Calendar No. 419

106TH CONGRESS

1ST SESSION H. R. 1167

AN ACT

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

NOVEMBER 19, 1999

Read twice and placed on the calendar
II

Calendar No. 419

106TH CONGRESS

1ST SESSION H. R. 1167

IN THE SENATE OF THE UNITED STATES

NOVEMBER 18, 1999

Received

NOVEMBER 19, 1999

Read twice and placed on the calendar

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.

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

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

3 Amendments of 1999’’.

4 SEC. 2. FINDINGS.

5 Congress finds that—

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

7 from the inherent sovereignty of Indian tribes and

8 nations;

9 (2) the United States recognizes a special gov10 ernment-to-government relationship with Indian

11 tribes, including the right of the Indian tribes to

12 self-governance, as reflected in the Constitution,

13 treaties, Federal statutes, and the course of dealings

14 of the United States with Indian tribes;

15 (3) although progress has been made, the Fed16 eral bureaucracy, with its centralized rules and regu17 lations, has eroded tribal self-governance and domi18 nates tribal affairs;

19 (4) the Tribal Self-Governance Demonstration

20 Project, established under title III of the Indian

21 Self-Determination and Education Assistance Act

22 (25 U.S.C. 450f note) was designed to improve and

23 perpetuate the government-to-government relation24 ship between Indian tribes and the United States

25 and to strengthen tribal control over Federal fund26 ing and program management;
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1 (5) although the Federal Government has made

2 considerable strides in improving Indian health care,

3 it has failed to fully meet its trust responsibilities

4 and to satisfy its obligations to the Indian tribes

5 under treaties and other laws; and

6 (6) Congress has reviewed the results of the

7 Tribal Self-Governance Demonstration Project and

8 finds that transferring full control and funding to

9 tribal governments, upon tribal request, over deci10 sion making for Federal programs, services, func11 tions, and activities (or portions thereof)—

12 (A) is an appropriate and effective means

13 of implementing the Federal policy of govern14 ment-to-government relations with Indian

15 tribes; and

16 (B) strengthens the Federal policy of In17 dian self-determination.

18 SEC. 3. DECLARATION OF POLICY.

19 It is the policy of Congress to—

20 (1) permanently establish and implement tribal

21 self-governance within the Department of Health

22 and Human Services;

23 (2) call for full cooperation from the Depart24 ment of Health and Human Services and its con-
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1 stituent agencies in the implementation of tribal self2 governance—

3 (A) to enable the United States to main4 tain and improve its unique and continuing re5 lationship with, and responsibility to, Indian

6 tribes;

7 (B) to permit each Indian tribe to choose

8 the extent of its participation in self-governance

9 in accordance with the provisions of the Indian

10 Self-Determination and Education Assistance

11 Act relating to the provision of Federal services

12 to Indian tribes;

13 (C) to ensure the continuation of the trust

14 responsibility of the United States to Indian

15 tribes and Indian individuals;

16 (D) to affirm and enable the United States

17 to fulfill its obligations to the Indian tribes

18 under treaties and other laws;

19 (E) to strengthen the government-to-gov20 ernment relationship between the United States

21 and Indian tribes through direct and meaning22 ful consultation with all tribes;

23 (F) to permit an orderly transition from

24 Federal domination of programs and services to

25 provide Indian tribes with meaningful authority,
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1 control, funding, and discretion to plan, con2 duct, redesign, and administer programs, serv3 ices, functions, and activities (or portions there4 of) that meet the needs of the individual tribal

5 communities;

6 (G) to provide for a measurable parallel re7 duction in the Federal bureaucracy as pro8 grams, services, functions, and activities (or

9 portions thereof) are assumed by Indian tribes;

10 (H) to encourage the Secretary to identify

11 all programs, services, functions, and activities

12 (or portions thereof) of the Department of

13 Health and Human Services that may be man14 aged by an Indian tribe under this Act and to

15 assist Indian tribes in assuming responsibility

16 for such programs, services, functions, and ac17 tivities (or portions thereof); and

18 (I) to provide Indian tribes with the ear19 liest opportunity to administer programs, serv20 ices, functions, and activities (or portions there21 of) from throughout the Department of Health

22 and 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

4 at 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

16 organized noncontinuous undertaking to complete a

17 specific set of predetermined objectives for the plan18 ning, environmental determination, design, construc19 tion, repair, improvement, or expansion of buildings

20 or facilities, as described in a construction project

21 agreement. The term ‘construction project’ does not

22 mean construction program administration and ac23 tivities described in paragraphs (1) through (3) of

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

25 funding 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

9 Indian 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

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

19 more years;

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

21 means those Federal functions which cannot legally

22 be delegated 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

8 results in a significant reduction of funds available

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

10 portions 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 sup13 port secretarial programs, services, functions, and

14 activities (or portions thereof) that are not required

15 by the Secretary for performance of inherent Fed16 eral functions;

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

18 of 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

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

2 the rights and responsibilities of the authorizing Indian

3 tribe (except as otherwise provided in the authorizing reso4 lution or in this title). In such event, the term ‘Indian

5 tribe’ as used in this title shall include such other author6 ized Indian tribe, inter-tribal consortium, or tribal organi7 zation.

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

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

10 tribe that is participating in the Tribal Self-Governance

11 Demonstration Project under title III on the date of the

12 enactment of this title may elect to participate in self-gov13 ernance under this title under existing authority as re14 flected in tribal resolutions.

15 ‘‘(b) ADDITIONAL PARTICIPANTS.—

16 ‘‘(1) In addition to those Indian tribes partici17 pating in self-governance under subsection (a), each

18 year an additional 50 Indian tribes that meet the eli19 gibility criteria specified in subsection (c) shall be

20 entitled to participate in self-governance.

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

22 from participation in an inter-tribal consortium or

23 tribal organization, in whole or in part, shall be enti24 tled to participate in self-governance provided the
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1 Indian tribe meets the eligibility criteria specified in

2 subsection (c).

3 ‘‘(B) If an Indian tribe has withdrawn from

4 participation in an inter-tribal consortium or tribal

5 organization, it shall be entitled to its tribal share

6 of funds supporting those programs, services, func7 tions, and activities (or portions thereof) that it will

8 be carrying out under its compact and funding

9 agreement.

10 ‘‘(C) In no event shall the withdrawal of an In11 dian tribe from an inter-tribal consortium or tribal

12 organization affect the eligibility of the inter-tribal

13 consortium or tribal organization to participate in

14 self-governance.

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

16 for self-governance shall consist of each Indian tribe

17 that—

18 ‘‘(1) successfully completes the planning phase

19 described in subsection (d);

20 ‘‘(2) has requested participation in self-govern21 ance by resolution or other official action by the gov22 erning body (or bodies) of the Indian tribe or tribes

23 to be served; and
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1 ‘‘(3) has demonstrated, for the previous 3 fiscal

2 years, financial stability and financial management

3 capability.

4 Evidence that during such years the Indian tribe had no

5 uncorrected significant and material audit exceptions in

6 the required annual audit of the Indian tribe’s self-deter7 mination contracts or self-governance funding agreements

8 shall be conclusive evidence of the required stability and

9 capability for the purposes of this subsection.

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

11 participation in self-governance shall complete a planning

12 phase. The planning phase shall be conducted to the satis13 faction of the Indian tribe and shall include—

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

15 ‘‘(2) internal tribal government planning and

16 organizational preparation relating to the adminis17 tration of health care programs.

18 ‘‘(e) GRANTS.—Subject to the availability of appro19 priations, any Indian tribe meeting the requirements of

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

21 for grants—

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

23 and

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

25 the Indian tribe or tribal organization in self-govern-
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1 ance, as set forth in a compact and a funding agree2 ment.

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

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

5 of participation in self-governance.

6 ‘‘SEC. 504. COMPACTS.

7 ‘‘(a) COMPACT REQUIRED.—The Secretary shall ne8 gotiate and enter into a written compact with each Indian

9 tribe participating in self-governance in a manner con10 sistent with the Federal Government’s trust responsibility,

11 treaty obligations, and the government-to-government re12 lationship between Indian tribes and the United States.

13 ‘‘(b) CONTENTS.—Each compact required under sub14 section (a) shall set forth the general terms of the govern15 ment-to-government relationship between the Indian tribe

16 and the Secretary, including such terms as the parties in17 tend shall control year after year. Such compacts may only

18 be amended by mutual agreement of the parties.

19 ‘‘(c) EXISTING COMPACTS.—An Indian tribe partici20 pating in the Tribal Self-Governance Demonstration

21 Project under title III on the date of the enactment of

22 this title shall have the option at any time thereafter to—

23 ‘‘(1) retain its Tribal Self-Governance Dem24 onstration Project compact (in whole or in part) to

25 the extent the provisions of such compact are not di-
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1 rectly contrary to any express provision of this title,

2 or

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

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

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

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

7 execution by the Indian tribe or another date agreed upon

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

9 permitted by Federal law or until terminated by mutual

10 written agreement, retrocession, or reassumption.

11 ‘‘SEC. 505. FUNDING AGREEMENTS.

12 ‘‘(a) FUNDING AGREEMENT REQUIRED.—The Sec13 retary shall negotiate and enter into a written funding

14 agreement with each Indian tribe participating in self-gov15 ernance in a manner consistent with the Federal Govern16 ment’s trust responsibility, treaty obligations, and the gov17 ernment-to-government relationship between Indian tribes

18 and the United States.

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

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

21 tribe, authorize the Indian tribe to plan, conduct, consoli22 date, administer, and receive full tribal share funding, in23 cluding tribal shares of Indian Health Service competitive

24 grants (excluding congressionally earmarked competitive

25 grants), for all programs, services, functions, and activi-
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1 ties (or portions thereof), that are carried out for the ben2 efit of Indians because of their status as Indians without

3 regard to the agency or office of the Indian Health Service

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

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

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

7 programs, services, functions, activities (or portions there8 of) where Indian tribes or Indians are primary or signifi9 cant beneficiaries, administered by the Department of

10 Health and Human Services through the Indian Health

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

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

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

14 national office functions administered under the authority

15 of—

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

17 13);

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

19 et seq.);

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

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

22 (25 U.S.C. 1601 et seq.);

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

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

25 2401 et seq.);
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1 ‘‘(6) any other Act of Congress authorizing

2 agencies of the Department of Health and Human

3 Services to administer, carry out, or provide finan4 cial assistance to such programs, functions, or activi5 ties (or portions thereof) described in this section; or

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

7 such programs, functions, or activities (or portions

8 thereof) under which appropriations are made to

9 agencies other than agencies within the Department

10 of Health and Human services when the Secretary

11 administers such programs, functions, or activities

12 (or portions thereof).

13 ‘‘(c) INCLUSION IN COMPACT OR FUNDING AGREE14 MENT.—Indian tribes or Indians need not be identified in

15 the authorizing statute for a program or element of a pro16 gram to be eligible for inclusion in a compact or funding

17 agreement under this title.

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

19 agreement shall set forth terms that generally identify the

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

21 thereof) to be performed or administered, the general

22 budget category assigned, the funds to be provided, includ23 ing those to be provided on a recurring basis, the time

24 and method of transfer of the funds, the responsibilities
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1 of the Secretary, and any other provisions to which the

2 Indian tribe and the Secretary agree.

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

4 notification from an Indian tribe that is withdrawing or

5 retroceding the operation of one or more programs, serv6 ices, functions, or activities (or portions thereof) identified

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

8 the parties, each funding agreement shall remain in full

9 force and effect until a subsequent funding agreement is

10 executed, and the terms of the subsequent funding agree11 ment shall be retroactive to the end of the term of the

12 preceding funding agreement.

13 ‘‘(f) EXISTING FUNDING AGREEMENTS.—Each In14 dian tribe participating in the Tribal Self-Governance

15 Demonstration Project established under title III on the

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

17 at any time thereafter to—

18 ‘‘(1) retain its Tribal Self-Governance Dem19 onstration Project funding agreement (in whole or in

20 part) to the extent the provisions of such funding

21 agreement are not directly contrary to any express

22 provision of this title; or

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

24 a new funding agreement in conformity with this

25 title.
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1 ‘‘(g) STABLE BASE FUNDING.—At the option of an

2 Indian tribe, a funding agreement may provide for a stable

3 base budget specifying the recurring funds (including, for

4 purposes of this provision, funds available under section

5 106(a) of the Act) to be transferred to such Indian tribe,

6 for such period as may be specified in the funding agree7 ment, subject to annual adjustment only to reflect changes

8 in congressional appropriations by sub-sub activity exclud9 ing earmarks.

10 ‘‘SEC. 506. GENERAL PROVISIONS.

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

12 shall apply to compacts and funding agreements nego13 tiated under this title and an Indian tribe may, at its op14 tion, include provisions that reflect such requirements in

15 a compact or funding agreement.

16 ‘‘(b) CONFLICTS OF INTEREST.—Indian tribes par17 ticipating in self-governance under this title shall ensure

18 that internal measures are in place to address conflicts

19 of interest in the administration of self-governance pro20 grams, services, functions, or activities (or portions there21 of).

22 ‘‘(c) AUDITS.—

23 ‘‘(1) SINGLE AGENCY AUDIT ACT.—The provi24 sions of chapter 75 of title 31, United States Code,
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1 requiring a single agency audit report shall apply to

2 funding agreements under this title.

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

4 apply cost principles under the applicable Office of

5 Management and Budget Circular, except as modi6 fied by section 106 or other provisions of law, or by

7 any exemptions to applicable Office of Management

8 and Budget Circulars subsequently granted by Of9 fice of Management and Budget. No other audit or

10 accounting standards shall be required by the Sec11 retary. Any claim by the Federal Government

12 against the Indian tribe relating to funds received

13 under a funding agreement based on any audit

14 under this subsection shall be subject to the provi15 sions of section 106(f).

16 ‘‘(d) RECORDS.—

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

18 specifies otherwise in the compact or funding agree19 ment, records of the Indian tribe shall not be consid20 ered Federal records for purposes of chapter 5 of

21 title 5, United States Code.

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

23 tribe shall maintain a recordkeeping system, and,

24 after 30 days advance notice, provide the Secretary

25 with reasonable access to such records to enable the
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1 Department of Health and Human Services to meet

2 its minimum legal recordkeeping system require3 ments under sections 3101 through 3106 of title 44,

4 United States Code.

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

6 tribe may redesign or consolidate programs, services, func7 tions, and activities (or portions thereof) included in a

8 funding agreement under section 505 and reallocate or re9 direct funds for such programs, services, functions, and

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

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

12 and welfare of the Indian community being served, only

13 if the redesign or consolidation does not have the effect

14 of denying eligibility for services to population groups oth15 erwise eligible to be served under Federal law.

16 ‘‘(f) RETROCESSION.—An Indian tribe may retro17 cede, fully or partially, to the Secretary programs, serv18 ices, functions, or activities (or portions thereof) included

19 in the compact or funding agreement. Unless the Indian

20 tribe rescinds the request for retrocession, such retroces21 sion will become effective within the time frame specified

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

23 the absence of such a specification, such retrocession shall

24 become effective on—

25 ‘‘(1) the earlier of—
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1 ‘‘(A) one year from the date of submission

2 of such request; or

3 ‘‘(B) the date on which the funding agree4 ment expires; or

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

6 the Secretary and the Indian tribe.

7 ‘‘(g) WITHDRAWAL.—

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

9 partially withdraw from a participating inter-tribal

10 consortium or tribal organization its share of any

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

12 thereof) included in a compact or funding agree13 ment. Such withdrawal shall become effective within

14 the time frame specified in the resolution which au15 thorizes transfer to the participating tribal organiza16 tion or inter-tribal consortium. In the absence of a

17 specific time frame set forth in the resolution, such

18 withdrawal shall become effective on—

19 ‘‘(A) the earlier of—

20 ‘‘(i) one year from the date of submis21 sion of such request; or

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

23 agreement expires; or

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

25 upon by the Secretary, the withdrawing Indian
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1 tribe, and the participating tribal organization

2 or inter-tribal consortium that has signed the

3 compact or funding agreement on behalf of the

4 withdrawing Indian tribe, inter-tribal consor5 tium, or tribal organization.

6 ‘‘(2) DISTRIBUTION OF FUNDS.—When an In7 dian tribe or tribal organization eligible to enter into

8 a self-determination contract under title I or a com9 pact or funding agreement under this title fully or

10 partially withdraws from a participating inter-tribal

11 consortium or tribal organization, the withdrawing

12 Indian tribe or tribal organization shall be entitled

13 to its tribal share of funds supporting those pro14 grams, services, functions, or activities (or portions

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

16 self-determination contract or compact and funding

17 agreement (calculated on the same basis as the

18 funds were initially allocated in the funding agree19 ment of the inter-tribal consortium or tribal organi20 zation), and such funds shall be transferred from

21 the funding agreement of the inter-tribal consortium

22 or tribal organization, provided that the provisions

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

24 apply to such withdrawing Indian tribe.
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1 ‘‘(3) REGAINING MATURE CONTRACT STATUS.—

2 If an Indian tribe elects to operate all or some pro3 grams, services, functions, or activities (or portions

4 thereof) carried out under a compact or funding

5 agreement under this title through a self-determina6 tion contract under title I, at the option of the In7 dian tribe, the resulting self-determination contract

8 shall be a mature self-determination contract.

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

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

11 title or under the compact or funding agreement, the In12 dian tribe shall not be entitled to contract with the Sec13 retary for such funds under section 102, except that such

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

15 basis as other Indian tribes.

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

17 ‘‘(a) MANDATORY PROVISIONS.—

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

19 funding agreements negotiated between the Sec20 retary and an Indian tribe shall include a provision

21 that requires the Indian tribe to report on health

22 status and service delivery—

23 ‘‘(A) to the extent such data is not other24 wise available to the Secretary and specific
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1 funds for this purpose are provided by the Sec2 retary under the funding agreement; and

3 ‘‘(B) if such reporting shall impose mini4 mal burdens on the participating Indian tribe

5 and such requirements are promulgated under

6 section 517.

7 ‘‘(2) REASSUMPTION—(A) Compacts and fund8 ing agreements negotiated between the Secretary

9 and an Indian tribe shall include a provision author10 izing the Secretary to reassume operation of a pro11 gram, service, function, or activity (or portions

12 thereof) and associated funding if there is a specific

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

14 activity (or portion thereof) of—

15 ‘‘(i) imminent endangerment of the public

16 health caused by an act or omission of the In17 dian tribe, and the imminent endangerment

18 arises out of a failure to carry out the compact

19 or funding agreement; or

20 ‘‘(ii) gross mismanagement with respect to

21 funds transferred to a tribe by a compact or

22 funding agreement, as determined by the Sec23 retary in consultation with the Inspector Gen24 eral, as appropriate.
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1 ‘‘(B) The Secretary shall not reassume oper2 ation of a program, service, function, or activity (or

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

4 provided written notice and a hearing on the record

5 to the Indian tribe; and (ii) the Indian tribe has not

6 taken corrective action to remedy the imminent

7 endangerment to public health or gross mismanage8 ment.

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

10 Secretary may, upon written notification to the

11 tribe, immediately reassume operation of a program,

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

13 associated funding if (i) the Secretary makes a find14 ing of imminent substantial and irreparable

15 endangerment of the public health caused by an act

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

17 endangerment arises out of a failure to carry out the

18 compact or funding agreement. If the Secretary re19 assumes operation of a program, service, function,

20 or activity (or portion thereof) under this subpara21 graph, the Secretary shall provide the tribe with a

22 hearing on the record not later than 10 days after

23 such reassumption.

24 ‘‘(D) In any hearing or appeal involving a deci25 sion to reassume operation of a program, service,
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1 function, or activity (or portion thereof), the Sec2 retary shall have the burden of proof of dem3 onstrating by clear and convincing evidence the va4 lidity of the grounds for the reassumption.

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

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

7 or in part, on the terms of a compact or funding agree8 ment (including funding levels), the Indian tribe may sub9 mit a final offer to the Secretary. Not more than 45 days

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

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

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

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

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

15 deemed agreed to by the Secretary.

16 ‘‘(c) REJECTION OF FINAL OFFERS.—If the Sec17 retary rejects an offer made under subsection (b) (or one

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

19 Secretary shall provide—

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

21 tribe that contains a specific finding that clearly

22 demonstrates, or that is supported by a controlling

23 legal authority, that—

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

25 final offer exceeds the applicable funding level
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1 to which the Indian tribe is entitled under this

2 title;

3 ‘‘(B) the program, function, service, or ac4 tivity (or portion thereof) that is the subject of

5 the final offer is an inherent Federal function

6 that cannot legally be delegated to an Indian

7 tribe;

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

9 program, function, service, or activity (or por10 tion thereof) in a manner that would not result

11 in significant danger or risk to the public

12 health; or

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

14 in self-governance under section 503;

15 ‘‘(2) technical assistance to overcome the objec16 tions stated in the notification required by para17 graph (1);

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

19 record with the right to engage in full discovery rel20 evant to any issue raised in the matter and the op21 portunity for appeal on the objections raised, pro22 vided that the Indian tribe may, in lieu of filing such

23 appeal, directly proceed to initiate an action in a

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

25 and
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1 ‘‘(4) the Indian tribe with the option of enter2 ing into the severable portions of a final proposed

3 compact or funding agreement, or provision thereof,

4 (including lesser funding amount, if any), that the

5 Secretary did not reject, subject to any additional al6 terations necessary to conform the compact or fund7 ing agreement to the severed provisions. If an Indian

8 tribe exercises the option specified herein, it shall re9 tain the right to appeal the Secretary’s rejection

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

11 shall only apply to that portion of the proposed final

12 compact, funding agreement or provision thereof

13 that was rejected by the Secretary.

14 ‘‘(d) BURDEN OF PROOF.—With respect to any hear15 ing or appeal or civil action conducted pursuant to this

16 section, the Secretary shall have the burden of dem17 onstrating by clear and convincing evidence the validity

18 of the grounds for rejecting the offer (or a provision there19 of) made under subsection (b).

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

21 and funding agreements the Secretary shall at all times

22 negotiate in good faith to maximize implementation of the

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

24 title in a manner that maximizes the policy of tribal self25 governance, consistent with section 3.
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1 ‘‘(f) SAVINGS.—To the extent that programs, func2 tions, services, or activities (or portions thereof) carried

3 out by Indian tribes under this title reduce the administra4 tive or other responsibilities of the Secretary with respect

5 to the operation of Indian programs and result in savings

6 that have not otherwise been included in the amount of

7 tribal shares and other funds determined under section

8 508(c), the Secretary shall make such savings available

9 to the Indian tribes, inter-tribal consortia, or tribal organi10 zations for the provision of additional services to program

11 beneficiaries in a manner equitable to directly served, con12 tracted, and compacted programs.

13 ‘‘(g) TRUST RESPONSIBILITY.—The Secretary is pro14 hibited from waiving, modifying, or diminishing in any

15 way the trust responsibility of the United States with re16 spect to Indian tribes and individual Indians that exists

17 under treaties, Executive orders, other laws, or court deci18 sions.

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

20 final agency action and relates to an appeal within the

21 Department of Health and Human Services conducted

22 under subsection (c) shall be made either—

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

24 a position at a higher organizational level within the

25 Department than the level of the departmental agen-
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1 cy in which the decision that is the subject of the

2 appeal was made; or

3 ‘‘(2) by an administrative judge.

4 ‘‘SEC. 508. TRANSFER OF FUNDS.

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

6 compact or funding agreement entered into under this

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

8 funds provided for in the funding agreement, pursuant to

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

10 joint resolution adopted by Congress making continuing

11 appropriations, to the extent permitted by such resolu12 tions. In any instance where a funding agreement requires

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

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

15 transfers of funding to be made commencing at the begin16 ning of a fiscal year, the first such transfer shall be made

17 not later than 10 days after the apportionment of such

18 funds by the Office of Management and Budget to the

19 Department, unless the funding agreement provides other20 wise.

21 ‘‘(b) MULTIYEAR FUNDING.—The Secretary is here22 by authorized to employ, upon tribal request, multiyear

23 funding agreements, and references in this title to funding

24 agreements shall include such multiyear agreements.
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1 ‘‘(c) AMOUNT OF FUNDING.—The Secretary shall

2 provide funds under a funding agreement under this title

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

4 would have been entitled to receive under self-determina5 tion contracts under this Act, including amounts for direct

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

7 amounts for contract support costs specified under sec8 tions 106(a)(2), (a)(3), (a)(5), and (a)(6), including any

9 funds that are specifically or functionally related to the

10 provision by the Secretary of services and benefits to the

11 Indian tribe or its members, all without regard to the or12 ganizational level within the Department where such func13 tions are carried out.

14 ‘‘(d) PROHIBITIONS.—The Secretary is expressly pro15 hibited from—

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

17 tribe its full share of any central, headquarters, re18 gional, area, or service unit office or other funds due

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

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

21 transfer over a period of years; and

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

23 herein—
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1 ‘‘(A) to make funding available for self2 governance monitoring or administration by the

3 Secretary;

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

5 to—

6 ‘‘(i) a reduction in appropriations

7 from the previous fiscal year for the pro8 gram or function to be included in a com9 pact or funding agreement;

10 ‘‘(ii) a congressional directive in legis11 lation or accompanying report;

12 ‘‘(iii) a tribal authorization;

13 ‘‘(iv) a change in the amount of pass14 through funds subject to the terms of the

15 funding agreement; or

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

17 or program for which such funds were pro18 vided;

19 ‘‘(C) to pay for Federal functions, includ20 ing Federal pay costs, Federal employee retire21 ment benefits, automated data processing, tech22 nical assistance, and monitoring of activities

23 under this Act; or
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1 ‘‘(D) to pay for costs of Federal personnel

2 displaced by self-determination contracts under

3 this Act or self-governance;

4 except that such funds may be increased by the Secretary

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

6 105(c)(2).

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

8 tribe elects to carry out a compact or funding agreement

9 with the use of Federal personnel, Federal supplies (in10 cluding supplies available from Federal warehouse facili11 ties), Federal supply sources (including lodging, airline

12 transportation, and other means of transportation includ13 ing the use of interagency motor pool vehicles) or other

14 Federal resources (including supplies, services, and re15 sources available to the Secretary under any procurement

16 contracts in which the Department is eligible to partici17 pate), the Secretary is authorized to transfer such per18 sonnel, supplies, or resources to the Indian tribe.

19 ‘‘(f) REIMBURSEMENT TO INDIAN HEALTH SERV20 ICE.—With respect to functions transferred by the Indian

21 Health Service to an Indian tribe, the Indian Health Serv22 ice is authorized to provide goods and services to the In23 dian tribe, on a reimbursable basis, including payment in

24 advance with subsequent adjustment, and the reimburse25 ments received therefrom, along with the funds received
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1 from the Indian tribe pursuant to this title, may be cred2 ited to the same or subsequent appropriation account

3 which provided the funding, such amounts to remain avail4 able until expended.

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

6 31, United States Code, shall apply to the transfer of

7 funds due under a compact or funding agreement author8 ized under this title.

9 ‘‘(h) INTEREST OR OTHER INCOME ON TRANS10 FERS.—An Indian tribe is entitled to retain interest

11 earned on any funds paid under a compact or funding

12 agreement to carry out governmental or health purposes

13 and such interest shall not diminish the amount of funds

14 the Indian tribe is authorized to receive under its funding

15 agreement in the year the interest is earned or in any sub16 sequent fiscal year. Funds transferred under this Act shall

17 be managed using the prudent investment standard.

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

19 Indian tribe in accordance with a compact or funding

20 agreement shall remain available until expended. In the

21 event that an Indian tribe elects to carry over funding

22 from one year to the next, such carryover shall not dimin23 ish the amount of funds the Indian tribe is authorized to

24 receive under its funding agreement in that or any subse25 quent fiscal year.
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1 ‘‘(j) PROGRAM INCOME.—All medicare, medicaid, or

2 other program income earned by an Indian tribe shall be

3 treated as supplemental funding to that negotiated in the

4 funding agreement and the Indian tribe may retain all

5 such income and expend such funds in the current year

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

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

8 provides otherwise for medicare and medicaid receipts,

9 and such funds shall not result in any offset or reduction

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

11 receive under its funding agreement in the year the pro12 gram income is received or for any subsequent fiscal year.

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

14 not be obligated to continue performance that requires an

15 expenditure of funds in excess of the amount of funds

16 transferred under a compact or funding agreement. If at

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

18 total amount provided for a specific activity in the com19 pact or funding agreement is insufficient the Indian tribe

20 shall provide reasonable notice of such insufficiency to the

21 Secretary. If the Secretary does not increase the amount

22 of funds transferred under the funding agreement, the In23 dian tribe may suspend performance of the activity until

24 such time as additional funds are transferred.
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1 ‘‘SEC. 509. CONSTRUCTION PROJECTS.

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

3 tribal self-governance may carry out construction projects

4 under this title if they elect to assume all Federal respon5 sibilities under the National Environmental Policy Act of

6 1969, the Historic Preservation Act, and related provi7 sions of law that would apply if the Secretary were to un8 dertake a construction project, by adopting a resolution

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

10 tribe and to assume the status of a responsible Federal

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

12 of the Federal court for the purpose of enforcement of

13 the responsibilities of the responsible Federal official

14 under such environmental laws.

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

16 shall be negotiated pursuant to the statutory process in

17 section 105(m) and resulting construction project agree18 ments shall be incorporated into funding agreements as

19 addenda.

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

21 the Secretary shall agree upon and specify appropriate

22 buildings codes and architectural/engineering standards

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

24 with nationally recognized standards for comparable

25 projects.
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1 ‘‘(d) RESPONSIBILITY FOR COMPLETION.—The In2 dian tribe shall assume responsibility for the successful

3 completion of the construction project in accordance with

4 the negotiated construction project agreement.

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

6 carried out under this title shall be included in funding

7 agreements as annual advance payments, with semiannual

8 payments at the option of the Indian tribe. Annual ad9 vance and semiannual payment amounts shall be deter10 mined based on mutually agreeable project schedules re11 flecting work to be accomplished within the advance pay12 ment period, work accomplished and funds expended in

13 previous payment periods, and the total prior payments.

14 The Secretary shall include associated project contingency

15 funds with each advance payment installment. The Indian

16 tribe shall be responsible for the management of the con17 tingency funds included in funding agreements.

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

19 one opportunity to approve project planning and design

20 documents prepared by the Indian tribe in advance of con21 struction of the facilities specified in the scope of work

22 for each negotiated construction project agreement or

23 amendment thereof which results in a significant change

24 in the original scope of work. The Indian tribe shall pro25 vide the Secretary with project progress and financial re-
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1 ports not less than semiannually. The Secretary may con2 duct on-site project oversight visits semiannually or on an

3 alternate schedule agreed to by the Secretary and the In4 dian tribe.

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

6 by contractors and subcontractors in the construction, al7 teration, or repair, including painting or decorating of

8 building or other facilities in connection with construction

9 projects undertaken by self-governance Indian tribes

10 under this Act, shall be paid wages at not less than those

11 prevailing wages on similar construction in the locality as

12 determined by the Secretary of Labor in accordance with

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

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

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

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

17 the authority and functions set forth in Reorganization

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

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

20 ‘‘(h) APPLICATION OF OTHER LAWS.—Unless other21 wise agreed to by the Indian tribe, no provision of the Of22 fice of Federal Procurement Policy Act, the Federal Ac23 quisition Regulations issued pursuant thereto, or any

24 other law or regulation pertaining to Federal procurement
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1 (including Executive orders) shall apply to any construc2 tion project 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 sec15 tion 110, the term ‘contract’ shall include compacts and

16 funding agreements entered into under this title.

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

18 2103 of the Revised Statutes of the United States Code

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

20 (25 U.S.C. 476), shall not apply to attorney and other

21 professional contracts entered into by Indian tribes par22 ticipating in self-governance under this title.

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

24 Self-Determination and Education Assistance Act (25

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

2 1 of the Act of July 3, 1952 (25 U.S.C. 82a).

3 ‘‘SEC. 512. FACILITATION.

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

5 otherwise provided by law, the Secretary shall interpret

6 all Federal laws, Executive orders and regulations in a

7 manner 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

20 agreement entered into with the Indian Health Serv21 ice under this title, to the Secretary identifying the

22 applicable Federal regulation under this Act sought

23 to 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 deci11 sion shall be final for the Department.

12 ‘‘(c) ACCESS TO FEDERAL PROPERTY.—In connec13 tion with any compact or funding agreement executed pur14 suant to this title or an agreement negotiated under the

15 Tribal Self-Governance Demonstration Project established

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

17 Tribal Self-Governance Amendments of 1999, upon the re18 quest of an Indian tribe, the Secretary—

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

20 school buildings, hospitals, and other facilities and

21 all equipment therein or appertaining thereto and

22 other personal property owned by the Government

23 within the Secretary’s jurisdiction under such terms

24 and conditions as may be agreed upon by the Sec25 retary and 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

8 the performance of the compact or funding

9 agreement or purchased with funds under any

10 compact or funding agreement shall, unless oth11 erwise requested by the Indian tribe, vest in the

12 appropriate 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 retroces17 sion, withdrawal, or reassumption, title to such

18 property and equipment shall revert to the De19 partment 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

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

10 be treated as non-Federal funds for purposes of meeting

11 matching or cost participation requirements under any

12 other Federal or non-Federal program.

13 ‘‘(e) STATE FACILITATION.—States are hereby au14 thorized and encouraged to enact legislation, and to enter

15 into agreements with Indian tribes to facilitate and supple16 ment the initiatives, programs, and policies authorized by

17 this title and other Federal laws benefiting Indians and

18 Indian tribes.

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

20 this title and each provision of a compact or funding

21 agreement shall be liberally construed for the benefit of

22 the Indian tribe participating in self-governance and any

23 ambiguity 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

3 the annual budget request submitted to the Congress

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

5 funds necessary to fully fund all funding agreements au6 thorized under this title, including funds specifically iden7 tified to fund tribal base budgets. All funds so appro8 priated shall be apportioned to the Indian Health Service.

9 Such funds shall be provided to the Office of Tribal Self10 Governance which shall be responsible for distribution of

11 all funds provided under section 505. Nothing in this pro12 vision shall be construed to authorize the Indian Health

13 Service to reduce the amount of funds that a self-govern14 ance tribe is otherwise entitled to receive under its funding

15 agreement or other applicable law, whether or not such

16 funds are made available to the Office of Tribal Self-Gov17 ernance under this section.

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

19 budget request, the President shall identify the level of

20 need presently funded and any shortfall in funding (in21 cluding direct program and contract support costs) for

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

23 self-determination contracts, or under compacts and fund24 ing agreements authorized under this title.
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1 ‘‘SEC. 514. REPORTS.

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

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

4 the Secretary shall submit to the Committee on Resources

5 of the House of Representatives and the Committee on

6 Indian Affairs of the Senate a written report regarding

7 the administration of this title. Such report shall include

8 a detailed analysis of the level of need being presently

9 funded or unfunded for each Indian tribe, either directly

10 by the Secretary, under self-determination contracts under

11 title I, or under compacts and funding agreements author12 ized under this Act. In compiling reports pursuant to this

13 section, the Secretary may not impose any reporting re14 quirements on participating Indian tribes or tribal organi15 zations, not otherwise provided in this Act.

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

17 information contained in funding agreements, annual

18 audit reports, and Secretarial data regarding the disposi19 tion of Federal funds and shall—

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

21 self-governance;

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

23 are specifically or functionally related to the provi24 sion by the Secretary of services and benefits to self25 governance Indian tribes and their members;
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1 ‘‘(3) identify the funds transferred to each self2 governance Indian tribe and the corresponding re3 duction in the Federal bureaucracy;

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

5 tribal shares of all headquarters funds, together with

6 the comments of affected Indian tribes or tribal or7 ganizations, developed under subsection (c);

8 ‘‘(5) identify amounts expended in the pre9 ceding fiscal year to carry out inherent Federal

10 functions, including an identification of those func11 tions by type and location;

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

13 methods (or any revisions thereof) used to determine

14 the individual tribal share of funds controlled by all

15 components of the Indian Health Service (including

16 funds assessed by any other Federal agency) for in17 clusion in self-governance compacts or funding

18 agreements;

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

20 distributed to the Indian tribes for comment, such

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

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

23 of the Indian tribes or tribal organizations.

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

25 Not later than 180 days after the date of the enactment
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1 of this title, the Secretary shall, after consultation with

2 Indian tribes, submit a written report to the Committee

3 on Resources of the House of Representatives and the

4 Committee on Indian Affairs of the Senate which describes

5 the method or methods used to determine the individual

6 tribal share of funds controlled by all components of the

7 Indian Health Service (including funds assessed by any

8 other Federal agency) for inclusion in self-governance

9 compacts or funding agreements.

10 ‘‘SEC. 515. DISCLAIMERS.

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

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

13 funding for any program, project, or activity serving an

14 Indian tribe under this or other applicable Federal law.

15 Any Indian tribe that alleges that a compact or funding

16 agreement is in violation of this section may apply the pro17 visions of section 110.

18 ‘‘(b) FEDERAL TRUST AND TREATY RESPONSIBIL19 ITIES.—Nothing in this Act shall be construed to diminish

20 in any way the trust responsibility of the United States

21 to Indian tribes and individual Indians that exists under

22 treaties, Executive orders, or other laws and court deci23 sions.

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

25 2(2) of the Act of July 5, 1935 (49 Stat. 450, chapter
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1 372) (commonly known as the National Labor Relations

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

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

4 cooperative agreement under this Act shall not be consid5 ered an employer.

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

7 Indian Health Service under this Act shall neither bill nor

8 charge those Indians who may have the economic means

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

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

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

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

13 106(a) through (k), and 111 of this Act and section 314

14 of Public Law 101–512 (coverage under the Federal Tort

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

16 shall apply to compacts and funding agreements author17 ized by this title.

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

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

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

21 title, shall be made a part of a funding agreement or com22 pact entered into under this title. The Secretary is obli23 gated to include such provision at the option of the partici24 pating Indian tribe or tribes. If such provision is incor25 porated it shall have the same force and effect as if it
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1 were set out in full in this title. In the event an Indian

2 tribe requests such incorporation at the negotiation stage

3 of a compact or funding agreement, such incorporation

4 shall be deemed effective immediately and shall control the

5 negotiation and resulting compact and funding agreement.

6 ‘‘SEC. 517. REGULATIONS.

7 ‘‘(a) IN GENERAL.—

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

9 the enactment of this title, the Secretary shall ini10 tiate procedures under subchapter III of chapter 5

11 of title 5, United States Code, to negotiate and pro12 mulgate such regulations as are necessary to carry

13 out this title.

14 ‘‘(2) Proposed regulations to implement this

15 title shall be published in the Federal Register by

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

17 the enactment of this title.

18 ‘‘(3) The authority to promulgate regulations

19 under this title shall expire 21 months after the date

20 of the enactment of this title.

21 ‘‘(b) COMMITTEE.—A negotiated rulemaking com22 mittee established pursuant to section 565 of title 5,

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

24 as its members only Federal and tribal government rep25 resentatives, a majority of whom shall be nominated by
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1 and be representatives of Indian tribes with funding agree2 ments under this Act, and the Committee shall confer

3 with, and accommodate participation by, representatives

4 of Indian tribes, inter-tribal consortia, tribal organiza5 tions, and individual tribal members.

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

7 shall adapt the negotiated rulemaking procedures to the

8 unique context of self-governance and the government-to9 government relationship between the United States and

10 Indian tribes.

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

12 shall not limit the effect of this title.

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

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

15 the participating Indian tribe in the compact or funding

16 agreement, the participating Indian tribe shall not be sub17 ject to any agency circular, policy, manual, guidance, or

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

19 eligibility provisions of section 105(g).

20 ‘‘SEC. 518. APPEALS.

21 ‘‘In any appeal (including civil actions) involving deci22 sions made by the Secretary under this title, the Secretary

23 shall have the burden of proof of demonstrating by clear

24 and convincing evidence—
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1 ‘‘(1) the validity of the grounds for the decision

2 made; and

3 ‘‘(2) the decision is fully consistent with provi4 sions and policies of this title.

5 ‘‘SEC. 519. AUTHORIZATION OF APPROPRIATIONS.

6 ‘‘There are authorized to be appropriated such sums

7 as may be necessary to carry out this title.

8 ‘‘TITLE VI—TRIBAL SELF-GOV9 ERNANCE—DEPARTMENT OF

10 HEALTH AND HUMAN SERV11 ICES

12 ‘‘SEC. 601. DEMONSTRATION PROJECT FEASIBILITY.

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

14 to determine the feasibility a Tribal Self-Governance Dem15 onstration Project for appropriate programs, services,

16 functions, and activities (or portions thereof) of the agen17 cy.

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

19 the Secretary shall consider—

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

21 and program beneficiaries of such a demonstration

22 project;

23 ‘‘(2) statutory, regulatory, or other impedi24 ments to implementation of such a demonstration

25 project;
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1 ‘‘(3) strategies for implementing such a dem2 onstration project;

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

4 such a demonstration project;

5 ‘‘(5) methods to assure quality and account6 ability in such a demonstration project; and

7 ‘‘(6) such other issues that may be determined

8 by the Secretary or developed through consultation

9 pursuant to section 602.

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

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

12 to the Committee on Resources of the House of Represent13 atives and the Committee on Indian Affairs of the Senate.

14 The report shall contain—

15 ‘‘(1) the results of the study;

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

17 activities (or portions thereof) within the agency

18 which it would be feasible to include in a Tribal Self19 Governance Demonstration Project;

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

21 activities (or portions thereof) included in the list

22 provided pursuant to paragraph (2) which could be

23 included in a Tribal Self-Governance Demonstration

24 Project without amending statutes, or waiving regu25 lations that the Secretary may not waive;
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1 ‘‘(4) a list of legislative actions required in

2 order to include those programs, services, functions,

3 and activities (or portions thereof) included in the

4 list provided pursuant to paragraph (2) but not in5 cluded in the list provided pursuant to paragraph

6 (3) in a Tribal Self-Governance Demonstration

7 Project; and

8 ‘‘(5) any separate views of tribes and other en9 tities consulted pursuant to section 602 related to

10 the information provided pursuant to paragraph (1)

11 through (4).

12 ‘‘SEC. 602. CONSULTATION.

13 ‘‘(a) STUDY PROTOCOL.—

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

15 The Secretary shall consult with Indian tribes to de16 termine a protocol for consultation under subsection

17 (b) prior to consultation under such subsection with

18 the other entities described in such subsection. The

19 protocol shall require, at a minimum, that—

20 ‘‘(A) the government-to-government rela21 tionship with Indian tribes forms the basis for

22 the consultation process;

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

24 jointly conduct the consultations required by

25 this section; and
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1 ‘‘(C) the consultation process allow for sep2 arate and direct recommendations from the In3 dian tribes and other entities described in sub4 section (b).

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

6 determining the protocol described in paragraph (1),

7 the Secretary shall publish the proposed protocol

8 and allow a period of not less than 30 days for com9 ment by entities described in subsection (b) and

10 other interested individuals, and shall take com11 ments received into account in determining the final

12 protocol.

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

14 under this title, the Secretary shall consult with Indian

15 tribes, States, counties, municipalities, program bene16 ficiaries, and interested public interest groups, and may

17 consult with other entities as appropriate.

18 ‘‘SEC. 603. DEFINITIONS.

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

20 Secretary may use definitions provided in title V.

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

22 ‘agency’ shall mean any agency or other organizational

23 unit of the Department of Health and Human Services,

24 other than the Indian Health Service.
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1 ‘‘SEC. 604. AUTHORIZATION OF APPROPRIATIONS.

2 ‘‘There are authorized to be appropriated for fiscal

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

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

5 expended.’’.

6 SEC. 5. AMENDMENTS CLARIFYING CIVIL PROCEEDINGS.

7 (a) BURDEN OF PROOF IN DISTRICT COURT AC8 TIONS.—Section 102(e)(1) of the Indian Self-Determina9 tion and Education Assistance Act (25 U.S.C. 450f(e)(1))

10 is amended by inserting after ‘‘subsection (b)(3)’’ the fol11 lowing: ‘‘or any civil action conducted pursuant to section

12 110(a)’’.

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

14 this section shall apply to any proceedings commenced

15 after October 25, 1994.

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

17 SUPPLIES.

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

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

20 amended—

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

22 all that follows through ‘‘shall be eligible’’ and in23 serting the following: ‘‘or Indian tribe shall be

24 deemed an executive agency and a part of the Indian

25 Health Service, and the employees of the tribal orga-
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1 nization or the Indian tribe, as the case may be,

2 shall be eligible’’; and

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

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

5 shall enter into an agreement for the acquisition, on

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

7 supplies available to the Secretary from the General

8 Services Administration or other Federal agencies

9 that are not directly available to the Indian tribe

10 under this section or any other Federal law, includ11 ing acquisitions from prime vendors. All such acqui12 sitions shall be undertaken through the most effi13 cient and speedy means practicable, including elec14 tronic ordering arrangements.

15 SEC. 7. PATIENT RECORDS.

16 Section 105 of the Indian Self-Determination and

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

18 adding at the end the following new subsection:

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

20 patient records may be deemed to be Federal records

21 under the Federal Records Act of 1950 for the limited

22 purposes of making such records eligible for storage by

23 Federal Records Centers to the same extent and in the

24 same manner as other Department of Health and Human

25 Services patient records. Patient records that are deemed
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1 to be Federal records under the Federal Records Act of

2 1950 pursuant to this subsection shall not be considered

3 Federal records for the purposes of chapter 5 of title 5,

4 United States Code.’’.

5 SEC. 8. REPEAL.

6 Title III of the Indian Self-Determination and Edu7 cation Assistance Act (25 U.S.C. 450f note) is hereby re8 pealed.

9 SEC. 9. SAVINGS PROVISION.

10 Funds appropriated for title III of the Indian Self11 Determination and Education Assistance Act (25 U.S.C.

12 450f note) shall be available for use under title V of such

13 Act.

14 SEC. 10. EFFECTIVE DATE.

15 Except as otherwise provided, the provisions of this

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

17 Act.

Passed the House of Representatives November 17,

1999.

Attest: JEFF TRANDAHL,

Clerk.