S. 209 

One Hundred Sixteenth Congress 

of the 

United States of America 

AT THE SECOND SESSION 

Begun and held at the City of Washington on Friday, 

the third day of January, two thousand and twenty 

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 SelfGovernance 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 
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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. 
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‘‘(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 ‘selfdetermination 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 
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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 
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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 
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‘‘(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 SelfDetermination 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 
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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 
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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 governmentto-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 governmentto-government relationship between the Indian Tribe and the 

Secretary; and 
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‘‘(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 selfgovernance 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 
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‘‘(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 
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‘‘(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. 
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‘‘(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. 
S. 209—13 

‘‘(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 
S. 209—14 

construed for the benefit of the Indian Tribe participating in selfgovernance, 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 selfgovernance 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— 
S. 209—15 

‘‘(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. 
S. 209—16 

‘‘(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 
S. 209—17 

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 selfgovernance 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.— 
S. 209—18 

‘‘(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. 
S. 209—19 

‘‘(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. 
S. 209—20 

‘‘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 selfgovernance, 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. 
S. 209—21 

‘‘(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.— 
S. 209—22 

‘‘(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 SELFDETERMINATION 

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 
S. 209—23 

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 SelfDetermination 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 SelfDetermination 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 
S. 209—24 

‘‘(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 selfdetermination, 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 
S. 209—25 

(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’’. 

Speaker of the House of Representatives. 

Vice President of the United States and

President of the Senate.