9 retary. Any claim by the Federal Government

10 against the Indian tribe relating to funds received

11 under a funding agreement based on any audit

12 under this subsection shall be subject to the provi13 sions of section 106(f).

14 ‘‘(d) RECORDS.—

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

16 specifies otherwise in the compact or funding agree17 ment, records of the Indian tribe shall not be consid18 ered Federal records for purposes of chapter 5 of

19 title 5, United States Code.

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

21 tribe shall maintain a recordkeeping system, and,

22 after 30 days advance notice, provide the Secretary

23 with reasonable access to such records to enable the

24 Department of Health and Human Services to meet

25 its minimum legal recordkeeping system require-
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1 ments under sections 3101 through 3106 of title 44,

2 United States Code.

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

4 tribe may redesign or consolidate programs, services, func5 tions, and activities (or portions thereof) included in a

6 funding agreement under section 505 and reallocate or re7 direct funds for such programs, services, functions, and

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

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

10 and welfare of the Indian community being served, only

11 if the redesign or consolidation does not have the effect

12 of denying eligibility for services to population groups oth13 erwise eligible to be served under Federal law.

14 ‘‘(f) RETROCESSION.—An Indian tribe may retro15 cede, fully or partially, to the Secretary programs, serv16 ices, functions, or activities (or portions thereof) included

17 in the compact or funding agreement. Unless the Indian

18 tribe rescinds the request for retrocession, such retroces19 sion will become effective within the time frame specified

20 by the parties in the compact or funding agreement. In

21 the absence of such a specification, such retrocession shall

22 become effective on—

23 ‘‘(1) the earlier of—

24 ‘‘(A) one year from the date of submission

25 of such request; or
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1 ‘‘(B) the date on which the funding agree2 ment expires; or

3 ‘‘(2) such date as may be mutually agreed by

4 the Secretary and the Indian tribe.

5 ‘‘(g) WITHDRAWAL.—

6 ‘‘(1) PROCESS.—An Indian tribe may fully or

7 partially withdraw from a participating inter-tribal

8 consortium or tribal organization its share of any

9 program, function, service, or activity (or portions

10 thereof) included in a compact or funding agree11 ment. Such withdrawal shall become effective within

12 the time frame specified in the resolution which au13 thorizes transfer to the participating tribal organiza14 tion or inter-tribal consortium. In the absence of a

15 specific time frame set forth in the resolution, such

16 withdrawal shall become effective on—

17 ‘‘(A) the earlier of—

18 ‘‘(i) one year from the date of submis19 sion of such request; or

20 ‘‘(ii) the date on which the funding

21 agreement expires; or

22 ‘‘(B) such date as may be mutually agreed

23 upon by the Secretary, the withdrawing Indian

24 tribe, and the participating tribal organization

25 or inter-tribal consortium that has signed the
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1 compact or funding agreement on behalf of the

2 withdrawing Indian tribe, inter-tribal consor3 tium, or tribal organization.

4 ‘‘(2) DISTRIBUTION OF FUNDS.—When an In5 dian tribe or tribal organization eligible to enter into

6 a self-determination contract under title I or a com7 pact or funding agreement under this title fully or

8 partially withdraws from a participating inter-tribal

9 consortium or tribal organization, the withdrawing

10 Indian tribe or tribal organization shall be entitled

11 to its tribal share of funds supporting those pro12 grams, services, functions, or activities (or portions

13 thereof) which it will be carrying out under its own

14 self-determination contract or compact and funding

15 agreement (calculated on the same basis as the

16 funds were initially allocated in the funding agree17 ment of the inter-tribal consortium or tribal organi18 zation), and such funds shall be transferred from

19 the funding agreement of the inter-tribal consortium

20 or tribal organization, provided that the provisions

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

22 apply to such withdrawing Indian tribe.

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

24 If an Indian tribe elects to operate all or some pro25 grams, services, functions, or activities (or portions
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1 thereof) carried out under a compact or funding

2 agreement under this title through a self-determina3 tion contract under title I, at the option of the In4 dian tribe, the resulting self-determination contract

5 shall be a mature self-determination contract.

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

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

8 title or under the compact or funding agreement, the In9 dian tribe shall not be entitled to contract with the Sec10 retary for such funds under section 102, except that such

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

12 basis as other Indian tribes.

13 ‘‘SEC. 507. PROVISIONS RELATING TO THE SECRETARY.

14 ‘‘(a) MANDATORY PROVISIONS.—

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

16 funding agreements negotiated between the Sec17 retary and an Indian tribe shall include a provision

18 that requires the Indian tribe to report on health

19 status and service delivery—

20 ‘‘(A) to the extent such data is not other21 wise available to the Secretary and specific

22 funds for this purpose are provided by the Sec23 retary under the funding agreement; and

24 ‘‘(B) if such reporting shall impose mini25 mal burdens on the participating Indian tribe
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1 and such requirements are promulgated under

2 section 517.

3 ‘‘(2) REASSUMPTION—(A) Compacts and fund4 ing agreements negotiated between the Secretary

5 and an Indian tribe shall include a provision author6 izing the Secretary to reassume operation of a pro7 gram, service, function, or activity (or portions

8 thereof) and associated funding if there is a specific

9 finding relative to that program, service, function, or

10 activity (or portion thereof) of—

11 ‘‘(i) imminent endangerment of the public

12 health caused by an act or omission of the In13 dian tribe, and the imminent endangerment

14 arises out of a failure to carry out the compact

15 or funding agreement; or

16 ‘‘(ii) gross mismanagement with respect to

17 funds transferred to a tribe by a compact or

18 funding agreement, as determined by the Sec19 retary in consultation with the Inspector Gen20 eral, as appropriate.

21 ‘‘(B) The Secretary shall not reassume oper22 ation of a program, service, function, or activity (or

23 portions thereof) unless (i) the Secretary has first

24 provided written notice and a hearing on the record

25 to the Indian tribe; and (ii) the Indian tribe has not
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1 taken corrective action to remedy the imminent

2 endangerment to public health or gross mismanage3 ment.

4 ‘‘(C) Notwithstanding subparagraph (B), the

5 Secretary may, upon written notification to the

6 tribe, immediately reassume operation of a program,

7 service, function, or activity (or portion thereof) and

8 associated funding if (i) the Secretary makes a find9 ing of imminent substantial and irreparable

10 endangerment of the public health caused by an act

11 or omission of the Indian tribe; and (ii) the

12 endangerment arises out of a failure to carry out the

13 compact or funding agreement. If the Secretary re14 assumes operation of a program, service, function,

15 or activity (or portion thereof) under this subpara16 graph, the Secretary shall provide the tribe with a

17 hearing on the record not later than 10 days after

18 such reassumption.

19 ‘‘(D) In any hearing or appeal involving a deci20 sion to reassume operation of a program, service,

21 function, or activity (or portion thereof), the Sec22 retary shall have the burden of proof of dem23 onstrating by clear and convincing evidence the va24 lidity of the grounds for the reassumption.
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1 ‘‘(b) FINAL OFFER.—In the event the Secretary and

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

3 or in part, on the terms of a compact or funding agree4 ment (including funding levels), the Indian tribe may sub5 mit a final offer to the Secretary. Not more than 45 days

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

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

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

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

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

11 deemed agreed to by the Secretary.

12 ‘‘(c) REJECTION OF FINAL OFFERS.—If the Sec13 retary rejects an offer made under subsection (b) (or one

14 or more provisions or funding levels in such offer), the

15 Secretary shall provide—

16 ‘‘(1) a timely written notification to the Indian

17 tribe that contains a specific finding that clearly

18 demonstrates, or that is supported by a controlling

19 legal authority, that—

20 ‘‘(A) the amount of funds proposed in the

21 final offer exceeds the applicable funding level

22 to which the Indian tribe is entitled under this

23 title;

24 ‘‘(B) the program, function, service, or ac25 tivity (or portion thereof) that is the subject of
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1 the final offer is an inherent Federal function

2 that cannot legally be delegated to an Indian

3 tribe;

4 ‘‘(C) the Indian tribe cannot carry out the

5 program, function, service, or activity (or por6 tion thereof) in a manner that would not result

7 in significant danger or risk to the public

8 health; or

9 ‘‘(D) the tribe is not eligible to participate

10 in self-governance under section 503;

11 ‘‘(2) technical assistance to overcome the objec12 tions stated in the notification required by para13 graph (1);

14 ‘‘(3) the Indian tribe with a hearing on the

15 record with the right to engage in full discovery rel16 evant to any issue raised in the matter and the op17 portunity for appeal on the objections raised, pro18 vided that the Indian tribe may, in lieu of filing such

19 appeal, directly proceed to initiate an action in a

20 Federal district court pursuant to section 110(a);

21 and

22 ‘‘(4) the Indian tribe with the option of enter23 ing into the severable portions of a final proposed

24 compact or funding agreement, or provision thereof,

25 (including lesser funding amount, if any), that the
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1 Secretary did not reject, subject to any additional al2 terations necessary to conform the compact or fund3 ing agreement to the severed provisions. If an Indian

4 tribe exercises the option specified herein, it shall re5 tain the right to appeal the Secretary’s rejection

6 under this section, and paragraphs (1), (2), and (3)

7 shall only apply to that portion of the proposed final

8 compact, funding agreement or provision thereof

9 that was rejected by the Secretary.

10 ‘‘(d) BURDEN OF PROOF.—With respect to any hear11 ing or appeal or civil action conducted pursuant to this

12 section, the Secretary shall have the burden of dem13 onstrating by clear and convincing evidence the validity

14 of the grounds for rejecting the offer (or a provision there15 of) made under subsection (b).

16 ‘‘(e) GOOD FAITH.—In the negotiation of compacts

17 and funding agreements the Secretary shall at all times

18 negotiate in good faith to maximize implementation of the

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

20 title in a manner that maximizes the policy of tribal self21 governance, consistent with section 3.

22 ‘‘(f) SAVINGS.—To the extent that programs, func23 tions, services, or activities (or portions thereof) carried

24 out by Indian tribes under this title reduce the administra25 tive or other responsibilities of the Secretary with respect
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1 to the operation of Indian programs and result in savings

2 that have not otherwise been included in the amount of

3 tribal shares and other funds determined under section

4 508(c), the Secretary shall make such savings available

5 to the Indian tribes, inter-tribal consortia, or tribal organi6 zations for the provision of additional services to program

7 beneficiaries in a manner equitable to directly served, con8 tracted, and compacted programs.

9 ‘‘(g) TRUST RESPONSIBILITY.—The Secretary is pro10 hibited from waiving, modifying, or diminishing in any

11 way the trust responsibility of the United States with re12 spect to Indian tribes and individual Indians that exists

13 under treaties, Executive orders, other laws, or court deci14 sions.

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

16 final agency action and relates to an appeal within the

17 Department of Health and Human Services conducted

18 under subsection (c) shall be made either—

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

20 a position at a higher organizational level within the

21 Department than the level of the departmental agen22 cy in which the decision that is the subject of the

23 appeal was made; or

24 ‘‘(2) by an administrative judge.
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1 ‘‘SEC. 508. TRANSFER OF FUNDS.

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

3 compact or funding agreement entered into under this

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

5 funds provided for in the funding agreement, pursuant to

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

7 joint resolution adopted by Congress making continuing

8 appropriations, to the extent permitted by such resolu9 tions. In any instance where a funding agreement requires

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

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

12 transfers of funding to be made commencing at the begin13 ning of a fiscal year, the first such transfer shall be made

14 not later than 10 days after the apportionment of such

15 funds by the Office of Management and Budget to the

16 Department, unless the funding agreement provides other17 wise.

18 ‘‘(b) MULTIYEAR FUNDING.—The Secretary is here19 by authorized to employ, upon tribal request, multiyear

20 funding agreements, and references in this title to funding

21 agreements shall include such multiyear agreements.

22 ‘‘(c) AMOUNT OF FUNDING.—The Secretary shall

23 provide funds under a funding agreement under this title

24 in an amount equal to the amount that the Indian tribe

25 would have been entitled to receive under self-determina26 tion contracts under this Act, including amounts for direct
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•HR 1167 IH

1 program costs specified under section 106(a)(1) and

2 amounts for contract support costs specified under sec3 tions 106(a)(2), (a)(3), (a)(5), and (a)(6), including any

4 funds that are specifically or functionally related to the

5 provision by the Secretary of services and benefits to the

6 Indian tribe or its members, all without regard to the or7 ganizational level within the Department where such func8 tions are carried out.

9 ‘‘(d) PROHIBITIONS.—The Secretary is expressly pro10 hibited from—

11 ‘‘(1) failing or refusing to transfer to an Indian

12 tribe its full share of any central, headquarters, re13 gional, area, or service unit office or other funds due

14 under this Act, except as required by Federal law;

15 ‘‘(2) withholding portions of such funds for

16 transfer over a period of years; and

17 ‘‘(3) reducing the amount of funds required

18 herein—

19 ‘‘(A) to make funding available for self20 governance monitoring or administration by the

21 Secretary;

22 ‘‘(B) in subsequent years, except pursuant

23 to—

24 ‘‘(i) a reduction in appropriations

25 from the previous fiscal year for the pro-
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1 gram or function to be included in a com2 pact or funding agreement;

3 ‘‘(ii) a congressional directive in legis4 lation or accompanying report;

5 ‘‘(iii) a tribal authorization;

6 ‘‘(iv) a change in the amount of pass7 through funds subject to the terms of the

8 funding agreement; or

9 ‘‘(v) completion of a project, activity,

10 or program for which such funds were pro11 vided;

12 ‘‘(C) to pay for Federal functions, includ13 ing Federal pay costs, Federal employee retire14 ment benefits, automated data processing, tech15 nical assistance, and monitoring of activities

16 under this Act; or

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

18 displaced by self-determination contracts under

19 this Act or self-governance;

20 except that such funds may be increased by the Secretary

21 if necessary to carry out this Act or as provided in section

22 105(c)(2).

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

24 tribe elects to carry out a compact or funding agreement

25 with the use of Federal personnel, Federal supplies (in-
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•HR 1167 IH

1 cluding supplies available from Federal warehouse facili2 ties), Federal supply sources (including lodging, airline

3 transportation, and other means of transportation includ4 ing the use of interagency motor pool vehicles) or other

5 Federal resources (including supplies, services, and re6 sources available to the Secretary under any procurement

7 contracts in which the Department is eligible to partici8 pate), the Secretary is authorized to transfer such per9 sonnel, supplies, or resources to the Indian tribe.

10 ‘‘(f) REIMBURSEMENT TO INDIAN HEALTH SERV11 ICE.—With respect to functions transferred by the Indian

12 Health Service to an Indian tribe, the Indian Health Serv13 ice is authorized to provide goods and services to the In14 dian tribe, on a reimbursable basis, including payment in

15 advance with subsequent adjustment, and the reimburse16 ments received therefrom, along with the funds received

17 from the Indian tribe pursuant to this title, may be cred18 ited to the same or subsequent appropriation account

19 which provided the funding, such amounts to remain avail20 able until expended.

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

22 31, United States Code, shall apply to the transfer of

23 funds due under a compact or funding agreement author24 ized under this title.
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1 ‘‘(h) INTEREST OR OTHER INCOME ON TRANS2 FERS.—An Indian tribe is entitled to retain interest

3 earned on any funds paid under a compact or funding

4 agreement to carry out governmental or health purposes

5 and such interest shall not diminish the amount of funds

6 the Indian tribe is authorized to receive under its funding

7 agreement in the year the interest is earned or in any sub8 sequent fiscal year. Funds transferred under this Act shall

9 be managed using the prudent investment standard.

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

11 Indian tribe in accordance with a compact or funding

12 agreement shall remain available until expended. In the

13 event that an Indian tribe elects to carry over funding

14 from one year to the next, such carryover shall not dimin15 ish the amount of funds the Indian tribe is authorized to

16 receive under its funding agreement in that or any subse17 quent fiscal year.

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

19 other program income earned by an Indian tribe shall be

20 treated as supplemental funding to that negotiated in the

21 funding agreement and the Indian tribe may retain all

22 such income and expend such funds in the current year

23 or in future years except to the extent that the Indian

24 Health Care Improvement Act (25 U.S.C. 1601 et seq.)

25 provides otherwise for medicare and medicaid receipts,
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1 and such funds shall not result in any offset or reduction

2 in the amount of funds the Indian tribe is authorized to

3 receive under its funding agreement in the year the pro4 gram income is received or for any subsequent fiscal year.

5 ‘‘(k) LIMITATION OF COSTS.—An Indian tribe shall

6 not be obligated to continue performance that requires an

7 expenditure of funds in excess of the amount of funds

8 transferred under a compact or funding agreement. If at

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

10 total amount provided for a specific activity in the com11 pact or funding agreement is insufficient the Indian tribe

12 shall provide reasonable notice of such insufficiency to the

13 Secretary. If the Secretary does not increase the amount

14 of funds transferred under the funding agreement, the In15 dian tribe may suspend performance of the activity until

16 such time as additional funds are transferred.

17 ‘‘SEC. 509. CONSTRUCTION PROJECTS.

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

19 tribal self-governance may carry out construction projects

20 under this title if they elect to assume all Federal respon21 sibilities under the National Environmental Policy Act of

22 1969, the Historic Preservation Act, and related provi23 sions of law that would apply if the Secretary were to un24 dertake a construction project, by adopting a resolution

25 (1) designating a certifying officer to represent the Indian
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1 tribe and to assume the status of a responsible Federal

2 official under such laws, and (2) accepting the jurisdiction

3 of the Federal court for the purpose of enforcement of

4 the responsibilities of the responsible Federal official

5 under such environmental laws.

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

7 shall be negotiated pursuant to the statutory process in

8 section 105(m) and resulting construction project agree9 ments shall be incorporated into funding agreements as

10 addenda.

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

12 the Secretary shall agree upon and specify appropriate

13 buildings codes and architectural/engineering standards

14 (including health and safety) which shall be in conformity

15 with nationally recognized standards for comparable

16 projects.

17 ‘‘(d) RESPONSIBILITY FOR COMPLETION.—The In18 dian tribe shall assume responsibility for the successful

19 completion of the construction project in accordance with

20 the negotiated construction project agreement.

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

22 carried out under this title shall be included in funding

23 agreements as annual advance payments, with semiannual

24 payments at the option of the Indian tribe. Annual ad25 vance and semiannual payment amounts shall be deter-
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•HR 1167 IH

1 mined based on mutually agreeable project schedules re2 flecting work to be accomplished within the advance pay3 ment period, work accomplished and funds expended in

4 previous payment periods, and the total prior payments.

5 The Secretary shall include associated project contingency

6 funds with each advance payment installment. The Indian

7 tribe shall be responsible for the management of the con8 tingency funds included in funding agreements.

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

10 one opportunity to approve project planning and design

11 documents prepared by the Indian tribe in advance of con12 struction of the facilities specified in the scope of work

13 for each negotiated construction project agreement or

14 amendment thereof which results in a significant change

15 in the original scope of work. The Indian tribe shall pro16 vide the Secretary with project progress and financial re17 ports not less than semiannually. The Secretary may con18 duct on-site project oversight visits semiannually or on an

19 alternate schedule agreed to by the Secretary and the In20 dian tribe.

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

22 by contractors and subcontractors in the construction, al23 teration, or repair, including painting or decorating of

24 building or other facilities in connection with construction

25 projects undertaken by self-governance Indian tribes
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1 under this Act, shall be paid wages at not less than those

2 prevailing wages on similar construction in the locality as

3 determined by the Secretary of Labor in accordance with

4 the Davis-Bacon Act of March 3, 1931 (46 Stat. 1494).

5 With respect to construction, alteration, or repair work to

6 which the Act of March 3, 1921, is applicable under the

7 terms of this section, the Secretary of Labor shall have

8 the authority and functions set forth in Reorganization

9 Plan Numbered 14, of 1950, and section 2 of the Act of

10 June 13, 1934 (48 Stat. 948).

11 ‘‘(h) APPLICATION OF OTHER LAWS.—Unless other12 wise agreed to by the Indian tribe, no provision of the Of13 fice of Federal Procurement Policy Act, the Federal Ac14 quisition Regulations issued pursuant thereto, or any

15 other law or regulation pertaining to Federal procurement

16 (including Executive orders) shall apply to any construc17 tion project conducted under this title.

18 ‘‘SEC. 510. FEDERAL PROCUREMENT LAWS AND REGULA19 TIONS.

20 ‘‘Notwithstanding any other provision of law, unless

21 expressly agreed to by the participating Indian tribe, the

22 compacts and funding agreements entered into under this

23 title shall not be subject to Federal contracting or coopera24 tive agreement laws and regulations (including Executive
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1 orders and the Secretary’s regulations), except to the ex2 tent that such laws expressly apply to Indian tribes.

3 ‘‘SEC. 511. CIVIL ACTIONS.

4 ‘‘(a) CONTRACT DEFINED.—For the purposes of sec5 tion 110, the term ‘contract’ shall include compacts and

6 funding agreements entered into under this title.

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

8 2103 of the Revised Statutes of the United States Code

9 (25 U.S.C. 81) and section 16 of the Act of June 18, 1934

10 (25 U.S.C. 476), shall not apply to attorney and other

11 professional contracts entered into by Indian tribes par12 ticipating in self-governance under this title.

13 ‘‘(c) REFERENCES.—All references in the Indian

14 Self-Determination and Education Assistance Act (25

15 U.S.C. 450 et seq.) to section 1 of the Act of June 26,

16 1936 (25 U.S.C. 81) are hereby deemed to include section

17 1 of the Act of July 3, 1952 (25 U.S.C. 82a).

18 ‘‘SEC. 512. FACILITATION.

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

20 otherwise provided by law, the Secretary shall interpret

21 all Federal laws, Executive orders and regulations in a

22 manner that will facilitate—

23 ‘‘(1) the inclusion of programs, services, func24 tions, and activities (or portions thereof) and funds
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1 associated therewith, in the agreements entered into

2 under this section;

3 ‘‘(2) the implementation of compacts and fund4 ing agreements entered into under this title; and

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

6 objectives.

7 ‘‘(b) REGULATION WAIVER.—

8 ‘‘(1) An Indian tribe may submit a written re9 quest to waive application of a regulation promul10 gated under this Act for a compact or funding

11 agreement entered into with the Indian Health Serv12 ice under this title, to the Secretary identifying the

13 applicable Federal regulation under this Act sought

14 to be waived and the basis for the request.

15 ‘‘(2) Not later than 90 days after receipt by the

16 Secretary of a written request by an Indian tribe to

17 waive application of a regulation under this Act for

18 a compact or funding agreement entered into under

19 this title, the Secretary shall either approve or deny

20 the requested waiver in writing. A denial may be

21 made only upon a specific finding by the Secretary

22 that identified language in the regulation may not be

23 waived because such waiver is prohibited by Federal

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

25 not later than 90 days after receipt shall be deemed
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1 an approval of such request. The Secretary’s deci2 sion shall be final for the Department.

3 ‘‘(c) ACCESS TO FEDERAL PROPERTY.—In connec4 tion with any compact or funding agreement executed pur5 suant to this title or an agreement negotiated under the

6 Tribal Self-Governance Demonstration Project established

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

8 Tribal Self-Governance Amendments of 1999, upon the re9 quest of an Indian tribe, the Secretary—

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

11 school buildings, hospitals, and other facilities and

12 all equipment therein or appertaining thereto and

13 other personal property owned by the Government

14 within the Secretary’s jurisdiction under such terms

15 and conditions as may be agreed upon by the Sec16 retary and the tribe for their use and maintenance;

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

18 personal or real property found to be excess to the

19 needs of any agency of the Department, or the Gen20 eral Services Administration, except that—

21 ‘‘(A) subject to the provisions of subpara22 graph (B), title to property and equipment fur23 nished by the Federal Government for use in

24 the performance of the compact or funding

25 agreement or purchased with funds under any
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1 compact or funding agreement shall, unless oth2 erwise requested by the Indian tribe, vest in the

3 appropriate Indian tribe;

4 ‘‘(B) if property described in subparagraph

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

6 of retrocession, withdrawal, or reassumption, at

7 the option of the Secretary upon the retroces8 sion, withdrawal, or reassumption, title to such

9 property and equipment shall revert to the De10 partment of Health and Human Services; and

11 ‘‘(C) all property referred to in subpara12 graph (A) shall remain eligible for replacement,

13 maintenance, and improvement on the same

14 basis as if title to such property were vested in

15 the United States; and

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

17 personal or real property for donation to an Indian

18 tribe if the Secretary determines the property is ap19 propriate for use by the Indian tribe for any purpose

20 for which a compact or funding agreement is author21 ized under this title.

22 ‘‘(d) MATCHING OR COST-PARTICIPATION REQUIRE23 MENT.—All funds provided under compacts, funding

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

25 be treated as non-Federal funds for purposes of meeting
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1 matching or cost participation requirements under any

2 other Federal or non-Federal program.

3 ‘‘(e) STATE FACILITATION.—States are hereby au4 thorized and encouraged to enact legislation, and to enter

5 into agreements with Indian tribes to facilitate and supple6 ment the initiatives, programs, and policies authorized by

7 this title and other Federal laws benefiting Indians and

8 Indian tribes.

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

10 this title and each provision of a compact or funding

11 agreement shall be liberally construed for the benefit of

12 the Indian tribe participating in self-governance and any

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

14 ‘‘SEC. 513. BUDGET REQUEST.

15 ‘‘(a) IN GENERAL.—The President shall identify in

16 the annual budget request submitted to the Congress

17 under section 1105 of title 31, United States Code, all

18 funds necessary to fully fund all funding agreements au19 thorized under this title, including funds specifically iden20 tified to fund tribal base budgets. All funds so appro21 priated shall be apportioned to the Indian Health Service.

22 Such funds shall be provided to the Office of Tribal Self23 Governance which shall be responsible for distribution of

24 all funds provided under section 505. Nothing in this pro25 vision shall be construed to authorize the Indian Health
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1 Service to reduce the amount of funds that a self-govern2 ance tribe is otherwise entitled to receive under its funding

3 agreement or other applicable law, whether or not such

4 funds are made available to the Office of Tribal Self-Gov5 ernance under this section.

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

7 budget request, the President shall identify the level of

8 need presently funded and any shortfall in funding (in9 cluding direct program and contract support costs) for

10 each Indian tribe, either directly by the Secretary, under

11 self-determination contracts, or under compacts and fund12 ing agreements authorized under this title.

13 ‘‘SEC. 514. REPORTS.

14 ‘‘(a) ANNUAL REPORT.—Not later than January 1

15 of each year after the date of the enactment of this title,

16 the Secretary shall submit to the Committee on Resources

17 of the House of Representatives and the Committee on

18 Indian Affairs of the Senate a written report regarding

19 the administration of this title. Such report shall include

20 a detailed analysis of the level of need being presently

21 funded or unfunded for each Indian tribe, either directly

22 by the Secretary, under self-determination contracts under

23 title I, or under compacts and funding agreements author24 ized under this Act. In compiling reports pursuant to this

25 section, the Secretary may not impose any reporting re-
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1 quirements on participating Indian tribes or tribal organi2 zations, not otherwise provided in this Act.

3 ‘‘(b) CONTENTS.—The report shall be compiled from

4 information contained in funding agreements, annual

5 audit reports, and Secretarial data regarding the disposi6 tion of Federal funds and shall—

7 ‘‘(1) identify the relative costs and benefits of

8 self-governance;

9 ‘‘(2) identify, with particularity, all funds that

10 are specifically or functionally related to the provi11 sion by the Secretary of services and benefits to self12 governance Indian tribes and their members;

13 ‘‘(3) identify the funds transferred to each self14 governance Indian tribe and the corresponding re15 duction in the Federal bureaucracy;

16 ‘‘(4) identify the funding formula for individual

17 tribal shares of all headquarters funds, together with

18 the comments of affected Indian tribes or tribal or19 ganizations, developed under subsection (c);

20 ‘‘(5) identify amounts expended in the pre21 ceding fiscal year to carry out inherent Federal

22 functions, including an identification of those func23 tions by type and location;

24 ‘‘(6) contain a description of the method or

25 methods (or any revisions thereof) used to determine
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1 the individual tribal share of funds controlled by all

2 components of the Indian Health Service (including

3 funds assessed by any other Federal agency) for in4 clusion in self-governance compacts or funding

5 agreements;

6 ‘‘(7) prior to being submitted to Congress, be

7 distributed to the Indian tribes for comment, such

8 comment period to be for no less than 30 days; and

9 ‘‘(8) include the separate views and comments

10 of the Indian tribes or tribal organizations.

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

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

13 this title, the Secretary shall, after consultation with In14 dian tribes, submit a written report to the Committee on

15 Resources of the House of Representatives and the Com16 mittee on Indian Affairs of the Senate which describes the

17 method or methods used to determine the individual tribal

18 share of funds controlled by all components of the Indian

19 Health Service (including funds assessed by any other

20 Federal agency) for inclusion in self-governance compacts

21 or funding agreements.

22 ‘‘SEC. 515. DISCLAIMERS.

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

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

25 funding for any program, project, or activity serving an
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1 Indian tribe under this or other applicable Federal law.

2 Any Indian tribe that alleges that a compact or funding

3 agreement is in violation of this section may apply the pro4 visions of section 110.

5 ‘‘(b) FEDERAL TRUST AND TREATY RESPONSIBIL6 ITIES.—Nothing in this Act shall be construed to diminish

7 in any way the trust responsibility of the United States

8 to Indian tribes and individual Indians that exists under

9 treaties, Executive orders, or other laws and court deci10 sions.

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

12 2(2) of the Act of July 5, 1935 (49 Stat. 450, chapter

13 372) (commonly known as the National Labor Relations

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

15 contract, compact, annual funding agreement, grant, or

16 cooperative agreement under this Act shall not be consid17 ered an employer.

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

19 Indian Health Service under this Act shall neither bill nor

20 charge those Indians who may have the economic means

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

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

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

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

25 106(a) through (k), and 111 of this Act and section 314
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1 of Public Law 101–512 (coverage under the Federal Tort

2 Claims Act), to the extent not in conflict with this title,

3 shall apply to compacts and funding agreements author4 ized by this title.

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

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

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

8 title, shall be made a part of a funding agreement or com9 pact entered into under this title. The Secretary is obli10 gated to include such provision at the option of the partici11 pating Indian tribe or tribes. If such provision is incor12 porated it shall have the same force and effect as if it

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

14 tribe requests such incorporation at the negotiation stage

15 of a compact or funding agreement, such incorporation

16 shall be deemed effective immediately and shall control the

17 negotiation and resulting compact and funding agreement.

18 ‘‘SEC. 517. REGULATIONS.

19 ‘‘(a) IN GENERAL.—

20 ‘‘(1) Not later than 90 days after the date of

21 enactment of this title, the Secretary shall initiate

22 procedures under subchapter III of chapter 5 of title

23 5, United States Code, to negotiate and promulgate

24 such regulations as are necessary to carry out this

25 title.
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1 ‘‘(2) Proposed regulations to implement this

2 title shall be published in the Federal Register by

3 the Secretary no later than 1 year after the date of

4 enactment of this title.

5 ‘‘(3) The authority to promulgate regulations

6 under this title shall expire 21 months after the date

7 of enactment of this title.

8 ‘‘(b) COMMITTEE.—A negotiated rulemaking com9 mittee established pursuant to section 565 of title 5,

10 United States Code, to carry out this section shall have

11 as its members only Federal and tribal government rep12 resentatives, a majority of whom shall be nominated by

13 and be representatives of Indian tribes with funding agree14 ments under this Act, and the Committee shall confer

15 with, and accommodate participation by, representatives

16 of Indian tribes, inter-tribal consortia, tribal organiza17 tions, and individual tribal members.

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

19 shall adapt the negotiated rulemaking procedures to the

20 unique context of self-governance and the government-to21 government relationship between the United States and

22 Indian tribes.

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

24 shall not limit the effect of this title.
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1 ‘‘(e) EFFECT OF CIRCULARS, POLICIES, MANUALS,

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

3 the participating Indian tribe in the compact or funding

4 agreement, the participating Indian tribe shall not be sub5 ject to any agency circular, policy, manual, guidance, or

6 rule adopted by the Indian Health Service, except for the

7 eligibility provisions of section 105(g).

8 ‘‘SEC. 518. APPEALS.

9 ‘‘In any appeal (including civil actions) involving deci10 sions made by the Secretary under this title, the Secretary

11 shall have the burden of proof of demonstrating by clear

12 and convincing evidence—

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

14 made; and

15 ‘‘(2) the decision is fully consistent with provi16 sions and policies of this title.

17 ‘‘SEC. 519. AUTHORIZATION OF APPROPRIATIONS.

18 ‘‘There are authorized to be appropriated such sums

19 as may be necessary to carry out this title.
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1 ‘‘TITLE VI—TRIBAL SELF-GOV2 ERNANCE—DEPARTMENT OF

3 HEALTH AND HUMAN SERV4 ICES

5 ‘‘SEC. 601. DEMONSTRATION PROJECT FEASIBILITY.

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

7 to determine the feasibility a Tribal Self-Governance Dem8 onstration Project for appropriate programs, services,

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

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

12 the Secretary shall consider—

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

14 and program beneficiaries of such a demonstration

15 project;

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

18 project;

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

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

22 such a demonstration project;

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

2 by the Secretary or developed through consultation

3 pursuant to section 602.

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

5 enactment of this title, the Secretary shall submit a report

6 to the Committee on Resources of the House of Represent7 atives and the Committee on Indian Affairs of the Senate.

8 The report shall contain—

9 ‘‘(1) the results of the study;

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

11 activities (or portions thereof) within the agency

12 which it would be feasible to include in a Tribal Self13 Governance Demonstration Project;

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

15 activities (or portions thereof) included in the list

16 provided pursuant to paragraph (2) which could be

17 included in a Tribal Self-Governance Demonstration

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

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

21 order to include those programs, services, functions,

22 and activities (or portions thereof) included in the

23 list provided pursuant to paragraph (2) but not in24 cluded in the list provided pursuant to paragraph
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1 (3) in a Tribal Self-Governance Demonstration

2 Project; and

3 ‘‘(5) any separate views of tribes and other en4 tities consulted pursuant to section 602 related to

5 the information provided pursuant to paragraph (1)

6 through (4).

7 ‘‘SEC. 602. CONSULTATION.

8 ‘‘(a) STUDY PROTOCOL.—

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

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

12 (b) prior to consultation under such subsection with

13 the other entities described in such subsection. The

14 protocol shall require, at a minimum, that—

15 ‘‘(A) the government-to-government rela16 tionship with Indian tribes forms the basis for

17 the consultation process;

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

19 jointly conduct the consultations required by

20 this section; and

21 ‘‘(C) the consultation process allow for sep22 arate and direct recommendations from the In23 dian tribes and other entities described in sub24 section (b).
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1 ‘‘(2) OPPORTUNITY FOR PUBLIC COMMENT.—In

2 determining the protocol described in paragraph (1),

3 the Secretary shall publish the proposed protocol

4 and allow a period of not less than 30 days for com5 ment by entities described in subsection (b) and

6 other interested individuals, and shall take com7 ments received into account in determining the final

8 protocol.

9 ‘‘(b) CONDUCTING STUDY.—In conducting the study

10 under this title, the Secretary shall consult with Indian

11 tribes, States, counties, municipalities, program bene12 ficiaries, and interested public interest groups, and may

13 consult with other entities as appropriate.

14 ‘‘SEC. 603. DEFINITIONS.

15 ‘‘(a) IN GENERAL.—For purposes of this title, the

16 Secretary may use definitions provided in title V.

17 ‘‘(b) AGENCY.—For purposes of this title, the term

18 ‘agency’ shall mean any agency or other organizational

19 unit of the Department of Health and Human Services,

20 other than the Indian Health Service.

21 ‘‘SEC. 604. AUTHORIZATION OF APPROPRIATIONS.

22 ‘‘There are authorized to be appropriated for fiscal

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

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

25 expended.’’.
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1 SEC. 5. AMENDMENTS CLARIFYING CIVIL PROCEEDINGS.

2 (a) BURDEN OF PROOF IN DISTRICT COURT AC3 TIONS.—Section 102(e)(1) of the Indian Self-Determina4 tion and Education Assistance Act (25 U.S.C. 450f(e)(1))

5 is amended by inserting after ‘‘subsection (b)(3)’’ the fol6 lowing: ‘‘or any civil action conducted pursuant to section

7 110(a)’’.

8 (b) EFFECTIVE DATE.—The amendment made by

9 this section shall apply to any proceedings commenced

10 after October 25, 1994.

11 SEC. 6. SPEEDY ACQUISITION OF GOODS, SERVICES, OR

12 SUPPLIES.

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

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

15 amended—

16 (1) by striking ‘‘carrying out a contract’’ and

17 all that follows through ‘‘shall be eligible’’ and in18 serting the following: ‘‘or Indian tribe shall be

19 deemed an executive agency, and the employees of

20 the tribal organization or the Indian tribe, as the

21 case may be, shall be eligible’’; and

22 (2) by adding at the end thereof the following:

23 ‘‘At the request of an Indian tribe, the Secretary

24 shall enter into an agreement for the acquisition, on

25 behalf of the Indian tribe, of any goods, services, or

26 supplies available to the Secretary from the General
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1 Services Administration or other Federal agencies

2 that are not directly available to the Indian tribe

3 under this section or any other Federal law, includ4 ing acquisitions from prime vendors. All such acqui5 sitions shall be undertaken through the most effi6 cient and speedy means practicable, including elec7 tronic ordering arrangements.

8 SEC. 7. PATIENT RECORDS.

9 Section 105 of the Indian Self-Determination and

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

11 adding at the end the following new subsection:

12 ‘‘(o) At the option of a tribe or tribal organization,

13 patient records may be deemed to be Federal records

14 under the Federal Records Act of 1950 for the limited

15 purposes of making such records eligible for storage by

16 Federal Records Centers to the same extent and in the

17 same manner as other Department of Health and Human

18 Services patient records.’’.

19 SEC. 8. REPEAL.

20 Title III of the Indian Self-Determination and Edu21 cation Assistance Act (25 U.S.C. 450f note) is hereby re22 pealed.

23 SEC. 9. SAVINGS PROVISION.

24 Funds appropriated for title III of the Indian Self25 Determination and Education Assistance Act (25 U.S.C.
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1 450f note) shall be available for use under title V of such

2 Act.

3 SEC. 10. EFFECTIVE DATE.

4 Except as otherwise provided, the provisions of this

5 Act shall take effect on the date of the enactment of this

6 Act.

Æ