Union Calendar No. 271

106TH CONGRESS

1ST SESSION H. R. 1167

[Report No. 106–477]

A BILL

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

NOVEMBER 17, 1999

Reported with an amendment, committed to the Committee of the Whole House on the State of the Union,

and ordered to be printed
IB

Union Calendar No. 271

106TH CONGRESS

1ST SESSION H. R. 1167

[Report No. 106–477]

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

NOVEMBER 17, 1999

Additional sponsors: Mr. WAXMAN, Mrs. CAPPS, Mrs. CHRISTENSEN, and Mr.

BLUMENAUER

NOVEMBER 17, 1999

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 March 17, 1999]

A BILL

To amend the Indian Self-Determination and Education As-
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sistance 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’’.

6 SEC. 2. FINDINGS.

7 Congress finds that—

8 (1) the tribal right of self-government flows from

9 the inherent sovereignty of Indian tribes and nations;

10 (2) the United States recognizes a special govern11 ment-to-government relationship with Indian tribes,

12 including the right of the Indian tribes to self-govern13 ance, as reflected in the Constitution, treaties, Federal

14 statutes, and the course of dealings of the United

15 States with Indian tribes;

16 (3) although progress has been made, the Federal

17 bureaucracy, with its centralized rules and regula18 tions, has eroded tribal self-governance and dominates

19 tribal affairs;

20 (4) the Tribal Self-Governance Demonstration

21 Project, established under title III of the Indian Self22 Determination and Education Assistance Act (25

23 U.S.C. 450f note) was designed to improve and per24 petuate the government-to-government relationship be-
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1 tween Indian tribes and the United States and to

2 strengthen tribal control over Federal funding and

3 program management;

4 (5) although the Federal Government has made

5 considerable strides in improving Indian health care,

6 it has failed to fully meet its trust responsibilities and

7 to satisfy its obligations to the Indian tribes under

8 treaties and other laws; and

9 (6) Congress has reviewed the results of the Trib10 al Self-Governance Demonstration Project and finds

11 that transferring full control and funding to tribal

12 governments, upon tribal request, over decision mak13 ing for Federal programs, services, functions, and ac14 tivities (or portions thereof)—

15 (A) is an appropriate and effective means of

16 implementing the Federal policy of government17 to-government relations with Indian tribes; and

18 (B) strengthens the Federal policy of Indian

19 self-determination.

20 SEC. 3. DECLARATION OF POLICY.

21 It is the policy of Congress to—

22 (1) permanently establish and implement tribal

23 self-governance within the Department of Health and

24 Human Services;
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1 (2) call for full cooperation from the Department

2 of Health and Human Services and its constituent

3 agencies in the implementation of tribal self4 governance—

5 (A) to enable the United States to maintain

6 and improve its unique and continuing relation7 ship with, and responsibility to, Indian tribes;

8 (B) to permit each Indian tribe to choose

9 the extent of its participation in self-governance

10 in accordance with the provisions of the Indian

11 Self-Determination and Education Assistance

12 Act relating to the provision of Federal services

13 to Indian tribes;

14 (C) to ensure the continuation of the trust

15 responsibility of the United States to Indian

16 tribes and Indian individuals;

17 (D) to affirm and enable the United States

18 to fulfill its obligations to the Indian tribes

19 under treaties and other laws;

20 (E) to strengthen the government-to-govern21 ment relationship between the United States and

22 Indian tribes through direct and meaningful

23 consultation with all tribes;

24 (F) to permit an orderly transition from

25 Federal domination of programs and services to
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1 provide Indian tribes with meaningful authority,

2 control, funding, and discretion to plan, conduct,

3 redesign, and administer programs, services,

4 functions, and activities (or portions thereof)

5 that meet the needs of the individual tribal com6 munities;

7 (G) to provide for a measurable parallel re8 duction in the Federal bureaucracy as programs,

9 services, functions, and activities (or portions

10 thereof) are assumed by Indian tribes;

11 (H) to encourage the Secretary to identify

12 all programs, services, functions, and activities

13 (or portions thereof) of the Department of Health

14 and Human Services that may be managed by

15 an Indian tribe under this Act and to assist In16 dian tribes in assuming responsibility for such

17 programs, services, functions, and activities (or

18 portions thereof); and

19 (I) to provide Indian tribes with the earliest

20 opportunity to administer programs, services,

21 functions, and activities (or portions thereof)

22 from throughout the Department of Health and

23 Human Services.
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1 SEC. 4. TRIBAL SELF-GOVERNANCE.

2 The Indian Self-Determination and Education Assist3 ance Act (25 U.S.C. 450 et seq.) is amended by adding at

4 the end the following new titles:

5 ‘‘TITLE V—TRIBAL SELF6 GOVERNANCE

7 ‘‘SEC. 501. ESTABLISHMENT.

8 ‘‘The Secretary of Health and Human Services shall

9 establish and carry out a program within the Indian

10 Health Service of the Department of Health and Human

11 Services to be known as the ‘Tribal Self-Governance Pro12 gram’ in accordance with this title.

13 ‘‘SEC. 502. DEFINITIONS.

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

15 ‘‘(1) the term ‘construction project’ means an or16 ganized noncontinuous undertaking to complete a spe17 cific set of predetermined objectives for the planning,

18 environmental determination, design, construction,

19 repair, improvement, or expansion of buildings or fa20 cilities, as described in a construction project agree21 ment. The term ‘construction project’ does not mean

22 construction program administration and activities

23 described in paragraphs (1) through (3) of section

24 4(m), which may otherwise be included in a funding

25 agreement under this title;
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1 ‘‘(2) the term ‘construction project agreement’

2 means a negotiated agreement between the Secretary

3 and an Indian tribe which at a minimum—

4 ‘‘(A) establishes project phase start and

5 completion dates;

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

7 standards by which it will be accomplished;

8 ‘‘(C) identifies the responsibilities of the In9 dian tribe and the Secretary;

10 ‘‘(D) addresses environmental consider11 ations;

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

13 maintenance entity of the proposed work;

14 ‘‘(F) provides a budget;

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

16 ‘‘(H) establishes the duration of the agree17 ment based on the time necessary to complete the

18 specified scope of work, which may be 1 or more

19 years;

20 ‘‘(3) the term ‘inherent Federal functions’ means

21 those Federal functions which cannot legally be dele22 gated to Indian tribes;

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

24 coalition of two or more separate Indian tribes that

25 join together for the purpose of participating in self-
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1 governance, including, but not limited to, a tribal or2 ganization;

3 ‘‘(5) the term ‘gross mismanagement’ means a

4 significant, clear, and convincing violation of com5 pact, funding agreement, or regulatory, or statutory

6 requirements applicable to Federal funds transferred

7 to a tribe by a compact or funding agreement that re8 sults in a significant reduction of funds available for

9 the programs, services, functions, or activities (or por10 tions thereof) assumed by an Indian tribe;

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

12 tribe’s portion of all funds and resources that support

13 secretarial programs, services, functions, and activi14 ties (or portions thereof) that are not required by the

15 Secretary for performance of inherent Federal func16 tions;

17 ‘‘(7) the term ‘Secretary’ means the Secretary of

18 Health and Human Services; and

19 ‘‘(8) the term ‘self-governance’ means the pro20 gram established pursuant to section 501.

21 ‘‘(b) INDIAN TRIBE.—Where an Indian tribe has au22 thorized another Indian tribe, an inter-tribal consortium,

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

24 services, functions, or activities (or portions thereof) on its

25 behalf under this title, the authorized Indian tribe, inter-
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1 tribal consortium, or tribal organization shall have the

2 rights and responsibilities of the authorizing Indian tribe

3 (except as otherwise provided in the authorizing resolution

4 or in this title). In such event, the term ‘Indian tribe’ as

5 used in this title shall include such other authorized Indian

6 tribe, inter-tribal consortium, or tribal organization.

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

8 ‘‘(a) CONTINUING PARTICIPATION.—Each Indian tribe

9 that is participating in the Tribal Self-Governance Dem10 onstration Project under title III on the date of enactment

11 of this title may elect to participate in self-governance

12 under this title under existing authority as reflected in trib13 al resolutions.

14 ‘‘(b) ADDITIONAL PARTICIPANTS.—

15 ‘‘(1) In addition to those Indian tribes partici16 pating in self-governance under subsection (a), each

17 year an additional 50 Indian tribes that meet the eli18 gibility criteria specified in subsection (c) shall be en19 titled to participate in self-governance.

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

21 from participation in an inter-tribal consortium or

22 tribal organization, in whole or in part, shall be enti23 tled to participate in self-governance provided the In24 dian tribe meets the eligibility criteria specified in

25 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 agree7 ment.

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 that—

15 ‘‘(1) successfully completes the planning phase

16 described in subsection (d);

17 ‘‘(2) has requested participation in self-govern18 ance by resolution or other official action by the gov19 erning body (or bodies) of the Indian tribe or tribes

20 to be served; and

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

22 years, financial stability and financial management

23 capability.

24 Evidence that during such years the Indian tribe had no

25 uncorrected significant and material audit exceptions in
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1 the required annual audit of the Indian tribe’s self-deter2 mination contracts or self-governance funding agreements

3 shall be conclusive evidence of the required stability and ca4 pability for the purposes of this subsection.

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

6 participation in self-governance shall complete a planning

7 phase. The planning phase shall be conducted to the satis8 faction of the Indian tribe and shall include—

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

10 ‘‘(2) internal tribal government planning and

11 organizational preparation relating to the adminis12 tration of health care programs.

13 ‘‘(e) GRANTS.—Subject to the availability of appro14 priations, any Indian tribe meeting the requirements of

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

16 for grants—

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

18 and

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

20 the Indian tribe or tribal organization in self-govern21 ance, as set forth in a compact and a funding agree22 ment.

23 ‘‘(f) RECEIPT OF GRANT NOT REQUIRED.—Receipt of

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

25 participation in self-governance.
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1 ‘‘SEC. 504. COMPACTS.

2 ‘‘(a) COMPACT REQUIRED.—The Secretary shall nego3 tiate and enter into a written compact with each Indian

4 tribe participating in self-governance in a manner con5 sistent with the Federal Government’s trust responsibility,

6 treaty obligations, and the government-to-government rela7 tionship between Indian tribes and the United States.

8 ‘‘(b) CONTENTS.—Each compact required under sub9 section (a) shall set forth the general terms of the govern10 ment-to-government relationship between the Indian tribe

11 and the Secretary, including such terms as the parties in12 tend shall control year after year. Such compacts may only

13 be amended by mutual agreement of the parties.

14 ‘‘(c) EXISTING COMPACTS.—An Indian tribe partici15 pating in the Tribal Self-Governance Demonstration

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

17 shall have the option at any time thereafter to—

18 ‘‘(1) retain its Tribal Self-Governance Dem19 onstration Project compact (in whole or in part) to

20 the extent the provisions of such compact are not di21 rectly contrary to any express provision of this title,

22 or

23 ‘‘(2) negotiate in lieu thereof (in whole or in

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

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

26 of a compact shall be the date of the approval and execution
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1 by the Indian tribe or another date agreed upon by the par2 ties, and shall remain in effect for so long as permitted by

3 Federal law or until terminated by mutual written agree4 ment, retrocession, or reassumption.

5 ‘‘SEC. 505. FUNDING AGREEMENTS.

6 ‘‘(a) FUNDING AGREEMENT REQUIRED.—The Sec7 retary shall negotiate and enter into a written funding

8 agreement with each Indian tribe participating in self-gov9 ernance in a manner consistent with the Federal Govern10 ment’s trust responsibility, treaty obligations, and the gov11 ernment-to-government relationship between Indian tribes

12 and the United States.

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

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

15 tribe, authorize the Indian tribe to plan, conduct, consoli16 date, administer, and receive full tribal share funding, in17 cluding tribal shares of Indian Health Service competitive

18 grants (excluding congressionally earmarked competitive

19 grants), for all programs, services, functions, and activities

20 (or portions thereof), that are carried out for the benefit

21 of Indians because of their status as Indians without regard

22 to the agency or office of the Indian Health Service within

23 which the program, service, function, or activity (or portion

24 thereof) is performed. Such programs, services, functions,

25 or activities (or portions thereof) include all programs, serv-
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1 ices, functions, activities (or portions thereof) where Indian

2 tribes or Indians are primary or significant beneficiaries,

3 administered by the Department of Health and Human

4 Services through the Indian Health Service and grants

5 (which may be added to a funding agreement after award

6 of such grants) and all local, field, service unit, area, re7 gional, and central headquarters or national office func8 tions administered under the authority of—

9 ‘‘(1) the Act of November 2, 1921 (25 U.S.C. 13);

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

11 seq.);

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

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

14 (25 U.S.C. 1601 et seq.);

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

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

17 2401 et seq.);

18 ‘‘(6) any other Act of Congress authorizing agen19 cies of the Department of Health and Human Serv20 ices to administer, carry out, or provide financial as21 sistance to such programs, functions, or activities (or

22 portions thereof) described in this section; or

23 ‘‘(7) any other Act of Congress authorizing such

24 programs, functions, or activities (or portions thereof)

25 under which appropriations are made to agencies
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1 other than agencies within the Department of Health

2 and Human Services when the Secretary administers

3 such programs, functions, or activities (or portions

4 thereof).

5 ‘‘(c) INCLUSION IN COMPACT OR FUNDING AGREE6 MENT.—Indian tribes or Indians need not be identified in

7 the authorizing statute for a program or element of a pro8 gram to be eligible for inclusion in a compact or funding

9 agreement under this title.

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

11 agreement shall set forth terms that generally identify the

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

13 thereof) to be performed or administered, the general budget

14 category assigned, the funds to be provided, including those

15 to be provided on a recurring basis, the time and method

16 of transfer of the funds, the responsibilities of the Secretary,

17 and any other provisions to which the Indian tribe and the

18 Secretary agree.

19 ‘‘(e) SUBSEQUENT FUNDING AGREEMENTS.—Absent

20 notification from an Indian tribe that is withdrawing or

21 retroceding the operation of one or more programs, services,

22 functions, or activities (or portions thereof) identified in a

23 funding agreement, or unless otherwise agreed to by the par24 ties, each funding agreement shall remain in full force and

25 effect until a subsequent funding agreement is executed, and
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1 the terms of the subsequent funding agreement shall be ret2 roactive to the end of the term of the preceding funding

3 agreement.

4 ‘‘(f) EXISTING FUNDING AGREEMENTS.—Each Indian

5 tribe participating in the Tribal Self-Governance Dem6 onstration Project established under title III on the date

7 of enactment of this title shall have the option at any time

8 thereafter to—

9 ‘‘(1) retain its Tribal Self-Governance Dem10 onstration Project funding agreement (in whole or in

11 part) to the extent the provisions of such funding

12 agreement are not directly contrary to any express

13 provision of this title; or

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

15 a new funding agreement in conformity with this

16 title.

17 ‘‘(g) STABLE BASE FUNDING.—At the option of an In18 dian tribe, a funding agreement may provide for a stable

19 base budget specifying the recurring funds (including, for

20 purposes of this provision, funds available under section

21 106(a) of the Act) to be transferred to such Indian tribe,

22 for such period as may be specified in the funding agree23 ment, subject to annual adjustment only to reflect changes

24 in congressional appropriations by sub-sub activity exclud25 ing earmarks.
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1 ‘‘SEC. 506. GENERAL PROVISIONS.

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

3 shall apply to compacts and funding agreements negotiated

4 under this title and an Indian tribe may, at its option,

5 include provisions that reflect such requirements in a com6 pact or funding agreement.

7 ‘‘(b) CONFLICTS OF INTEREST.—Indian tribes partici8 pating in self-governance under this title shall ensure that

9 internal measures are in place to address conflicts of inter10 est in the administration of self-governance programs, serv11 ices, functions, or activities (or portions thereof).

12 ‘‘(c) AUDITS.—

13 ‘‘(1) SINGLE AGENCY AUDIT ACT.—The provi14 sions of chapter 75 of title 31, United States Code, re15 quiring a single agency audit report shall apply to

16 funding agreements under this title.

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

18 apply cost principles under the applicable Office of

19 Management and Budget Circular, except as modified

20 by section 106 or other provisions of law, or by any

21 exemptions to applicable Office of Management and

22 Budget Circulars subsequently granted by Office of

23 Management and Budget. No other audit or account24 ing standards shall be required by the Secretary. Any

25 claim by the Federal Government against the Indian

26 tribe relating to funds received under a funding
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1 agreement based on any audit under this subsection

2 shall be subject to the provisions of section 106(f).

3 ‘‘(d) RECORDS.—

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

5 specifies otherwise in the compact or funding agree6 ment, records of the Indian tribe shall not be consid7 ered Federal records for purposes of chapter 5 of title

8 5, United States Code.

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

10 tribe shall maintain a recordkeeping system, and,

11 after 30 days advance notice, provide the Secretary

12 with reasonable access to such records to enable the

13 Department of Health and Human Services to meet

14 its minimum legal recordkeeping system requirements

15 under sections 3101 through 3106 of title 44, United

16 States Code.

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

18 tribe may redesign or consolidate programs, services, func19 tions, and activities (or portions thereof) included in a

20 funding agreement under section 505 and reallocate or redi21 rect funds for such programs, services, functions, and activi22 ties (or portions thereof) in any manner which the Indian

23 tribe deems to be in the best interest of the health and wel24 fare of the Indian community being served, only if the rede25 sign or consolidation does not have the effect of denying eli-
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1 gibility for services to population groups otherwise eligible

2 to be served under Federal law.

3 ‘‘(f) RETROCESSION.—An Indian tribe may retrocede,

4 fully or partially, to the Secretary programs, services, func5 tions, or activities (or portions thereof) included in the com6 pact or funding agreement. Unless the Indian tribe rescinds

7 the request for retrocession, such retrocession will become

8 effective within the time frame specified by the parties in

9 the compact or funding agreement. In the absence of such

10 a specification, such retrocession shall become effective on—

11 ‘‘(1) the earlier of—

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

13 of such request; or

14 ‘‘(B) the date on which the funding agree15 ment expires; or

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

17 Secretary and the Indian tribe.

18 ‘‘(g) WITHDRAWAL.—

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

20 partially withdraw from a participating inter-tribal

21 consortium or tribal organization its share of any

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

23 thereof) included in a compact or funding agreement.

24 Such withdrawal shall become effective within the

25 time frame specified in the resolution which author-
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1 izes transfer to the participating tribal organization

2 or inter-tribal consortium. In the absence of a specific

3 time frame set forth in the resolution, such with4 drawal shall become effective on—

5 ‘‘(A) the earlier of—

6 ‘‘(i) one year from the date of submis7 sion of such request; or

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

9 agreement expires; or

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

11 upon by the Secretary, the withdrawing Indian

12 tribe, and the participating tribal organization

13 or inter-tribal consortium that has signed the

14 compact or funding agreement on behalf of the

15 withdrawing Indian tribe, inter-tribal consor16 tium, or tribal organization.

17 ‘‘(2) DISTRIBUTION OF FUNDS.—When an In18 dian tribe or tribal organization eligible to enter into

19 a self-determination contract under title I or a com20 pact or funding agreement under this title fully or

21 partially withdraws from a participating inter-tribal

22 consortium or tribal organization, the withdrawing

23 Indian tribe or tribal organization shall be entitled to

24 its tribal share of funds supporting those programs,

25 services, functions, or activities (or portions thereof)
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1 which it will be carrying out under its own self-deter2 mination contract or compact and funding agreement

3 (calculated on the same basis as the funds were ini4 tially allocated in the funding agreement of the inter5 tribal consortium or tribal organization), and such

6 funds shall be transferred from the funding agreement

7 of the inter-tribal consortium or tribal organization,

8 provided that the provisions of sections 102 and

9 105(i), as appropriate, shall apply to such with10 drawing Indian tribe.

11 ‘‘(3) REGAINING MATURE CONTRACT STATUS.—If

12 an Indian tribe elects to operate all or some pro13 grams, services, functions, or activities (or portions

14 thereof) carried out under a compact or funding

15 agreement under this title through a self-determina16 tion contract under title I, at the option of the Indian

17 tribe, the resulting self-determination contract shall be

18 a mature self-determination contract.

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

20 to the extent to which, funding is provided under this title

21 or under the compact or funding agreement, the Indian

22 tribe shall not be entitled to contract with the Secretary

23 for such funds under section 102, except that such Indian

24 tribe shall be eligible for new programs on the same basis

25 as other Indian tribes.
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1 ‘‘SEC. 507. PROVISIONS RELATING TO THE SECRETARY.

2 ‘‘(a) MANDATORY PROVISIONS.—

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

4 funding agreements negotiated between the Secretary

5 and an Indian tribe shall include a provision that re6 quires the Indian tribe to report on health status and

7 service delivery—

8 ‘‘(A) to the extent such data is not otherwise

9 available to the Secretary and specific funds for

10 this purpose are provided by the Secretary under

11 the funding agreement; and

12 ‘‘(B) if such reporting shall impose mini13 mal burdens on the participating Indian tribe

14 and such requirements are promulgated under

15 section 517.

16 ‘‘(2) REASSUMPTION—(A) Compacts and fund17 ing agreements negotiated between the Secretary and

18 an Indian tribe shall include a provision authorizing

19 the Secretary to reassume operation of a program,

20 service, function, or activity (or portions thereof) and

21 associated funding if there is a specific finding rel22 ative to that program, service, function, or activity

23 (or portion thereof) of—

24 ‘‘(i) imminent endangerment of the public

25 health caused by an act or omission of the In26 dian tribe, and the imminent endangerment
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1 arises out of a failure to carry out the compact

2 or funding agreement; or

3 ‘‘(ii) gross mismanagement with respect to

4 funds transferred to a tribe by a compact or

5 funding agreement, as determined by the Sec6 retary in consultation with the Inspector Gen7 eral, as appropriate.

8 ‘‘(B) The Secretary shall not reassume operation

9 of a program, service, function, or activity (or por10 tions thereof) unless (i) the Secretary has first pro11 vided written notice and a hearing on the record to

12 the Indian tribe; and (ii) the Indian tribe has not

13 taken corrective action to remedy the imminent

14 endangerment to public health or gross mismanage15 ment.

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

17 Secretary may, upon written notification to the tribe,

18 immediately reassume operation of a program, serv19 ice, function, or activity (or portion thereof) and asso20 ciated funding if (i) the Secretary makes a finding of

21 imminent substantial and irreparable endangerment

22 of the public health caused by an act or omission of

23 the Indian tribe; and (ii) the endangerment arises out

24 of a failure to carry out the compact or funding

25 agreement. If the Secretary reassumes operation of a
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1 program, service, function, or activity (or portion

2 thereof) under this subparagraph, the Secretary shall

3 provide the tribe with a hearing on the record not

4 later than 10 days after such reassumption.

5 ‘‘(D) In any hearing or appeal involving a deci6 sion to reassume operation of a program, service,

7 function, or activity (or portion thereof), the Sec8 retary shall have the burden of proof of demonstrating

9 by clear and convincing evidence the validity of the

10 grounds for the reassumption.

11 ‘‘(b) FINAL OFFER.—In the event the Secretary and

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

13 or in part, on the terms of a compact or funding agreement

14 (including funding levels), the Indian tribe may submit a

15 final offer to the Secretary. Not more than 45 days after

16 such submission, or within a longer time agreed upon by

17 the Indian tribe, the Secretary shall review and make a de18 termination with respect to such offer. In the absence of a

19 timely rejection of the offer, in whole or in part, made in

20 compliance with subsection (c), the offer shall be deemed

21 agreed to by the Secretary.

22 ‘‘(c) REJECTION OF FINAL OFFERS.—If the Secretary

23 rejects an offer made under subsection (b) (or one or more

24 provisions or funding levels in such offer), the Secretary

25 shall provide—
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1 ‘‘(1) a timely written notification to the Indian

2 tribe that contains a specific finding that clearly

3 demonstrates, or that is supported by a controlling

4 legal authority, that—

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

6 final offer exceeds the applicable funding level to

7 which the Indian tribe is entitled under this

8 title;

9 ‘‘(B) the program, function, service, or ac10 tivity (or portion thereof) that is the subject of

11 the final offer is an inherent Federal function

12 that cannot legally be delegated to an Indian

13 tribe;

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

15 program, function, service, or activity (or por16 tion thereof) in a manner that would not result

17 in significant danger or risk to the public health;

18 or

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

20 in self-governance under section 503;

21 ‘‘(2) technical assistance to overcome the objec22 tions stated in the notification required by paragraph

23 (1);

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

25 record with the right to engage in full discovery rel-
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1 evant to any issue raised in the matter and the op2 portunity for appeal on the objections raised, pro3 vided that the Indian tribe may, in lieu of filing such

4 appeal, directly proceed to initiate an action in a

5 Federal district court pursuant to section 110(a); and

6 ‘‘(4) the Indian tribe with the option of entering

7 into the severable portions of a final proposed com8 pact or funding agreement, or provision thereof, (in9 cluding lesser funding amount, if any), that the Sec10 retary did not reject, subject to any additional alter11 ations necessary to conform the compact or funding

12 agreement to the severed provisions. If an Indian

13 tribe exercises the option specified herein, it shall re14 tain the right to appeal the Secretary’s rejection

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

16 shall only apply to that portion of the proposed final

17 compact, funding agreement or provision thereof that

18 was rejected by the Secretary.

19 ‘‘(d) BURDEN OF PROOF.—With respect to any hear20 ing or appeal or civil action conducted pursuant to this

21 section, the Secretary shall have the burden of dem22 onstrating by clear and convincing evidence the validity of

23 the grounds for rejecting the offer (or a provision thereof)

24 made under subsection (b).
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1 ‘‘(e) GOOD FAITH.—In the negotiation of compacts

2 and funding agreements the Secretary shall at all times ne3 gotiate in good faith to maximize implementation of the

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

5 title in a manner that maximizes the policy of tribal self6 governance, consistent with section 3.

7 ‘‘(f) SAVINGS.—To the extent that programs, functions,

8 services, or activities (or portions thereof) carried out by

9 Indian tribes under this title reduce the administrative or

10 other responsibilities of the Secretary with respect to the

11 operation of Indian programs and result in savings that

12 have not otherwise been included in the amount of tribal

13 shares and other funds determined under section 508(c), the

14 Secretary shall make such savings available to the Indian

15 tribes, inter-tribal consortia, or tribal organizations for the

16 provision of additional services to program beneficiaries in

17 a manner equitable to directly served, contracted, and com18 pacted programs.

19 ‘‘(g) TRUST RESPONSIBILITY.—The Secretary is pro20 hibited from waiving, modifying, or diminishing in any

21 way the trust responsibility of the United States with re22 spect to Indian tribes and individual Indians that exists

23 under treaties, Executive orders, other laws, or court deci24 sions.
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1 ‘‘(h) DECISIONMAKER.—A decision that constitutes

2 final agency action and relates to an appeal within the De3 partment of Health and Human Services conducted under

4 subsection (c) shall be made either—

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

6 a position at a higher organizational level within the

7 Department than the level of the departmental agency

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

9 was made; or

10 ‘‘(2) by an administrative judge.

11 ‘‘SEC. 508. TRANSFER OF FUNDS.

12 ‘‘(a) IN GENERAL.—Pursuant to the terms of any com13 pact or funding agreement entered into under this title, the

14 Secretary shall transfer to the Indian tribe all funds pro15 vided for in the funding agreement, pursuant to subsection

16 (c), and provide funding for periods covered by joint resolu17 tion adopted by Congress making continuing appropria18 tions, to the extent permitted by such resolutions. In any

19 instance where a funding agreement requires an annual

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

21 year, or requires semiannual or other periodic transfers of

22 funding to be made commencing at the beginning of a fiscal

23 year, the first such transfer shall be made not later than

24 10 days after the apportionment of such funds by the Office
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1 of Management and Budget to the Department, unless the

2 funding agreement provides otherwise.

3 ‘‘(b) MULTIYEAR FUNDING.—The Secretary is hereby

4 authorized to employ, upon tribal request, multiyear fund5 ing agreements, and references in this title to funding agree6 ments shall include such multiyear agreements.

7 ‘‘(c) AMOUNT OF FUNDING.—The Secretary shall pro8 vide funds under a funding agreement under this title in

9 an amount equal to the amount that the Indian tribe would

10 have been entitled to receive under self-determination con11 tracts under this Act, including amounts for direct program

12 costs specified under section 106(a)(1) and amounts for con13 tract support costs specified under sections 106(a)(2),

14 (a)(3), (a)(5), and (a)(6), including any funds that are spe15 cifically or functionally related to the provision by the Sec16 retary of services and benefits to the Indian tribe or its

17 members, all without regard to the organizational level

18 within the Department where such functions are carried

19 out.

20 ‘‘(d) PROHIBITIONS.—The Secretary is expressly pro21 hibited from—

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

23 tribe its full share of any central, headquarters, re24 gional, area, or service unit office or other funds due

25 under this Act, except as required by Federal law;
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1 ‘‘(2) withholding portions of such funds for

2 transfer over a period of years; and

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

4 herein—

5 ‘‘(A) to make funding available for self-gov6 ernance monitoring or administration by the

7 Secretary;

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

9 to—

10 ‘‘(i) a reduction in appropriations

11 from the previous fiscal year for the pro12 gram or function to be included in a com13 pact or funding agreement;

14 ‘‘(ii) a congressional directive in legis15 lation or accompanying report;

16 ‘‘(iii) a tribal authorization;

17 ‘‘(iv) a change in the amount of pass18 through funds subject to the terms of the

19 funding agreement; or

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

21 or program for which such funds were pro22 vided;

23 ‘‘(C) to pay for Federal functions, including

24 Federal pay costs, Federal employee retirement

25 benefits, automated data processing, technical as-
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1 sistance, and monitoring of activities under this

2 Act; or

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

4 displaced by self-determination contracts under

5 this Act or self-governance;

6 except that such funds may be increased by the Secretary

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

8 105(c)(2).

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

10 tribe elects to carry out a compact or funding agreement

11 with the use of Federal personnel, Federal supplies (includ12 ing supplies available from Federal warehouse facilities),

13 Federal supply sources (including lodging, airline transpor14 tation, and other means of transportation including the use

15 of interagency motor pool vehicles) or other Federal re16 sources (including supplies, services, and resources avail17 able to the Secretary under any procurement contracts in

18 which the Department is eligible to participate), the Sec19 retary is authorized to transfer such personnel, supplies, or

20 resources to the Indian tribe.

21 ‘‘(f) REIMBURSEMENT TO INDIAN HEALTH SERVICE.—

22 With respect to functions transferred by the Indian Health

23 Service to an Indian tribe, the Indian Health Service is

24 authorized to provide goods and services to the Indian tribe,

25 on a reimbursable basis, including payment in advance
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1 with subsequent adjustment, and the reimbursements re2 ceived therefrom, along with the funds received from the In3 dian tribe pursuant to this title, may be credited to the

4 same or subsequent appropriation account which provided

5 the funding, such amounts to remain available until ex6 pended.

7 ‘‘(g) PROMPT PAYMENT ACT.—Chapter 39 of title 31,

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

9 under a compact or funding agreement authorized under

10 this title.

11 ‘‘(h) INTEREST OR OTHER INCOME ON TRANSFERS.—

12 An Indian tribe is entitled to retain interest earned on any

13 funds paid under a compact or funding agreement to carry

14 out governmental or health purposes and such interest shall

15 not diminish the amount of funds the Indian tribe is au16 thorized to receive under its funding agreement in the year

17 the interest is earned or in any subsequent fiscal year.

18 Funds transferred under this Act shall be managed using

19 the prudent investment standard.

20 ‘‘(i) CARRYOVER OF FUNDS.—All funds paid to an In21 dian tribe in accordance with a compact or funding agree22 ment shall remain available until expended. In the event

23 that an Indian tribe elects to carry over funding from one

24 year to the next, such carryover shall not diminish the

25 amount of funds the Indian tribe is authorized to receive
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1 under its funding agreement in that or any subsequent fis2 cal year.

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

4 other program income earned by an Indian tribe shall be

5 treated as supplemental funding to that negotiated in the

6 funding agreement and the Indian tribe may retain all such

7 income and expend such funds in the current year or in

8 future years except to the extent that the Indian Health

9 Care Improvement Act (25 U.S.C. 1601 et seq.) provides

10 otherwise for medicare and medicaid receipts, and such

11 funds shall not result in any offset or reduction in the

12 amount of funds the Indian tribe is authorized to receive

13 under its funding agreement in the year the program in14 come is received or for any subsequent fiscal year.

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

16 not be obligated to continue performance that requires an

17 expenditure of funds in excess of the amount of funds trans18 ferred under a compact or funding agreement. If at any

19 time the Indian tribe has reason to believe that the total

20 amount provided for a specific activity in the compact or

21 funding agreement is insufficient the Indian tribe shall pro22 vide reasonable notice of such insufficiency to the Secretary.

23 If the Secretary does not increase the amount of funds

24 transferred under the funding agreement, the Indian tribe
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1 may suspend performance of the activity until such time

2 as additional funds are transferred.

3 ‘‘SEC. 509. CONSTRUCTION PROJECTS.

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

5 tribal self-governance may carry out construction projects

6 under this title if they elect to assume all Federal respon7 sibilities under the National Environmental Policy Act of

8 1969, the Historic Preservation Act, and related provisions

9 of law that would apply if the Secretary were to undertake

10 a construction project, by adopting a resolution (1) desig11 nating a certifying officer to represent the Indian tribe and

12 to assume the status of a responsible Federal official under

13 such laws, and (2) accepting the jurisdiction of the Federal

14 court for the purpose of enforcement of the responsibilities

15 of the responsible Federal official under such environmental

16 laws.

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

18 shall be negotiated pursuant to the statutory process in sec19 tion 105(m) and resulting construction project agreements

20 shall be incorporated into funding agreements as addenda.

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

22 the Secretary shall agree upon and specify appropriate

23 buildings codes and architectural/engineering standards

24 (including health and safety) which shall be in conformity
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1 with nationally recognized standards for comparable

2 projects.

3 ‘‘(d) RESPONSIBILITY FOR COMPLETION.—The Indian

4 tribe shall assume responsibility for the successful comple5 tion of the construction project in accordance with the nego6 tiated construction project agreement.

7 ‘‘(e) FUNDING.—Funding for construction projects car8 ried out under this title shall be included in funding agree9 ments as annual advance payments, with semiannual pay10 ments at the option of the Indian tribe. Annual advance

11 and semiannual payment amounts shall be determined

12 based on mutually agreeable project schedules reflecting

13 work to be accomplished within the advance payment pe14 riod, work accomplished and funds expended in previous

15 payment periods, and the total prior payments. The Sec16 retary shall include associated project contingency funds

17 with each advance payment installment. The Indian tribe

18 shall be responsible for the management of the contingency

19 funds included in funding agreements.

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

21 opportunity to approve project planning and design docu22 ments prepared by the Indian tribe in advance of construc23 tion of the facilities specified in the scope of work for each

24 negotiated construction project agreement or amendment

25 thereof which results in a significant change in the original
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1 scope of work. The Indian tribe shall provide the Secretary

2 with project progress and financial reports not less than

3 semiannually. The Secretary may conduct on-site project

4 oversight visits semiannually or on an alternate schedule

5 agreed to by the Secretary and the Indian tribe.

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

7 contractors and subcontractors in the construction, alter8 ation, or repair, including painting or decorating of build9 ing or other facilities in connection with construction

10 projects undertaken by self-governance Indian tribes under

11 this Act, shall be paid wages at not less than those pre12 vailing wages on similar construction in the locality as de13 termined by the Secretary of Labor in accordance with the

14 Davis-Bacon Act of March 3, 1931 (46 Stat. 1494). With

15 respect to construction, alteration, or repair work to which

16 the Act of March 3, 1921, is applicable under the terms

17 of this section, the Secretary of Labor shall have the author18 ity and functions set forth in Reorganization Plan Num19 bered 14, of 1950, and section 2 of the Act of June 13, 1934

20 (48 Stat. 948).

21 ‘‘(h) APPLICATION OF OTHER LAWS.—Unless other22 wise agreed to by the Indian tribe, no provision of the Office

23 of Federal Procurement Policy Act, the Federal Acquisition

24 Regulations issued pursuant thereto, or any other law or

25 regulation pertaining to Federal procurement (including
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1 Executive orders) shall apply to any construction project

2 conducted under this title.

3 ‘‘SEC. 510. FEDERAL PROCUREMENT LAWS AND REGULA4 TIONS.

5 ‘‘Notwithstanding any other provision of law, unless

6 expressly agreed to by the participating Indian tribe, the

7 compacts and funding agreements entered into under this

8 title shall not be subject to Federal contracting or coopera9 tive agreement laws and regulations (including Executive

10 orders and the regulations relating to procurement issued

11 by the Secretary), except to the extent that such laws ex12 pressly apply to Indian tribes.

13 ‘‘SEC. 511. CIVIL ACTIONS.

14 ‘‘(a) CONTRACT DEFINED.—For the purposes of section

15 110, the term ‘contract’ shall include compacts and funding

16 agreements entered into under this title.

17 ‘‘(b) APPLICABILITY OF CERTAIN LAWS.—Section 2103

18 of the Revised Statutes of the United States Code (25 U.S.C.

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

20 476), shall not apply to attorney and other professional con21 tracts entered into by Indian tribes participating in self22 governance under this title.

23 ‘‘(c) REFERENCES.—All references in the Indian Self24 Determination and Education Assistance Act (25 U.S.C.

25 450 et seq.) to section 1 of the Act of June 26, 1936 (25
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1 U.S.C. 81) are hereby deemed to include section 1 of the

2 Act of July 3, 1952 (25 U.S.C. 82a).

3 ‘‘SEC. 512. FACILITATION.

4 ‘‘(a) SECRETARIAL INTERPRETATION.—Except as oth5 erwise provided by law, the Secretary shall interpret all

6 Federal laws, Executive orders and regulations in a manner

7 that will facilitate—

8 ‘‘(1) the inclusion of programs, services, func9 tions, and activities (or portions thereof) and funds

10 associated therewith, in the agreements entered into

11 under this section;

12 ‘‘(2) the implementation of compacts and fund13 ing agreements entered into under this title; and

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

15 objectives.

16 ‘‘(b) REGULATION WAIVER.—

17 ‘‘(1) An Indian tribe may submit a written re18 quest to waive application of a regulation promul19 gated under this Act for a compact or funding agree20 ment entered into with the Indian Health Service

21 under this title, to the Secretary identifying the ap22 plicable Federal regulation under this Act sought to

23 be waived and the basis for the request.

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

25 Secretary of a written request by an Indian tribe to
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1 waive application of a regulation under this Act for

2 a compact or funding agreement entered into under

3 this title, the Secretary shall either approve or deny

4 the requested waiver in writing. A denial may be

5 made only upon a specific finding by the Secretary

6 that identified language in the regulation may not be

7 waived because such waiver is prohibited by Federal

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

9 not later than 90 days after receipt shall be deemed

10 an approval of such request. The Secretary’s decision

11 shall be final for the Department.

12 ‘‘(c) ACCESS TO FEDERAL PROPERTY.—In connection

13 with any compact or funding agreement executed pursuant

14 to this title or an agreement negotiated under the Tribal

15 Self-Governance Demonstration Project established under

16 title III, as in effect before the enactment of the Tribal Self17 Governance Amendments of 1999, upon the request of an

18 Indian tribe, the Secretary—

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

20 school buildings, hospitals, and other facilities and all

21 equipment therein or appertaining thereto and other

22 personal property owned by the Government within

23 the Secretary’s jurisdiction under such terms and con24 ditions as may be agreed upon by the Secretary and

25 the tribe for their use and maintenance;
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1 ‘‘(2) may donate to an Indian tribe title to any

2 personal or real property found to be excess to the

3 needs of any agency of the Department, or the Gen4 eral Services Administration, except that—

5 ‘‘(A) subject to the provisions of subpara6 graph (B), title to property and equipment fur7 nished by the Federal Government for use in the

8 performance of the compact or funding agree9 ment or purchased with funds under any com10 pact or funding agreement shall, unless otherwise

11 requested by the Indian tribe, vest in the appro12 priate Indian tribe;

13 ‘‘(B) if property described in subparagraph

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

15 of retrocession, withdrawal, or reassumption, at

16 the option of the Secretary upon the retrocession,

17 withdrawal, or reassumption, title to such prop18 erty and equipment shall revert to the Depart19 ment of Health and Human Services; and

20 ‘‘(C) all property referred to in subpara21 graph (A) shall remain eligible for replacement,

22 maintenance, and improvement on the same

23 basis as if title to such property were vested in

24 the United States; and
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1 ‘‘(3) shall acquire excess or surplus Government

2 personal or real property for donation to an Indian

3 tribe if the Secretary determines the property is ap4 propriate for use by the Indian tribe for any purpose

5 for which a compact or funding agreement is author6 ized under this title.

7 ‘‘(d) MATCHING OR COST-PARTICIPATION REQUIRE8 MENT.—All funds provided under compacts, funding agree9 ments, or grants made pursuant to this Act, shall be treated

10 as non-Federal funds for purposes of meeting matching or

11 cost participation requirements under any other Federal or

12 non-Federal program.

13 ‘‘(e) STATE FACILITATION.—States are hereby author14 ized and encouraged to enact legislation, and to enter into

15 agreements with Indian tribes to facilitate and supplement

16 the initiatives, programs, and policies authorized by this

17 title and other Federal laws benefiting Indians and Indian

18 tribes.

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

20 this title and each provision of a compact or funding agree21 ment shall be liberally construed for the benefit of the In22 dian tribe participating in self-governance and any ambi23 guity shall be resolved in favor of the Indian tribe.
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1 ‘‘SEC. 513. BUDGET REQUEST.

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

3 annual budget request submitted to the Congress under sec4 tion 1105 of title 31, United States Code, all funds nec5 essary to fully fund all funding agreements authorized

6 under this title, including funds specifically identified to

7 fund tribal base budgets. All funds so appropriated shall

8 be apportioned to the Indian Health Service. Such funds

9 shall be provided to the Office of Tribal Self-Governance

10 which shall be responsible for distribution of all funds pro11 vided under section 505. Nothing in this provision shall be

12 construed to authorize the Indian Health Service to reduce

13 the amount of funds that a self-governance tribe is otherwise

14 entitled to receive under its funding agreement or other ap15 plicable law, whether or not such funds are made available

16 to the Office of Tribal Self-Governance under this section.

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

18 budget request, the President shall identify the level of need

19 presently funded and any shortfall in funding (including

20 direct program and contract support costs) for each Indian

21 tribe, either directly by the Secretary, under self-determina22 tion contracts, or under compacts and funding agreements

23 authorized under this title.

24 ‘‘SEC. 514. REPORTS.

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

26 each year after the date of the enactment of this title, the
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1 Secretary shall submit to the Committee on Resources of

2 the House of Representatives and the Committee on Indian

3 Affairs of the Senate a written report regarding the admin4 istration of this title. Such report shall include a detailed

5 analysis of the level of need being presently funded or un6 funded for each Indian tribe, either directly by the Sec7 retary, under self-determination contracts under title I, or

8 under compacts and funding agreements authorized under

9 this Act. In compiling reports pursuant to this section, the

10 Secretary may not impose any reporting requirements on

11 participating Indian tribes or tribal organizations, not oth12 erwise provided in this Act.

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

14 information contained in funding agreements, annual

15 audit reports, and Secretarial data regarding the disposi16 tion of Federal funds and shall—

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

18 self-governance;

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

20 are specifically or functionally related to the provi21 sion by the Secretary of services and benefits to self22 governance Indian tribes and their members;

23 ‘‘(3) identify the funds transferred to each self24 governance Indian tribe and the corresponding reduc25 tion in the Federal bureaucracy;
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1 ‘‘(4) identify the funding formula for individual

2 tribal shares of all headquarters funds, together with

3 the comments of affected Indian tribes or tribal orga4 nizations, developed under subsection (c);

5 ‘‘(5) identify amounts expended in the preceding

6 fiscal year to carry out inherent Federal functions,

7 including an identification of those functions by type

8 and location;

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

10 methods (or any revisions thereof) used to determine

11 the individual tribal share of funds controlled by all

12 components of the Indian Health Service (including

13 funds assessed by any other Federal agency) for inclu14 sion in self-governance compacts or funding agree15 ments;

16 ‘‘(7) prior to being submitted to Congress, be dis17 tributed to the Indian tribes for comment, such com18 ment period to be for no less than 30 days; and

19 ‘‘(8) include the separate views and comments of

20 the Indian tribes or tribal organizations.

21 ‘‘(c) REPORT ON FUND DISTRIBUTION METHOD.—Not

22 later than 180 days after the date of enactment of this title,

23 the Secretary shall, after consultation with Indian tribes,

24 submit a written report to the Committee on Resources of

25 the House of Representatives and the Committee on Indian
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1 Affairs of the Senate which describes the method or methods

2 used to determine the individual tribal share of funds con3 trolled by all components of the Indian Health Service (in4 cluding funds assessed by any other Federal agency) for in5 clusion in self-governance compacts or funding agreements.

6 ‘‘SEC. 515. DISCLAIMERS.

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

8 shall be construed to limit or reduce in any way the funding

9 for any program, project, or activity serving an Indian

10 tribe under this or other applicable Federal law. Any In11 dian tribe that alleges that a compact or funding agreement

12 is in violation of this section may apply the provisions of

13 section 110.

14 ‘‘(b) FEDERAL TRUST AND TREATY RESPONSIBIL15 ITIES.—Nothing in this Act shall be construed to diminish

16 in any way the trust responsibility of the United States

17 to Indian tribes and individual Indians that exists under

18 treaties, Executive orders, or other laws and court decisions.

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

20 2(2) of the Act of July 5, 1935 (49 Stat. 450, chapter 372)

21 (commonly known as the National Labor Relations Act),

22 an Indian tribe carrying out a self-determination contract,

23 compact, annual funding agreement, grant, or cooperative

24 agreement under this Act shall not be considered an em25 ployer.
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1 ‘‘(d) OBLIGATIONS OF THE UNITED STATES.—The In2 dian Health Service under this Act shall neither bill nor

3 charge those Indians who may have the economic means

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

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

6 ‘‘(a) MANDATORY APPLICATION.—All provisions of sec7 tions 5(b), 6, 7, 102(c) and (d), 104, 105(k) and (l), 106(a)

8 through (k), and 111 of this Act and section 314 of Public

9 Law 101–512 (coverage under the Federal Tort Claims

10 Act), to the extent not in conflict with this title, shall apply

11 to compacts and funding agreements authorized by this

12 title.

13 ‘‘(b) DISCRETIONARY APPLICATION.—At the request of

14 a participating Indian tribe, any other provision of title

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

16 title, shall be made a part of a funding agreement or com17 pact entered into under this title. The Secretary is obligated

18 to include such provision at the option of the participating

19 Indian tribe or tribes. If such provision is incorporated it

20 shall have the same force and effect as if it were set out

21 in full in this title. In the event an Indian tribe requests

22 such incorporation at the negotiation stage of a compact

23 or funding agreement, such incorporation shall be deemed

24 effective immediately and shall control the negotiation and

25 resulting compact and funding agreement.
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1 ‘‘SEC. 517. REGULATIONS.

2 ‘‘(a) IN GENERAL.—

3 ‘‘(1) Not later than 90 days after the date of en4 actment of this title, the Secretary shall initiate pro5 cedures under subchapter III of chapter 5 of title 5,

6 United States Code, to negotiate and promulgate such

7 regulations as are necessary to carry out this title.

8 ‘‘(2) Proposed regulations to implement this title

9 shall be published in the Federal Register by the Sec10 retary no later than 1 year after the date of enact11 ment of this title.

12 ‘‘(3) The authority to promulgate regulations

13 under this title shall expire 21 months after the date

14 of enactment of this title.

15 ‘‘(b) COMMITTEE.—A negotiated rulemaking com16 mittee established pursuant to section 565 of title 5, United

17 States Code, to carry out this section shall have as its mem18 bers only Federal and tribal government representatives, a

19 majority of whom shall be nominated by and be representa20 tives of Indian tribes with funding agreements under this

21 Act, and the Committee shall confer with, and accommodate

22 participation by, representatives of Indian tribes, inter23 tribal consortia, tribal organizations, and individual tribal

24 members.

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

26 shall adapt the negotiated rulemaking procedures to the
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1 unique context of self-governance and the government-to2 government relationship between the United States and In3 dian tribes.

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

5 shall not limit the effect of this title.

6 ‘‘(e) EFFECT OF CIRCULARS, POLICIES, MANUALS,

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

8 the participating Indian tribe in the compact or funding

9 agreement, the participating Indian tribe shall not be sub10 ject to any agency circular, policy, manual, guidance, or

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

12 eligibility provisions of section 105(g).

13 ‘‘SEC. 518. APPEALS.

14 ‘‘In any appeal (including civil actions) involving de15 cisions made by the Secretary under this title, the Secretary

16 shall have the burden of proof of demonstrating by clear

17 and convincing evidence—

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

19 made; and

20 ‘‘(2) the decision is fully consistent with provi21 sions and policies of this title.

22 ‘‘SEC. 519. AUTHORIZATION OF APPROPRIATIONS.

23 ‘‘There are authorized to be appropriated such sums

24 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 to

7 determine the feasibility a Tribal Self-Governance Dem8 onstration Project for appropriate programs, services, func9 tions, and activities (or portions thereof) of the agency.

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

11 the Secretary shall consider—

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

13 and program beneficiaries of such a demonstration

14 project;

15 ‘‘(2) statutory, regulatory, or other impediments

16 to implementation of such a demonstration project;

17 ‘‘(3) strategies for implementing such a dem18 onstration project;

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

20 such a demonstration project;

21 ‘‘(5) methods to assure quality and account22 ability in such a demonstration project; and

23 ‘‘(6) such other issues that may be determined by

24 the Secretary or developed through consultation pur25 suant to section 602.
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1 ‘‘(c) REPORT.—Not later than 18 months after the en2 actment of this title, the Secretary shall submit a report

3 to the Committee on Resources of the House of Representa4 tives and the Committee on Indian Affairs of the Senate.

5 The report shall contain—

6 ‘‘(1) the results of the study;

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

8 activities (or portions thereof) within the agency

9 which it would be feasible to include in a Tribal Self10 Governance Demonstration Project;

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

12 activities (or portions thereof) included in the list

13 provided pursuant to paragraph (2) which could be

14 included in a Tribal Self-Governance Demonstration

15 Project without amending statutes, or waiving regula16 tions that the Secretary may not waive;

17 ‘‘(4) a list of legislative actions required in order

18 to include those programs, services, functions, and ac19 tivities (or portions thereof) included in the list pro20 vided pursuant to paragraph (2) but not included in

21 the list provided pursuant to paragraph (3) in a

22 Tribal Self-Governance Demonstration Project; and

23 ‘‘(5) any separate views of tribes and other enti24 ties consulted pursuant to section 602 related to the
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1 information provided pursuant to paragraph (1)

2 through (4).

3 ‘‘SEC. 602. CONSULTATION.

4 ‘‘(a) STUDY PROTOCOL.—

5 ‘‘(1) CONSULTATION WITH INDIAN TRIBES.—The

6 Secretary shall consult with Indian tribes to deter7 mine a protocol for consultation under subsection (b)

8 prior to consultation under such subsection with the

9 other entities described in such subsection. The pro10 tocol shall require, at a minimum, that—

11 ‘‘(A) the government-to-government relation12 ship with Indian tribes forms the basis for the

13 consultation process;

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

15 jointly conduct the consultations required by this

16 section; and

17 ‘‘(C) the consultation process allow for sepa18 rate and direct recommendations from the In19 dian tribes and other entities described in sub20 section (b).

21 ‘‘(2) OPPORTUNITY FOR PUBLIC COMMENT.—In

22 determining the protocol described in paragraph (1),

23 the Secretary shall publish the proposed protocol and

24 allow a period of not less than 30 days for comment

25 by entities described in subsection (b) and other inter-
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1 ested individuals, and shall take comments received

2 into account in determining the final protocol.

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

4 under this title, the Secretary shall consult with Indian

5 tribes, States, counties, municipalities, program bene6 ficiaries, and interested public interest groups, and may

7 consult with other entities as appropriate.

8 ‘‘SEC. 603. DEFINITIONS.

9 ‘‘(a) IN GENERAL.—For purposes of this title, the Sec10 retary may use definitions provided in title V.

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

12 ‘agency’ shall mean any agency or other organizational

13 unit of the Department of Health and Human Services,

14 other than the Indian Health Service.

15 ‘‘SEC. 604. AUTHORIZATION OF APPROPRIATIONS.

16 ‘‘There are authorized to be appropriated for fiscal

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

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

19 expended.’’.

20 SEC. 5. AMENDMENTS CLARIFYING CIVIL PROCEEDINGS.

21 (a) BURDEN OF PROOF IN DISTRICT COURT AC22 TIONS.—Section 102(e)(1) of the Indian Self-Determination

23 and Education Assistance Act (25 U.S.C. 450f(e)(1)) is

24 amended by inserting after ‘‘subsection (b)(3)’’ the fol-
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1 lowing: ‘‘or any civil action conducted pursuant to section

2 110(a)’’.

3 (b) EFFECTIVE DATE.—The amendment made by this

4 section shall apply to any proceedings commenced after Oc5 tober 25, 1994.

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

7 SUPPLIES.

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

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

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

11 that follows through ‘‘shall be eligible’’ and inserting

12 the following: ‘‘or Indian tribe shall be deemed an ex13 ecutive agency and a part of the Indian Health Serv14 ice, and the employees of the tribal organization or

15 the Indian tribe, as the case may be, shall be eligible’’;

16 and

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

18 ‘‘At the request of an Indian tribe, the Secretary shall

19 enter into an agreement for the acquisition, on behalf

20 of the Indian tribe, of any goods, services, or supplies

21 available to the Secretary from the General Services

22 Administration or other Federal agencies that are not

23 directly available to the Indian tribe under this sec24 tion or any other Federal law, including acquisitions

25 from prime vendors. All such acquisitions shall be un-
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1 dertaken through the most efficient and speedy means

2 practicable, including electronic ordering arrange3 ments.

4 SEC. 7. PATIENT RECORDS.

5 Section 105 of the Indian Self-Determination and

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

7 adding at the end the following new subsection:

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

9 patient records may be deemed to be Federal records under

10 the Federal Records Act of 1950 for the limited purposes

11 of making such records eligible for storage by Federal

12 Records Centers to the same extent and in the same manner

13 as other Department of Health and Human Services pa14 tient records. Patient records that are deemed to be Federal

15 records under the Federal Records Act of 1950 pursuant to

16 this subsection shall not be considered Federal records for

17 the purposes of chapter 5 of title 5, United States Code.’’.

18 SEC. 8. REPEAL.

19 Title III of the Indian Self-Determination and Edu20 cation Assistance Act (25 U.S.C. 450f note) is hereby re21 pealed.

22 SEC. 9. SAVINGS PROVISION.

23 Funds appropriated for title III of the Indian Self24 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 Act

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