II 

116TH CONGRESS 

1ST SESSION S. 209 

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

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

IN THE SENATE OF THE UNITED STATES 

JANUARY 24, 2019 

Mr. HOEVEN (for himself, Mr. BARRASSO, Mr. UDALL, and Ms. SMITH) introduced the following bill; which was read twice and referred to the Committee on Indian Affairs 

A BILL 

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

Tribes, and for other purposes. 

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

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Practical Reforms and Other Goals To Reinforce the Ef6 fectiveness of Self-Governance and Self-Determination for 

7 Indian Tribes Act of 2019’’ or the ‘‘PROGRESS for In8 dian Tribes Act’’. 


kjohnson on DSK79L0C42 with BILLS
2 

•S 209 IS

1 (b) TABLE OF CONTENTS.—The table of contents of 

2 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. 

3 TITLE I—TRIBAL SELF4 GOVERNANCE 

5 SEC. 101. TRIBAL SELF-GOVERNANCE. 

6 (a) EFFECT OF PROVISIONS.—Nothing in this Act, 

7 or the amendments made by this Act, shall be construed— 

8 (1) to modify, limit, expand, or otherwise af9 fect— 

10 (A) the authority of the Secretary of the 

11 Interior, as provided for under the Indian Self12 Determination and Education Assistance Act 

13 (as in effect on the day before the date of en14 actment of this Act), regarding— 

15 (i) the inclusion of any non-BIA pro16 gram (as defined in section 401 of the In17 dian Self-Determination and Education 

18 Assistance Act) in a self-determination 

19 contract or funding agreement under secVerDate Sep 11 2014 03:42 Jan 30, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S209.IS S209

kjohnson on DSK79L0C42 with BILLS
3 

•S 209 IS

1 tion 403(c) of such Act (as so in effect); 

2 or 

3 (ii) the implementation of any con4 tract or agreement described in clause (i) 

5 that is in effect on the day described in 

6 subparagraph (A); 

7 (B) the meaning, application, or effect of 

8 any Tribal water rights settlement, including 

9 the performance required of a party thereto or 

10 any payment or funding obligation thereunder; 

11 (C) the authority, jurisdiction, or responsi12 bility of a State to manage, control, or regulate 

13 fish and wildlife under State law (including reg14 ulations) on land or water in the State, includ15 ing Federal public land; 

16 (D) except for the authority provided to 

17 the Secretary as described in subparagraph (A), 

18 the applicability or effect of any Federal law re19 lated to the protection or management of fish 

20 or wildlife; or 

21 (E) any treaty-reserved right or other right 

22 of any Indian Tribe as recognized by any other 

23 means, including treaties or agreements with 

24 the United States, Executive orders, statutes, 

25 regulations, or case law; or 


kjohnson on DSK79L0C42 with BILLS
4 

•S 209 IS

1 (2) to authorize any provision of a contract or 

2 agreement that is not consistent with the terms of 

3 a Tribal water rights settlement. 

4 (b) DEFINITIONS.—Section 401 of the Indian Self5 Determination and Education Assistance Act (25 U.S.C. 

6 5361) is amended to read as follows: 

7 ‘‘SEC. 401. DEFINITIONS. 

8 ‘‘In this title: 

9 ‘‘(1) COMPACT.—The term ‘compact’ means a 

10 self-governance compact entered into under section 

11 404. 

12 ‘‘(2) CONSTRUCTION PROGRAM; CONSTRUCTION

13 PROJECT.—The term ‘construction program’ or ‘con14 struction project’ means a Tribal undertaking relat15 ing to the administration, planning, environmental 

16 determination, design, construction, repair, improve17 ment, or expansion of roads, bridges, buildings, 

18 structures, systems, or other facilities for purposes 

19 of housing, law enforcement, detention, sanitation, 

20 water supply, education, administration, community, 

21 health, irrigation, agriculture, conservation, flood 

22 control, transportation, or port facilities, or for other 

23 Tribal purposes. 

24 ‘‘(3) DEPARTMENT.—The term ‘Department’ 

25 means the Department of the Interior. 


kjohnson on DSK79L0C42 with BILLS
5 

•S 209 IS

1 ‘‘(4) FUNDING AGREEMENT.—The term ‘fund2 ing agreement’ means a funding agreement entered 

3 into under section 403. 

4 ‘‘(5) GROSS MISMANAGEMENT.—The term 

5 ‘gross mismanagement’ means a significant viola6 tion, shown by a preponderance of the evidence, of 

7 a compact, funding agreement, or statutory or regu8 latory requirement applicable to Federal funds for a 

9 program administered by an Indian Tribe under a 

10 compact or funding agreement. 

11 ‘‘(6) INHERENT FEDERAL FUNCTION.—The 

12 term ‘inherent Federal function’ means a Federal 

13 function that may not legally be delegated to an In14 dian Tribe. 

15 ‘‘(7) NON-BIA PROGRAM.—The term ‘non-BIA 

16 program’ means all or a portion of a program, func17 tion, service, or activity that is administered by any 

18 bureau, service, office, or agency of the Department 

19 of the Interior other than— 

20 ‘‘(A) the Bureau of Indian Affairs; 

21 ‘‘(B) the Office of the Assistant Secretary 

22 for Indian Affairs; or 

23 ‘‘(C) the Office of the Special Trustee for 

24 American Indians. 


kjohnson on DSK79L0C42 with BILLS
6 

•S 209 IS

1 ‘‘(8) PROGRAM.—The term ‘program’ means 

2 any program, function, service, or activity (or por3 tion thereof) within the Department that is included 

4 in a funding agreement. 

5 ‘‘(9) SECRETARY.—The term ‘Secretary’ means 

6 the Secretary of the Interior. 

7 ‘‘(10) SELF-DETERMINATION CONTRACT.—The 

8 term ‘self-determination contract’ means a self-de9 termination contract entered into under section 102. 

10 ‘‘(11) SELF-GOVERNANCE.—The term ‘self-gov11 ernance’ means the Tribal Self-Governance Program 

12 established under section 402. 

13 ‘‘(12) TRIBAL SHARE.—The term ‘Tribal share’ 

14 means the portion of all funds and resources of an 

15 Indian Tribe that— 

16 ‘‘(A) support any program within the Bu17 reau of Indian Affairs, the Office of the Special 

18 Trustee for American Indians, or the Office of 

19 the Assistant Secretary for Indian Affairs; and 

20 ‘‘(B) are not required by the Secretary for 

21 the performance of an inherent Federal func22 tion. 

23 ‘‘(13) TRIBAL WATER RIGHTS SETTLEMENT.— 

24 The term ‘Tribal water rights settlement’ means any 


kjohnson on DSK79L0C42 with BILLS
7 

•S 209 IS

1 settlement, compact, or other agreement expressly 

2 ratified or approved by an Act of Congress that— 

3 ‘‘(A) includes an Indian Tribe and the 

4 United States as parties; and 

5 ‘‘(B) quantifies or otherwise defines any 

6 water right of the Indian Tribe.’’. 

7 (c) ESTABLISHMENT.—Section 402 of the Indian 

8 Self-Determination and Education Assistance Act (25 

9 U.S.C. 5362) is amended to read as follows: 

10 ‘‘SEC. 402. TRIBAL SELF-GOVERNANCE PROGRAM. 

11 ‘‘(a) ESTABLISHMENT.—The Secretary shall estab12 lish and carry out a program within the Department to 

13 be known as the ‘Tribal Self-Governance Program’. 

14 ‘‘(b) SELECTION OF PARTICIPATING INDIAN

15 TRIBES.— 

16 ‘‘(1) IN GENERAL.— 

17 ‘‘(A) ELIGIBILITY.—The Secretary, acting 

18 through the Director of the Office of Self-Gov19 ernance, may select not more than 50 new In20 dian Tribes per year from those tribes eligible 

21 under subsection (c) to participate in self-gov22 ernance. 

23 ‘‘(B) JOINT PARTICIPATION.—On the re24 quest of each participating Indian Tribe, 2 or 

25 more otherwise eligible Indian Tribes may be 


kjohnson on DSK79L0C42 with BILLS
8 

•S 209 IS

1 treated as a single Indian Tribe for the purpose 

2 of participating in self-governance. 

3 ‘‘(2) OTHER AUTHORIZED INDIAN TRIBE OR

4 TRIBAL ORGANIZATION.—If an Indian Tribe author5 izes another Indian Tribe or a Tribal organization to 

6 plan for or carry out a program on its behalf under 

7 this title, the authorized Indian Tribe or Tribal or8 ganization shall have the rights and responsibilities 

9 of the authorizing Indian Tribe (except as otherwise 

10 provided in the authorizing resolution). 

11 ‘‘(3) JOINT PARTICIPATION AS ORGANIZA12 TION.—Two or more Indian Tribes that are not oth13 erwise eligible under subsection (c) may be treated 

14 as a single Indian Tribe for the purpose of partici15 pating in self-governance as a Tribal organization 

16 if— 

17 ‘‘(A) each Indian Tribe so requests; and 

18 ‘‘(B) the Tribal organization itself, or at 

19 least one of the Indian Tribes participating in 

20 the Tribal organization, is eligible under sub21 section (c). 

22 ‘‘(4) TRIBAL WITHDRAWAL FROM A TRIBAL OR23 GANIZATION.— 

24 ‘‘(A) IN GENERAL.—An Indian Tribe that 

25 withdraws from participation in a Tribal orgaVerDate Sep 11 2014 03:42 Jan 30, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S209.IS S209

kjohnson on DSK79L0C42 with BILLS
9 

•S 209 IS

1 nization, in whole or in part, shall be entitled 

2 to participate in self-governance if the Indian 

3 Tribe is eligible under subsection (c). 

4 ‘‘(B) EFFECT OF WITHDRAWAL.—If an In5 dian Tribe withdraws from participation in a 

6 Tribal organization, the Indian Tribe shall be 

7 entitled to its Tribal share of funds and re8 sources supporting the programs that the In9 dian Tribe is entitled to carry out under the 

10 compact and funding agreement of the Indian 

11 Tribe. 

12 ‘‘(C) PARTICIPATION IN SELF-GOVERN13 ANCE.—The withdrawal of an Indian Tribe 

14 from a Tribal organization shall not affect the 

15 eligibility of the Tribal organization to partici16 pate in self-governance on behalf of one or more 

17 other Indian Tribes, if the Tribal organization 

18 still qualifies under subsection (c). 

19 ‘‘(D) WITHDRAWAL PROCESS.— 

20 ‘‘(i) IN GENERAL.—An Indian Tribe 

21 may, by Tribal resolution, fully or partially 

22 withdraw its Tribal share of any program 

23 in a funding agreement from a partici24 pating Tribal organization. 


kjohnson on DSK79L0C42 with BILLS
10 

•S 209 IS

1 ‘‘(ii) NOTIFICATION.—The Indian 

2 Tribe shall provide a copy of the Tribal 

3 resolution described in clause (i) to the 

4 Secretary. 

5 ‘‘(iii) EFFECTIVE DATE.— 

6 ‘‘(I) IN GENERAL.—A withdrawal 

7 under clause (i) shall become effective 

8 on the date that is specified in the 

9 Tribal resolution and mutually agreed 

10 upon by the Secretary, the with11 drawing Indian Tribe, and the Tribal 

12 organization that signed the compact 

13 and funding agreement on behalf of 

14 the withdrawing Indian Tribe or Trib15 al organization. 

16 ‘‘(II) NO SPECIFIED DATE.—In 

17 the absence of a date specified in the 

18 resolution, the withdrawal shall be19 come effective on— 

20 ‘‘(aa) the earlier of— 

21 ‘‘(AA) 1 year after the 

22 date of submission of the re23 quest; and 


kjohnson on DSK79L0C42 with BILLS
11 

•S 209 IS

1 ‘‘(BB) the date on 

2 which the funding agree3 ment expires; or 

4 ‘‘(bb) such date as may be 

5 mutually agreed upon by the Sec6 retary, the withdrawing Indian 

7 Tribe, and the Tribal organiza8 tion that signed the compact and 

9 funding agreement on behalf of 

10 the withdrawing Indian Tribe or 

11 Tribal organization. 

12 ‘‘(E) DISTRIBUTION OF FUNDS.—If an In13 dian Tribe or Tribal organization eligible to 

14 enter into a self-determination contract or a 

15 compact or funding agreement fully or partially 

16 withdraws from a participating Tribal organiza17 tion, the withdrawing Indian Tribe— 

18 ‘‘(i) may elect to enter into a self-de19 termination contract or compact, in which 

20 case— 

21 ‘‘(I) the withdrawing Indian 

22 Tribe or Tribal organization shall be 

23 entitled to its Tribal share of unex24 pended funds and resources sup25 porting the programs that the Indian 


kjohnson on DSK79L0C42 with BILLS
12 

•S 209 IS

1 Tribe will be carrying out under its 

2 own self-determination contract or 

3 compact and funding agreement (cal4 culated on the same basis as the 

5 funds were initially allocated to the 

6 funding agreement of the Tribal orga7 nization); and 

8 ‘‘(II) the funds referred to in 

9 subclause (I) shall be withdrawn by 

10 the Secretary from the funding agree11 ment of the Tribal organization and 

12 transferred to the withdrawing Indian 

13 Tribe, on the condition that sections 

14 102 and 105(i), as appropriate, shall 

15 apply to the withdrawing Indian 

16 Tribe; or 

17 ‘‘(ii) may elect not to enter into a self18 determination contract or compact, in 

19 which case all unexpended funds and re20 sources associated with the withdrawing 

21 Indian Tribe’s returned programs (cal22 culated on the same basis as the funds 

23 were initially allocated to the funding 

24 agreement of the Tribal organization) shall 

25 be returned by the Tribal organization to 


kjohnson on DSK79L0C42 with BILLS
13 

•S 209 IS

1 the Secretary for operation of the pro2 grams included in the withdrawal. 

3 ‘‘(F) RETURN TO MATURE CONTRACT STA4 TUS.—If an Indian Tribe elects to operate all or 

5 some programs carried out under a compact or 

6 funding agreement under this title through a 

7 self-determination contract under title I, at the 

8 option of the Indian Tribe, the resulting self-de9 termination contract shall be a mature self-de10 termination contract as long as the Indian 

11 Tribe meets the requirements set forth in sec12 tion 4(h). 

13 ‘‘(c) ELIGIBILITY.—To be eligible to participate in 

14 self-governance, an Indian Tribe shall— 

15 ‘‘(1) successfully complete the planning phase 

16 described in subsection (d); 

17 ‘‘(2) request participation in self-governance by 

18 resolution or other official action by the Tribal gov19 erning body; and 

20 ‘‘(3) demonstrate, for the 3 fiscal years pre21 ceding the date on which the Indian Tribe requests 

22 participation, financial stability and financial man23 agement capability as evidenced by the Indian Tribe 

24 having no uncorrected significant and material audit 

25 exceptions in the required annual audit of its selfVerDate Sep 11 2014 03:42 Jan 30, 2019 Jkt 089200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S209.IS S209

kjohnson on DSK79L0C42 with BILLS
14 

•S 209 IS

1 determination or self-governance agreements with 

2 any Federal agency. 

3 ‘‘(d) PLANNING PHASE.— 

4 ‘‘(1) IN GENERAL.—An Indian Tribe seeking to 

5 begin participation in self-governance shall complete 

6 a planning phase as provided in this subsection. 

7 ‘‘(2) ACTIVITIES.—The planning phase shall— 

8 ‘‘(A) be conducted to the satisfaction of 

9 the Indian Tribe; and 

10 ‘‘(B) include— 

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

12 ‘‘(ii) internal Tribal government plan13 ning, training, and organizational prepara14 tion. 

15 ‘‘(e) GRANTS.— 

16 ‘‘(1) IN GENERAL.—Subject to the availability 

17 of appropriations, an Indian Tribe or Tribal organi18 zation that meets the requirements of paragraphs 

19 (2) and (3) of subsection (c) shall be eligible for 

20 grants— 

21 ‘‘(A) to plan for participation in self-gov22 ernance; and 

23 ‘‘(B) to negotiate the terms of participa24 tion by the Indian Tribe or Tribal organization 


kjohnson on DSK79L0C42 with BILLS
15 

•S 209 IS

1 in self-governance, as set forth in a compact 

2 and a funding agreement. 

3 ‘‘(2) RECEIPT OF GRANT NOT REQUIRED.—Re4 ceipt of a grant under paragraph (1) shall not be a 

5 requirement of participation in self-governance.’’. 

6 (d) FUNDING AGREEMENTS.—Section 403 of the In7 dian Self-Determination and Education Assistance Act 

8 (25 U.S.C. 5363) is amended— 

9 (1) by striking subsection (a) and inserting the 

10 following: 

11 ‘‘(a) AUTHORIZATION.—The Secretary shall, on the 

12 request of any Indian Tribe or Tribal organization, nego13 tiate and enter into a written funding agreement with the 

14 governing body of the Indian Tribe or the Tribal organiza15 tion in a manner consistent with— 

16 ‘‘(1) the trust responsibility of the Federal Gov17 ernment, treaty obligations, and the government-to18 government relationship between Indian Tribes and 

19 the United States; and 

20 ‘‘(2) subsection (b).’’; 

21 (2) in subsection (b)— 

22 (A) in paragraph (1)— 

23 (i) in the matter preceding subpara24 graph (A), by striking ‘‘without regard to 

25 the agency or office of the Bureau of InVerDate Sep 11 2014 03:42 Jan 30, 2019 Jkt 089200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 E:\BILLS\S209.IS S209

kjohnson on DSK79L0C42 with BILLS
16 

•S 209 IS

1 dian Affairs’’ and inserting ‘‘the Office of 

2 the Assistant Secretary for Indian Affairs, 

3 and the Office of the Special Trustee for 

4 American Indians, without regard to the 

5 agency or office of that Bureau or those 

6 Offices’’; 

7 (ii) by redesignating subparagraphs 

8 (A) and (B) as clauses (i) and (ii), respec9 tively, and indenting the margins of such 

10 clauses accordingly; 

11 (iii) by striking ‘‘including any pro12 gram’’ and inserting the following: ‘‘includ13 ing— 

14 ‘‘(A) any program’’; 

15 (iv) in subparagraph (A)— 

16 (I) in clause (i), as redesignated 

17 by clause (ii), by striking the semi18 colon at the end and inserting ‘‘; 

19 and’’; and 

20 (II) in clause (ii), as so redesig21 nated, by striking ‘‘and’’ after the 

22 semicolon; 

23 (v) by redesignating subparagraph (C) 

24 as subparagraph (B); 


kjohnson on DSK79L0C42 with BILLS
17 

•S 209 IS

1 (vi) in subparagraph (B), as redesig2 nated by clause (v), by striking the semi3 colon and inserting ‘‘; and’’; and 

4 (vii) by adding at the end the fol5 lowing: 

6 ‘‘(C) any other program, service, function, 

7 or activity (or portion thereof) that is provided 

8 through the Bureau of Indian Affairs, the Of9 fice of the Assistant Secretary for Indian Af10 fairs, or the Office of the Special Trustee for 

11 American Indians with respect to which Indian 

12 Tribes or Indians are primary or significant 

13 beneficiaries;’’; 

14 (B) in paragraph (2)— 

15 (i) by striking ‘‘section 405(c)’’ and 

16 inserting ‘‘section 412(c)’’; and 

17 (ii) by inserting ‘‘and’’ after the semi18 colon at the end; 

19 (C) in paragraph (3), by striking the semi20 colon at the end and inserting a period; and 

21 (D) by striking paragraphs (4) through 

22 (9); 

23 (3) in subsection (f)— 

24 (A) in the subsection heading, by striking 

25 ‘‘FOR REVIEW’’; 


kjohnson on DSK79L0C42 with BILLS
18 

•S 209 IS

1 (B) by striking ‘‘such agreement to—’’ and 

2 all that follows through ‘‘Indian tribe’’ and in3 serting ‘‘such agreement to each Indian Tribe’’; 

4 (C) by striking ‘‘agreement;’’ and inserting 

5 ‘‘agreement.’’; and 

6 (D) by striking paragraphs (2) and (3); 

7 (4) in subsection (k), by striking ‘‘section 

8 405(c)(1)’’ and inserting ‘‘section 412(c)’’; and 

9 (5) by adding at the end the following: 

10 ‘‘(m) OTHER PROVISIONS.— 

11 ‘‘(1) EXCLUDED FUNDING.—A funding agree12 ment shall not authorize an Indian Tribe to plan, 

13 conduct, administer, or receive Tribal share funding 

14 under any program that— 

15 ‘‘(A) is provided under the Tribally Con16 trolled Colleges and Universities Assistance Act 

17 of 1978 (25 U.S.C. 1801 et seq.); or 

18 ‘‘(B) is provided for elementary and sec19 ondary schools under the formula developed 

20 under section 1127 of the Education Amend21 ments of 1978 (25 U.S.C. 2007). 

22 ‘‘(2) SERVICES, FUNCTIONS, AND RESPONSIBIL23 ITIES.—A funding agreement shall specify— 

24 ‘‘(A) the services to be provided under the 

25 funding agreement; 


kjohnson on DSK79L0C42 with BILLS
19 

•S 209 IS

1 ‘‘(B) the functions to be performed under 

2 the funding agreement; and 

3 ‘‘(C) the responsibilities of the Indian 

4 Tribe and the Secretary under the funding 

5 agreement. 

6 ‘‘(3) BASE BUDGET.— 

7 ‘‘(A) IN GENERAL.—A funding agreement 

8 shall, at the option of the Indian Tribe, provide 

9 for a stable base budget specifying the recur10 ring funds (which may include funds available 

11 under section 106(a)) to be transferred to the 

12 Indian Tribe, for such period as the Indian 

13 Tribe specifies in the funding agreement, sub14 ject to annual adjustment only to reflect 

15 changes in congressional appropriations. 

16 ‘‘(B) LIMITATIONS.—Notwithstanding sub17 paragraph (A), a funding agreement shall not 

18 specify funding associated with a program de19 scribed in subsection (b)(2) or (c) unless the 

20 Secretary agrees. 

21 ‘‘(4) NO WAIVER OF TRUST RESPONSIBILITY.— 

22 A funding agreement shall prohibit the Secretary 

23 from waiving, modifying, or diminishing in any way 

24 the trust responsibility of the United States with re25 spect to Indian Tribes and individual Indians that 


kjohnson on DSK79L0C42 with BILLS
20 

•S 209 IS

1 exists under treaties, Executive orders, court deci2 sions, and other laws. 

3 ‘‘(n) AMENDMENT.—The Secretary shall not revise, 

4 amend, or require additional terms in a new or subsequent 

5 funding agreement without the consent of the Indian 

6 Tribe, unless such terms are required by Federal law. 

7 ‘‘(o) EFFECTIVE DATE.—A funding agreement shall 

8 become effective on the date specified in the funding 

9 agreement. 

10 ‘‘(p) EXISTING AND SUBSEQUENT FUNDING AGREE11 MENTS.— 

12 ‘‘(1) SUBSEQUENT FUNDING AGREEMENTS.— 

13 Absent notification from an Indian Tribe that the 

14 Indian Tribe is withdrawing or retroceding the oper15 ation of one or more programs identified in a fund16 ing agreement, or unless otherwise agreed to by the 

17 parties to the funding agreement or by the nature 

18 of any noncontinuing program, service, function, or 

19 activity contained in a funding agreement— 

20 ‘‘(A) a funding agreement shall remain in 

21 full force and effect until a subsequent funding 

22 agreement is executed, with funding paid annu23 ally for each fiscal year the agreement is in ef24 fect; and 


kjohnson on DSK79L0C42 with BILLS
21 

•S 209 IS

1 ‘‘(B) the term of the subsequent funding 

2 agreement shall be retroactive to the end of the 

3 term of the preceding funding agreement for 

4 the purposes of calculating the amount of fund5 ing to which the Indian Tribe is entitled. 

6 ‘‘(2) DISPUTES.—Disputes over the implemen7 tation of paragraph (1)(A) shall be subject to section 

8 406(c). 

9 ‘‘(3) EXISTING FUNDING AGREEMENTS.—An 

10 Indian Tribe that was participating in self-govern11 ance under this title on the date of enactment of the 

12 PROGRESS for Indian Tribes Act shall have the 

13 option at any time after that date— 

14 ‘‘(A) to retain its existing funding agree15 ment (in whole or in part) to the extent that 

16 the provisions of that funding agreement are 

17 not directly contrary to any express provision of 

18 this title; or 

19 ‘‘(B) to negotiate a new funding agreement 

20 in a manner consistent with this title. 

21 ‘‘(4) MULTIYEAR FUNDING AGREEMENTS.—An 

22 Indian Tribe may, at the discretion of the Indian 

23 Tribe, negotiate with the Secretary for a funding 

24 agreement with a term that exceeds 1 year.’’. 


kjohnson on DSK79L0C42 with BILLS
22 

•S 209 IS

1 (e) GENERAL REVISIONS.—Title IV of the Indian 

2 Self-Determination and Education Assistance Act (25 

3 U.S.C. 5361 et seq.) is amended by striking sections 404 

4 through 408 and inserting the following: 

5 ‘‘SEC. 404. COMPACTS. 

6 ‘‘(a) IN GENERAL.—The Secretary shall negotiate 

7 and enter into a written compact with each Indian Tribe 

8 participating in self-governance in a manner consistent 

9 with the trust responsibility of the Federal Government, 

10 treaty obligations, and the government-to-government re11 lationship between Indian Tribes and the United States. 

12 ‘‘(b) CONTENTS.—A compact under subsection (a) 

13 shall— 

14 ‘‘(1) specify and affirm the general terms of the 

15 government-to-government relationship between the 

16 Indian Tribe and the Secretary; and 

17 ‘‘(2) include such terms as the parties intend 

18 shall control during the term of the compact. 

19 ‘‘(c) AMENDMENT.—A compact under subsection (a) 

20 may be amended only by agreement of the parties. 

21 ‘‘(d) EFFECTIVE DATE.—The effective date of a com22 pact under subsection (a) shall be— 

23 ‘‘(1) the date of the execution of the compact 

24 by the parties; or 


kjohnson on DSK79L0C42 with BILLS
23 

•S 209 IS

1 ‘‘(2) such date as is mutually agreed upon by 

2 the parties. 

3 ‘‘(e) DURATION.—A compact under subsection (a) 

4 shall remain in effect— 

5 ‘‘(1) for so long as permitted by Federal law; 

6 or 

7 ‘‘(2) until termination by written agreement, 

8 retrocession, or reassumption. 

9 ‘‘(f) EXISTING COMPACTS.—An Indian Tribe partici10 pating in self-governance under this title, as in effect on 

11 the date of enactment of the PROGRESS for Indian 

12 Tribes Act, shall have the option at any time after that 

13 date— 

14 ‘‘(1) to retain its negotiated compact (in whole 

15 or in part) to the extent that the provisions of the 

16 compact are not directly contrary to any express 

17 provision of this title; or 

18 ‘‘(2) to negotiate a new compact in a manner 

19 consistent with this title. 

20 ‘‘SEC. 405. GENERAL PROVISIONS. 

21 ‘‘(a) APPLICABILITY.—An Indian Tribe and the Sec22 retary shall include in any compact or funding agreement 

23 provisions that reflect the requirements of this title. 

24 ‘‘(b) CONFLICTS OF INTEREST.—An Indian Tribe 

25 participating in self-governance shall ensure that internal 


kjohnson on DSK79L0C42 with BILLS
24 

•S 209 IS

1 measures are in place to address, pursuant to Tribal law 

2 and procedures, conflicts of interest in the administration 

3 of programs. 

4 ‘‘(c) AUDITS.— 

5 ‘‘(1) SINGLE AGENCY AUDIT ACT.—Chapter 75 

6 of title 31, United States Code, shall apply to a 

7 funding agreement under this title. 

8 ‘‘(2) COST PRINCIPLES.—An Indian Tribe shall 

9 apply cost principles under the applicable Office of 

10 Management and Budget circular, except as modi11 fied by— 

12 ‘‘(A) any provision of law, including section 

13 106; or 

14 ‘‘(B) any exemptions to applicable Office 

15 of Management and Budget circulars subse16 quently granted by the Office of Management 

17 and Budget. 

18 ‘‘(3) FEDERAL CLAIMS.—Any claim by the Fed19 eral Government against an Indian Tribe relating to 

20 funds received under a funding agreement based on 

21 any audit under this subsection shall be subject to 

22 section 106(f). 

23 ‘‘(d) REDESIGN AND CONSOLIDATION.—Except as 

24 provided in section 407, an Indian Tribe may redesign or 

25 consolidate programs, or reallocate funds for programs, in 


kjohnson on DSK79L0C42 with BILLS
25 

•S 209 IS

1 a compact or funding agreement in any manner that the 

2 Indian Tribe determines to be in the best interest of the 

3 Indian community being served— 

4 ‘‘(1) so long as the redesign or consolidation 

5 does not have the effect of denying eligibility for 

6 services to population groups otherwise eligible to be 

7 served under applicable Federal law; and 

8 ‘‘(2) except that, with respect to the realloca9 tion, consolidation, and redesign of programs de10 scribed in subsection (b)(2) or (c) of section 403, a 

11 joint agreement between the Secretary and the In12 dian Tribe shall be required. 

13 ‘‘(e) RETROCESSION.— 

14 ‘‘(1) IN GENERAL.—An Indian Tribe may fully 

15 or partially retrocede to the Secretary any program 

16 under a compact or funding agreement. 

17 ‘‘(2) EFFECTIVE DATE.— 

18 ‘‘(A) AGREEMENT.—Unless an Indian 

19 Tribe rescinds a request for retrocession under 

20 paragraph (1), the retrocession shall become ef21 fective on the date specified by the parties in 

22 the compact or funding agreement. 

23 ‘‘(B) NO AGREEMENT.—In the absence of 

24 a specification of an effective date in the comVerDate Sep 11 2014 03:42 Jan 30, 2019 Jkt 089200 PO 00000 Frm 00025 Fmt 6652 Sfmt 6201 E:\BILLS\S209.IS S209

kjohnson on DSK79L0C42 with BILLS
26 

•S 209 IS

1 pact or funding agreement, the retrocession 

2 shall become effective on— 

3 ‘‘(i) the earlier of— 

4 ‘‘(I) 1 year after the date on 

5 which the request is submitted; and 

6 ‘‘(II) the date on which the fund7 ing agreement expires; or 

8 ‘‘(ii) such date as may be mutually 

9 agreed upon by the Secretary and the In10 dian Tribe. 

11 ‘‘(f) NONDUPLICATION.—A funding agreement shall 

12 provide that, for the period for which, and to the extent 

13 to which, funding is provided to an Indian Tribe under 

14 this title, the Indian Tribe— 

15 ‘‘(1) shall not be entitled to contract with the 

16 Secretary for funds under section 102, except that 

17 the Indian Tribe shall be eligible for new programs 

18 on the same basis as other Indian Tribes; and 

19 ‘‘(2) shall be responsible for the administration 

20 of programs in accordance with the compact or 

21 funding agreement. 

22 ‘‘(g) RECORDS.— 

23 ‘‘(1) IN GENERAL.—Unless an Indian Tribe 

24 specifies otherwise in the compact or funding agree25 ment, records of an Indian Tribe shall not be considVerDate Sep 11 2014 03:42 Jan 30, 2019 Jkt 089200 PO 00000 Frm 00026 Fmt 6652 Sfmt 6201 E:\BILLS\S209.IS S209

kjohnson on DSK79L0C42 with BILLS
27 

•S 209 IS

1 ered to be Federal records for purposes of chapter 

2 5 of title 5, United States Code. 

3 ‘‘(2) RECORDKEEPING SYSTEM.—An Indian 

4 Tribe shall— 

5 ‘‘(A) maintain a recordkeeping system; and 

6 ‘‘(B) on a notice period of not less than 30 

7 days, provide the Secretary with reasonable ac8 cess to the records to enable the Department to 

9 meet the requirements of sections 3101 through 

10 3106 of title 44, United States Code. 

11 ‘‘SEC. 406. PROVISIONS RELATING TO THE SECRETARY. 

12 ‘‘(a) TRUST EVALUATIONS.—A funding agreement 

13 shall include a provision to monitor the performance of 

14 trust functions by the Indian Tribe through the annual 

15 trust evaluation. 

16 ‘‘(b) REASSUMPTION.— 

17 ‘‘(1) IN GENERAL.—A compact or funding 

18 agreement shall include provisions for the Secretary 

19 to reassume a program and associated funding if 

20 there is a specific finding relating to that program 

21 of— 

22 ‘‘(A) imminent jeopardy to a trust asset, a 

23 natural resource, or public health and safety 

24 that— 


kjohnson on DSK79L0C42 with BILLS
28 

•S 209 IS

1 ‘‘(i) is caused by an act or omission of 

2 the Indian Tribe; and 

3 ‘‘(ii) arises out of a failure to carry 

4 out the compact or funding agreement; or 

5 ‘‘(B) gross mismanagement with respect to 

6 funds transferred to an Indian Tribe under a 

7 compact or funding agreement, as determined 

8 by the Secretary in consultation with the In9 spector General, as appropriate. 

10 ‘‘(2) PROHIBITION.—The Secretary shall not 

11 reassume operation of a program, in whole or part, 

12 unless— 

13 ‘‘(A) the Secretary first provides written 

14 notice and a hearing on the record to the In15 dian Tribe; and 

16 ‘‘(B) the Indian Tribe does not take cor17 rective action to remedy the mismanagement of 

18 the funds or programs, or the imminent jeop19 ardy to a trust asset, natural resource, or pub20 lic health and safety. 

21 ‘‘(3) EXCEPTION.— 

22 ‘‘(A) IN GENERAL.—Notwithstanding para23 graph (2), the Secretary may, on written notice 

24 to the Indian Tribe, immediately reassume op25 eration of a program if— 


kjohnson on DSK79L0C42 with BILLS
29 

•S 209 IS

1 ‘‘(i) the Secretary makes a finding of 

2 imminent and substantial jeopardy and ir3 reparable harm to a trust asset, a natural 

4 resource, or the public health and safety 

5 caused by an act or omission of the Indian 

6 Tribe; and 

7 ‘‘(ii) the imminent and substantial 

8 jeopardy and irreparable harm to the trust 

9 asset, natural resource, or public health 

10 and safety arises out of a failure by the In11 dian Tribe to carry out the terms of an ap12 plicable compact or funding agreement. 

13 ‘‘(B) REASSUMPTION.—If the Secretary re14 assumes operation of a program under subpara15 graph (A), the Secretary shall provide the In16 dian Tribe with a hearing on the record not 

17 later than 10 days after the date of reassump18 tion. 

19 ‘‘(c) INABILITY TO AGREE ON COMPACT OR FUND20 ING AGREEMENT.— 

21 ‘‘(1) FINAL OFFER.—If the Secretary and a 

22 participating Indian Tribe are unable to agree, in 

23 whole or in part, on the terms of a compact or fund24 ing agreement (including funding levels), the Indian 

25 Tribe may submit a final offer to the Secretary. 


kjohnson on DSK79L0C42 with BILLS
30 

•S 209 IS

1 ‘‘(2) DETERMINATION.—Not more than 60 

2 days after the date of receipt of a final offer by one 

3 or more of the officials designated pursuant to para4 graph (4), the Secretary shall review and make a de5 termination with respect to the final offer, except 

6 that the 60-day period may be extended for up to 30 

7 days for circumstances beyond the control of the 

8 Secretary, upon written request by the Secretary to 

9 the Indian tribe. 

10 ‘‘(3) EXTENSIONS.—The deadline described in 

11 paragraph (2) may be extended for any length of 

12 time, as agreed upon by both the Indian Tribe and 

13 the Secretary. 

14 ‘‘(4) DESIGNATED OFFICIALS.— 

15 ‘‘(A) IN GENERAL.—The Secretary shall 

16 designate one or more appropriate officials in 

17 the Department to receive a copy of the final 

18 offer described in paragraph (1). 

19 ‘‘(B) NO DESIGNATION.—If no official is 

20 designated, the Director of the Office of the Ex21 ecutive Secretariat and Regulatory Affairs shall 

22 be the designated official. 

23 ‘‘(5) NO TIMELY DETERMINATION.—If the Sec24 retary fails to make a determination with respect to 

25 a final offer within the period specified in paragraph 


kjohnson on DSK79L0C42 with BILLS
31 

•S 209 IS

1 (2), including any extension agreed to under para2 graph (3), the Secretary shall be deemed to have 

3 agreed to the offer, except that with respect to any 

4 compact or funding agreement provision concerning 

5 a program described under section 403(c), the Sec6 retary shall be deemed to have rejected the offer 

7 with respect to such provision and the terms of 

8 clauses (ii) through (iv) of paragraphs (6)(A) shall 

9 apply. 

10 ‘‘(6) REJECTION OF FINAL OFFER.— 

11 ‘‘(A) IN GENERAL.—If the Secretary re12 jects a final offer (or one or more provisions or 

13 funding levels in a final offer), the Secretary 

14 shall— 

15 ‘‘(i) provide timely written notification 

16 to the Indian Tribe that contains a specific 

17 finding that clearly demonstrates, or that 

18 is supported by a controlling legal author19 ity, that— 

20 ‘‘(I) the amount of funds pro21 posed in the final offer exceeds the 

22 applicable funding level as determined 

23 under section 106(a)(1); 

24 ‘‘(II) the program that is the 

25 subject of the final offer is an inherVerDate Sep 11 2014 03:42 Jan 30, 2019 Jkt 089200 PO 00000 Frm 00031 Fmt 6652 Sfmt 6201 E:\BILLS\S209.IS S209

kjohnson on DSK79L0C42 with BILLS
32 

•S 209 IS

1 ent Federal function or is subject to 

2 the discretion of the Secretary under 

3 section 403(c); 

4 ‘‘(III) the Indian Tribe cannot 

5 carry out the program in a manner 

6 that would not result in significant 

7 danger or risk to the public health or 

8 safety, to natural resources, or to 

9 trust resources; 

10 ‘‘(IV) the Indian Tribe is not eli11 gible to participate in self-governance 

12 under section 402(c); 

13 ‘‘(V) the funding agreement 

14 would violate a Federal statute or reg15 ulation; or 

16 ‘‘(VI) with respect to a program 

17 or portion of a program included in a 

18 final offer pursuant to section 

19 403(b)(2), the program or the portion 

20 of the program is not otherwise avail21 able to Indian Tribes or Indians 

22 under section 102(a)(1)(E); 

23 ‘‘(ii) provide technical assistance to 

24 overcome the objections stated in the noti25 fication required by clause (i); 


kjohnson on DSK79L0C42 with BILLS
33 

•S 209 IS

1 ‘‘(iii) provide the Indian Tribe with a 

2 hearing on the record with the right to en3 gage in full discovery relevant to any issue 

4 raised in the matter, and the opportunity 

5 for appeal on the objections raised, except 

6 that the Indian Tribe may, in lieu of filing 

7 such appeal, directly proceed to initiate an 

8 action in a United States district court 

9 under section 110(a); and 

10 ‘‘(iv) provide the Indian Tribe the op11 tion of entering into the severable portions 

12 of a final proposed compact or funding 

13 agreement (including a lesser funding 

14 amount, if any), that the Secretary did not 

15 reject, subject to any additional alterations 

16 necessary to conform the compact or fund17 ing agreement to the severed provisions. 

18 ‘‘(B) EFFECT OF EXERCISING CERTAIN

19 OPTION.—If an Indian Tribe exercises the op20 tion specified in subparagraph (A)(iv)— 

21 ‘‘(i) the Indian Tribe shall retain the 

22 right to appeal the rejection by the Sec23 retary under this section; and 

24 ‘‘(ii) clauses (i), (ii), and (iii) of sub25 paragraph (A) shall apply only to the porVerDate Sep 11 2014 03:42 Jan 30, 2019 Jkt 089200 PO 00000 Frm 00033 Fmt 6652 Sfmt 6201 E:\BILLS\S209.IS S209

kjohnson on DSK79L0C42 with BILLS
34 

•S 209 IS

1 tion of the proposed final compact or fund2 ing agreement that was rejected by the 

3 Secretary. 

4 ‘‘(d) BURDEN OF PROOF.—In any administrative ac5 tion, hearing, appeal, or civil action brought under this 

6 section, the Secretary shall have the burden of proof— 

7 ‘‘(1) of demonstrating, by a preponderance of 

8 the evidence, the validity of the grounds for a re9 assumption under subsection (b); and 

10 ‘‘(2) of clearly demonstrating the validity of the 

11 grounds for rejecting a final offer made under sub12 section (c). 

13 ‘‘(e) GOOD FAITH.— 

14 ‘‘(1) IN GENERAL.—In the negotiation of com15 pacts and funding agreements, the Secretary shall at 

16 all times negotiate in good faith to maximize imple17 mentation of the self-governance policy. 

18 ‘‘(2) POLICY.—The Secretary shall carry out 

19 this title in a manner that maximizes the policy of 

20 Tribal self-governance. 

21 ‘‘(f) SAVINGS.— 

22 ‘‘(1) IN GENERAL.—To the extent that pro23 grams carried out for the benefit of Indian Tribes 

24 and Tribal organizations under this title reduce the 

25 administrative or other responsibilities of the SecVerDate Sep 11 2014 03:42 Jan 30, 2019 Jkt 089200 PO 00000 Frm 00034 Fmt 6652 Sfmt 6201 E:\BILLS\S209.IS S209

kjohnson on DSK79L0C42 with BILLS
35 

•S 209 IS

1 retary with respect to the operation of Indian pro2 grams and result in savings that have not otherwise 

3 been included in the amount of Tribal shares and 

4 other funds determined under section 408(c), except 

5 for funding agreements entered into for programs 

6 under section 403(c), the Secretary shall make such 

7 savings available to the Indian Tribes or Tribal or8 ganizations for the provision of additional services to 

9 program beneficiaries in a manner equitable to di10 rectly served, contracted, and compacted programs. 

11 ‘‘(2) DISCRETIONARY PROGRAMS OF SPECIAL

12 SIGNIFICANCE.—For any savings generated as a re13 sult of the assumption of a program by an Indian 

14 Tribe under section 403(c), such savings shall be 

15 made available to that Indian Tribe. 

16 ‘‘(g) TRUST RESPONSIBILITY.—The Secretary may 

17 not waive, modify, or diminish in any way the trust re18 sponsibility of the United States with respect to Indian 

19 Tribes and individual Indians that exists under treaties, 

20 Executive orders, other laws, or court decisions. 

21 ‘‘(h) DECISION MAKER.—A decision that constitutes 

22 final agency action and relates to an appeal within the 

23 Department conducted under subsection (c)(6)(A)(iii) may 

24 be made by— 


kjohnson on DSK79L0C42 with BILLS
36 

•S 209 IS

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

2 position at a higher organizational level within the 

3 Department than the level of the departmental agen4 cy in which the decision that is the subject of the 

5 appeal was made; or 

6 ‘‘(2) an administrative law judge. 

7 ‘‘(i) RULES OF CONSTRUCTION.—Subject to section 

8 101(a) of the PROGRESS for Indian Tribes Act, each 

9 provision of this title and each provision of a compact or 

10 funding agreement shall be liberally construed for the ben11 efit of the Indian Tribe participating in self-governance, 

12 and any ambiguity shall be resolved in favor of the Indian 

13 Tribe. 

14 ‘‘SEC. 407. CONSTRUCTION PROGRAMS AND PROJECTS. 

15 ‘‘(a) IN GENERAL.—Indian Tribes participating in 

16 Tribal self-governance may carry out any construction 

17 project included in a compact or funding agreement under 

18 this title. 

19 ‘‘(b) TRIBAL OPTION TO CARRY OUT CERTAIN FED20 ERAL ENVIRONMENTAL ACTIVITIES.—In carrying out a 

21 construction project under this title, an Indian Tribe may, 

22 subject to the agreement of the Secretary, elect to assume 

23 some Federal responsibilities under the National Environ24 mental Policy Act of 1969 (42 U.S.C. 4321 et seq.), divi25 sion A of subtitle III of title 54, United States Code, and 


kjohnson on DSK79L0C42 with BILLS
37 

•S 209 IS

1 related provisions of other law and regulations that would 

2 apply if the Secretary were to undertake a construction 

3 project, by adopting a resolution— 

4 ‘‘(1) designating a certifying Tribal officer to 

5 represent the Indian Tribe and to assume the status 

6 of a responsible Federal official under those Acts, 

7 laws, or regulations; and 

8 ‘‘(2) accepting the jurisdiction of the United 

9 States courts for the purpose of enforcing the re10 sponsibilities of the certifying Tribal officer assum11 ing the status of a responsible Federal official under 

12 those Acts, laws, or regulations. 

13 ‘‘(c) SAVINGS CLAUSE.—Notwithstanding subsection 

14 (b), nothing in this section authorizes the Secretary to in15 clude in any compact or funding agreement duties of the 

16 Secretary under the National Environmental Policy Act 

17 of 1969 (42 U.S.C. 4321 et seq.), division A of subtitle 

18 III of title 54, United States Code, and other related pro19 visions of law that are inherent Federal functions. 

20 ‘‘(d) CODES AND STANDARDS.—In carrying out a 

21 construction project under this title, an Indian Tribe 

22 shall— 

23 ‘‘(1) adhere to applicable Federal, State, local, 

24 and Tribal building codes, architectural and engi25 neering standards, and applicable Federal guidelines 


kjohnson on DSK79L0C42 with BILLS
38 

•S 209 IS

1 regarding design, space, and operational standards, 

2 appropriate for the particular project; and 

3 ‘‘(2) use only architects and engineers who— 

4 ‘‘(A) are licensed to practice in the State 

5 in which the facility will be built; and 

6 ‘‘(B) certify that— 

7 ‘‘(i) they are qualified to perform the 

8 work required by the specific construction 

9 involved; and 

10 ‘‘(ii) upon completion of design, the 

11 plans and specifications meet or exceed the 

12 applicable construction and safety codes. 

13 ‘‘(e) TRIBAL ACCOUNTABILITY.— 

14 ‘‘(1) IN GENERAL.—In carrying out a construc15 tion project under this title, an Indian Tribe shall 

16 assume responsibility for the successful completion 

17 of the construction project and of a facility that is 

18 usable for the purpose for which the Indian Tribe 

19 received funding. 

20 ‘‘(2) REQUIREMENTS.—For each construction 

21 project carried out by an Indian Tribe under this 

22 title, the Indian Tribe and the Secretary shall nego23 tiate a provision to be included in the funding agree24 ment that identifies— 


kjohnson on DSK79L0C42 with BILLS
39 

•S 209 IS

1 ‘‘(A) the approximate start and completion 

2 dates for the project, which may extend over a 

3 period of one or more years; 

4 ‘‘(B) a general description of the project, 

5 including the scope of work, references to de6 sign criteria, and other terms and conditions; 

7 ‘‘(C) the responsibilities of the Indian 

8 Tribe and the Secretary for the project; 

9 ‘‘(D) how project-related environmental 

10 considerations will be addressed; 

11 ‘‘(E) the amount of funds provided for the 

12 project; 

13 ‘‘(F) the obligations of the Indian Tribe to 

14 comply with the codes referenced in subsection 

15 (d)(1) and applicable Federal laws and regula16 tions; 

17 ‘‘(G) the agreement of the parties over who 

18 will bear any additional costs necessary to meet 

19 changes in scope, or errors or omissions in de20 sign and construction; and 

21 ‘‘(H) the agreement of the Secretary to 

22 issue a certificate of occupancy, if requested by 

23 the Indian Tribe, based upon the review and 

24 verification by the Secretary, to the satisfaction 

25 of the Secretary, that the Indian Tribe has seVerDate Sep 11 2014 03:42 Jan 30, 2019 Jkt 089200 PO 00000 Frm 00039 Fmt 6652 Sfmt 6201 E:\BILLS\S209.IS S209

kjohnson on DSK79L0C42 with BILLS
40 

•S 209 IS

1 cured upon completion the review and approval 

2 of the plans and specifications, sufficiency of 

3 design, life safety, and code compliance by 

4 qualified, licensed, and independent architects 

5 and engineers. 

6 ‘‘(f) FUNDING.— 

7 ‘‘(1) IN GENERAL.—Funding appropriated for 

8 construction projects carried out under this title 

9 shall be included in funding agreements as annual or 

10 semiannual advance payments at the option of the 

11 Indian Tribe. 

12 ‘‘(2) ADVANCE PAYMENTS.—The Secretary 

13 shall include all associated project contingency funds 

14 with each advance payment, and the Indian Tribe 

15 shall be responsible for the management of such con16 tingency funds. 

17 ‘‘(g) NEGOTIATIONS.—At the option of the Indian 

18 Tribe, construction project funding proposals shall be ne19 gotiated pursuant to the statutory process in section 105, 

20 and any resulting construction project agreement shall be 

21 incorporated into the funding agreement as addenda. 

22 ‘‘(h) FEDERAL REVIEW AND VERIFICATION.— 

23 ‘‘(1) IN GENERAL.—On a schedule negotiated 

24 by the Secretary and the Indian Tribe— 


kjohnson on DSK79L0C42 with BILLS
41 

•S 209 IS

1 ‘‘(A) the Secretary shall review and verify, 

2 to the satisfaction of the Secretary, that project 

3 planning and design documents prepared by the 

4 Indian Tribe in advance of initial construction 

5 are in conformity with the obligations of the In6 dian Tribe under subsection (d); and 

7 ‘‘(B) before the project planning and de8 sign documents are implemented, the Secretary 

9 shall review and verify to the satisfaction of the 

10 Secretary that subsequent document amend11 ments which result in a significant change in 

12 construction are in conformity with the obliga13 tions of the Indian Tribe under subsection (d). 

14 ‘‘(2) REPORTS.—The Indian Tribe shall provide 

15 the Secretary with project progress and financial re16 ports not less than semiannually. 

17 ‘‘(3) OVERSIGHT VISITS.—The Secretary may 

18 conduct onsite project oversight visits semiannually 

19 or on an alternate schedule agreed to by the Sec20 retary and the Indian Tribe. 

21 ‘‘(i) APPLICATION OF OTHER LAWS.—Unless other22 wise agreed to by the Indian Tribe and except as otherwise 

23 provided in this Act, no provision of title 41, United States 

24 Code, the Federal Acquisition Regulation, or any other law 

25 or regulation pertaining to Federal procurement (includVerDate Sep 11 2014 03:42 Jan 30, 2019 Jkt 089200 PO 00000 Frm 00041 Fmt 6652 Sfmt 6201 E:\BILLS\S209.IS S209

kjohnson on DSK79L0C42 with BILLS
42 

•S 209 IS

1 ing Executive orders) shall apply to any construction pro2 gram or project carried out under this title. 

3 ‘‘(j) FUTURE FUNDING.—Upon completion of a facil4 ity constructed under this title, the Secretary shall include 

5 the facility among those eligible for annual operation and 

6 maintenance funding support comparable to that provided 

7 for similar facilities funded by the Department as annual 

8 appropriations are available and to the extent that the fa9 cility size and complexity and other factors do not exceed 

10 the funding formula criteria for comparable buildings. 

11 ‘‘SEC. 408. PAYMENT. 

12 ‘‘(a) IN GENERAL.—At the request of the governing 

13 body of an Indian Tribe and under the terms of an appli14 cable funding agreement, the Secretary shall provide fund15 ing to the Indian Tribe to carry out the funding agree16 ment. 

17 ‘‘(b) ADVANCE ANNUAL PAYMENT.—At the option of 

18 the Indian Tribe, a funding agreement shall provide for 

19 an advance annual payment to an Indian Tribe. 

20 ‘‘(c) AMOUNT.— 

21 ‘‘(1) IN GENERAL.—Subject to subsection (e) 

22 and sections 403 and 405, the Secretary shall pro23 vide funds to the Indian Tribe under a funding 

24 agreement for programs in an amount that is equal 

25 to the amount that the Indian Tribe would have 


kjohnson on DSK79L0C42 with BILLS
43 

•S 209 IS

1 been entitled to receive under contracts and grants 

2 under this Act (including amounts for direct pro3 gram and contract support costs and, in addition, 

4 any funds that are specifically or functionally related 

5 to the provision by the Secretary of services and 

6 benefits to the Indian Tribe or its members) without 

7 regard to the organization level within the Depart8 ment at which the programs are carried out. 

9 ‘‘(2) SAVINGS CLAUSE.—Nothing in this section 

10 reduces programs, services, or funds of, or provided 

11 to, another Indian Tribe. 

12 ‘‘(d) TIMING.— 

13 ‘‘(1) IN GENERAL.—Pursuant to the terms of 

14 any compact or funding agreement entered into 

15 under this title, the Secretary shall transfer to the 

16 Indian Tribe all funds provided for in the funding 

17 agreement, pursuant to subsection (c), and provide 

18 funding for periods covered by joint resolution 

19 adopted by Congress making continuing appropria20 tions, to the extent permitted by such resolution. 

21 ‘‘(2) TRANSFERS.—Not later than 1 year after 

22 the date of enactment of the PROGRESS for Indian 

23 Tribes Act, in any instance in which a funding 

24 agreement requires an annual transfer of funding to 

25 be made at the beginning of a fiscal year or requires 


kjohnson on DSK79L0C42 with BILLS
44 

•S 209 IS

1 semiannual or other periodic transfers of funding to 

2 be made commencing at the beginning of a fiscal 

3 year, the first such transfer shall be made not later 

4 than 10 days after the apportionment of such funds 

5 by the Office of Management and Budget to the De6 partment, unless the funding agreement provides 

7 otherwise. 

8 ‘‘(e) AVAILABILITY.—Funds for trust services to indi9 vidual Indians shall be available under a funding agree10 ment only to the extent that the same services that would 

11 have been provided by the Secretary are provided to indi12 vidual Indians by the Indian Tribe. 

13 ‘‘(f) MULTIYEAR FUNDING.—A funding agreement 

14 may provide for multiyear funding. 

15 ‘‘(g) LIMITATIONS ON AUTHORITY OF THE SEC16 RETARY.—The Secretary shall not— 

17 ‘‘(1) fail to transfer to an Indian Tribe its full 

18 share of any central, headquarters, regional, area, or 

19 service unit office or other funds due under this title 

20 for programs eligible under paragraph (1) or (2) of 

21 section 403(b), except as required by Federal law; 

22 ‘‘(2) withhold any portion of such funds for 

23 transfer over a period of years; or 

24 ‘‘(3) reduce the amount of funds required under 

25 this title— 


kjohnson on DSK79L0C42 with BILLS
45 

•S 209 IS

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

3 Secretary; 

4 ‘‘(B) in subsequent years, except as nec5 essary as a result of— 

6 ‘‘(i) a reduction in appropriations 

7 from the previous fiscal year for the pro8 gram to be included in a compact or fund9 ing agreement; 

10 ‘‘(ii) a congressional directive in legis11 lation or an 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 an activity under a 

17 program for which the funds were pro18 vided; 

19 ‘‘(C) to pay for Federal functions, includ20 ing— 

21 ‘‘(i) Federal pay costs; 

22 ‘‘(ii) Federal employee retirement ben23 efits; 

24 ‘‘(iii) automated data processing; 

25 ‘‘(iv) technical assistance; and 


kjohnson on DSK79L0C42 with BILLS
46 

•S 209 IS

1 ‘‘(v) monitoring of activities under 

2 this title; or 

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

4 displaced by self-determination contracts under 

5 this Act or self-governance under this title. 

6 ‘‘(h) FEDERAL RESOURCES.—If an Indian Tribe 

7 elects to carry out a compact or funding agreement with 

8 the use of Federal personnel, Federal supplies (including 

9 supplies available from Federal warehouse facilities), Fed10 eral supply sources (including lodging, airline transpor11 tation, and other means of transportation, including the 

12 use of interagency motor pool vehicles), or other Federal 

13 resources (including supplies, services, and resources 

14 available to the Secretary under any procurement con15 tracts in which the Department is eligible to participate), 

16 the Secretary shall, as soon as practicable, acquire and 

17 transfer such personnel, supplies, or resources to the In18 dian Tribe under this title. 

19 ‘‘(i) PROMPT PAYMENT ACT.—Chapter 39 of title 31, 

20 United States Code, shall apply to the transfer of funds 

21 due under a compact or funding agreement authorized 

22 under this title. 

23 ‘‘(j) INTEREST OR OTHER INCOME.— 

24 ‘‘(1) IN GENERAL.—An Indian Tribe may re25 tain interest or income earned on any funds paid 


kjohnson on DSK79L0C42 with BILLS
47 

•S 209 IS

1 under a compact or funding agreement to carry out 

2 governmental purposes. 

3 ‘‘(2) NO EFFECT ON OTHER AMOUNTS.—The 

4 retention of interest or income under paragraph (1) 

5 shall not diminish the amount of funds an Indian 

6 Tribe is entitled to receive under a funding agree7 ment in the year the interest or income is earned or 

8 in any subsequent fiscal year. 

9 ‘‘(3) INVESTMENT STANDARD.—Funds trans10 ferred under this title shall be managed by the In11 dian Tribe using the prudent investment standard, 

12 provided that the Secretary shall not be liable for 

13 any investment losses of funds managed by the In14 dian Tribe that are not otherwise guaranteed or in15 sured by the Federal Government. 

16 ‘‘(k) CARRYOVER OF FUNDS.— 

17 ‘‘(1) IN GENERAL.—Notwithstanding any provi18 sion of an appropriations Act, all funds paid to an 

19 Indian Tribe in accordance with a compact or fund20 ing agreement shall remain available until expended. 

21 ‘‘(2) EFFECT OF CARRYOVER.—If an Indian 

22 Tribe elects to carry over funding from one year to 

23 the next, the carryover shall not diminish the 

24 amount of funds the Indian Tribe is entitled to reVerDate Sep 11 2014 03:42 Jan 30, 2019 Jkt 089200 PO 00000 Frm 00047 Fmt 6652 Sfmt 6201 E:\BILLS\S209.IS S209

kjohnson on DSK79L0C42 with BILLS
48 

•S 209 IS

1 ceive under a funding agreement in that fiscal year 

2 or any subsequent fiscal year. 

3 ‘‘(l) LIMITATION OF COSTS.— 

4 ‘‘(1) IN GENERAL.—An Indian Tribe shall not 

5 be obligated to continue performance that requires 

6 an expenditure of funds in excess of the amount of 

7 funds transferred under a compact or funding agree8 ment. 

9 ‘‘(2) NOTICE OF INSUFFICIENCY.—If at any 

10 time the Indian Tribe has reason to believe that the 

11 total amount provided for a specific activity under a 

12 compact or funding agreement is insufficient, the In13 dian Tribe shall provide reasonable notice of such in14 sufficiency to the Secretary. 

15 ‘‘(3) SUSPENSION OF PERFORMANCE.—If, after 

16 notice under paragraph (2), the Secretary does not 

17 increase the amount of funds transferred under the 

18 funding agreement, the Indian Tribe may suspend 

19 performance of the activity until such time as addi20 tional funds are transferred. 

21 ‘‘(4) SAVINGS CLAUSE.—Nothing in this section 

22 reduces any programs, services, or funds of, or pro23 vided to, another Indian Tribe. 

24 ‘‘(m) DISTRIBUTION OF FUNDS.—The Office of Self25 Governance shall be responsible for distribution of all BuVerDate Sep 11 2014 03:42 Jan 30, 2019 Jkt 089200 PO 00000 Frm 00048 Fmt 6652 Sfmt 6201 E:\BILLS\S209.IS S209

kjohnson on DSK79L0C42 with BILLS
49 

•S 209 IS

1 reau of Indian Affairs funds provided under this title un2 less otherwise agreed by the parties to an applicable fund3 ing agreement. 

4 ‘‘(n) APPLICABILITY.—Notwithstanding any other 

5 provision of this section, section 101(a) of the 

6 PROGRESS for Indian Tribes Act applies to subsections 

7 (a) through (m). 

8 ‘‘SEC. 409. FACILITATION. 

9 ‘‘(a) IN GENERAL.—Except as otherwise provided by 

10 law (including section 101(a) of the PROGRESS for In11 dian Tribes Act), the Secretary shall interpret each Fed12 eral law and regulation in a manner that facilitates— 

13 ‘‘(1) the inclusion of programs in funding 

14 agreements; and 

15 ‘‘(2) the implementation of funding agreements. 

16 ‘‘(b) REGULATION WAIVER.— 

17 ‘‘(1) REQUEST.—An Indian Tribe may submit 

18 to the Secretary a written request for a waiver of 

19 applicability of a Federal regulation, including— 

20 ‘‘(A) an identification of the specific text in 

21 the regulation sought to be waived; and 

22 ‘‘(B) the basis for the request. 

23 ‘‘(2) DETERMINATION BY THE SECRETARY.— 

24 Not later than 120 days after receipt by the Sec25 retary and the designated officials under paragraph 


kjohnson on DSK79L0C42 with BILLS
50 

•S 209 IS

1 (4) of a request under paragraph (1), the Secretary 

2 shall approve or deny the requested waiver in writ3 ing to the Indian Tribe. 

4 ‘‘(3) EXTENSIONS.—The deadline described in 

5 paragraph (2) may be extended for any length of 

6 time, as agreed upon by both the Indian Tribe and 

7 the Secretary. 

8 ‘‘(4) DESIGNATED OFFICIALS.—The Secretary 

9 shall designate one or more appropriate officials in 

10 the Department to receive a copy of the waiver re11 quest described in paragraph (1). 

12 ‘‘(5) GROUNDS FOR DENIAL.—The Secretary 

13 may deny a request under paragraph (1) upon a 

14 specific finding by the Secretary that the identified 

15 text in the regulation may not be waived because 

16 such a waiver is prohibited by Federal law. 

17 ‘‘(6) FAILURE TO MAKE DETERMINATION.—If 

18 the Secretary fails to make a determination with re19 spect to a waiver request within the period specified 

20 in paragraph (2) (including any extension agreed to 

21 under paragraph (3)), the Secretary shall be deemed 

22 to have agreed to the request, except that for a 

23 waiver request relating to programs eligible under 

24 section 403(b)(2) or section 403(c), the Secretary 

25 shall be deemed to have denied the request. 


kjohnson on DSK79L0C42 with BILLS
51 

•S 209 IS

1 ‘‘(7) FINALITY.—A decision of the Secretary 

2 under this section shall be final for the Department. 

3 ‘‘SEC. 410. DISCRETIONARY APPLICATION OF OTHER SEC4 TIONS. 

5 ‘‘(a) IN GENERAL.—Except as otherwise provided in 

6 section 201(d) of the PROGRESS for Indian Tribes Act, 

7 at the option of a participating Indian Tribe or Indian 

8 Tribes, any of the provisions of title I may be incorporated 

9 in any compact or funding agreement under this title. The 

10 inclusion of any such provision shall be subject to, and 

11 shall not conflict with, section 101(a) of such Act. 

12 ‘‘(b) EFFECT.—Each incorporated provision under 

13 subsection (a) shall— 

14 ‘‘(1) have the same force and effect as if set out 

15 in full in this title; 

16 ‘‘(2) supplement or replace any related provi17 sion in this title; and 

18 ‘‘(3) apply to any agency otherwise governed by 

19 this title. 

20 ‘‘(c) EFFECTIVE DATE.—If an Indian Tribe requests 

21 incorporation at the negotiation stage of a compact or 

22 funding agreement, the incorporation shall— 

23 ‘‘(1) be effective immediately; and 

24 ‘‘(2) control the negotiation and resulting com25 pact and funding agreement. 


kjohnson on DSK79L0C42 with BILLS
52 

•S 209 IS

1 ‘‘SEC. 411. ANNUAL BUDGET LIST. 

2 ‘‘The Secretary shall list, in the annual budget re3 quest submitted to Congress under section 1105 of title 

4 31, United States Code, any funds proposed to be included 

5 in funding agreements authorized under this title. 

6 ‘‘SEC. 412. REPORTS. 

7 ‘‘(a) IN GENERAL.— 

8 ‘‘(1) REQUIREMENT.—On January 1 of each 

9 year, the Secretary shall submit to Congress a re10 port regarding the administration of this title. 

11 ‘‘(2) ANALYSIS.—Any Indian Tribe may submit 

12 to the Office of Self-Governance and to the appro13 priate committees of Congress a detailed annual 

14 analysis of unmet Tribal needs for funding agree15 ments under this title. 

16 ‘‘(b) CONTENTS.—The report under subsection (a)(1) 

17 shall— 

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

19 funding agreements, annual audit reports, and data 

20 of the Secretary regarding the disposition of Federal 

21 funds; 

22 ‘‘(2) identify— 

23 ‘‘(A) the relative costs and benefits of self24 governance; 

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

26 specifically or functionally related to the proviVerDate Sep 11 2014 03:42 Jan 30, 2019 Jkt 089200 PO 00000 Frm 00052 Fmt 6652 Sfmt 6201 E:\BILLS\S209.IS S209

kjohnson on DSK79L0C42 with BILLS
53 

•S 209 IS

1 sion by the Secretary of services and benefits to 

2 self-governance Indian Tribes and members of 

3 Indian Tribes; 

4 ‘‘(C) the funds transferred to each Indian 

5 Tribe and the corresponding reduction in the 

6 Federal employees and workload; and 

7 ‘‘(D) the funding formula for individual 

8 Tribal shares of all Central Office funds, to9 gether with the comments of affected Indian 

10 Tribes, developed under subsection (d); 

11 ‘‘(3) before being submitted to Congress, be dis12 tributed to the Indian Tribes for comment (with a 

13 comment period of not less than 30 days); 

14 ‘‘(4) include the separate views and comments 

15 of each Indian Tribe or Tribal organization; and 

16 ‘‘(5) include a list of— 

17 ‘‘(A) all such programs that the Secretary 

18 determines, in consultation with Indian Tribes 

19 participating in self-governance, are eligible for 

20 negotiation to be included in a funding agree21 ment at the request of a participating Indian 

22 Tribe; and 

23 ‘‘(B) all such programs which Indian 

24 Tribes have formally requested to include in a 

25 funding agreement under section 403(c) due to 


kjohnson on DSK79L0C42 with BILLS
54 

•S 209 IS

1 the special geographic, historical, or cultural 

2 significance of the program to the Indian Tribe, 

3 indicating whether each request was granted or 

4 denied, and stating the grounds for any denial. 

5 ‘‘(c) REPORT ON NON-BIA PROGRAMS.— 

6 ‘‘(1) IN GENERAL.—In order to optimize oppor7 tunities for including non-BIA programs in agree8 ments with Indian Tribes participating in self-gov9 ernance under this title, the Secretary shall review 

10 all programs administered by the Department, other 

11 than through the Bureau of Indian Affairs, the Of12 fice of the Assistant Secretary for Indian Affairs, or 

13 the Office of the Special Trustee for American Indi14 ans, without regard to the agency or office con15 cerned. 

16 ‘‘(2) PROGRAMMATIC TARGETS.—The Secretary 

17 shall establish programmatic targets, after consulta18 tion with Indian Tribes participating in self-govern19 ance, to encourage bureaus of the Department to en20 sure that an appropriate portion of those programs 

21 are available to be included in funding agreements. 

22 ‘‘(3) PUBLICATION.—The lists under subsection 

23 (b)(5) and targets under paragraph (2) shall be pub24 lished in the Federal Register and made available to 

25 any Indian Tribe participating in self-governance. 


kjohnson on DSK79L0C42 with BILLS
55 

•S 209 IS

1 ‘‘(4) ANNUAL REVIEW.— 

2 ‘‘(A) IN GENERAL.—The Secretary shall 

3 annually review and publish in the Federal Reg4 ister, after consultation with Indian Tribes par5 ticipating in self-governance, revised lists and 

6 programmatic targets. 

7 ‘‘(B) CONTENTS.—In preparing the revised 

8 lists and programmatic targets, the Secretary 

9 shall consider all programs that were eligible 

10 for contracting in the original list published in 

11 the Federal Register in 1995, except for pro12 grams specifically determined not to be con13 tractible as a matter of law. 

14 ‘‘(d) REPORT ON CENTRAL OFFICE FUNDS.—Not 

15 later than January 1, 2020, the Secretary shall, in con16 sultation with Indian Tribes, develop a funding formula 

17 to determine the individual Tribal share of funds con18 trolled by the Central Office of the Bureau of Indian Af19 fairs and the Office of the Special Trustee for inclusion 

20 in the compacts. 

21 ‘‘SEC. 413. REGULATIONS. 

22 ‘‘(a) IN GENERAL.— 

23 ‘‘(1) PROMULGATION.—Not later than 90 days 

24 after the date of enactment of the PROGRESS for 

25 Indian Tribes Act, the Secretary shall initiate proceVerDate Sep 11 2014 03:42 Jan 30, 2019 Jkt 089200 PO 00000 Frm 00055 Fmt 6652 Sfmt 6201 E:\BILLS\S209.IS S209

kjohnson on DSK79L0C42 with BILLS
56 

•S 209 IS

1 dures under subchapter III of chapter 5 of title 5, 

2 United States Code, to negotiate and promulgate 

3 such regulations as are necessary to carry out this 

4 title. 

5 ‘‘(2) PUBLICATION OF PROPOSED REGULA6 TIONS.—Proposed regulations to implement this title 

7 shall be published in the Federal Register not later 

8 than 21 months after the date of enactment of the 

9 PROGRESS for Indian Tribes Act. 

10 ‘‘(3) EXPIRATION OF AUTHORITY.—The author11 ity to promulgate regulations under paragraph (1) 

12 shall expire on the date that is 30 months after the 

13 date of enactment of the PROGRESS for Indian 

14 Tribes Act. 

15 ‘‘(b) COMMITTEE.— 

16 ‘‘(1) MEMBERSHIP.—A negotiated rulemaking 

17 committee established pursuant to section 565 of 

18 title 5, United States Code, to carry out this section 

19 shall have as its members only representatives of the 

20 Federal Government and Tribal government. 

21 ‘‘(2) LEAD AGENCY.—Among the Federal rep22 resentatives described in paragraph (1), the Office of 

23 Self-Governance shall be the lead agency for the De24 partment. 


kjohnson on DSK79L0C42 with BILLS
57 

•S 209 IS

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

2 shall adapt the negotiated rulemaking procedures to the 

3 unique context of self-governance and the government-to4 government relationship between the United States and 

5 Indian Tribes. 

6 ‘‘(d) EFFECT.— 

7 ‘‘(1) REPEAL.—The Secretary may repeal any 

8 regulation that is inconsistent with this Act. 

9 ‘‘(2) CONFLICTING PROVISIONS.—Subject to 

10 section 101(a) of the PROGRESS for Indian Tribes 

11 Act and except with respect to programs described 

12 under section 403(c), this title shall supersede any 

13 conflicting provision of law (including any conflicting 

14 regulations). 

15 ‘‘(3) EFFECTIVENESS WITHOUT REGARD TO

16 REGULATIONS.—The lack of promulgated regula17 tions on an issue shall not limit the effect or imple18 mentation of this title. 

19 ‘‘SEC. 414. EFFECT OF CIRCULARS, POLICIES, MANUALS, 

20 GUIDANCE, AND RULES. 

21 ‘‘Unless expressly agreed to by a participating Indian 

22 Tribe in a compact or funding agreement, the partici23 pating Indian Tribe shall not be subject to any agency 

24 circular, policy, manual, guidance, or rule adopted by the 

25 Department, except for— 


kjohnson on DSK79L0C42 with BILLS
58 

•S 209 IS

1 ‘‘(1) the eligibility provisions of section 105(g); 

2 and 

3 ‘‘(2) regulations promulgated pursuant to sec4 tion 413. 

5 ‘‘SEC. 415. APPEALS. 

6 ‘‘Except as provided in section 406(d), in any admin7 istrative action, appeal, or civil action for judicial review 

8 of any decision made by the Secretary under this title, 

9 the Secretary shall have the burden of proof of dem10 onstrating by a preponderance of the evidence— 

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

12 and 

13 ‘‘(2) the consistency of the decision with the re14 quirements and policies of this title. 

15 ‘‘SEC. 416. APPLICATION OF OTHER PROVISIONS. 

16 ‘‘Section 314 of the Department of the Interior and 

17 Related Agencies Appropriations Act, 1991 (Public Law 

18 101–512; 104 Stat. 1959), shall apply to compacts and 

19 funding agreements entered into under this title. 

20 ‘‘SEC. 417. AUTHORIZATION OF APPROPRIATIONS. 

21 ‘‘There are authorized to be appropriated such sums 

22 as may be necessary to carry out this title.’’. 


kjohnson on DSK79L0C42 with BILLS
59 

•S 209 IS

1 TITLE II—INDIAN SELF2 DETERMINATION 

3 SEC. 201. DEFINITIONS; REPORTING AND AUDIT REQUIRE4 MENTS; APPLICATION OF PROVISIONS. 

5 (a) DEFINITIONS.— 

6 (1) IN GENERAL.—Section 4 of the Indian Self7 Determination and Education Assistance Act (25 

8 U.S.C. 5304) is amended by striking subsection (j) 

9 and inserting the following: 

10 ‘‘(j) ‘self-determination contract’ means a contract 

11 entered into under title I (or a grant or cooperative agree12 ment used under section 9) between a Tribal organization 

13 and the appropriate Secretary for the planning, conduct, 

14 and administration of programs or services that are other15 wise provided to Indian Tribes and members of Indian 

16 Tribes pursuant to Federal law, subject to the condition 

17 that, except as provided in section 105(a)(3), no contract 

18 entered into under title I (or grant or cooperative agree19 ment used under section 9) shall be— 

20 ‘‘(1) considered to be a procurement contract; 

21 or 

22 ‘‘(2) except as provided in section 107(a)(1), 

23 subject to any Federal procurement law (including 

24 regulations);’’. 


kjohnson on DSK79L0C42 with BILLS
60 

•S 209 IS

1 (2) TECHNICAL AMENDMENTS.—Section 4 of 

2 the Indian Self-Determination and Education Assist3 ance Act (25 U.S.C. 5304), as amended by para4 graph (1), is further amended— 

5 (A) in subsection (e), by striking ‘‘ ‘Indian 

6 tribe’ means’’ and inserting ‘‘ ‘Indian tribe’ or 

7 ‘Indian Tribe’ means’’; and 

8 (B) in subsection (l), by striking ‘‘ ‘tribal 

9 organization’ means’’ and inserting ‘‘ ‘Tribal or10 ganization’ or ‘tribal organization’ means’’. 

11 (b) REPORTING AND AUDIT REQUIREMENTS.—Sec12 tion 5 of the Indian Self-Determination and Education As13 sistance Act (25 U.S.C. 5305) is amended— 

14 (1) in subsection (b)— 

15 (A) by striking ‘‘after completion of the 

16 project or undertaking referred to in the pre17 ceding subsection of this section’’ and inserting 

18 ‘‘after the retention period for the report that 

19 is submitted to the Secretary under subsection 

20 (a)’’; and 

21 (B) by adding at the end the following: 

22 ‘‘The retention period shall be defined in regu23 lations promulgated by the Secretary pursuant 

24 to section 413.’’; and 


kjohnson on DSK79L0C42 with BILLS
61 

•S 209 IS

1 (2) in subsection (f)(1), by inserting ‘‘if the In2 dian Tribal organization expends $500,000 or more 

3 in Federal awards during such fiscal year’’ after 

4 ‘‘under this Act,’’. 

5 (c) EFFECTIVE DATE.—The amendment made by 

6 subsection (b)(2) shall not take effect until 14 months 

7 after the date of enactment of this Act. 

8 (d) APPLICATION OF OTHER PROVISIONS.—Sections 

9 4, 5, 6, 7, 102(c), 104, 105(a)(1), 105(f), 110, and 111 

10 of the Indian Self-Determination and Education Assist11 ance Act (25 U.S.C. 5304, 5305, 5306, 5307, 5321(c), 

12 5323, 5324(a)(1), 5324(f), 5331, and 5332) and section 

13 314 of the Department of the Interior and Related Agen14 cies Appropriations Act, 1991 (Public Law 101–512; 104 

15 Stat. 1959), apply to compacts and funding agreements 

16 entered into under title IV of the Indian Self-Determina17 tion and Education Assistance Act (25 U.S.C. 5361 et 

18 seq.). 

19 SEC. 202. CONTRACTS BY SECRETARY OF THE INTERIOR. 

20 Section 102 of the Indian Self-Determination and 

21 Education Assistance Act (25 U.S.C. 5321) is amended— 

22 (1) in subsection (c)(2), by striking ‘‘economic 

23 enterprises’’ and all that follows through ‘‘except 

24 that’’ and inserting ‘‘economic enterprises (as deVerDate Sep 11 2014 03:42 Jan 30, 2019 Jkt 089200 PO 00000 Frm 00061 Fmt 6652 Sfmt 6201 E:\BILLS\S209.IS S209

kjohnson on DSK79L0C42 with BILLS
62 

•S 209 IS

1 fined in section 3 of the Indian Financing Act of 

2 1974 (25 U.S.C. 1452)), except that’’; and 

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

4 ‘‘(f) GOOD FAITH REQUIREMENT.—In the negotia5 tion of contracts and funding agreements, the Secretary 

6 shall— 

7 ‘‘(1) at all times negotiate in good faith to 

8 maximize implementation of the self-determination 

9 policy; and 

10 ‘‘(2) carry out this Act in a manner that maxi11 mizes the policy of Tribal self-determination, in a 

12 manner consistent with— 

13 ‘‘(A) the purposes specified in section 3; 

14 and 

15 ‘‘(B) the PROGRESS for Indian Tribes 

16 Act. 

17 ‘‘(g) RULE OF CONSTRUCTION.—Subject to section 

18 101(a) of the PROGRESS for Indian Tribes Act, each 

19 provision of this Act and each provision of a contract or 

20 funding agreement shall be liberally construed for the ben21 efit of the Indian Tribe participating in self-determination, 

22 and any ambiguity shall be resolved in favor of the Indian 

23 Tribe.’’. 


kjohnson on DSK79L0C42 with BILLS
63 

•S 209 IS

1 SEC. 203. ADMINISTRATIVE PROVISIONS. 

2 Section 105 of the Indian Self-Determination and 

3 Education Assistance Act (25 U.S.C. 5324) is amended— 

4 (1) in subsection (b), in the first sentence, by 

5 striking ‘‘pursuant to’’ and all that follows through 

6 ‘‘of this Act’’ and inserting ‘‘pursuant to sections 

7 102 and 103’’; and 

8 (2) by adding at the end the following: 

9 ‘‘(p) INTERPRETATION BY SECRETARY.—Except as 

10 otherwise provided by law, the Secretary shall interpret 

11 all Federal laws (including regulations) and Executive or12 ders in a manner that facilitates, to the maximum extent 

13 practicable— 

14 ‘‘(1) the inclusion in self-determination con15 tracts and funding agreements of— 

16 ‘‘(A) applicable programs, services, func17 tions, and activities (or portions thereof); and 

18 ‘‘(B) funds associated with those pro19 grams, services, functions, and activities; 

20 ‘‘(2) the implementation of self-determination 

21 contracts and funding agreements; and 

22 ‘‘(3) the achievement of Tribal health objec23 tives. 

24 ‘‘(q)(1) TECHNICAL ASSISTANCE FOR INTERNAL

25 CONTROLS.—In considering proposals for, amendments 

26 to, or in the course of, a contract under this title and comVerDate Sep 11 2014 03:42 Jan 30, 2019 Jkt 089200 PO 00000 Frm 00063 Fmt 6652 Sfmt 6201 E:\BILLS\S209.IS S209

kjohnson on DSK79L0C42 with BILLS
64 

•S 209 IS

1 pacts under titles IV and V of this Act, if the Secretary 

2 determines that the Indian Tribe lacks adequate internal 

3 controls necessary to manage the contracted program or 

4 programs, the Secretary shall, as soon as practicable, pro5 vide the necessary technical assistance to assist the Indian 

6 Tribe in developing adequate internal controls. As part of 

7 that technical assistance, the Secretary and the Tribe shall 

8 develop a plan for assessing the subsequent effectiveness 

9 of such technical assistance. The inability of the Secretary 

10 to provide technical assistance or lack of a plan under this 

11 subsection shall not result in the reassumption of an exist12 ing agreement, contract, or compact, or declination or re13 jection of a new agreement, contract, or compact. 

14 ‘‘(2) The Secretary shall prepare a report to be in15 cluded in the information required for the reports under 

16 sections 412(b)(2)(A) and 514(b)(2)(A). The Secretary 

17 shall include in this report, in the aggregate, a description 

18 of the internal controls that were inadequate, the technical 

19 assistance provided, and a description of Secretarial ac20 tions taken to address any remaining inadequate internal 

21 controls after the provision of technical assistance and im22 plementation of the plan required by paragraph (1).’’. 


kjohnson on DSK79L0C42 with BILLS
65 

•S 209 IS

1 SEC. 204. CONTRACT FUNDING AND INDIRECT COSTS. 

2 Section 106(a)(3) of the Indian Self-Determination 

3 and Education Assistance Act (25 U.S.C. 5325(a)(3)) is 

4 amended— 

5 (1) in subparagraph (A)— 

6 (A) in clause (i), by striking ‘‘, and’’ and 

7 inserting ‘‘; and’’; and 

8 (B) in clause (ii), by striking ‘‘expense re9 lated to the overhead incurred’’ and inserting 

10 ‘‘expense incurred by the governing body of the 

11 Indian Tribe or Tribal organization and any 

12 overhead expense incurred’’; 

13 (2) by redesignating subparagraph (B) as sub14 paragraph (C); and 

15 (3) by inserting after subparagraph (A) the fol16 lowing: 

17 ‘‘(B) In calculating the reimbursement rate 

18 for expenses described in subparagraph (A)(ii), 

19 not less than 50 percent of the expenses de20 scribed in subparagraph (A)(ii) that are in21 curred by the governing body of an Indian 

22 Tribe or Tribal organization relating to a Fed23 eral program, function, service, or activity car24 ried out pursuant to the contract shall be con25 sidered to be reasonable and allowable.’’. 


kjohnson on DSK79L0C42 with BILLS
66 

•S 209 IS

1 SEC. 205. CONTRACT OR GRANT SPECIFICATIONS. 

2 Section 108 of the Indian Self-Determination and 

3 Education Assistance Act (25 U.S.C. 5329) is amended— 

4 (1) in subsection (a)(2), by inserting ‘‘subject 

5 to subsections (a) and (b) of section 102,’’ before 

6 ‘‘contain’’; 

7 (2) in subsection (f)(2)(A)(ii) of the model 

8 agreement contained in subsection (c), by inserting 

9 ‘‘subject to subsections (a) and (b) of section 102 of 

10 the Indian Self-Determination and Education Assist11 ance Act (25 U.S.C. 5321),’’ before ‘‘such other pro12 visions’’; and 

13 (3) in subsection (b)(7)(C) of the model agree14 ment contained in subsection (c), in the second sen15 tence of the matter preceding clause (i), by striking 

16 ‘‘one performance monitoring visit’’ and inserting 

17 ‘‘two performance monitoring visits’’. 

Æ 


kjohnson on DSK79L0C42 with BILLS