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[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 209 Engrossed in Senate (ES)]

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116th CONGRESS
  1st Session
                                 S. 209

_______________________________________________________________________

                                 AN ACT

 
To amend the Indian Self-Determination and Education Assistance Act to 
    provide 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; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Practical Reforms 
and Other Goals To Reinforce the Effectiveness of Self-Governance and 
Self-Determination for Indian Tribes Act of 2019'' or the ``PROGRESS 
for Indian Tribes Act''.
    (b) Table of Contents.--The table of contents of this Act is as 
follows:

Sec. 1. Short title; table of contents.
                    TITLE I--TRIBAL SELF-GOVERNANCE

Sec. 101. Tribal self-governance.
                  TITLE II--INDIAN SELF-DETERMINATION

Sec. 201. Definitions; reporting and audit requirements; application of 
                            provisions.
Sec. 202. Contracts by Secretary of the Interior.
Sec. 203. Administrative provisions.
Sec. 204. Contract funding and indirect costs.
Sec. 205. Contract or grant specifications.

                    TITLE I--TRIBAL SELF-GOVERNANCE

SEC. 101. TRIBAL SELF-GOVERNANCE.

    (a) Effect of Provisions.--Nothing in this Act, or the amendments 
made by this Act, shall be construed--
            (1) to modify, limit, expand, or otherwise affect--
                    (A) the authority of the Secretary of the Interior, 
                as provided for under the Indian Self-Determination and 
                Education Assistance Act (as in effect on the day 
                before the date of enactment of this Act), regarding--
                            (i) the inclusion of any non-BIA program 
                        (as defined in section 401 of the Indian Self-
                        Determination and Education Assistance Act) in 
                        a self-determination contract or funding 
                        agreement under section 403(c) of such Act (as 
                        so in effect); or
                            (ii) the implementation of any contract or 
                        agreement described in clause (i) that is in 
                        effect on the day described in subparagraph 
                        (A);
                    (B) the meaning, application, or effect of any 
                Tribal water rights settlement, including the 
                performance required of a party thereto or any payment 
                or funding obligation thereunder;
                    (C) the authority, jurisdiction, or responsibility 
                of a State to manage, control, or regulate fish and 
                wildlife under State law (including regulations) on 
                land or water in the State, including Federal public 
                land;
                    (D) except for the authority provided to the 
                Secretary as described in subparagraph (A), the 
                applicability or effect of any Federal law related to 
                the protection or management of fish or wildlife; or
                    (E) any treaty-reserved right or other right of any 
                Indian Tribe as recognized by any other means, 
                including treaties or agreements with the United 
                States, Executive orders, statutes, regulations, or 
                case law; or
            (2) to authorize any provision of a contract or agreement 
        that is not consistent with the terms of a Tribal water rights 
        settlement.
    (b) Definitions.--Section 401 of the Indian Self-Determination and 
Education Assistance Act (25 U.S.C. 5361) is amended to read as 
follows:

``SEC. 401. DEFINITIONS.

    ``In this title:
            ``(1) Compact.--The term `compact' means a self-governance 
        compact entered into under section 404.
            ``(2) Construction program; construction project.--The term 
        `construction program' or `construction project' means a Tribal 
        undertaking relating to the administration, planning, 
        environmental determination, design, construction, repair, 
        improvement, or expansion of roads, bridges, buildings, 
        structures, systems, or other facilities for purposes of 
        housing, law enforcement, detention, sanitation, water supply, 
        education, administration, community, health, irrigation, 
        agriculture, conservation, flood control, transportation, or 
        port facilities, or for other Tribal purposes.
            ``(3) Department.--The term `Department' means the 
        Department of the Interior.
            ``(4) Funding agreement.--The term `funding agreement' 
        means a funding agreement entered into under section 403.
            ``(5) Gross mismanagement.--The term `gross mismanagement' 
        means a significant violation, shown by a preponderance of the 
        evidence, of a compact, funding agreement, or statutory or 
        regulatory requirement applicable to Federal funds for a 
        program administered by an Indian Tribe under a compact or 
        funding agreement.
            ``(6) Inherent federal function.--The term `inherent 
        Federal function' means a Federal function that may not legally 
        be delegated to an Indian Tribe.
            ``(7) Non-BIA program.--The term `non-BIA program' means 
        all or a portion of a program, function, service, or activity 
        that is administered by any bureau, service, office, or agency 
        of the Department of the Interior other than--
                    ``(A) the Bureau of Indian Affairs;
                    ``(B) the Office of the Assistant Secretary for 
                Indian Affairs; or
                    ``(C) the Office of the Special Trustee for 
                American Indians.
            ``(8) Program.--The term `program' means any program, 
        function, service, or activity (or portion thereof) within the 
        Department that is included in a funding agreement.
            ``(9) Secretary.--The term `Secretary' means the Secretary 
        of the Interior.
            ``(10) Self-determination contract.--The term `self-
        determination contract' means a self-determination contract 
        entered into under section 102.
            ``(11) Self-governance.--The term `self-governance' means 
        the Tribal Self-Governance Program established under section 
        402.
            ``(12) Tribal share.--The term `Tribal share' means the 
        portion of all funds and resources of an Indian Tribe that--
                    ``(A) support any program within the Bureau of 
                Indian Affairs, the Office of the Special Trustee for 
                American Indians, or the Office of the Assistant 
                Secretary for Indian Affairs; and
                    ``(B) are not required by the Secretary for the 
                performance of an inherent Federal function.
            ``(13) Tribal water rights settlement.--The term `Tribal 
        water rights settlement' means any settlement, compact, or 
        other agreement expressly ratified or approved by an Act of 
        Congress that--
                    ``(A) includes an Indian Tribe and the United 
                States as parties; and
                    ``(B) quantifies or otherwise defines any water 
                right of the Indian Tribe.''.
    (c) Establishment.--Section 402 of the Indian Self-Determination 
and Education Assistance Act (25 U.S.C. 5362) is amended to read as 
follows:

``SEC. 402. TRIBAL SELF-GOVERNANCE PROGRAM.

    ``(a) Establishment.--The Secretary shall establish and carry out a 
program within the Department to be known as the `Tribal Self-
Governance Program'.
    ``(b) Selection of Participating Indian Tribes.--
            ``(1) In general.--
                    ``(A) Eligibility.--The Secretary, acting through 
                the Director of the Office of Self-Governance, may 
                select not more than 50 new Indian Tribes per year from 
                those tribes eligible under subsection (c) to 
                participate in self-governance.
                    ``(B) Joint participation.--On the request of each 
                participating Indian Tribe, 2 or more otherwise 
                eligible Indian Tribes may be treated as a single 
                Indian Tribe for the purpose of participating in self-
                governance.
            ``(2) Other authorized indian tribe or tribal 
        organization.--If an Indian Tribe authorizes another Indian 
        Tribe or a Tribal organization to plan for or carry out a 
        program on its behalf under this title, the authorized Indian 
        Tribe or Tribal organization shall have the rights and 
        responsibilities of the authorizing Indian Tribe (except as 
        otherwise provided in the authorizing resolution).
            ``(3) Joint participation as organization.--Two or more 
        Indian Tribes that are not otherwise eligible under subsection 
        (c) may be treated as a single Indian Tribe for the purpose of 
        participating in self-governance as a Tribal organization if--
                    ``(A) each Indian Tribe so requests; and
                    ``(B) the Tribal organization itself, or at least 
                one of the Indian Tribes participating in the Tribal 
                organization, is eligible under subsection (c).
            ``(4) Tribal withdrawal from a tribal organization.--
                    ``(A) In general.--An Indian Tribe that withdraws 
                from participation in a Tribal organization, in whole 
                or in part, shall be entitled to participate in self-
                governance if the Indian Tribe is eligible under 
                subsection (c).
                    ``(B) Effect of withdrawal.--If an Indian Tribe 
                withdraws from participation in a Tribal organization, 
                the Indian Tribe shall be entitled to its Tribal share 
                of funds and resources supporting the programs that the 
                Indian Tribe is entitled to carry out under the compact 
                and funding agreement of the Indian Tribe.
                    ``(C) Participation in self-governance.--The 
                withdrawal of an Indian Tribe from a Tribal 
                organization shall not affect the eligibility of the 
                Tribal organization to participate in self-governance 
                on behalf of one or more other Indian Tribes, if the 
                Tribal organization still qualifies under subsection 
                (c).
                    ``(D) Withdrawal process.--
                            ``(i) In general.--An Indian Tribe may, by 
                        Tribal resolution, fully or partially withdraw 
                        its Tribal share of any program in a funding 
                        agreement from a participating Tribal 
                        organization.
                            ``(ii) Notification.--The Indian Tribe 
                        shall provide a copy of the Tribal resolution 
                        described in clause (i) to the Secretary.
                            ``(iii) Effective date.--
                                    ``(I) In general.--A withdrawal 
                                under clause (i) shall become effective 
                                on the date that is specified in the 
                                Tribal resolution and mutually agreed 
                                upon by the Secretary, the withdrawing 
                                Indian Tribe, and the Tribal 
                                organization that signed the compact 
                                and funding agreement on behalf of the 
                                withdrawing Indian Tribe or Tribal 
                                organization.
                                    ``(II) No specified date.--In the 
                                absence of a date specified in the 
                                resolution, the withdrawal shall become 
                                effective on--
                                            ``(aa) the earlier of--

                                                    ``(AA) 1 year after 
                                                the date of submission 
                                                of the request; and

                                                    ``(BB) the date on 
                                                which the funding 
                                                agreement expires; or

                                            ``(bb) such date as may be 
                                        mutually agreed upon by the 
                                        Secretary, the withdrawing 
                                        Indian Tribe, and the Tribal 
                                        organization that signed the 
                                        compact and funding agreement 
                                        on behalf of the withdrawing 
                                        Indian Tribe or Tribal 
                                        organization.
                    ``(E) Distribution of funds.--If an Indian Tribe or 
                Tribal organization eligible to enter into a self-
                determination contract or a compact or funding 
                agreement fully or partially withdraws from a 
                participating Tribal organization, the withdrawing 
                Indian Tribe--
                            ``(i) may elect to enter into a self-
                        determination contract or compact, in which 
                        case--
                                    ``(I) the withdrawing Indian Tribe 
                                or Tribal organization shall be 
                                entitled to its Tribal share of 
                                unexpended funds and resources 
                                supporting the programs 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 to the 
                                funding agreement of the Tribal 
                                organization); and
                                    ``(II) the funds referred to in 
                                subclause (I) shall be withdrawn by the 
                                Secretary from the funding agreement of 
                                the Tribal organization and transferred 
                                to the withdrawing Indian Tribe, on the 
                                condition that sections 102 and 105(i), 
                                as appropriate, shall apply to the 
                                withdrawing Indian Tribe; or
                            ``(ii) may elect not to enter into a self-
                        determination contract or compact, in which 
                        case all unexpended funds and resources 
                        associated with the withdrawing Indian Tribe's 
                        returned programs (calculated on the same basis 
                        as the funds were initially allocated to the 
                        funding agreement of the Tribal organization) 
                        shall be returned by the Tribal organization to 
                        the Secretary for operation of the programs 
                        included in the withdrawal.
                    ``(F) Return to mature contract status.--If an 
                Indian Tribe elects to operate all or some programs 
                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 as long as the Indian Tribe 
                meets the requirements set forth in section 4(h).
    ``(c) Eligibility.--To be eligible to participate in self-
governance, an Indian Tribe shall--
            ``(1) successfully complete the planning phase described in 
        subsection (d);
            ``(2) request participation in self-governance by 
        resolution or other official action by the Tribal governing 
        body; and
            ``(3) demonstrate, for the 3 fiscal years preceding the 
        date on which the Indian Tribe requests participation, 
        financial stability and financial management capability as 
        evidenced by the Indian Tribe having no uncorrected significant 
        and material audit exceptions in the required annual audit of 
        its self-determination or self-governance agreements with any 
        Federal agency.
    ``(d) Planning Phase.--
            ``(1) In general.--An Indian Tribe seeking to begin 
        participation in self-governance shall complete a planning 
        phase as provided in this subsection.
            ``(2) Activities.--The planning phase shall--
                    ``(A) be conducted to the satisfaction of the 
                Indian Tribe; and
                    ``(B) include--
                            ``(i) legal and budgetary research; and
                            ``(ii) internal Tribal government planning, 
                        training, and organizational preparation.
    ``(e) Grants.--
            ``(1) In general.--Subject to the availability of 
        appropriations, an Indian Tribe or Tribal organization that 
        meets the requirements of paragraphs (2) and (3) of subsection 
        (c) shall be eligible for grants--
                    ``(A) to plan for participation in self-governance; 
                and
                    ``(B) 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.
            ``(2) Receipt of grant not required.--Receipt of a grant 
        under paragraph (1) shall not be a requirement of participation 
        in self-governance.''.
    (d) Funding Agreements.--Section 403 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 5363) is 
amended--
            (1) by striking subsection (a) and inserting the following:
    ``(a) Authorization.--The Secretary shall, on the request of any 
Indian Tribe or Tribal organization, negotiate and enter into a written 
funding agreement with the governing body of the Indian Tribe or the 
Tribal organization in a manner consistent with--
            ``(1) the trust responsibility of the Federal Government, 
        treaty obligations, and the government-to-government 
        relationship between Indian Tribes and the United States; and
            ``(2) subsection (b).'';
            (2) in subsection (b)--
                    (A) in paragraph (1)--
                            (i) in the matter preceding subparagraph 
                        (A), by striking ``without regard to the agency 
                        or office of the Bureau of Indian Affairs'' and 
                        inserting ``the Office of the Assistant 
                        Secretary for Indian Affairs, and the Office of 
                        the Special Trustee for American Indians, 
                        without regard to the agency or office of that 
                        Bureau or those Offices'';
                            (ii) by redesignating subparagraphs (A) and 
                        (B) as clauses (i) and (ii), respectively, and 
                        indenting the margins of such clauses 
                        accordingly;
                            (iii) by striking ``including any program'' 
                        and inserting the following: ``including--
                    ``(A) any program'';
                            (iv) in subparagraph (A)--
                                    (I) in clause (i), as redesignated 
                                by clause (ii), by striking the 
                                semicolon at the end and inserting ``; 
                                and''; and
                                    (II) in clause (ii), as so 
                                redesignated, by striking ``and'' after 
                                the semicolon;
                            (v) by redesignating subparagraph (C) as 
                        subparagraph (B);
                            (vi) in subparagraph (B), as redesignated 
                        by clause (v), by striking the semicolon and 
                        inserting ``; and''; and
                            (vii) by adding at the end the following:
                    ``(C) any other program, service, function, or 
                activity (or portion thereof) that is provided through 
                the Bureau of Indian Affairs, the Office of the 
                Assistant Secretary for Indian Affairs, or the Office 
                of the Special Trustee for American Indians with 
                respect to which Indian Tribes or Indians are primary 
                or significant beneficiaries;'';
                    (B) in paragraph (2)--
                            (i) by striking ``section 405(c)'' and 
                        inserting ``section 412(c)''; and
                            (ii) by inserting ``and'' after the 
                        semicolon at the end;
                    (C) in paragraph (3), by striking the semicolon at 
                the end and inserting a period; and
                    (D) by striking paragraphs (4) through (9);
            (3) in subsection (f)--
                    (A) in the subsection heading, by striking ``for 
                Review'';
                    (B) by striking ``such agreement to--'' and all 
                that follows through ``Indian tribe'' and inserting 
                ``such agreement to each Indian Tribe'';
                    (C) by striking ``agreement;'' and inserting 
                ``agreement.''; and
                    (D) by striking paragraphs (2) and (3);
            (4) in subsection (k), by striking ``section 405(c)(1)'' 
        and inserting ``section 412(c)''; and
            (5) by adding at the end the following:
    ``(m) Other Provisions.--
            ``(1) Excluded funding.--A funding agreement shall not 
        authorize an Indian Tribe to plan, conduct, administer, or 
        receive Tribal share funding under any program that--
                    ``(A) is provided under the Tribally Controlled 
                Colleges and Universities Assistance Act of 1978 (25 
                U.S.C. 1801 et seq.); or
                    ``(B) is provided for elementary and secondary 
                schools under the formula developed under section 1127 
                of the Education Amendments of 1978 (25 U.S.C. 2007).
            ``(2) Services, functions, and responsibilities.--A funding 
        agreement shall specify--
                    ``(A) the services to be provided under the funding 
                agreement;
                    ``(B) the functions to be performed under the 
                funding agreement; and
                    ``(C) the responsibilities of the Indian Tribe and 
                the Secretary under the funding agreement.
            ``(3) Base budget.--
                    ``(A) In general.--A funding agreement shall, at 
                the option of the Indian Tribe, provide for a stable 
                base budget specifying the recurring funds (which may 
                include funds available under section 106(a)) to be 
                transferred to the Indian Tribe, for such period as the 
                Indian Tribe specifies in the funding agreement, 
                subject to annual adjustment only to reflect changes in 
                congressional appropriations.
                    ``(B) Limitations.--Notwithstanding subparagraph 
                (A), a funding agreement shall not specify funding 
                associated with a program described in subsection 
                (b)(2) or (c) unless the Secretary agrees.
            ``(4) No waiver of trust responsibility.--A funding 
        agreement shall prohibit the Secretary 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, court 
        decisions, and other laws.
    ``(n) Amendment.--The Secretary shall not revise, amend, or require 
additional terms in a new or subsequent funding agreement without the 
consent of the Indian Tribe, unless such terms are required by Federal 
law.
    ``(o) Effective Date.--A funding agreement shall become effective 
on the date specified in the funding agreement.
    ``(p) Existing and Subsequent Funding Agreements.--
            ``(1) Subsequent funding agreements.--Absent notification 
        from an Indian Tribe that the Indian Tribe is withdrawing or 
        retroceding the operation of one or more programs identified in 
        a funding agreement, or unless otherwise agreed to by the 
        parties to the funding agreement or by the nature of any 
        noncontinuing program, service, function, or activity contained 
        in a funding agreement--
                    ``(A) a funding agreement shall remain in full 
                force and effect until a subsequent funding agreement 
                is executed, with funding paid annually for each fiscal 
                year the agreement is in effect; and
                    ``(B) the term of the subsequent funding agreement 
                shall be retroactive to the end of the term of the 
                preceding funding agreement for the purposes of 
                calculating the amount of funding to which the Indian 
                Tribe is entitled.
            ``(2) Disputes.--Disputes over the implementation of 
        paragraph (1)(A) shall be subject to section 406(c).
            ``(3) Existing funding agreements.--An Indian Tribe that 
        was participating in self-governance under this title on the 
        date of enactment of the PROGRESS for Indian Tribes Act shall 
        have the option at any time after that date--
                    ``(A) to retain its existing funding agreement (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
                    ``(B) to negotiate a new funding agreement in a 
                manner consistent with this title.
            ``(4) Multiyear funding agreements.--An Indian Tribe may, 
        at the discretion of the Indian Tribe, negotiate with the 
        Secretary for a funding agreement with a term that exceeds 1 
        year.''.
    (e) General Revisions.--Title IV of the Indian Self-Determination 
and Education Assistance Act (25 U.S.C. 5361 et seq.) is amended by 
striking sections 404 through 408 and inserting the following:

``SEC. 404. COMPACTS.

    ``(a) In General.--The Secretary shall negotiate and enter into a 
written compact with each Indian Tribe participating in self-governance 
in a manner consistent with the trust responsibility of the Federal 
Government, treaty obligations, and the government-to-government 
relationship between Indian Tribes and the United States.
    ``(b) Contents.--A compact under subsection (a) shall--
            ``(1) specify and affirm the general terms of the 
        government-to-government relationship between the Indian Tribe 
        and the Secretary; and
            ``(2) include such terms as the parties intend shall 
        control during the term of the compact.
    ``(c) Amendment.--A compact under subsection (a) may be amended 
only by agreement of the parties.
    ``(d) Effective Date.--The effective date of a compact under 
subsection (a) shall be--
            ``(1) the date of the execution of the compact by the 
        parties; or
            ``(2) such date as is mutually agreed upon by the parties.
    ``(e) Duration.--A compact under subsection (a) shall remain in 
effect--
            ``(1) for so long as permitted by Federal law; or
            ``(2) until termination by written agreement, retrocession, 
        or reassumption.
    ``(f) Existing Compacts.--An Indian Tribe participating in self-
governance under this title, as in effect on the date of enactment of 
the PROGRESS for Indian Tribes Act, shall have the option at any time 
after that date--
            ``(1) to retain its negotiated compact (in whole or in 
        part) to the extent that the provisions of the compact are not 
        directly contrary to any express provision of this title; or
            ``(2) to negotiate a new compact in a manner consistent 
        with this title.

``SEC. 405. GENERAL PROVISIONS.

    ``(a) Applicability.--An Indian Tribe and the Secretary shall 
include in any compact or funding agreement provisions that reflect the 
requirements of this title.
    ``(b) Conflicts of Interest.--An Indian Tribe participating in 
self-governance shall ensure that internal measures are in place to 
address, pursuant to Tribal law and procedures, conflicts of interest 
in the administration of programs.
    ``(c) Audits.--
            ``(1) Single agency audit act.--Chapter 75 of title 31, 
        United States Code, shall apply to a funding agreement 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--
                    ``(A) any provision of law, including section 106; 
                or
                    ``(B) any exemptions to applicable Office of 
                Management and Budget circulars subsequently granted by 
                the Office of Management and Budget.
            ``(3) Federal claims.--Any claim by the Federal Government 
        against an Indian Tribe relating to funds received under a 
        funding agreement based on any audit under this subsection 
        shall be subject to section 106(f).
    ``(d) Redesign and Consolidation.--Except as provided in section 
407, an Indian Tribe may redesign or consolidate programs, or 
reallocate funds for programs, in a compact or funding agreement in any 
manner that the Indian Tribe determines to be in the best interest of 
the Indian community being served--
            ``(1) so long as 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; and
            ``(2) except that, with respect to the reallocation, 
        consolidation, and redesign of programs described in subsection 
        (b)(2) or (c) of section 403, a joint agreement between the 
        Secretary and the Indian Tribe shall be required.
    ``(e) Retrocession.--
            ``(1) In general.--An Indian Tribe may fully or partially 
        retrocede to the Secretary any program under a compact or 
        funding agreement.
            ``(2) Effective date.--
                    ``(A) Agreement.--Unless an Indian Tribe rescinds a 
                request for retrocession under paragraph (1), the 
                retrocession shall become effective on the date 
                specified by the parties in the compact or funding 
                agreement.
                    ``(B) No agreement.--In the absence of a 
                specification of an effective date in the compact or 
                funding agreement, the retrocession shall become 
                effective on--
                            ``(i) the earlier of--
                                    ``(I) 1 year after the date on 
                                which the request is submitted; and
                                    ``(II) the date on which the 
                                funding agreement expires; or
                            ``(ii) such date as may be mutually agreed 
                        upon by the Secretary and the Indian Tribe.
    ``(f) Nonduplication.--A funding agreement shall provide that, for 
the period for which, and to the extent to which, funding is provided 
to an Indian Tribe under this title, the Indian Tribe--
            ``(1) shall not be entitled to contract with the Secretary 
        for funds under section 102, except that the Indian Tribe shall 
        be eligible for new programs on the same basis as other Indian 
        Tribes; and
            ``(2) shall be responsible for the administration of 
        programs in accordance with the compact or funding agreement.
    ``(g) Records.--
            ``(1) In general.--Unless an Indian Tribe specifies 
        otherwise in the compact or funding agreement, records of an 
        Indian Tribe shall not be considered to be Federal records for 
        purposes of chapter 5 of title 5, United States Code.
            ``(2) Recordkeeping system.--An Indian Tribe shall--
                    ``(A) maintain a recordkeeping system; and
                    ``(B) on a notice period of not less than 30 days, 
                provide the Secretary with reasonable access to the 
                records to enable the Department to meet the 
                requirements of sections 3101 through 3106 of title 44, 
                United States Code.

``SEC. 406. PROVISIONS RELATING TO THE SECRETARY.

    ``(a) Trust Evaluations.--A funding agreement shall include a 
provision to monitor the performance of trust functions by the Indian 
Tribe through the annual trust evaluation.
    ``(b) Reassumption.--
            ``(1) In general.--A compact or funding agreement shall 
        include provisions for the Secretary to reassume a program and 
        associated funding if there is a specific finding relating to 
        that program of--
                    ``(A) imminent jeopardy to a trust asset, a natural 
                resource, or public health and safety that--
                            ``(i) is caused by an act or omission of 
                        the Indian Tribe; and
                            ``(ii) arises out of a failure to carry out 
                        the compact or funding agreement; or
                    ``(B) gross mismanagement with respect to funds 
                transferred to an Indian Tribe under a compact or 
                funding agreement, as determined by the Secretary in 
                consultation with the Inspector General, as 
                appropriate.
            ``(2) Prohibition.--The Secretary shall not reassume 
        operation of a program, in whole or part, unless--
                    ``(A) the Secretary first provides written notice 
                and a hearing on the record to the Indian Tribe; and
                    ``(B) the Indian Tribe does not take corrective 
                action to remedy the mismanagement of the funds or 
                programs, or the imminent jeopardy to a trust asset, 
                natural resource, or public health and safety.
            ``(3) Exception.--
                    ``(A) In general.--Notwithstanding paragraph (2), 
                the Secretary may, on written notice to the Indian 
                Tribe, immediately reassume operation of a program if--
                            ``(i) the Secretary makes a finding of 
                        imminent and substantial jeopardy and 
                        irreparable harm to a trust asset, a natural 
                        resource, or the public health and safety 
                        caused by an act or omission of the Indian 
                        Tribe; and
                            ``(ii) the imminent and substantial 
                        jeopardy and irreparable harm to the trust 
                        asset, natural resource, or public health and 
                        safety arises out of a failure by the Indian 
                        Tribe to carry out the terms of an applicable 
                        compact or funding agreement.
                    ``(B) Reassumption.--If the Secretary reassumes 
                operation of a program under subparagraph (A), the 
                Secretary shall provide the Indian Tribe with a hearing 
                on the record not later than 10 days after the date of 
                reassumption.
    ``(c) Inability To Agree on Compact or Funding Agreement.--
            ``(1) Final offer.--If 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.
            ``(2) Determination.--Not more than 60 days after the date 
        of receipt of a final offer by one or more of the officials 
        designated pursuant to paragraph (4), the Secretary shall 
        review and make a determination with respect to the final 
        offer, except that the 60-day period may be extended for up to 
        30 days for circumstances beyond the control of the Secretary, 
        upon written request by the Secretary to the Indian tribe.
            ``(3) Extensions.--The deadline described in paragraph (2) 
        may be extended for any length of time, as agreed upon by both 
        the Indian Tribe and the Secretary.
            ``(4) Designated officials.--
                    ``(A) In general.--The Secretary shall designate 
                one or more appropriate officials in the Department to 
                receive a copy of the final offer described in 
                paragraph (1).
                    ``(B) No designation.--If no official is 
                designated, the Director of the Office of the Executive 
                Secretariat and Regulatory Affairs shall be the 
                designated official.
            ``(5) No timely determination.--If the Secretary fails to 
        make a determination with respect to a final offer within the 
        period specified in paragraph (2), including any extension 
        agreed to under paragraph (3), the Secretary shall be deemed to 
        have agreed to the offer, except that with respect to any 
        compact or funding agreement provision concerning a program 
        described under section 403(c), the Secretary shall be deemed 
        to have rejected the offer with respect to such provision and 
        the terms of clauses (ii) through (iv) of paragraphs (6)(A) 
        shall apply.
            ``(6) Rejection of final offer.--
                    ``(A) In general.--If the Secretary rejects a final 
                offer (or one or more provisions or funding levels in a 
                final offer), the Secretary shall--
                            ``(i) provide 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 as determined 
                                under section 106(a)(1);
                                    ``(II) the program that is the 
                                subject of the final offer is an 
                                inherent Federal function or is subject 
                                to the discretion of the Secretary 
                                under section 403(c);
                                    ``(III) the Indian Tribe cannot 
                                carry out the program in a manner that 
                                would not result in significant danger 
                                or risk to the public health or safety, 
                                to natural resources, or to trust 
                                resources;
                                    ``(IV) the Indian Tribe is not 
                                eligible to participate in self-
                                governance under section 402(c);
                                    ``(V) the funding agreement would 
                                violate a Federal statute or 
                                regulation; or
                                    ``(VI) with respect to a program or 
                                portion of a program included in a 
                                final offer pursuant to section 
                                403(b)(2), the program or the portion 
                                of the program is not otherwise 
                                available to Indian Tribes or Indians 
                                under section 102(a)(1)(E);
                            ``(ii) provide technical assistance to 
                        overcome the objections stated in the 
                        notification required by clause (i);
                            ``(iii) provide 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 United States district court under section 
                        110(a); and
                            ``(iv) provide the Indian Tribe the option 
                        of entering into the severable portions of a 
                        final proposed compact or funding agreement 
                        (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.
                    ``(B) Effect of exercising certain option.--If an 
                Indian Tribe exercises the option specified in 
                subparagraph (A)(iv)--
                            ``(i) the Indian Tribe shall retain the 
                        right to appeal the rejection by the Secretary 
                        under this section; and
                            ``(ii) clauses (i), (ii), and (iii) of 
                        subparagraph (A) shall apply only to the 
                        portion of the proposed final compact or 
                        funding agreement that was rejected by the 
                        Secretary.
    ``(d) Burden of Proof.--In any administrative action, hearing, 
appeal, or civil action brought under this section, the Secretary shall 
have the burden of proof--
            ``(1) of demonstrating, by a preponderance of the evidence, 
        the validity of the grounds for a reassumption under subsection 
        (b); and
            ``(2) of clearly demonstrating the validity of the grounds 
        for rejecting a final offer made under subsection (c).
    ``(e) Good Faith.--
            ``(1) In general.--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.
            ``(2) Policy.--The Secretary shall carry out this title in 
        a manner that maximizes the policy of Tribal self-governance.
    ``(f) Savings.--
            ``(1) In general.--To the extent that programs carried out 
        for the benefit of Indian Tribes and Tribal organizations 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 408(c), except for funding agreements 
        entered into for programs under section 403(c), the Secretary 
        shall make such savings available to the Indian Tribes or 
        Tribal organizations for the provision of additional services 
        to program beneficiaries in a manner equitable to directly 
        served, contracted, and compacted programs.
            ``(2) Discretionary programs of special significance.--For 
        any savings generated as a result of the assumption of a 
        program by an Indian Tribe under section 403(c), such savings 
        shall be made available to that Indian Tribe.
    ``(g) Trust Responsibility.--The Secretary may not waive, modify, 
or diminish 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) Decision Maker.--A decision that constitutes final agency 
action and relates to an appeal within the Department conducted under 
subsection (c)(6)(A)(iii) may be made by--
            ``(1) 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) an administrative law judge.
    ``(i) Rules of Construction.--Subject to section 101(a) of the 
PROGRESS for Indian Tribes Act, 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 self-
governance, and any ambiguity shall be resolved in favor of the Indian 
Tribe.

``SEC. 407. CONSTRUCTION PROGRAMS AND PROJECTS.

    ``(a) In General.--Indian Tribes participating in Tribal self-
governance may carry out any construction project included in a compact 
or funding agreement under this title.
    ``(b) Tribal Option To Carry Out Certain Federal Environmental 
Activities.--In carrying out a construction project under this title, 
an Indian Tribe may, subject to the agreement of the Secretary, elect 
to assume some Federal responsibilities under the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), division A 
of subtitle III of title 54, United States Code, and related provisions 
of other law and regulations that would apply if the Secretary were to 
undertake a construction project, by adopting a resolution--
            ``(1) designating a certifying Tribal officer to represent 
        the Indian Tribe and to assume the status of a responsible 
        Federal official under those Acts, laws, or regulations; and
            ``(2) accepting the jurisdiction of the United States 
        courts for the purpose of enforcing the responsibilities of the 
        certifying Tribal officer assuming the status of a responsible 
        Federal official under those Acts, laws, or regulations.
    ``(c) Savings Clause.--Notwithstanding subsection (b), nothing in 
this section authorizes the Secretary to include in any compact or 
funding agreement duties of the Secretary under the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), division A 
of subtitle III of title 54, United States Code, and other related 
provisions of law that are inherent Federal functions.
    ``(d) Codes and Standards.--In carrying out a construction project 
under this title, an Indian Tribe shall--
            ``(1) adhere to applicable Federal, State, local, and 
        Tribal building codes, architectural and engineering standards, 
        and applicable Federal guidelines regarding design, space, and 
        operational standards, appropriate for the particular project; 
        and
            ``(2) use only architects and engineers who--
                    ``(A) are licensed to practice in the State in 
                which the facility will be built; and
                    ``(B) certify that--
                            ``(i) they are qualified to perform the 
                        work required by the specific construction 
                        involved; and
                            ``(ii) upon completion of design, the plans 
                        and specifications meet or exceed the 
                        applicable construction and safety codes.
    ``(e) Tribal Accountability.--
            ``(1) In general.--In carrying out a construction project 
        under this title, an Indian Tribe shall assume responsibility 
        for the successful completion of the construction project and 
        of a facility that is usable for the purpose for which the 
        Indian Tribe received funding.
            ``(2) Requirements.--For each construction project carried 
        out by an Indian Tribe under this title, the Indian Tribe and 
        the Secretary shall negotiate a provision to be included in the 
        funding agreement that identifies--
                    ``(A) the approximate start and completion dates 
                for the project, which may extend over a period of one 
                or more years;
                    ``(B) a general description of the project, 
                including the scope of work, references to design 
                criteria, and other terms and conditions;
                    ``(C) the responsibilities of the Indian Tribe and 
                the Secretary for the project;
                    ``(D) how project-related environmental 
                considerations will be addressed;
                    ``(E) the amount of funds provided for the project;
                    ``(F) the obligations of the Indian Tribe to comply 
                with the codes referenced in subsection (d)(1) and 
                applicable Federal laws and regulations;
                    ``(G) the agreement of the parties over who will 
                bear any additional costs necessary to meet changes in 
                scope, or errors or omissions in design and 
                construction; and
                    ``(H) the agreement of the Secretary to issue a 
                certificate of occupancy, if requested by the Indian 
                Tribe, based upon the review and verification by the 
                Secretary, to the satisfaction of the Secretary, that 
                the Indian Tribe has secured upon completion the review 
                and approval of the plans and specifications, 
                sufficiency of design, life safety, and code compliance 
                by qualified, licensed, and independent architects and 
                engineers.
    ``(f) Funding.--
            ``(1) In general.--Funding appropriated for construction 
        projects carried out under this title shall be included in 
        funding agreements as annual or semiannual advance payments at 
        the option of the Indian Tribe.
            ``(2) Advance payments.--The Secretary shall include all 
        associated project contingency funds with each advance payment, 
        and the Indian Tribe shall be responsible for the management of 
        such contingency funds.
    ``(g) Negotiations.--At the option of the Indian Tribe, 
construction project funding proposals shall be negotiated pursuant to 
the statutory process in section 105, and any resulting construction 
project agreement shall be incorporated into the funding agreement as 
addenda.
    ``(h) Federal Review and Verification.--
            ``(1) In general.--On a schedule negotiated by the 
        Secretary and the Indian Tribe--
                    ``(A) the Secretary shall review and verify, to the 
                satisfaction of the Secretary, that project planning 
                and design documents prepared by the Indian Tribe in 
                advance of initial construction are in conformity with 
                the obligations of the Indian Tribe under subsection 
                (d); and
                    ``(B) before the project planning and design 
                documents are implemented, the Secretary shall review 
                and verify to the satisfaction of the Secretary that 
                subsequent document amendments which result in a 
                significant change in construction are in conformity 
                with the obligations of the Indian Tribe under 
                subsection (d).
            ``(2) Reports.--The Indian Tribe shall provide the 
        Secretary with project progress and financial reports not less 
        than semiannually.
            ``(3) Oversight visits.--The Secretary may conduct onsite 
        project oversight visits semiannually or on an alternate 
        schedule agreed to by the Secretary and the Indian Tribe.
    ``(i) Application of Other Laws.--Unless otherwise agreed to by the 
Indian Tribe and except as otherwise provided in this Act, no provision 
of title 41, United States Code, the Federal Acquisition Regulation, or 
any other law or regulation pertaining to Federal procurement 
(including Executive orders) shall apply to any construction program or 
project carried out under this title.
    ``(j) Future Funding.--Upon completion of a facility constructed 
under this title, the Secretary shall include the facility among those 
eligible for annual operation and maintenance funding support 
comparable to that provided for similar facilities funded by the 
Department as annual appropriations are available and to the extent 
that the facility size and complexity and other factors do not exceed 
the funding formula criteria for comparable buildings.

``SEC. 408. PAYMENT.

    ``(a) In General.--At the request of the governing body of an 
Indian Tribe and under the terms of an applicable funding agreement, 
the Secretary shall provide funding to the Indian Tribe to carry out 
the funding agreement.
    ``(b) Advance Annual Payment.--At the option of the Indian Tribe, a 
funding agreement shall provide for an advance annual payment to an 
Indian Tribe.
    ``(c) Amount.--
            ``(1) In general.--Subject to subsection (e) and sections 
        403 and 405, the Secretary shall provide funds to the Indian 
        Tribe under a funding agreement for programs in an amount that 
        is equal to the amount that the Indian Tribe would have been 
        entitled to receive under contracts and grants under this Act 
        (including amounts for direct program and contract support 
        costs and, in addition, 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) 
        without regard to the organization level within the Department 
        at which the programs are carried out.
            ``(2) Savings clause.--Nothing in this section reduces 
        programs, services, or funds of, or provided to, another Indian 
        Tribe.
    ``(d) Timing.--
            ``(1) 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 resolution.
            ``(2) Transfers.--Not later than 1 year after the date of 
        enactment of the PROGRESS for Indian Tribes Act, in any 
        instance in which 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.
    ``(e) Availability.--Funds for trust services to individual Indians 
shall be available under a funding agreement only to the extent that 
the same services that would have been provided by the Secretary are 
provided to individual Indians by the Indian Tribe.
    ``(f) Multiyear Funding.--A funding agreement may provide for 
multiyear funding.
    ``(g) Limitations on Authority of the Secretary.--The Secretary 
shall not--
            ``(1) fail 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 title for programs 
        eligible under paragraph (1) or (2) of section 403(b), except 
        as required by Federal law;
            ``(2) withhold any portion of such funds for transfer over 
        a period of years; or
            ``(3) reduce the amount of funds required under this 
        title--
                    ``(A) to make funding available for self-governance 
                monitoring or administration by the Secretary;
                    ``(B) in subsequent years, except as necessary as a 
                result of--
                            ``(i) a reduction in appropriations from 
                        the previous fiscal year for the program to be 
                        included in a compact or funding agreement;
                            ``(ii) a congressional directive in 
                        legislation or an 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 an activity under a 
                        program for which the funds were provided;
                    ``(C) to pay for Federal functions, including--
                            ``(i) Federal pay costs;
                            ``(ii) Federal employee retirement 
                        benefits;
                            ``(iii) automated data processing;
                            ``(iv) technical assistance; and
                            ``(v) monitoring of activities under this 
                        title; or
                    ``(D) to pay for costs of Federal personnel 
                displaced by self-determination contracts under this 
                Act or self-governance under this title.
    ``(h) Federal Resources.--If 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, as soon as practicable, acquire and 
transfer such personnel, supplies, or resources to the Indian Tribe 
under this title.
    ``(i) 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.
    ``(j) Interest or Other Income.--
            ``(1) In general.--An Indian Tribe may retain interest or 
        income earned on any funds paid under a compact or funding 
        agreement to carry out governmental purposes.
            ``(2) No effect on other amounts.--The retention of 
        interest or income under paragraph (1) shall not diminish the 
        amount of funds an Indian Tribe is entitled to receive under a 
        funding agreement in the year the interest or income is earned 
        or in any subsequent fiscal year.
            ``(3) Investment standard.--Funds transferred under this 
        title shall be managed by the Indian Tribe using the prudent 
        investment standard, provided that the Secretary shall not be 
        liable for any investment losses of funds managed by the Indian 
        Tribe that are not otherwise guaranteed or insured by the 
        Federal Government.
    ``(k) Carryover of Funds.--
            ``(1) In general.--Notwithstanding any provision of an 
        appropriations Act, all funds paid to an Indian Tribe in 
        accordance with a compact or funding agreement shall remain 
        available until expended.
            ``(2) Effect of carryover.--If an Indian Tribe elects to 
        carry over funding from one year to the next, the carryover 
        shall not diminish the amount of funds the Indian Tribe is 
        entitled to receive under a funding agreement in that fiscal 
        year or any subsequent fiscal year.
    ``(l) Limitation of Costs.--
            ``(1) In general.--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.
            ``(2) Notice of insufficiency.--If at any time the Indian 
        Tribe has reason to believe that the total amount provided for 
        a specific activity under a compact or funding agreement is 
        insufficient, the Indian Tribe shall provide reasonable notice 
        of such insufficiency to the Secretary.
            ``(3) Suspension of performance.--If, after notice under 
        paragraph (2), 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.
            ``(4) Savings clause.--Nothing in this section reduces any 
        programs, services, or funds of, or provided to, another Indian 
        Tribe.
    ``(m) Distribution of Funds.--The Office of Self-Governance shall 
be responsible for distribution of all Bureau of Indian Affairs funds 
provided under this title unless otherwise agreed by the parties to an 
applicable funding agreement.
    ``(n) Applicability.--Notwithstanding any other provision of this 
section, section 101(a) of the PROGRESS for Indian Tribes Act applies 
to subsections (a) through (m).

``SEC. 409. FACILITATION.

    ``(a) In General.--Except as otherwise provided by law (including 
section 101(a) of the PROGRESS for Indian Tribes Act), the Secretary 
shall interpret each Federal law and regulation in a manner that 
facilitates--
            ``(1) the inclusion of programs in funding agreements; and
            ``(2) the implementation of funding agreements.
    ``(b) Regulation Waiver.--
            ``(1) Request.--An Indian Tribe may submit to the Secretary 
        a written request for a waiver of applicability of a Federal 
        regulation, including--
                    ``(A) an identification of the specific text in the 
                regulation sought to be waived; and
                    ``(B) the basis for the request.
            ``(2) Determination by the secretary.--Not later than 120 
        days after receipt by the Secretary and the designated 
        officials under paragraph (4) of a request under paragraph (1), 
        the Secretary shall approve or deny the requested waiver in 
        writing to the Indian Tribe.
            ``(3) Extensions.--The deadline described in paragraph (2) 
        may be extended for any length of time, as agreed upon by both 
        the Indian Tribe and the Secretary.
            ``(4) Designated officials.--The Secretary shall designate 
        one or more appropriate officials in the Department to receive 
        a copy of the waiver request described in paragraph (1).
            ``(5) Grounds for denial.--The Secretary may deny a request 
        under paragraph (1) upon a specific finding by the Secretary 
        that the identified text in the regulation may not be waived 
        because such a waiver is prohibited by Federal law.
            ``(6) Failure to make determination.--If the Secretary 
        fails to make a determination with respect to a waiver request 
        within the period specified in paragraph (2) (including any 
        extension agreed to under paragraph (3)), the Secretary shall 
        be deemed to have agreed to the request, except that for a 
        waiver request relating to programs eligible under section 
        403(b)(2) or section 403(c), the Secretary shall be deemed to 
        have denied the request.
            ``(7) Finality.--A decision of the Secretary under this 
        section shall be final for the Department.

``SEC. 410. DISCRETIONARY APPLICATION OF OTHER SECTIONS.

    ``(a) In General.--Except as otherwise provided in section 201(d) 
of the PROGRESS for Indian Tribes Act, at the option of a participating 
Indian Tribe or Indian Tribes, any of the provisions of title I may be 
incorporated in any compact or funding agreement under this title. The 
inclusion of any such provision shall be subject to, and shall not 
conflict with, section 101(a) of such Act.
    ``(b) Effect.--Each incorporated provision under subsection (a) 
shall--
            ``(1) have the same force and effect as if set out in full 
        in this title;
            ``(2) supplement or replace any related provision in this 
        title; and
            ``(3) apply to any agency otherwise governed by this title.
    ``(c) Effective Date.--If an Indian Tribe requests incorporation at 
the negotiation stage of a compact or funding agreement, the 
incorporation shall--
            ``(1) be effective immediately; and
            ``(2) control the negotiation and resulting compact and 
        funding agreement.

``SEC. 411. ANNUAL BUDGET LIST.

    ``The Secretary shall list, in the annual budget request submitted 
to Congress under section 1105 of title 31, United States Code, any 
funds proposed to be included in funding agreements authorized under 
this title.

``SEC. 412. REPORTS.

    ``(a) In General.--
            ``(1) Requirement.--On January 1 of each year, the 
        Secretary shall submit to Congress a report regarding the 
        administration of this title.
            ``(2) Analysis.--Any Indian Tribe may submit to the Office 
        of Self-Governance and to the appropriate committees of 
        Congress a detailed annual analysis of unmet Tribal needs for 
        funding agreements under this title.
    ``(b) Contents.--The report under subsection (a)(1) shall--
            ``(1) be compiled from information contained in funding 
        agreements, annual audit reports, and data of the Secretary 
        regarding the disposition of Federal funds;
            ``(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 members of Indian Tribes;
                    ``(C) the funds transferred to each Indian Tribe 
                and the corresponding reduction in the Federal 
                employees and workload; and
                    ``(D) the funding formula for individual Tribal 
                shares of all Central Office funds, together with the 
                comments of affected Indian Tribes, developed under 
                subsection (d);
            ``(3) before being submitted to Congress, be distributed to 
        the Indian Tribes for comment (with a comment period of not 
        less than 30 days);
            ``(4) include the separate views and comments of each 
        Indian Tribe or Tribal organization; and
            ``(5) include a list of--
                    ``(A) all such programs that the Secretary 
                determines, in consultation with Indian Tribes 
                participating in self-governance, are eligible for 
                negotiation to be included in a funding agreement at 
                the request of a participating Indian Tribe; and
                    ``(B) all such programs which Indian Tribes have 
                formally requested to include in a funding agreement 
                under section 403(c) due to the special geographic, 
                historical, or cultural significance of the program to 
                the Indian Tribe, indicating whether each request was 
                granted or denied, and stating the grounds for any 
                denial.
    ``(c) Report on Non-BIA Programs.--
            ``(1) In general.--In order to optimize opportunities for 
        including non-BIA programs in agreements with Indian Tribes 
        participating in self-governance under this title, the 
        Secretary shall review all programs administered by the 
        Department, other than through the Bureau of Indian Affairs, 
        the Office of the Assistant Secretary for Indian Affairs, or 
        the Office of the Special Trustee for American Indians, without 
        regard to the agency or office concerned.
            ``(2) Programmatic targets.--The Secretary shall establish 
        programmatic targets, after consultation with Indian Tribes 
        participating in self-governance, to encourage bureaus of the 
        Department to ensure that an appropriate portion of those 
        programs are available to be included in funding agreements.
            ``(3) Publication.--The lists under subsection (b)(5) and 
        targets under paragraph (2) shall be published in the Federal 
        Register and made available to any Indian Tribe participating 
        in self-governance.
            ``(4) Annual review.--
                    ``(A) In general.--The Secretary shall annually 
                review and publish in the Federal Register, after 
                consultation with Indian Tribes participating in self-
                governance, revised lists and programmatic targets.
                    ``(B) Contents.--In preparing the revised lists and 
                programmatic targets, the Secretary shall consider all 
                programs that were eligible for contracting in the 
                original list published in the Federal Register in 
                1995, except for programs specifically determined not 
                to be contractible as a matter of law.
    ``(d) Report on Central Office Funds.--Not later than January 1, 
2020, the Secretary shall, in consultation with Indian Tribes, develop 
a funding formula to determine the individual Tribal share of funds 
controlled by the Central Office of the Bureau of Indian Affairs and 
the Office of the Special Trustee for inclusion in the compacts.

``SEC. 413. REGULATIONS.

    ``(a) In General.--
            ``(1) Promulgation.--Not later than 90 days after the date 
        of enactment of the PROGRESS for Indian Tribes Act, 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 not later than 21 months after the date of 
        enactment of the PROGRESS for Indian Tribes Act.
            ``(3) Expiration of authority.--The authority to promulgate 
        regulations under paragraph (1) shall expire on the date that 
        is 30 months after the date of enactment of the PROGRESS for 
        Indian Tribes Act.
    ``(b) Committee.--
            ``(1) Membership.--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 
        representatives of the Federal Government and Tribal 
        government.
            ``(2) Lead agency.--Among the Federal representatives 
        described in paragraph (1), the Office of Self-Governance shall 
        be the lead agency for the Department.
    ``(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.--
            ``(1) Repeal.--The Secretary may repeal any regulation that 
        is inconsistent with this Act.
            ``(2) Conflicting provisions.--Subject to section 101(a) of 
        the PROGRESS for Indian Tribes Act and except with respect to 
        programs described under section 403(c), this title shall 
        supersede any conflicting provision of law (including any 
        conflicting regulations).
            ``(3) Effectiveness without regard to regulations.--The 
        lack of promulgated regulations on an issue shall not limit the 
        effect or implementation of this title.

``SEC. 414. EFFECT OF CIRCULARS, POLICIES, MANUALS, GUIDANCE, AND 
              RULES.

    ``Unless expressly agreed to by a participating Indian Tribe in a 
compact or funding agreement, the participating Indian Tribe shall not 
be subject to any agency circular, policy, manual, guidance, or rule 
adopted by the Department, except for--
            ``(1) the eligibility provisions of section 105(g); and
            ``(2) regulations promulgated pursuant to section 413.

``SEC. 415. APPEALS.

    ``Except as provided in section 406(d), in any administrative 
action, appeal, or civil action for judicial review of any decision 
made by the Secretary under this title, the Secretary shall have the 
burden of proof of demonstrating by a preponderance of the evidence--
            ``(1) the validity of the grounds for the decision; and
            ``(2) the consistency of the decision with the requirements 
        and policies of this title.

``SEC. 416. APPLICATION OF OTHER PROVISIONS.

    ``Section 314 of the Department of the Interior and Related 
Agencies Appropriations Act, 1991 (Public Law 101-512; 104 Stat. 1959), 
shall apply to compacts and funding agreements entered into under this 
title.

``SEC. 417. AUTHORIZATION OF APPROPRIATIONS.

    ``There are authorized to be appropriated such sums as may be 
necessary to carry out this title.''.

                  TITLE II--INDIAN SELF-DETERMINATION

SEC. 201. DEFINITIONS; REPORTING AND AUDIT REQUIREMENTS; APPLICATION OF 
              PROVISIONS.

    (a) Definitions.--
            (1) In general.--Section 4 of the Indian Self-Determination 
        and Education Assistance Act (25 U.S.C. 5304) is amended by 
        striking subsection (j) and inserting the following:
    ``(j) `self-determination contract' means a contract entered into 
under title I (or a grant or cooperative agreement used under section 
9) between a Tribal organization and the appropriate Secretary for the 
planning, conduct, and administration of programs or services that are 
otherwise provided to Indian Tribes and members of Indian Tribes 
pursuant to Federal law, subject to the condition that, except as 
provided in section 105(a)(3), no contract entered into under title I 
(or grant or cooperative agreement used under section 9) shall be--
            ``(1) considered to be a procurement contract; or
            ``(2) except as provided in section 107(a)(1), subject to 
        any Federal procurement law (including regulations);''.
            (2) Technical amendments.--Section 4 of the Indian Self-
        Determination and Education Assistance Act (25 U.S.C. 5304), as 
        amended by paragraph (1), is further amended--
                    (A) in subsection (e), by striking ```Indian tribe' 
                means'' and inserting ```Indian tribe' or `Indian 
                Tribe' means''; and
                    (B) in subsection (l), by striking ```tribal 
                organization' means'' and inserting ```Tribal 
                organization' or `tribal organization' means''.
    (b) Reporting and Audit Requirements.--Section 5 of the Indian 
Self-Determination and Education Assistance Act (25 U.S.C. 5305) is 
amended--
            (1) in subsection (b)--
                    (A) by striking ``after completion of the project 
                or undertaking referred to in the preceding subsection 
                of this section'' and inserting ``after the retention 
                period for the report that is submitted to the 
                Secretary under subsection (a)''; and
                    (B) by adding at the end the following: ``The 
                retention period shall be defined in regulations 
                promulgated by the Secretary pursuant to section 
                413.''; and
            (2) in subsection (f)(1), by inserting ``if the Indian 
        Tribal organization expends $500,000 or more in Federal awards 
        during such fiscal year'' after ``under this Act,''.
    (c) Effective Date.--The amendment made by subsection (b)(2) shall 
not take effect until 14 months after the date of enactment of this 
Act.
    (d) Application of Other Provisions.--Sections 4, 5, 6, 7, 102(c), 
104, 105(a)(1), 105(f), 110, and 111 of the Indian Self-Determination 
and Education Assistance Act (25 U.S.C. 5304, 5305, 5306, 5307, 
5321(c), 5323, 5324(a)(1), 5324(f), 5331, and 5332) and section 314 of 
the Department of the Interior and Related Agencies Appropriations Act, 
1991 (Public Law 101-512; 104 Stat. 1959), apply to compacts and 
funding agreements entered into under title IV of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 5361 et seq.).

SEC. 202. CONTRACTS BY SECRETARY OF THE INTERIOR.

    Section 102 of the Indian Self-Determination and Education 
Assistance Act (25 U.S.C. 5321) is amended--
            (1) in subsection (c)(2), by striking ``economic 
        enterprises'' and all that follows through ``except that'' and 
        inserting ``economic enterprises (as defined in section 3 of 
        the Indian Financing Act of 1974 (25 U.S.C. 1452)), except 
        that''; and
            (2) by adding at the end the following:
    ``(f) Good Faith Requirement.--In the negotiation of contracts and 
funding agreements, the Secretary shall--
            ``(1) at all times negotiate in good faith to maximize 
        implementation of the self-determination policy; and
            ``(2) carry out this Act in a manner that maximizes the 
        policy of Tribal self-determination, in a manner consistent 
        with--
                    ``(A) the purposes specified in section 3; and
                    ``(B) the PROGRESS for Indian Tribes Act.
    ``(g) Rule of Construction.--Subject to section 101(a) of the 
PROGRESS for Indian Tribes Act, each provision of this Act and each 
provision of a contract or funding agreement shall be liberally 
construed for the benefit of the Indian Tribe participating in self-
determination, and any ambiguity shall be resolved in favor of the 
Indian Tribe.''.

SEC. 203. ADMINISTRATIVE PROVISIONS.

    Section 105 of the Indian Self-Determination and Education 
Assistance Act (25 U.S.C. 5324) is amended--
            (1) in subsection (b), in the first sentence, by striking 
        ``pursuant to'' and all that follows through ``of this Act'' 
        and inserting ``pursuant to sections 102 and 103''; and
            (2) by adding at the end the following:
    ``(p) Interpretation by Secretary.--Except as otherwise provided by 
law, the Secretary shall interpret all Federal laws (including 
regulations) and Executive orders in a manner that facilitates, to the 
maximum extent practicable--
            ``(1) the inclusion in self-determination contracts and 
        funding agreements of--
                    ``(A) applicable programs, services, functions, and 
                activities (or portions thereof); and
                    ``(B) funds associated with those programs, 
                services, functions, and activities;
            ``(2) the implementation of self-determination contracts 
        and funding agreements; and
            ``(3) the achievement of Tribal health objectives.
    ``(q)(1) Technical Assistance for Internal Controls.--In 
considering proposals for, amendments to, or in the course of, a 
contract under this title and compacts under titles IV and V of this 
Act, if the Secretary determines that the Indian Tribe lacks adequate 
internal controls necessary to manage the contracted program or 
programs, the Secretary shall, as soon as practicable, provide the 
necessary technical assistance to assist the Indian Tribe in developing 
adequate internal controls. As part of that technical assistance, the 
Secretary and the Tribe shall develop a plan for assessing the 
subsequent effectiveness of such technical assistance. The inability of 
the Secretary to provide technical assistance or lack of a plan under 
this subsection shall not result in the reassumption of an existing 
agreement, contract, or compact, or declination or rejection of a new 
agreement, contract, or compact.
    ``(2) The Secretary shall prepare a report to be included in the 
information required for the reports under sections 412(b)(2)(A) and 
514(b)(2)(A). The Secretary shall include in this report, in the 
aggregate, a description of the internal controls that were inadequate, 
the technical assistance provided, and a description of Secretarial 
actions taken to address any remaining inadequate internal controls 
after the provision of technical assistance and implementation of the 
plan required by paragraph (1).''.

SEC. 204. CONTRACT FUNDING AND INDIRECT COSTS.

    Section 106(a)(3) of the Indian Self-Determination and Education 
Assistance Act (25 U.S.C. 5325(a)(3)) is amended--
            (1) in subparagraph (A)--
                    (A) in clause (i), by striking ``, and'' and 
                inserting ``; and''; and
                    (B) in clause (ii), by striking ``expense related 
                to the overhead incurred'' and inserting ``expense 
                incurred by the governing body of the Indian Tribe or 
                Tribal organization and any overhead expense 
                incurred'';
            (2) by redesignating subparagraph (B) as subparagraph (C); 
        and
            (3) by inserting after subparagraph (A) the following:
                    ``(B) In calculating the reimbursement rate for 
                expenses described in subparagraph (A)(ii), not less 
                than 50 percent of the expenses described in 
                subparagraph (A)(ii) that are incurred by the governing 
                body of an Indian Tribe or Tribal organization relating 
                to a Federal program, function, service, or activity 
                carried out pursuant to the contract shall be 
                considered to be reasonable and allowable.''.

SEC. 205. CONTRACT OR GRANT SPECIFICATIONS.

    Section 108 of the Indian Self-Determination and Education 
Assistance Act (25 U.S.C. 5329) is amended--
            (1) in subsection (a)(2), by inserting ``subject to 
        subsections (a) and (b) of section 102,'' before ``contain'';
            (2) in subsection (f)(2)(A)(ii) of the model agreement 
        contained in subsection (c), by inserting ``subject to 
        subsections (a) and (b) of section 102 of the Indian Self-
        Determination and Education Assistance Act (25 U.S.C. 5321),'' 
        before ``such other provisions''; and
            (3) in subsection (b)(7)(C) of the model agreement 
        contained in subsection (c), in the second sentence of the 
        matter preceding clause (i), by striking ``one performance 
        monitoring visit'' and inserting ``two performance monitoring 
        visits''.

            Passed the Senate June 27, 2019.

            Attest:

                                                             Secretary.
116th CONGRESS

  1st Session

                                 S. 209

_______________________________________________________________________

                                 AN ACT

To amend the Indian Self-Determination and Education Assistance Act to 
    provide further self-governance by Indian Tribes, and for other 
                               purposes.
```