H. R. 1167

One Hundred Sixth Congress

of the

United States of America

AT THE SECOND SESSION

Begun and held at the City of Washington on Monday,

the twenty-fourth day of January, two thousand

An Act

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

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

Be it enacted by the Senate and House of Representatives of

the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Tribal Self-Governance Amendments of 2000’’.

SEC. 2. FINDINGS.

Congress finds that—

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

inherent sovereignty of Indian tribes and nations;

(2) the United States recognizes a special governmentto-government relationship with Indian tribes, including the

right of the Indian tribes to self-governance, as reflected in

the Constitution, treaties, Federal statutes, and the course

of dealings of the United States with Indian tribes;

(3) although progress has been made, the Federal bureaucracy, with its centralized rules and regulations, has eroded

tribal self-governance and dominates tribal affairs;

(4) the Tribal Self-Governance Demonstration Project,

established under title III of the Indian Self-Determination

and Education Assistance Act (25 U.S.C. 450f note) was

designed to improve and perpetuate the government-to-government relationship between Indian tribes and the United States

and to strengthen tribal control over Federal funding and program management;

(5) although the Federal Government has made considerable strides in improving Indian health care, it has failed

to fully meet its trust responsibilities and to satisfy its obligations to the Indian tribes under treaties and other laws; and

(6) Congress has reviewed the results of the Tribal SelfGovernance Demonstration Project and finds that transferring

full control and funding to tribal governments, upon tribal

request, over decision making for Federal programs, services,

functions, and activities (or portions thereof )—

(A) is an appropriate and effective means of implementing the Federal policy of government-to-government

relations with Indian tribes; and

(B) strengthens the Federal policy of Indian self-determination.
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SEC. 3. DECLARATION OF POLICY.

It is the policy of Congress—

(1) to permanently establish and implement tribal selfgovernance within the Department of Health and Human Services;

(2) to call for full cooperation from the Department of

Health and Human Services and its constituent agencies in

the implementation of tribal self-governance—

(A) to enable the United States to maintain and

improve its unique and continuing relationship with, and

responsibility to, Indian tribes;

(B) to permit each Indian tribe to choose the extent

of its participation in self-governance in accordance with

the provisions of the Indian Self-Determination and Education Assistance Act relating to the provision of Federal

services to Indian tribes;

(C) to ensure the continuation of the trust responsibility of the United States to Indian tribes and Indian

individuals;

(D) to affirm and enable the United States to fulfill

its obligations to the Indian tribes under treaties and other

laws;

(E) to strengthen the government-to-government relationship between the United States and Indian tribes

through direct and meaningful consultation with all tribes;

(F) to permit an orderly transition from Federal

domination of programs and services to provide Indian

tribes with meaningful authority, control, funding, and

discretion to plan, conduct, redesign, and administer programs, services, functions, and activities (or portions

thereof ) that meet the needs of the individual tribal

communities;

(G) to provide for a measurable parallel reduction in

the Federal bureaucracy as programs, services, functions,

and activities (or portion thereof ) are assumed by Indian

tribes;

(H) to encourage the Secretary to identify all programs,

services, functions, and activities (or portions thereof ) of

the Department of Health and Human Services that may

be managed by an Indian tribe under this Act and to

assist Indian tribes in assuming responsibility for such

programs, services, functions, and activities (or portions

thereof ); and

(I) to provide Indian tribes with the earliest opportunity to administer programs, services, functions, and

activities (or portions thereof ) from throughout the Department of Health and Human Services.

SEC. 4. TRIBAL SELF-GOVERNANCE.

The Indian Self-Determination and Education Assistance Act

(25 U.S.C. 450 et seq.) is amended by adding at the end the

following:
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‘‘TITLE V—TRIBAL SELF-GOVERNANCE

‘‘SEC. 501. DEFINITIONS.

‘‘(a) IN GENERAL.—In this title:

‘‘(1) CONSTRUCTION PROJECT.—The term ‘construction

project’—

‘‘(A) means an organized noncontinuous undertaking

to complete a specific set of predetermined objectives for

the planning, environmental determination, design,

construction, repair, improvement, or expansion of

buildings or facilities, as described in a construction project

agreement; and

‘‘(B) does not include construction program administration and activities described in paragraphs (1) through

(3) of section 4(m), that may otherwise be included in

a funding agreement under this title.

‘‘(2) CONSTRUCTION PROJECT AGREEMENT.—The term

‘construction project agreement’ means a negotiated agreement

between the Secretary and an Indian tribe, that at a

minimum—

‘‘(A) establishes project phase start and completion

dates;

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

by which it will be accomplished;

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

and the Secretary;

‘‘(D) addresses environmental considerations;

‘‘(E) identifies the owner and operations and maintenance entity of the proposed work;

‘‘(F) provides a budget;

‘‘(G) provides a payment process; and

‘‘(H) establishes the duration of the agreement based

on the time necessary to complete the specified scope of

work, which may be 1 or more years.

‘‘(3) GROSS MISMANAGEMENT.—The term ‘gross mismanagement’ means a significant, clear, and convincing violation of

a compact, funding agreement, or regulatory, or statutory

requirements applicable to Federal funds transferred to an

Indian tribe by a compact or funding agreement that results

in a significant reduction of funds available for the programs,

services, functions, or activities (or portions thereof ) assumed

by an Indian tribe.

‘‘(4) INHERENT FEDERAL FUNCTIONS.—The term ‘inherent

Federal functions’ means those Federal functions which cannot

legally be delegated to Indian tribes.

‘‘(5) INTER-TRIBAL CONSORTIUM.—The term ‘inter-tribal

consortium’ means a coalition of two more separate Indian

tribes that join together for the purpose of participating in

self-governance, including tribal organizations.

‘‘(6) SECRETARY.—The term ‘Secretary’ means the Secretary

of Health and Human Services.

‘‘(7) SELF-GOVERNANCE.—The term ‘self-governance’ means

the program of self-governance established under section 502.

‘‘(8) TRIBAL SHARE.—The term ‘tribal share’ means an

Indian tribe’s portion of all funds and resources that support
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secretarial programs, services, functions, and activities (or portions thereof ) that are not required by the Secretary for

performance of inherent Federal functions.

‘‘(b) INDIAN TRIBE.—In any case in which an Indian tribe has

authorized another Indian tribe, an inter-tribal consortium, or a

tribal organization to plan for or carry out programs, services,

functions, or activities (or portions thereof ) on its behalf under

this title, the authorized Indian tribe, inter-tribal consortium, or

tribal organization shall have the rights and responsibilities of

the authorizing Indian tribe (except as otherwise provided in the

authorizing resolution or in this title). In such event, the term

‘Indian tribe’ as used in this title shall include such other authorized

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

‘‘SEC. 502. ESTABLISHMENT.

‘‘The Secretary shall establish and carry out a program within

the Indian Health Service of the Department of Health and Human

Services to be known as the ‘Tribal Self-Governance Program’ in

accordance with this title.

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

‘‘(a) CONTINUING PARTICIPATION.—Each Indian tribe that is

participating in the Tribal Self-Governance Demonstration Project

under title III on the date of the enactment of this title may

elect to participate in self-governance under this title under existing

authority as reflected in tribal resolution.

‘‘(b) ADDITIONAL PARTICIPANTS.— ‘‘(1) IN GENERAL.—In addition to those Indian tribes participating in self-governance under subsection (a), each year an

additional 50 Indian tribes that meet the eligibility criteria

specified in subsection (c) shall be entitled to participate in

self-governance.

‘‘(2) TREATMENT OF CERTAIN INDIAN TRIBES.— ‘‘(A) IN GENERAL.—An Indian tribe that has withdrawn

from participation in an inter-tribal consortium or tribal

organization, in whole or in part, shall be entitled to participate in self-governance provided the Indian tribe meets

the eligibility criteria specified in subsection (c).

‘‘(B) EFFECT OF WITHDRAWAL.—If an Indian tribe has

withdrawn from participation in an inter-tribal consortium

or tribal organization, that Indian tribe shall be entitled

to its tribal share of funds supporting those programs,

services, functions, and activities (or portions thereof ) that

the Indian tribe will be carrying out under the compact

and funding agreement of the Indian tribe.

‘‘(C) PARTICIPATION IN SELF-GOVERNANCE.—In no event

shall the withdrawal of an Indian tribe from an intertribal consortium or tribal organization affect the eligibility

of the inter-tribal consortium or tribal organization to

participate in self-governance.

‘‘(c) APPLICANT POOL.—

‘‘(1) IN GENERAL.—The qualified applicant pool for selfgovernance shall consist of each Indian tribe that—

‘‘(A) successfully completes the planning phase

described in subsection (d);

‘‘(B) has requested participation in self-governance by

resolution or other official action by the governing body

of each Indian tribe to be served; and
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‘‘(C) has demonstrated, for 3 fiscal years, financial

stability and financial management capability.

‘‘(2) CRITERIA FOR DETERMINING FINANCIAL STABILITY AND

FINANCIAL MANAGEMENT CAPACITY.—For purposes of this subsection, evidence that, during the 3-year period referred to

in paragraph (1)(C), an Indian tribe had no uncorrected significant and material audit exceptions in the required annual

audit of the Indian tribe’s self-determination contracts or selfgovernance funding agreements with any Federal agency shall

be conclusive evidence of the required stability and capability.

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

in self-governance shall complete a planning phase. The planning

phase shall be conducted to the satisfaction of the Indian tribe

and shall include—

‘‘(1) legal and budgetary research; and

‘‘(2) internal tribal government planning and organizational

preparation relating to the administration of health care programs.

‘‘(e) GRANTS.—Subject to the availability of appropriations, any

Indian tribe meeting the requirements of paragraph (1)(B) and

(C) of subsection (c) shall be eligible for grants—

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

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

tribe or tribal organization in self-governance, as set forth

in a compact and a funding agreement.

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

under subsection (e) shall not be a requirement of participation

in self-governance.

‘‘SEC. 504. COMPACTS.

‘‘(a) COMPACT REQUIRED.—The Secretary shall negotiate and

enter into a written compact with each Indian tribe participating

in self-governance in a manner consistent with the Federal Government’s trust responsibility, treaty obligations, and the governmentto-government relationship between Indian tribes and the United

States.

‘‘(b) CONTENTS.—Each compact required under subsection (a)

shall set forth the general terms of the government-to-government

relationship between the Indian tribe and the Secretary, including

such terms as the parties intend shall control year after year.

Such compacts may only be amended by mutual agreement of

the parties.

‘‘(c) EXISTING COMPACTS.—An Indian tribe participating in the

Tribal Self-Governance Demonstration Project under title III on

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

any time after the date of the enactment of this title to—

‘‘(1) retain the Tribal Self-Governance Demonstration

Project compact of that Indian tribe (in whole or in part)

to the extent that the provisions of that funding agreement

are not directly contrary to any express provision of this title;

or

‘‘(2) instead of retaining a compact or portion thereof under

paragraph (1), negotiate a new compact in a manner consistent

with the requirements of this title.

‘‘(d) TERM AND EFFECTIVE DATE.—The effective date of a compact shall be the date of the approval and execution by the Indian

tribe or another date agreed upon by the parties, and shall remain
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in effect for so long as permitted by Federal law or until terminated

by mutual written agreement, retrocession, or reassumption.

‘‘SEC. 505. FUNDING AGREEMENTS.

‘‘(a) FUNDING AGREEMENT REQUIRED.—The Secretary shall

negotiate and enter into a written funding agreement with each

Indian tribe participating in self-governance in a manner consistent

with the Federal Government’s trust responsibility, treaty obligations, and the government-to-government relationship between

Indian tribes and the United States.

‘‘(b) CONTENTS.—

‘‘(1) IN GENERAL.—Each funding agreement required under

subsection (a) shall, as determined by the Indian tribe,

authorize the Indian tribe to plan, conduct, consolidate, administer, and receive full tribal share funding, including tribal

shares of discretionary Indian Health Service competitive

grants (excluding congressionally earmarked competitive

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

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

Indians because of their status as Indians without regard to

the agency or office of the Indian Health Service within which

the program, service, function, or activity (or portion thereof )

is performed.

‘‘(2) INCLUSION OF CERTAIN PROGRAMS, SERVICES, FUNCTIONS, AND ACTIVITIES.—Such programs, services, functions, or

activities (or portions thereof ) include all programs, services,

functions, activities (or portions thereof ), including grants

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

of such grants), with respect to which Indian tribes or Indians

are primary or significant beneficiaries, administered by the

Department of Health and Human Services through the Indian

Health Service and all local, field, service unit, area, regional,

and central headquarters or national office functions so

administered under the authority of—

‘‘(A) the Act of November 2, 1921 (42 Stat. 208; chapter

115; 25 U.S.C. 13);

‘‘(B) the Act of April 16, 1934 (48 Stat. 596; chapter

147; 25 U.S.C. 452 et seq.);

‘‘(C) the Act of August 5, 1954 (68 Stat. 674; chapter

658);

‘‘(D) the Indian Health Care Improvement Act (25

U.S.C. 1601 et seq.);

‘‘(E) the Indian Alcohol and Substance Abuse Prevention and Treatment Act of 1986 (25 U.S.C. 2401 et seq.);

‘‘(F) any other Act of Congress authorizing any agency

of the Department of Health and Human Services to administer, carry out, or provide financial assistance to such

a program, service, function or activity (or portions thereof )

described in this section that is carried out for the benefit

of Indians because of their status as Indians; or

‘‘(G) any other Act of Congress authorizing such a

program, service, function, or activity (or portions thereof )

carried out for the benefit of Indians under which appropriations are made available to any agency other than

an agency within the Department of Health and Human

Services, in any case in which the Secretary administers
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that program, service, function, or activity (or portion

thereof ).

‘‘(c) INCLUSION IN COMPACT OR FUNDING AGREEMENT.—It shall

not be a requirement that an Indian tribe or Indians be identified

in the authorizing statute for a program or element of a program

to be eligible for inclusion in a compact or funding agreement

under this title.

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

under this title shall set forth—

‘‘(1) terms that generally identify the programs, services,

functions, and activities (or portions thereof ) to be performed

or administered; and

‘‘(2) for the items identified in paragraph (1)—

‘‘(A) the general budget category assigned;

‘‘(B) the funds to be provided, including those funds

to be provided on a recurring basis;

‘‘(C) the time and method of transfer of the funds;

‘‘(D) the responsibilities of the Secretary; and

‘‘(E) any other provision with respect to which the

Indian tribe and the Secretary agree.

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

from an Indian tribe that is withdrawing or retroceding the operation of one or more programs, services, functions, or activities

(or portions thereof ) identified in a funding agreement, or unless

otherwise agreed to by the parties, each funding agreement shall

remain in full force and effect until a subsequent funding agreement

is executed, and the terms of the subsequent funding agreement

shall be retroactive to the end of the term of the preceding funding

agreement.

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

participating in the Tribal Self-Governance Demonstration Project

established under title III on the date of the enactment of this

title shall have the option at any time thereafter to—

‘‘(1) retain the Tribal Self-Governance Demonstration

Project funding agreement of that Indian tribe (in whole or

in part) to the extent that the provisions of that funding agreement are not directly contrary to any express provision of

this title; or

‘‘(2) instead of retaining a funding agreement or portion

thereof under paragraph (1), negotiate a new funding agreement in a manner consistent with the requirements of this

title.

‘‘(g) STABLE BASE FUNDING.—At the option of an Indian tribe,

a funding agreement may provide for a stable base budget specifying

the recurring funds (including, for purposes of this provision, funds

available under section 106(a)) to be transferred to such Indian

tribe, for such period as may be specified in the funding agreement,

subject to annual adjustment only to reflect changes in congressional appropriations by sub-sub activity excluding earmarks.

‘‘SEC. 506. GENERAL PROVISIONS.

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

to compacts and funding agreements negotiated under this title

and an Indian tribe may, at its option, include provisions that

reflect such requirements in a compact or funding agreement.

‘‘(b) CONFLICTS OF INTEREST.—Indian tribes participating in

self-governance under this title shall ensure that internal measures
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are in place to address conflicts of interest in the administration

of self-governance programs, services, functions, or activities (or

portions thereof ).

‘‘(c) AUDITS.—

‘‘(1) SINGLE AGENCY AUDIT ACT.—The provisions of chapter

75 of title 31, United States Code, requiring a single agency

audit report shall apply to funding agreements under this title.

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

principles under the applicable Office of Management and

Budget circular, except as modified by section 106 other provisions of law, or by any exemptions to applicable Office of

Management and Budget circulars subsequently granted by

the Office of Management and Budget. No other audit or

accounting standards shall be required by the Secretary. Any

claim by the Federal Government against the Indian tribe

relating to funds received under a funding agreement based

on any audit under this subsection shall be subject to the

provisions of section 106(f ).

‘‘(d) RECORDS.—

‘‘(1) IN GENERAL.—Unless an Indian tribe specifies otherwise in the compact or funding agreement, records of the Indian

tribe shall not be considered Federal records for purposes of

chapter 5 of title 5, United States Code.

‘‘(2) RECORDKEEPING SYSTEM.—The Indian tribe shall maintain a recordkeeping system, and, after 30 days advance notice,

provide the Secretary with reasonable access to such records

to enable the Department of Health and Human Services to

meet its minimum legal recordkeeping system requirements

under sections 3101 through 3106 of title 44, United States

Code.

‘‘(e) REDESIGN AND CONSOLIDATION.—An Indian tribe may

redesign or consolidate programs, services, functions, and activities

(or portions thereof ) included in a funding agreement under section

505 and reallocate or redirect funds for such programs, services,

functions, and activities (or portions thereof ) in any manner which

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

and welfare of the Indian community being served, only if the

redesign or consolidation does not have the effect of denying eligibility for services to population groups otherwise eligible to be

served under applicable Federal law.

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

partially, to the Secretary programs, services, functions, or activities

(or portions thereof ) included in the compact or funding agreement.

Unless the Indian tribe rescinds the request for retrocession, such

retrocession will become effective within the timeframe specified

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

of such a specification, such retrocession shall become effective

on—

‘‘(1) the earlier of—

‘‘(A) 1 year after the date of submission of such request;

or

‘‘(B) the date on which the funding agreement expires;

or

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

Secretary and the Indian tribe.

‘‘(g) WITHDRAWAL.—

‘‘(1) PROCESS.—
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‘‘(A) IN GENERAL.—An Indian tribe may fully or partially withdraw from a participating inter-tribal consortium

or tribal organization its share of any program, function,

service, or activity (or portions thereof ) included in a compact or funding agreement.

‘‘(B) EFFECTIVE DATE.—The withdrawal referred to in

subparagraph (A) shall become effective within the timeframe specified in the resolution which authorizes transfer

to the participating tribal organization or inter-tribal

consortium. In the absence of a specific timeframe set

forth in the resolution, such withdrawal shall become effective on—

‘‘(i) the earlier of—

‘‘(I) 1 year after the date of submission of

such request; or

‘‘(II) the date on which the funding agreement

expires; or

‘‘(ii) such date as may be mutually agreed upon

by the Secretary, the withdrawing Indian tribe, and

the participating tribal organization or inter-tribal

consortium that has signed the compact or funding

agreement on behalf of the withdrawing Indian tribe,

inter-tribal consortium, or tribal organization.

‘‘(2) DISTRIBUTION OF FUNDS.—When an Indian tribe or

tribal organization eligible to enter into a self-determination

contract under title I or a compact or funding agreement under

this title fully or partially withdraws from a participating intertribal consortium or tribal organization—

‘‘(A) the withdrawing Indian tribe or tribal organization

shall be entitled to its tribal share of funds supporting

those programs, services, functions, or activities (or portions

thereof ) that the Indian tribe will be carrying out under

its own self-determination contract or compact and funding

agreement (calculated on the same basis as the funds were

initially allocated in the funding agreement of the intertribal consortium or tribal organization); and

‘‘(B) the funds referred to in subparagraph (A) shall

be transferred from the funding agreement of the intertribal consortium or tribal organization, on the condition

that the provisions of sections 102 and 105(i), as appropriate, shall apply to that withdrawing Indian tribe.

‘‘(3) REGAINING MATURE CONTRACT STATUS.—If an Indian

tribe elects to operate all or some programs, services, functions,

or activities (or portions thereof ) carried out under a compact

or funding agreement under this title through a self-determination contract under title I, at the option of the Indian tribe,

the resulting self-determination contract shall be a mature

self-determination contract.

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

extent to which, funding is provided under this title or under

the compact or funding agreement, the Indian tribe shall not be

entitled to contract with the Secretary for such funds under section

102, except that such Indian tribe shall be eligible for new programs

on the same basis as other Indian tribes.

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

‘‘(a) MANDATORY PROVISIONS.—
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‘‘(1) HEALTH STATUS REPORTS.—Compacts or funding agreements negotiated between the Secretary and an Indian tribe

shall include a provision that requires the Indian tribe to

report on health status and service delivery—

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

to the Secretary and specific funds for this purpose are

provided by the Secretary under the funding agreement;

and

‘‘(B) if such reporting shall impose minimal burdens

on the participating Indian tribe and such requirements

are promulgated under section 517.

‘‘(2) REASSUMPTION.—

‘‘(A) IN GENERAL.—Compacts or funding agreements

negotiated between the Secretary and an Indian tribe shall

include a provision authorizing the Secretary to reassume

operation of a program, service, function, or activity (or

portions thereof ) and associated funding if there is a specific finding relative to that program, service, function,

or activity (or portion thereof ) of—

‘‘(i) imminent endangerment of the public health

caused by an act or omission of the Indian tribe, and

the imminent endangerment arises out of a failure

to carry out the compact or funding agreement; or

‘‘(ii) gross mismanagement with respect to funds

transferred to a tribe by a compact or funding agreement, as determined by the Secretary in consultation

with the Inspector General, as appropriate.

‘‘(B) PROHIBITION.—The Secretary shall not reassume

operation of a program, service, function, or activity (or

portions thereof ) unless—

‘‘(i) the Secretary has first provided written notice

and a hearing on the record to the Indian tribe; and

‘‘(ii) the Indian tribe has not taken corrective action

to remedy the imminent endangerment to public health

or gross mismanagement.

‘‘(C) EXCEPTION.— ‘‘(i) IN GENERAL.—Notwithstanding subparagraph

(B), the Secretary may, upon written notification to

the Indian tribe, immediately reassume operation of

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

thereof ) if—

‘‘(I) the Secretary makes a finding of imminent

substantial and irreparable endangerment of the

public health caused by an act or omission of the

Indian tribe; and

‘‘(II) the endangerment arises out of a failure

to carry out the compact or funding agreement.

‘‘(ii) REASSUMPTION.—If the Secretary reassumes

operation of a program, service, function, or activity

(or portion thereof ) under this subparagraph, the Secretary shall provide the Indian tribe with a hearing

on the record not later than 10 days after such reassumption.

‘‘(D) HEARINGS.—In any hearing or appeal involving

a decision to reassume operation of a program, service,

function, or activity (or portion thereof ), the Secretary shall

have the burden of proof of demonstrating by clear and
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convincing evidence the validity of the grounds for the

reassumption.

‘‘(b) FINAL OFFER.—In the event the Secretary and a participating Indian tribe are unable to agree, in whole or in part, on

the terms of a compact or funding agreement (including funding

levels), the Indian tribe may submit a final offer to the Secretary.

Not more than 45 days after such submission, or within a longer

time agreed upon by the Indian tribe, the Secretary shall review

and make a determination with respect to such offer. In the absence

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

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

to by the Secretary.

‘‘(c) REJECTION OF FINAL OFFERS.—

‘‘(1) IN GENERAL.—If the Secretary rejects an offer made

under subsection (b) (or one or more provisions or funding

levels in such offer), the Secretary shall provide—

‘‘(A) a timely written notification to the Indian tribe

that contains a specific finding that clearly demonstrates,

or that is supported by a controlling legal authority, that—

‘‘(i) the amount of funds proposed in the final

offer exceeds the applicable funding level to which

the Indian tribe is entitled under this title;

‘‘(ii) the program, function, service, or activity (or

portion thereof ) that is the subject of the final offer

is an inherent Federal function that cannot legally

be delegated to an Indian tribe;

‘‘(iii) the Indian tribe cannot carry out the program,

function, service, or activity (or portion thereof ) in

a manner that would not result in significant danger

or risk to the public health; or

‘‘(iv) the Indian tribe is not eligible to participate

in self-governance under section 503;

‘‘(B) technical assistance to overcome the objections

stated in the notification required by subparagraph (A);

‘‘(C) the Indian tribe with a hearing on the record

with the right to engage in full discovery relevant to any

issue raised in the matter and the opportunity for appeal

on the objections raised, except that the Indian tribe may,

in lieu of filing such appeal, directly proceed to initiate

an action in a Federal district court pursuant to section

110(a); and

‘‘(D) the Indian tribe with the option of entering into

the severable portions of a final proposed compact or

funding agreement, or provision thereof, (including a lesser

funding amount, if any), that the Secretary did not reject,

subject to any additional alterations necessary to conform

the compact or funding agreement to the severed provisions.

‘‘(2) EFFECT OF EXERCISING CERTAIN OPTION.—If an Indian

tribe exercises the option specified in paragraph (1)(D), that

Indian tribe shall retain the right to appeal the Secretary’s

rejection under this section, and subparagraphs (A), (B), and

(C) of that paragraph shall only apply to that portion of the

proposed final compact, funding agreement, or provision thereof

that was rejected by the Secretary.

‘‘(d) BURDEN OF PROOF.—With respect to any hearing or appeal

or civil action conducted pursuant to this section, the Secretary
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shall have the burden of demonstrating by clear and convincing

evidence the validity of the grounds for rejecting the offer (or

a provision thereof ) made under subsection (b).

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

agreements the Secretary shall at all times negotiate in good faith

to maximize implementation of the self-governance policy. The Secretary shall carry out this title in a manner that maximizes the

policy of tribal self-governance, in a manner consistent with the

purposes specified in section 3 of the Tribal Self-Governance Amendments of 2000.

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

or activities (or portions thereof ) carried out by Indian tribes under

this title reduce the administrative or other responsibilities of the

Secretary with respect to the operation of Indian programs and

result in savings that have not otherwise been included in the

amount of tribal shares and other funds determined under section

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

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

provision of additional services to program beneficiaries in a manner

equitable to directly served, contracted, and compacted programs.

‘‘(g) TRUST RESPONSIBILITY.—The Secretary is prohibited from

waiving, modifying, or diminishing in any way the trust responsibility of the United States with respect to Indian tribes and individual Indians that exists under treaties, Executive orders, other

laws, or court decisions.

‘‘(h) DECISIONMAKER.—A decision that constitutes final agency

action and relates to an appeal within the Department of Health

and Human Services conducted under subsection (c) shall be made

either—

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

at a higher organizational level within the Department than

the level of the departmental agency in which the decision

that is the subject of the appeal was made; or

‘‘(2) by an administrative judge.

‘‘SEC. 508. TRANSFER OF FUNDS.

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

funding agreement entered into under this title, the Secretary shall

transfer to the Indian tribe all funds provided for in the funding

agreement, pursuant to subsection (c), and provide funding for

periods covered by joint resolution adopted by Congress making

continuing appropriations, to the extent permitted by such resolutions. In any instance where a funding agreement requires an

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

year, or requires semiannual or other periodic transfers of funding

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

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

the apportionment of such funds by the Office of Management

and Budget to the Department, unless the funding agreement provides otherwise.

‘‘(b) MULTIYEAR FUNDING.—The Secretary is authorized to

employ, upon tribal request, multiyear funding agreements. References in this title to funding agreements shall include such

multiyear funding agreements.

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

under a funding agreement under this title in an amount equal

to the amount that the Indian tribe would have been entitled
H. R. 1167—13

to receive under self-determination contracts under this Act,

including amounts for direct program costs specified under section

106(a)(1) and amounts for contract support costs specified under

section 106(a) (2), (3), (5), and (6), including any funds that are

specifically or functionally related to the provision by the Secretary

of services and benefits to the Indian tribe or its members, all

without regard to the organizational level within the Department

where such functions are carried out.

‘‘(d) PROHIBITIONS.—

‘‘(1) IN GENERAL.—Except as provided in paragraph (2),

the Secretary is expressly prohibited from—

‘‘(A) failing or refusing to transfer to an Indian tribe

its full share of any central, headquarters, regional, area,

or service unit office or other funds due under this Act,

except as required by Federal law;

‘‘(B) withholding portions of such funds for transfer

over a period of years; and

‘‘(C) reducing the amount of funds required under this

Act—

‘‘(i) to make funding available for self-governance

monitoring or administration by the Secretary;

‘‘(ii) in subsequent years, except pursuant to—

‘‘(I) a reduction in appropriations from the previous fiscal year for the program or function to

be included in a compact or funding agreement;

‘‘(II) a congressional directive in legislation or

accompanying report;

‘‘(III) a tribal authorization;

‘‘(IV) a change in the amount of pass-through

funds subject to the terms of the funding agreement; or

‘‘(V) completion of a project, activity, or program for which such funds were provided;

‘‘(iii) to pay for Federal functions, including Federal

pay costs, Federal employee retirement benefits, automated data processing, technical assistance, and monitoring of activities under this Act; or

‘‘(iv) to pay for costs of Federal personnel displaced

by self-determination contracts under this Act or selfgovernance;

‘‘(2) EXCEPTION.—The funds described in paragraph (1)(C)

may be increased by the Secretary if necessary to carry out

this Act or as provided in section 105(c)(2).

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

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

Federal personnel, Federal supplies (including supplies available

from Federal warehouse facilities), Federal supply sources

(including lodging, airline transportation, and other means of

transportation including the use of interagency motor pool vehicles)

or other Federal resources (including supplies, services, and

resources available to the Secretary under any procurement contracts in which the Department is eligible to participate), the Secretary shall acquire and transfer such personnel, supplies, or

resources to the Indian tribe.

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

respect to functions transferred by the Indian Health Service to

an Indian tribe, the Indian Health Service shall provide goods
H. R. 1167—14

and services to the Indian tribe, on a reimbursable basis, including

payment in advance with subsequent adjustment. The reimbursements received from those goods and services, along with the funds

received from the Indian tribe pursuant to this title, may be credited

to the same or subsequent appropriation account which provided

the funding, such amounts to remain available until expended.

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

States Code, shall apply to the transfer of funds due under a

compact or funding agreement authorized under this title.

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

tribe is entitled to retain interest earned on any funds paid under

a compact or funding agreement to carry out governmental or

health purposes and such interest shall not diminish the amount

of funds the Indian tribe is authorized to receive under its funding

agreement in the year the interest is earned or in any subsequent

fiscal year. Funds transferred under this title shall be managed

using the prudent investment standard.

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

in accordance with a compact or funding agreement shall remain

available until expended. In the event that an Indian tribe elects

to carry over funding from 1 year to the next, such carryover

shall not diminish the amount of funds the Indian tribe is authorized to receive under its funding agreement in that or any subsequent fiscal year.

‘‘( j) PROGRAM INCOME.—All Medicare, Medicaid, or other program income earned by an Indian tribe shall be treated as supplemental funding to that negotiated in the funding agreement. The

Indian tribe may retain all such income and expend such funds

in the current year or in future years except to the extent that

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

provides otherwise for Medicare and Medicaid receipts. Such funds

shall not result in any offset or reduction in the amount of funds

the Indian tribe is authorized to receive under its funding agreement in the year the program income is received or for any subsequent fiscal year.

‘‘(k) LIMITATION OF COSTS.—An Indian tribe shall not be obligated to continue performance that requires an expenditure of

funds in excess of the amount of funds transferred under a compact

or funding agreement. If at any time the Indian tribe has reason

to believe that the total amount provided for a specific activity

in the compact or funding agreement is insufficient the Indian

tribe shall provide reasonable notice of such insufficiency to the

Secretary. If the Secretary does not increase the amount of funds

transferred under the funding agreement, the Indian tribe may

suspend performance of the activity until such time as additional

funds are transferred.

‘‘SEC. 509. CONSTRUCTION PROJECTS.

‘‘(a) IN GENERAL.—Indian tribes participating in tribal selfgovernance may carry out construction projects under this title

if they elect to assume all Federal responsibilities under the

National Environmental Policy Act of 1969 (42 U.S.C. 4321 et

seq.), the National Historic Preservation Act (16 U.S.C. 470 et

seq.), and related provisions of law that would apply if the Secretary

were to undertake a construction project, by adopting a resolution—
H. R. 1167—15

‘‘(1) designating a certifying officer to represent the Indian

tribe and to assume the status of a responsible Federal official

under such laws; and

‘‘(2) accepting the jurisdiction of the Federal court for the

purpose of enforcement of the responsibilities of the responsible

Federal official under such environmental laws.

‘‘(b) NEGOTIATIONS.—Construction project proposals shall be

negotiated pursuant to the statutory process in section 105(m)

and resulting construction project agreements shall be incorporated

into funding agreements as addenda.

‘‘(c) CODES AND STANDARDS.—The Indian tribe and the Secretary shall agree upon and specify appropriate building codes

and architectural and engineering standards (including health and

safety) which shall be in conformity with nationally recognized

standards for comparable projects.

‘‘(d) RESPONSIBILITY FOR COMPLETION.—The Indian tribe shall

assume responsibility for the successful completion of the construction project in accordance with the negotiated construction project

agreement.

‘‘(e) FUNDING.—Funding for construction projects carried out

under this title shall be included in funding agreements as annual

advance payments, with semiannual payments at the option of

the Indian tribe. Annual advance and semiannual payment amounts

shall be determined based on mutually agreeable project schedules

reflecting work to be accomplished within the advance payment

period, work accomplished and funds expended in previous payment

periods, and the total prior payments. The Secretary shall include

associated project contingency funds with each advance payment

installment. The Indian tribe shall be responsible for the management of the contingency funds included in funding agreements.

‘‘(f ) APPROVAL.—The Secretary shall have at least one opportunity to approve project planning and design documents prepared

by the Indian tribe in advance of construction of the facilities

specified in the scope of work for each negotiated construction

project agreement or amendment thereof which results in a significant change in the original scope of work. The Indian tribe shall

provide the Secretary with project progress and financial reports

not less than semiannually. The Secretary may conduct onsite

project oversight visits semiannually or on an alternate schedule

agreed to by the Secretary and the Indian tribe.

‘‘(g) WAGES.—All laborers and mechanics employed by contractors and subcontractors (excluding tribes and tribal organizations)

in the construction, alteration, or repair, including painting or decorating of a building or other facilities in connection with construction projects funded by the United States under this Act shall

be paid wages at not less than those prevailing wages on similar

construction in the locality as determined by the Secretary of Labor

in accordance with the Davis-Bacon Act of March 3, 1931 (46

Stat. 1494). With respect to construction alteration, or repair work

to which the Act of March 3, 1931, is applicable under this section,

the Secretary of Labor shall have the authority and functions set

forth in the Reorganization Plan numbered 14, of 1950, and section

2 of the Act of June 13, 1934 (48 Stat. 948).

‘‘(h) APPLICATION OF OTHER LAWS.—Unless otherwise agreed

to by the Indian tribe, no provision of the Office of Federal Procurement Policy Act, the Federal Acquisition Regulations issued pursuant thereto, or any other law or regulation pertaining to Federal
H. R. 1167—16

procurement (including Executive orders) shall apply to any

construction project conducted under this title.

‘‘SEC. 510. FEDERAL PROCUREMENT LAWS AND REGULATIONS.

‘‘Regarding construction programs or projects, the Secretary

and Indian tribes may negotiate for the inclusion of specific provisions of the Office of Federal Procurement and Policy Act (41

U.S.C. 401 et seq.) and Federal acquisition regulations in any

funding agreement entered into under this part. Absent a negotiated

agreement, such provisions and regulatory requirements shall not

apply.

‘‘SEC. 511. CIVIL ACTIONS.

‘‘(a) CONTRACT DEFINED.—For the purposes of section 110, the

term ‘contract’ shall include compacts and funding agreements

entered into under this title.

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

Revised Statutes (25 U.S.C. 81) and section 16 of the Act of June

18, 1934 (48 Stat. 987; chapter 576; 25 U.S.C. 476), shall not

apply to attorney and other professional contracts entered into

by Indian tribes participating in self-governance under this title.

‘‘(c) REFERENCES.—All references in this Act to section 1 of

the Act of June 26, 1936 (49 Stat. 1967; chapter 831) are hereby

deemed to include the first section of the Act of July 3, 1952

(66 Stat. 323; chapter 549; 25 U.S.C. 82a).

‘‘SEC. 512. FACILITATION.

‘‘(a) SECRETARIAL INTERPRETATION.—Except as otherwise provided by law, the Secretary shall interpret all Federal laws, Executive orders, and regulations in a manner that will facilitate—

‘‘(1) the inclusion of programs, services, functions, and

activities (or portions thereof ) and funds associated therewith,

in the agreements entered into under this section;

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

‘‘(3) the achievement of tribal health goals and objectives.

‘‘(b) REGULATION WAIVER.— ‘‘(1) IN GENERAL.—An Indian tribe may submit a written

request to waive application of a regulation promulgated under

section 517 or the authorities specified in section 505(b) for

a compact or funding agreement entered into with the Indian

Health Service under this title, to the Secretary identifying

the applicable Federal regulation sought to be waived and

the basis for the request.

‘‘(2) APPROVAL.—Not later than 90 days after receipt by

the Secretary of a written request by an Indian tribe to waive

application of a regulation for a compact or funding agreement

entered into under this title, the Secretary shall either approve

or deny the requested waiver in writing. A denial may be

made only upon a specific finding by the Secretary that identified language in the regulation may not be waived because

such waiver is prohibited by Federal law. A failure to approve

or deny a waiver request not later than 90 days after receipt

shall be deemed an approval of such request. The Secretary’s

decision shall be final for the Department.

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

compact or funding agreement executed pursuant to this title or
H. R. 1167—17

an agreement negotiated under the Tribal Self-Governance Demonstration Project established under title III, as in effect before

the enactment of the Tribal Self-Governance Amendments of 2000,

upon the request of an Indian tribe, the Secretary—

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

buildings, hospitals, and other facilities and all equipment

therein or appertaining thereto and other personal property

owned by the Government within the Secretary’s jurisdiction

under such terms and conditions as may be agreed upon by

the Secretary and the Indian tribe for their use and maintenance;

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

or real property found to be excess to the needs of any agency

of the Department, or the General Services Administration,

except that—

‘‘(A) subject to the provisions of subparagraph (B), title

to property and equipment furnished by the Federal

Government for use in the performance of the compact

or funding agreement or purchased with funds under any

compact or funding agreement shall, unless otherwise

requested by the Indian tribe, vest in the appropriate

Indian tribe;

‘‘(B) if property described in subparagraph (A) has

a value in excess of $5,000 at the time of retrocession,

withdrawal, or reassumption, at the option of the Secretary

upon the retrocession, withdrawal, or reassumption, title

to such property and equipment shall revert to the Department of Health and Human Services; and

‘‘(C) all property referred to in subparagraph (A) shall

remain eligible for replacement, maintenance, and improvement on the same basis as if title to such property were

vested in the United States; and

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

or real property for donation to an Indian tribe if the Secretary

determines the property is appropriate for use by the Indian

tribe for any purpose for which a compact or funding agreement

is authorized under this title.

‘‘(d) MATCHING OR COST-PARTICIPATION REQUIREMENT.—All

funds provided under compacts, funding agreements, or grants made

pursuant to this Act, shall be treated as non-Federal funds for

purposes of meeting matching or cost participation requirements

under any other Federal or non-Federal program.

‘‘(e) STATE FACILITATION.—States are hereby authorized and

encouraged to enact legislation, and to enter into agreements with

Indian tribes to facilitate and supplement the initiatives, programs,

and policies authorized by this title and other Federal laws benefiting Indians and Indian tribes.

‘‘(f ) RULES OF CONSTRUCTION.—Each provision of this title and

each provision of a compact or funding agreement shall be liberally

construed for the benefit of the Indian tribe participating in selfgovernance and any ambiguity shall be resolved in favor of the

Indian tribe.

‘‘SEC. 513. BUDGET REQUEST.

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

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

annual budget request submitted to Congress under section
H. R. 1167—18

1105 of title 31, United States Code, all funds necessary to

fully fund all funding agreements authorized under this title,

including funds specifically identified to fund tribal base

budgets. All funds so appropriated shall be apportioned to

the Indian Health Service. Such funds shall be provided to

the Office of Tribal Self-Governance which shall be responsible

for distribution of all funds provided under section 505.

‘‘(2) RULE OF CONSTRUCTION.—Nothing in this subsection

shall be construed to authorize the Indian Health Service to

reduce the amount of funds that a self-governance tribe is

otherwise entitled to receive under its funding agreement or

other applicable law, whether or not such funds are apportioned

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

‘‘(b) PRESENT FUNDING; SHORTFALLS.—In such budget request,

the President shall identify the level of need presently funded

and any shortfall in funding (including direct program and contract

support costs) for each Indian tribe, either directly by the Secretary

of Health and Human Services, under self-determination contracts,

or under compacts and funding agreements authorized under this

title.

‘‘SEC. 514. REPORTS.

‘‘(a) ANNUAL REPORT.—

‘‘(1) IN GENERAL.—Not later than January 1 of each year

after the date of the enactment of the Tribal Self-Governance

Amendments of 2000, the Secretary shall submit to the Committee on Indian Affairs of the Senate and the Committee

on Resources of the House of Representatives a written report

regarding the administration of this title.

‘‘(2) ANALYSIS.—The report under paragraph (1) shall

include a detailed analysis of the level of need being presently

funded or unfunded for each Indian tribe, either directly by

the Secretary, under self-determination contracts under title

I, or under compacts and funding agreements authorized under

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

Secretary may not impose any reporting requirements on

participating Indian tribes or tribal organizations, not otherwise

provided in this Act.

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

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

agreements, annual audit reports, and data of the Secretary

regarding the disposition of Federal funds; and

‘‘(2) identify—

‘‘(A) the relative costs and benefits of self-governance;

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

or functionally related to the provision by the Secretary

of services and benefits to self-governance Indian tribes

and their members;

‘‘(C) the funds transferred to each self-governance

Indian tribe and the corresponding reduction in the Federal

bureaucracy;

‘‘(D) the funding formula for individual tribal shares

of all headquarters funds, together with the comments

of affected Indian tribes or tribal organizations, developed

under subsection (c); and
H. R. 1167—19

‘‘(E) amounts expended in the preceding fiscal year

to carry out inherent Federal functions, including an identification of those functions by type and location;

‘‘(3) contain a description of the method or methods (or

any revisions thereof ) used to determine the individual tribal

share of funds controlled by all components of the Indian Health

Service (including funds assessed by any other Federal agency)

for inclusion in self-governance compacts or funding agreements;

‘‘(4) before being submitted to Congress, be distributed

to the Indian tribes for comment (with a comment period of

no less than 30 days, beginning on the date of distribution);

and

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

tribes or tribal organizations.

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

180 days after the date of the enactment of the Tribal Self-Governance Amendments of 2000, the Secretary shall, after consultation

with Indian tribes, submit a written report to the Committee on

Resources of the House of Representatives and the Committee on

Indian Affairs of the Senate that describes the method or methods

used to determine the individual tribal share of funds controlled

by all components of the Indian Health Service (including funds

assessed by any other Federal agency) for inclusion in self-governance compacts or funding agreements.

‘‘SEC. 515. DISCLAIMERS.

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

construed to limit or reduce in any way the funding for any program,

project, or activity serving an Indian tribe under this or other

applicable Federal law. Any Indian tribe that alleges that a compact

or funding agreement is in violation of this section may apply

the provisions of section 110.

‘‘(b) FEDERAL TRUST AND TREATY RESPONSIBILITIES.—Nothing

in this Act shall be construed to diminish in any way the trust

responsibility of the United States to Indian tribes and individual

Indians that exists under treaties, Executive orders, or other laws

and court decisions.

‘‘(c) OBLIGATIONS OF THE UNITED STATES.—The Indian Health

Service under this Act shall neither bill nor charge those Indians

who may have the economic means to pay for services, nor require

any Indian tribe to do so.

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

‘‘(a) MANDATORY APPLICATION.—All provisions of sections 5(b),

6, 7, 102(c) and (d), 104, 105(k) and (l), 106(a) through (k), and

111 of this Act and section 314 of Public Law 101–512 (coverage

under chapter 171 of title 28, United States Code, commonly known

as the ‘Federal Tort Claims Act’), to the extent not in conflict

with this title, shall apply to compacts and funding agreements

authorized by this title.

‘‘(b) DISCRETIONARY APPLICATION.—At the request of a participating Indian tribe, any other provision of title I, to the extent

such provision is not in conflict with this title, shall be made

a part of a funding agreement or compact entered into under

this title. The Secretary is obligated to include such provision at

the option of the participating Indian tribe or tribes. If such provision is incorporated it shall have the same force and effect as
H. R. 1167—20

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

tribe requests such incorporation at the negotiation stage of a

compact or funding agreement, such incorporation shall be deemed

effective immediately and shall control the negotiation and resulting

compact and funding agreement.

‘‘SEC. 517. REGULATIONS.

‘‘(a) IN GENERAL.—

‘‘(1) PROMULGATION.—Not later than 90 days after the date

of the enactment of the Tribal Self-Governance Amendments

of 2000, the Secretary shall initiate procedures under subchapter III of chapter 5 of title 5, United States Code, to

negotiate and promulgate such regulations as are necessary

to carry out this title.

‘‘(2) PUBLICATION OF PROPOSED REGULATIONS.—Proposed

regulations to implement this title shall be published in the

Federal Register by the Secretary no later than 1 year after

the date of the enactment of the Tribal Self-Governance Amendments of 2000.

‘‘(3) EXPIRATION OF AUTHORITY.—The authority to promulgate regulations under paragraph (1) shall expire 21 months

after the date of the enactment of the Tribal Self-Governance

Amendments of 2000.

‘‘(b) COMMITTEE.—

‘‘(1) IN GENERAL.—A negotiated rulemaking committee

established pursuant to section 565 of title 5, United States

Code, to carry out this section shall have as its members

only Federal and tribal government representatives, a majority

of whom shall be nominated by and be representatives of Indian

tribes with funding agreements under this Act.

‘‘(2) REQUIREMENTS.—The committee shall confer with, and

accommodate participation by, representatives of Indian tribes,

inter-tribal consortia, tribal organizations, and individual tribal

members.

‘‘(c) ADAPTATION OF PROCEDURES.—The Secretary shall adapt

the negotiated rulemaking procedures to the unique context of

self-governance and the government-to-government relationship

between the United States and Indian tribes.

‘‘(d) EFFECT.—The lack of promulgated regulations shall not

limit the effect of this title.

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

AND RULES.—Unless expressly agreed to by the participating Indian

tribe in the compact or funding agreement, the participating Indian

tribe shall not be subject to any agency circular, policy, manual,

guidance, or rule adopted by the Indian Health Service, except

for the eligibility provisions of section 105(g) and regulations

promulgated under section 517.

‘‘SEC. 518. APPEALS.

‘‘In any appeal (including civil actions) involving decisions made

by the Secretary under this title, the Secretary shall have the

burden of proof of demonstrating by clear and convincing evidence—

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

and

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

and policies of this title.
H. R. 1167—21

‘‘SEC. 519. AUTHORIZATION OF APPROPRIATIONS.

‘‘(a) IN GENERAL.—There are authorized to be appropriated

such sums as may be necessary to carry out this title.

‘‘(b) AVAILABILITY OF APPROPRIATIONS.—Notwithstanding any

other provision of this Act, the provision of funds under this Act

shall be subject to the availability of appropriations and the Secretary is not required to reduce funding for programs, projects,

or activities serving a tribe in order to make funds available to

another tribe or tribal organization under this Act.’’.

SEC. 5. TRIBAL SELF-GOVERNANCE DEPARTMENT.

The Indian Self-Determination and Education Assistance Act

(25 U.S.C. 450 et seq.) is amended by adding at the end the

following:

‘‘TITLE VI—TRIBAL SELF-GOVERNANCE—DEPARTMENT OF HEALTH

AND HUMAN SERVICES

‘‘SEC. 601. DEFINITIONS.

‘‘(a) IN GENERAL.—In this title, the Secretary may apply the

definitions contained in title V.

‘‘(b) OTHER DEFINITIONS.—In this title:

‘‘(1) AGENCY.—The term ‘agency’ means any agency or other

organizational unit of the Department of Health and Human

Services, other than the Indian Health Service.

‘‘(2) SECRETARY.—The term ‘Secretary’ means the Secretary

of Health and Human Services.

‘‘SEC. 602. DEMONSTRATION PROJECT FEASIBILITY.

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

the feasibility of a tribal self-governance demonstration project for

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

thereof ) of the agency.

‘‘(b) CONSIDERATIONS.—In conducting the study, the Secretary

shall consider—

‘‘(1) the probable effects on specific programs and program

beneficiaries of such a demonstration project;

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

implementation of such a demonstration project;

‘‘(3) strategies for implementing such a demonstration

project;

‘‘(4) probable costs or savings associated with such a demonstration project;

‘‘(5) methods to assure quality and accountability in such

a demonstration project; and

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

Secretary or developed through consultation pursuant to section

603.

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

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

the Committee on Indian Affairs of the Senate and the Committee

on Resources of the House of Representatives. The report shall

contain—

‘‘(1) the results of the study under this section;
H. R. 1167—22

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

(or portions thereof ) within each agency with respect to which

it would be feasible to include in a tribal self-governance demonstration project;

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

(or portions thereof ) included in the list provided pursuant

to paragraph (2) that could be included in a tribal self-governance demonstration project without amending statutes, or

waiving regulations that the Secretary may not waive;

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

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

thereof ) included in the list provided pursuant to paragraph

(2) but not included in the list provided pursuant to paragraph

(3) in a tribal self-governance demonstration project; and

‘‘(5) any separate views of tribes and other entities consulted pursuant to section 603 related to the information provided pursuant to paragraphs (1) through (4).

‘‘SEC. 603. CONSULTATION.

‘‘(a) STUDY PROTOCOL.—

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

shall consult with Indian tribes to determine a protocol for

consultation under subsection (b) prior to consultation under

such subsection with the other entities described in such subsection.

‘‘(2) REQUIREMENTS FOR PROTOCOL.—The protocol shall

require, at a minimum, that—

‘‘(A) the government-to-government relationship with

Indian tribes forms the basis for the consultation process;

‘‘(B) the Indian tribes and the Secretary jointly conduct

the consultations required by this section; and

‘‘(C) the consultation process allows for separate and

direct recommendations from the Indian tribes and other

entities described in subsection (b).

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

title, the Secretary shall consult with Indian tribes, States, counties,

municipalities, program beneficiaries, and interested public interest

groups, and may consult with other entities as appropriate.

‘‘SEC. 604. AUTHORIZATION OF APPROPRIATIONS.

‘‘There are authorized to be appropriated such sums as may

be necessary to carry out this title. Such sums shall remain available until expended.’’.

SEC. 6. AMENDMENTS CLARIFYING CIVIL PROCEEDINGS.

Section 102(e)(1) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450f(e)(1)) is amended by inserting

after ‘‘subsection (b)(3)’’ the following: ‘‘or any civil action conducted

pursuant to section 110(a)’’.

SEC. 7. SPEEDY ACQUISITION OF GOODS, SERVICES, OR SUPPLIES.

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

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

(1) by striking ‘‘deemed an executive agency’’ and inserting

‘‘deemed an executive agency and part of the Indian Health

Service’’; and

(2) by adding at the end the following: ‘‘For purposes of

carrying out such contract, grant, or agreement, the Secretary
H. R. 1167—23

shall, at the request of an Indian tribe, enter into an agreement

for the acquisition, on behalf of the Indian tribe, of any goods,

services, or supplies available to the Secretary from the General

Services Administration or other Federal agencies that are

not directly available to the Indian tribe under this section

or under any other Federal law, including acquisitions from

prime vendors. All such acquisitions shall be undertaken

through the most efficient and speedy means practicable,

including electronic ordering arrangements.’’.

SEC. 8. PATIENT RECORDS.

Section 105 of the Indian Self-Determination and Education

Assistance Act (25 U.S.C. 450j) is amended by adding at the end

the following:

‘‘(o) PATIENT RECORDS.—

‘‘(1) IN GENERAL.—At the option of an Indian tribe or tribal

organization, patient records may be deemed to be Federal

records under those provisions of title 44, United States Code,

that are commonly referred to as the ‘Federal Records Act

of 1950’ for the limited purposes of making such records eligible

for storage by Federal Records Centers to the same extent

and in the same manner as other Department of Health and

Human Services patient records.

‘‘(2) TREATMENT OF RECORDS.—Patient records that are

deemed to be Federal records under those provisions of title

44, United States Code, that are commonly referred to as

the ‘Federal Records Act of 1950’ pursuant to this subsection

shall not be considered Federal records for the purposes of

chapter 5 of title 5, United States Code.’’.

SEC. 9. ANNUAL REPORTS.

Section 106 of the Indian Self-Determination and Education

Assistance Act (25 U.S.C. 450j–1) is amended—

(1) by redesignating subsections (c) through (n) as subsections (d) through (o), respectively; and

(2) by inserting after subsection (b), the following:

‘‘(c) ANNUAL REPORTS.—Not later than May 15 of each year,

the Secretary shall prepare and submit to Congress an annual

report on the implementation of this Act. Such report shall include—

‘‘(1) an accounting of the total amounts of funds provided

for each program and the budget activity for direct program

costs and contract support costs of tribal organizations under

self-determination;

‘‘(2) an accounting of any deficiency in funds needed to

provide required contract support costs to all contractors for

the fiscal year for which the report is being submitted;

‘‘(3) the indirect cost rate and type of rate for each tribal

organization that has been negotiated with the appropriate

Secretary;

‘‘(4) the direct cost base and type of base from which

the indirect cost rate is determined for each tribal organization;

‘‘(5) the indirect cost pool amounts and the types of costs

included in the indirect cost pool; and

‘‘(6) an accounting of any deficiency in funds needed to

maintain the preexisting level of services to any Indian tribes

affected by contracting activities under this Act, and a statement of the amount of funds needed for transitional purposes
H. R. 1167—24

to enable contractors to convert from a Federal fiscal year

accounting cycle, as authorized by section 105(d).’’.

SEC. 10. REPEAL.

Title III of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450f note) is repealed.

SEC. 11. SAVINGS PROVISION.

Funds appropriated for title III of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450f note) shall be

available for use under title V of such Act.

SEC. 12. APPLICATION TO ALASKA.

(a) Notwithstanding any other provision of law, nothing in

this Act, the amendments made thereby, nor its implementation,

shall affect—

(1) the right of the Consortium or Southcentral Foundation

to carry out the programs, functions, services and activities

as specified in section 325 of Public Law 105–83 (111 Stat.

55–56); or

(2) the prohibitions in section 351 of section 101(e) of division A, Public Law 105–277.

(b) Section 351 of section 101(e) of division A, Public Law

105–277 and section 326 of Public Law 105–83 (111 Stat. 57)

are amended by inserting ‘‘as amended’’ after the phrase ‘‘Public

Law 93–638 (25 U.S.C. 450 et seq.)’’ where such phrase appears

in each section.

SEC. 13. EFFECTIVE DATE.

Except as otherwise provided, the provisions of this Act shall

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

Speaker of the House of Representatives.

Vice President of the United States and

President of the Senate.