II 

Calendar No. 803 

108TH CONGRESS 

2D SESSION S. 1696 

[Report No. 108–412] 

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

provide further self-governance by Indian tribes. 

IN THE SENATE OF THE UNITED STATES 

OCTOBER 1, 2003 

Mr. CAMPBELL (for himself and Mr. INOUYE) introduced the following bill; 

which was read twice and referred to the Committee on Indian Affairs 

NOVEMBER 16, 2004 

Reported by Mr. CAMPBELL, with an amendment 

[Strike out all after the enacting clause and insert the part printed in italic] 

A BILL 

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

tribes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 
2 

•S 1696 RS 

1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Department of Health 

3 and Human Services Tribal Self-Governance Amendments 

4 Act of 2003’’. 

5 SEC. 2. AMENDMENT. 

6 The Indian Self-Determination and Education Assist7 ance Act is amended by striking title VI (25 U.S.C. 450f 

8 note; Public Law 93–638) and inserting the following: 

9 ‘‘TITLE VI—TRIBAL SELF-GOV10 ERNANCE DEMONSTRATION 

11 PROJECT FOR THE DEPART12 MENT OF HEALTH AND 

13 HUMAN SERVICES 

14 ‘‘SEC. 601. DEFINITIONS. 

15 ‘‘In this title: 

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

17 compact under section 604. 

18 ‘‘(2) CONSTRUCTION PROJECT.—The term ‘con19 struction project’ has the meaning given the term in 

20 section 501. 

21 ‘‘(3) DEMONSTRATION PROJECT.—The term 

22 ‘demonstration project’ means the demonstration 

23 project under this title. 

24 ‘‘(4) FUNDING AGREEMENT.—The term ‘fund25 ing agreement’ means a funding agreement under 

26 section 604. 
3 

•S 1696 RS 

1 ‘‘(5) INCLUDED PROGRAM.—The term ‘included 

2 program’ means a program that is eligible for inclu3 sion under a funding agreement under section 

4 604(c) (including any portion of such a program and 

5 any function, service, or activity performed under 

6 such a program). 

7 ‘‘(6) INDIAN TRIBE.—The term ‘Indian tribe’, 

8 in a case in which an Indian tribe authorizes an9 other Indian tribe, an inter-tribal consortium, or a 

10 tribal organization to plan for or carry out an in11 cluded program on its behalf in accordance with sec12 tion 603(a)(3), includes the other authorized Indian 

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

14 ‘‘(7) INTER-TRIBAL CONSORTIUM.—The term 

15 ‘inter-tribal consortium’ has the meaning given the 

16 term in section 501. 

17 ‘‘(8) SECRETARY.—The term ‘Secretary’ means 

18 the Secretary of Health and Human Services. 

19 ‘‘(9) SELF-GOVERNANCE.—The term ‘self-gov20 ernance’ has the meaning given the term in section 

21 501. 

22 ‘‘(10) TRIBAL SHARE.—The term ‘tribal share’ 

23 has the meaning given the term in section 501. 
4 

•S 1696 RS 

1 ‘‘SEC. 602. ESTABLISHMENT OF DEMONSTRATION 

2 –PROJECT. 

3 ‘‘(a) DEMONSTRATION.—For a period of not more 

4 than 5 years after the date of enactment of the Depart5 ment of Health and Human Services Tribal Self-Govern6 ance Amendments Act of 2003, the Secretary shall carry 

7 out a project to demonstrate the effectiveness of tribal op8 eration of the included programs under self-governance 

9 principles and authorities. 

10 ‘‘(b) ADMINISTRATION.—The management and ad11 ministration of the demonstration project shall be in the 

12 Office of the Secretary. 

13 ‘‘SEC. 603. SELECTION OF PARTICIPATING INDIAN TRIBES. 

14 ‘‘(a) IN GENERAL.— 

15 ‘‘(1) CONTINUING PARTICIPATION.—Not more 

16 than 50 Indian tribes that meet the eligibility cri17 teria specified in subsection (b) shall be entitled to 

18 participate in the demonstration project. 

19 ‘‘(2) ADDITIONAL PARTICIPANTS.—If more 

20 than 50 eligible Indian tribes request participation, 

21 the Secretary may select additional Indian tribes to 

22 participate in the demonstration project. 

23 ‘‘(3) OTHER AUTHORIZED INDIAN TRIBE, 

24 INTER-TRIBAL CONSORTIUM, OR TRIBAL GOVERN25 MENT.—If an Indian tribe authorizes another Indian 

26 tribe, an inter-tribal consortium, or a tribal organi-
5 

•S 1696 RS 

1 zation to plan for or carry out an included program 

2 on its behalf under this title, the authorized Indian 

3 tribe, inter-tribal consortium, or tribal organization 

4 shall have the rights and responsibilities of the au5 thorizing Indian tribe (except as otherwise provided 

6 in the authorizing resolution). 

7 ‘‘(b) ELIGIBILITY.—An Indian tribe shall be eligible 

8 to participate in the demonstration project if the Indian 

9 tribe, as of the date of enactment of the Department of 

10 Health and Human Services Tribal Self-Governance 

11 Amendments Act of 2003, is a party to a compact or fund12 ing agreement under this Act. 

13 ‘‘(c) SELECTION.—The Secretary shall select Indian 

14 tribes that request participation in the demonstration 

15 project by resolution or other official action by the gov16 erning body of each Indian tribe to be served. 

17 ‘‘(d) PLANNING AND NEGOTIATION GRANTS.— 

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

19 of appropriations, the Secretary shall establish a 

20 program to allow Indian tribes that meet the eligi21 bility requirements of this title to be awarded a 

22 planning grant or negotiation grant, or both. 

23 ‘‘(2) RECEIPT OF GRANT NOT REQUIRED.—Re24 ceipt of a grant under paragraph (1) by an Indian 
6 

•S 1696 RS 

1 tribe is not a requirement for the Indian tribe to 

2 participate in the demonstration project. 

3 ‘‘SEC. 604. COMPACTS AND FUNDING AGREEMENTS. 

4 ‘‘(a) IN GENERAL.— 

5 ‘‘(1) NEW COMPACT AND FUNDING AGREE6 MENT.—Not later than 60 days after the date of 

7 submission by an Indian tribe of a request to par8 ticipate in the demonstration project, the Secretary 

9 shall negotiate and enter into a written compact and 

10 funding agreement with the Indian tribe in a manner 

11 that is consistent with the trust responsibility of the 

12 Federal Government, treaty and statutory obliga13 tions, and the government-to-government relationship 

14 between Indian tribes and the United States. 

15 ‘‘(2) EXISTING COMPACT.—Rather than enter 

16 into a new compact under paragraph (1), an Indian 

17 tribe may use an existing compact negotiated under 

18 title V for purposes of the demonstration project. 

19 ‘‘(b) COMPACTS.— 

20 ‘‘(1) CONTENTS.—A compact under subsection 

21 (a) shall designate— 

22 ‘‘(A) congressional policies regarding tribal 

23 self-governance; 

24 ‘‘(B) the intent of the demonstration 

25 project; 
7 

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1 ‘‘(C) such terms as shall control from year 

2 to year; and 

3 ‘‘(D) any provisions of this title that are 

4 requested by the Indian tribe. 

5 ‘‘(2) EFFECTIVE DATE.—The effective date of a 

6 compact shall be the date of execution by the Indian 

7 tribe and the Secretary or another date agreed on by 

8 the parties. 

9 ‘‘(3) DURATION.—A compact shall remain in 

10 effect so long as permitted by Federal law or until 

11 terminated by agreement of the parties. 

12 ‘‘(4) AMENDMENT.—A compact may be amend13 ed only by agreement of the parties. 

14 ‘‘(c) FUNDING AGREEMENTS.— 

15 ‘‘(1) SCOPE.—A funding agreement under sub16 section (a) shall, at the option of the Indian tribe, 

17 authorize the Indian tribe to plan, conduct, and ad18 minister included programs administered by the Sec19 retary through an agency of the Department of 

20 Health and Human Services, set forth in paragraphs 

21 (2) through (4). 

22 ‘‘(2) INITIAL INCLUDED PROGRAMS.—The fol23 lowing programs are eligible for inclusion in a fund24 ing agreement under this title: 
8 

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1 ‘‘(A) ADMINISTRATION ON AGING.—Grants 

2 for Native Americans under title VI of the 

3 Older Americans Act of 1965 (42 U.S.C. 3057 

4 et seq.). 

5 ‘‘(B) ADMINISTRATION FOR CHILDREN

6 AND FAMILIES.— 

7 ‘‘(i) The tribal temporary assistance 

8 for needy families program under section 

9 412(a)(1) of the Social Security Act (42 

10 U.S.C. 612(a)(1) et seq.). 

11 ‘‘(ii) The Low-Income Home Energy 

12 Assistance Program under the Low-Income 

13 Home Energy Assistance Act of 1981 (42 

14 U.S.C. 8621 et seq.). 

15 ‘‘(iii) The Community Services Block 

16 Grant Program under the Community 

17 Services Block Grant Act (42 U.S.C. 9901 

18 et seq.). 

19 ‘‘(iv) The Child Care and Develop20 ment Fund under the Child Care and De21 velopment Block Grant Act (42 U.S.C. 

22 9858 et seq.). 

23 ‘‘(v) The native employment works 

24 program under section 412(a)(2) of the 

25 Social Security Act (42 U.S.C. 612(a)(2)). 
9 

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1 ‘‘(vi) The Head Start Program under 

2 the Head Start Act (42 U.S.C. 9831 et 

3 seq.). 

4 ‘‘(vii) Child welfare services programs 

5 under part B of title IV of the Social Secu6 rity Act (42 U.S.C. 620 et seq.). 

7 ‘‘(viii) The promoting safe and stable 

8 families program under part B of title IV 

9 of the Social Security Act (42 U.S.C. 620 

10 et seq.). 

11 ‘‘(ix) Family violence prevention 

12 grants for battered women’s shelters under 

13 the Family Violence Prevention and Serv14 ices Act (42 U.S.C. 10401 et seq.). 

15 ‘‘(C) SUBSTANCE ABUSE AND MENTAL

16 HEALTH SERVICES ADMINISTRATION.—Tar17 geted capacity expansion program under title V 

18 of the Public Health Service Act (42 U.S.C. 

19 290aa et seq.). 

20 ‘‘(D) BLOCK GRANTS REGARDING MENTAL

21 HEALTH AND SUBSTANCE ABUSE.—Mental 

22 health and substance abuse block grant pro23 grams under title XIX of the Public Health 

24 Services Act (42 U.S.C. 300x et seq.). 
10 

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1 ‘‘(E) HEALTH RESOURCES AND SERVICES

2 ADMINISTRATION.—Community health center 

3 grants under section 330 of the Public Health 

4 Service Act (42 U.S.C. 254b). 

5 ‘‘(3) ADDITIONAL INCLUDED PROGRAMS.—The 

6 Secretary may identify not more than 6 additional 

7 programs annually for inclusion in the demonstra8 tion project, including— 

9 ‘‘(A) all other programs in which Indian 

10 tribes are eligible to participate; 

11 ‘‘(B) all other programs for which Indians 

12 are eligible beneficiaries; and 

13 ‘‘(C) competitive grants for which an In14 dian tribe receives an individual or cooperative 

15 award, on the condition that the Indian tribe 

16 agree in the funding agreement to restrictions 

17 regarding program redesign and budget re18 allocation for any competitive awards. 

19 ‘‘(4) CONTENTS.—A funding agreement— 

20 ‘‘(A) shall specify— 

21 ‘‘(i) the services to be provided; 

22 ‘‘(ii) the functions to be performed; 

23 and 

24 ‘‘(iii) the responsibilities of the Indian 

25 tribe and the Secretary; 
11 

•S 1696 RS 

1 ‘‘(B) shall provide for payment by the Sec2 retary to the Indian tribe of funds in accord3 ance with section 605; 

4 ‘‘(C) shall not allow the Secretary to waive, 

5 modify, or diminish in any way the trust re6 sponsibility of the United States with respect to 

7 Indian tribes and individual Indians that exist 

8 under treaties, Executive orders, and Acts of 

9 Congress; and 

10 ‘‘(D) shall allow for retrocession of in11 cluded programs under section 105(e). 

12 ‘‘SEC. 605. TRANSFER OF FUNDS. 

13 ‘‘(a) TRANSFER.— 

14 ‘‘(1) IN GENERAL.—Under any compact or 

15 funding agreement entered into under this title, the 

16 Secretary shall transfer to the Indian tribe all funds 

17 provided for in the funding agreement. 

18 ‘‘(2) TIMING.—Unless the funding agreement 

19 provides otherwise, at the request of the Indian 

20 tribe— 

21 ‘‘(A) funding shall be paid in 1 annual 

22 lump sum payment; and 

23 ‘‘(B) the transfer shall be made not later 

24 than 10 days after the apportionment of funds 
12 

•S 1696 RS 

1 by the Office of Management and Budget to the 

2 Department of Health and Human Services. 

3 ‘‘(b) AMOUNT OF FUNDING.— 

4 ‘‘(1) FUNDING FORMULAS.— 

5 ‘‘(A) IN GENERAL.—Any statutory funding 

6 formula for an included program— 

7 ‘‘(i) shall be waived for the dem8 onstration project under this title; and 

9 ‘‘(ii) shall be used to determine the 

10 amount of funding provided to an Indian 

11 tribe. 

12 ‘‘(B) ADEQUACY.—Subject to the avail13 ability of appropriations— 

14 ‘‘(i) the funding amount shall be ade15 quate to permit the successful implementa16 tion of the demonstration project; and 

17 ‘‘(ii) the Secretary and the partici18 pating Indian tribe shall determine the 

19 funding amount through negotiation. 

20 ‘‘(2) MATCHING REQUIREMENT.—An Indian 

21 tribe may request a waiver of any matching require22 ment applicable to an included program, and the 

23 Secretary shall liberally grant such reasonable waiv24 er requests. 
13 

•S 1696 RS 

1 ‘‘(3) CONTRACT SUPPORT COSTS.—There shall 

2 be added to the amount required by paragraph (1) 

3 contract support costs as specified in paragraphs 

4 (2), (3), (5), and (6) of section 106(a). 

5 ‘‘(4) ADMINISTRATIVE FUND SHARES.— 

6 ‘‘(A) IN GENERAL.—An Indian tribe may 

7 negotiate for a tribal share of administrative 

8 funds without regard to the organizational level 

9 at which the included programs are carried out. 

10 ‘‘(B) INCLUSION.—A tribal share under 

11 subparagraph (A) shall include a share for 

12 training and technical assistance services per13 formed by a contractor. 

14 ‘‘SEC. 606. GENERAL PROVISIONS. 

15 ‘‘(a) REDESIGN, CONSOLIDATION, AND REALLOCA16 TION.— 

17 ‘‘(1) IN GENERAL.—To the extent allowed 

18 under the statutory provisions of the included pro19 grams included in the funding agreement, and sub20 ject to the terms of the funding agreement, an In21 dian tribe may— 

22 ‘‘(A) redesign or consolidate the included 

23 programs under the funding agreement if the 

24 Indian tribe agrees to abide by the statutory 

25 purposes of the program; and 
14 

•S 1696 RS 

1 ‘‘(B) reallocate or redirect funds for the in2 cluded programs, among the included programs 

3 under the funding agreement, so long as all 

4 demonstration project costs using those funds 

5 meet allowable cost standards as required by 

6 section 506(c). 

7 ‘‘(2) WAIVERS.— 

8 ‘‘(A) IN GENERAL.—At the request of an 

9 Indian tribe, if the Secretary determines that a 

10 waiver would further the purposes of this Act, 

11 the Secretary shall grant a waiver of program 

12 requirements for the duration of the demonstra13 tion project to facilitate the ability of an Indian 

14 tribe to redesign included programs or reallo15 cate funds under paragraph (1). 

16 ‘‘(B) DOCUMENTATION.—The Secretary 

17 shall document all requests for a waiver under 

18 subparagraph (A), including a description of— 

19 ‘‘(i) the reasons for each request; 

20 ‘‘(ii) the effect of the waiver on the 

21 Indian tribe making the request; and 

22 ‘‘(iii) the views of the Indian tribe re23 garding the requested waiver. 

24 ‘‘(b) INABILITY TO AGREE ON COMPACT OR FUND25 ING AGREEMENT.— 
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•S 1696 RS 

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

2 Indian tribe are unable to agree, in whole or in part, 

3 on the terms of a compact or funding agreement (in4 cluding funding levels), the Indian tribe may submit 

5 a final offer to the Secretary. 

6 ‘‘(2) DETERMINATION.—Not later than 45 days 

7 after the date of submission of a final offer, or as 

8 otherwise agreed to by the Indian tribe, the Sec9 retary shall review and make a determination with 

10 respect to the final offer. 

11 ‘‘(3) NO TIMELY DETERMINATION.—If the Sec12 retary fails to make a determination with respect to 

13 a final offer within the time specified in paragraph 

14 (2), the Secretary shall be deemed to have agreed to 

15 the final offer. 

16 ‘‘(4) REJECTION OF FINAL OFFER.— 

17 ‘‘(A) IN GENERAL.—If the Secretary re18 jects a final offer, the Secretary shall— 

19 ‘‘(i) submit to the Indian tribe a writ20 ten statement clearly setting forth the rea21 sons for rejecting the final offer; and 

22 ‘‘(ii) provide the Indian tribe with a 

23 hearing on the record (except that the In24 dian tribe may, in lieu of such a hearing, 

25 file an appeal of the rejection to the Intra- 
16 

•S 1696 RS 

1 Departmental Council on Native American 

2 Affairs, the decision of which shall be final 

3 and not subject to judicial review). 

4 ‘‘(B) BURDEN OF PROOF.—In a hearing or 

5 appeal under subparagraph (A)(ii), the Sec6 retary shall have the burden of proving by clear 

7 and convincing evidence the validity of the 

8 grounds for rejecting the final offer. 

9 ‘‘(c) OTHER FUNDING.—Participation by an Indian 

10 tribe in the demonstration project under this title shall 

11 not affect the amount of funding that the Indian tribe 

12 would receive under the laws (including regulations) gov13 erning the included programs if the Indian tribe did not 

14 participate. 

15 ‘‘(d) DUPLICATION OF ELIGIBILITY.—To the max16 imum extent practicable, an Indian tribe shall make ef17 forts to coordinate with appropriate States to identify du18 ally eligible individuals to address the potential for the 

19 provision of duplicate benefits. 

20 ‘‘(e) APPEALS.—Except as provided in subsection 

21 (b)(2), a compact or funding agreement under this title 

22 shall be considered to be a contract for the purposes of 

23 section 110. 

24 ‘‘(f) REGULATIONS; OTHER AGENCY STATEMENTS.— 
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1 ‘‘(1) REGULATIONS.—An Indian tribe shall 

2 comply with final regulations for the included pro3 grams in connection with the demonstration project. 

4 ‘‘(2) OTHER AGENCY STATEMENTS.—Unless ex5 pressly agreed to by an Indian tribe in a compact or 

6 funding agreement, the Indian tribe shall not be 

7 subject to any agency circular, policy, manual, guid8 ance, or rule that is promulgated by regulation. 

9 ‘‘(g) APPLICABILITY OF OTHER PROVISIONS.—The 

10 following provisions of this Act shall apply to a compact 

11 or funding agreements entered into under this title: 

12 ‘‘(1) Section 102(d). 

13 ‘‘(2) Section 506(b) (conflicts of interest). 

14 ‘‘(3) Section 506(c)(1) (Single Agency Audit 

15 Act). 

16 ‘‘(4) Section 506(c)(2) (cost principles). 

17 ‘‘(5) Section 506(c) (records). 

18 ‘‘(6) Section 507(c)(1)(A) (grounds for reject19 ing a final offers). 

20 ‘‘(7) Section 508(g) (prompt payment). 

21 ‘‘(8) Section 506(h) (nonduplication). 

22 ‘‘(9) Section 508(h) (interest or other income 

23 on transfers). 

24 ‘‘(10) Section 508(i) (carryover of funds). 

25 ‘‘(11) Section 509 (construction projects). 
18 

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1 ‘‘(12) Section 510 (Federal procurement laws). 

2 ‘‘(13) Section 512(b) (regulation waivers). 

3 ‘‘SEC. 607. REPORT. 

4 ‘‘(a) IN GENERAL.—The Secretary shall annually 

5 submit to Congress a report on the relative costs and bene6 fits of the demonstration project using evaluation and re7 porting data provided by participating Indian tribes. 

8 ‘‘(b) BASELINE MEASUREMENTS.— 

9 ‘‘(1) IN GENERAL.—A report under subsection 

10 (a) shall be based on baseline measurements devel11 oped jointly by the Secretary and participating In12 dian tribes. 

13 ‘‘(2) FINANCIAL ASSISTANCE.—The Secretary 

14 shall provide financial assistance to Indian tribes to 

15 assist Indian tribes in evaluating and reporting on 

16 the demonstration project. 

17 ‘‘(c) CONTENTS.—A report under subsection (a) 

18 shall— 

19 ‘‘(1) verify that the participating Indian tribes 

20 met the statutory purposes of the included pro21 grams; 

22 ‘‘(2) confirm that key self-governance principles 

23 were carried out as Indian tribes operated the in24 cluded programs; and 
19 

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1 ‘‘(3) separately include Federal and tribal view2 points regarding— 

3 ‘‘(A) the merger of included programs op4 erated under this title and self-governance prin5 ciples; and 

6 ‘‘(B) the impact on program beneficiaries. 

7 ‘‘SEC. 608. AUTHORIZATION OF APPROPRIATIONS. 

8 ‘‘There are authorized to be appropriated such sums 

9 as are necessary to carry out this title, to remain available 

10 until expended.’’. 

11 SECTION 1. SHORT TITLE. 

12 This Act may be cited as the ‘‘Department of Health 

13 and Human Services Tribal Self-Governance Amendments 

14 Act of 2004’’. 

15 SEC. 2. AMENDMENT. 

16 The Indian Self-Determination and Education Assist17 ance Act is amended by striking title VI (25 U.S.C. 450f 

18 note; Public Law 93–638) and inserting the following: 

19 ‘‘TITLE VI—TRIBAL SELF-GOV20 ERNANCE DEMONSTRATION 

21 PROJECT FOR THE DEPART22 MENT OF HEALTH AND 

23 HUMAN SERVICES 

24 ‘‘SEC. 601. DEFINITIONS. 

25 ‘‘In this title: 
20 

•S 1696 RS 

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

2 compact under section 604. 

3 ‘‘(2) CONSTRUCTION PROJECT.—The term ‘con4 struction project’ has the meaning given the term in 

5 section 501. 

6 ‘‘(3) DEMONSTRATION PROJECT.—The term 

7 ‘demonstration project’ means the demonstration 

8 project under this title. 

9 ‘‘(4) FUNDING AGREEMENT.—The term ‘funding 

10 agreement’ means a funding agreement under section 

11 604. 

12 ‘‘(5) INCLUDED PROGRAM.—The term ‘included 

13 program’ means a program that is eligible for inclu14 sion under a funding agreement under section 604(c) 

15 (including any portion of such a program and any 

16 function, service, or activity performed under such a 

17 program). 

18 ‘‘(6) INDIAN TRIBE.—The term ‘Indian tribe’, in 

19 a case in which an Indian tribe authorizes another 

20 Indian tribe, an inter-tribal consortium, or a tribal 

21 organization to plan for or carry out an included 

22 program on its behalf in accordance with section 

23 603(a)(3), includes the other authorized Indian tribe, 

24 inter-tribal consortium, or tribal organization. 
21 

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1 ‘‘(7) INTER-TRIBAL CONSORTIUM.—The term 

2 ‘inter-tribal consortium’ has the meaning given the 

3 term in section 501. 

4 ‘‘(8) SECRETARY.—The term ‘Secretary’ means 

5 the Secretary of Health and Human Services. 

6 ‘‘(9) SELF-GOVERNANCE.—The term ‘self-govern7 ance’ has the meaning given the term in section 501. 

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

9 has the meaning given the term in section 501. 

10 ‘‘SEC. 602. ESTABLISHMENT OF DEMONSTRATION PROJECT. 

11 ‘‘(a) DEMONSTRATION.—For a period of not more than 

12 5 years after the date of enactment of the Department of 

13 Health and Human Services Tribal Self-Governance 

14 Amendments Act of 2004, the Secretary shall carry out a 

15 project to demonstrate the effectiveness of tribal operation 

16 of the included programs under self-governance principles 

17 and authorities. 

18 ‘‘(b) ADMINISTRATION.—The management and admin19 istration of the demonstration project shall be in the Office 

20 of the Secretary. 

21 ‘‘SEC. 603. SELECTION OF PARTICIPATING INDIAN TRIBES. 

22 ‘‘(a) IN GENERAL.— 

23 ‘‘(1) CONTINUING PARTICIPATION.—Not more 

24 than 50 Indian tribes that meet the eligibility criteria 
22 

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1 specified in subsection (b) shall be entitled to partici2 pate in the demonstration project. 

3 ‘‘(2) ADDITIONAL PARTICIPANTS.—If more than 

4 50 eligible Indian tribes request participation, the 

5 Secretary may select additional Indian tribes to par6 ticipate in the demonstration project. 

7 ‘‘(3) OTHER AUTHORIZED INDIAN TRIBE, INTER8 TRIBAL CONSORTIUM, OR TRIBAL GOVERNMENT.—If 

9 an Indian tribe authorizes another Indian tribe, an 

10 inter-tribal consortium, or a tribal organization to 

11 plan for or carry out an included program on its be12 half under this title, the authorized Indian tribe, 

13 inter-tribal consortium, or tribal organization shall 

14 have the rights and responsibilities of the authorizing 

15 Indian tribe (except as otherwise provided in the au16 thorizing resolution). 

17 ‘‘(b) ELIGIBILITY.—An Indian tribe shall be eligible 

18 to participate in the demonstration project if the Indian 

19 tribe, as of the date of enactment of the Department of 

20 Health and Human Services Tribal Self-Governance 

21 Amendments Act of 2004, is a party to a compact or fund22 ing agreement under this Act. 

23 ‘‘(c) SELECTION.—The Secretary shall select Indian 

24 tribes that request participation in the demonstration 
23 

•S 1696 RS 

1 project by resolution or other official action by the gov2 erning body of each Indian tribe to be served. 

3 ‘‘(d) PLANNING AND NEGOTIATION GRANTS.— 

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

5 appropriations, the Secretary shall establish a pro6 gram to allow Indian tribes that meet the eligibility 

7 requirements of this title to be awarded a planning 

8 grant or negotiation grant, or both. 

9 ‘‘(2) RECEIPT OF GRANT NOT REQUIRED.—Re10 ceipt of a grant under paragraph (1) by an Indian 

11 tribe is not a requirement for the Indian tribe to par12 ticipate in the demonstration project. 

13 ‘‘SEC. 604. COMPACTS AND FUNDING AGREEMENTS. 

14 ‘‘(a) IN GENERAL.— 

15 ‘‘(1) NEW COMPACT AND FUNDING AGREE16 MENT.—Not later than 60 days after the date of sub17 mission by an Indian tribe of a request to participate 

18 in the demonstration project, the Secretary shall nego19 tiate and enter into a written compact and funding 

20 agreement with the Indian tribe in a manner that is 

21 consistent with the trust responsibility of the Federal 

22 Government, treaty and statutory obligations, and the 

23 government-to-government relationship between In24 dian tribes and the United States. 
24 

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1 ‘‘(2) EXISTING COMPACT.—Rather than enter 

2 into a new compact under paragraph (1), an Indian 

3 tribe may use an existing compact negotiated under 

4 title V for purposes of the demonstration project. 

5 ‘‘(b) COMPACTS.— 

6 ‘‘(1) CONTENTS.—A compact under subsection 

7 (a) shall designate— 

8 ‘‘(A) congressional policies regarding tribal 

9 self-governance; 

10 ‘‘(B) the intent of the demonstration project; 

11 ‘‘(C) such terms as shall control from year 

12 to year; and 

13 ‘‘(D) any provisions of this title that are re14 quested by the Indian tribe. 

15 ‘‘(2) EFFECTIVE DATE.—The effective date of a 

16 compact shall be the date of execution by the Indian 

17 tribe and the Secretary or another date agreed on by 

18 the parties. 

19 ‘‘(3) DURATION.—A compact shall remain in ef20 fect so long as permitted by Federal law or until ter21 minated by agreement of the parties. 

22 ‘‘(4) AMENDMENT.—A compact may be amended 

23 only by agreement of the parties. 

24 ‘‘(c) FUNDING AGREEMENTS.— 
25 

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1 ‘‘(1) SCOPE.—A funding agreement under sub2 section (a) shall, at the option of the Indian tribe, au3 thorize the Indian tribe to plan, conduct, and admin4 ister included programs administered by the Sec5 retary through an agency of the Department of 

6 Health and Human Services, set forth in paragraphs 

7 (2) through (4). 

8 ‘‘(2) INITIAL INCLUDED PROGRAMS.—The fol9 lowing programs are eligible for inclusion in a fund10 ing agreement under this title: 

11 ‘‘(A) ADMINISTRATION ON AGING.—Grants 

12 for Native Americans under title VI of the Older 

13 Americans Act of 1965 (42 U.S.C. 3057 et seq.). 

14 ‘‘(B) ADMINISTRATION FOR CHILDREN AND

15 FAMILIES.— 

16 ‘‘(i) The tribal temporary assistance 

17 for needy families program under section 

18 412(a)(1) of the Social Security Act (42 

19 U.S.C. 612(a)(1) et seq.). 

20 ‘‘(ii) The Low-Income Home Energy 

21 Assistance Program under the Low-Income 

22 Home Energy Assistance Act of 1981 (42 

23 U.S.C. 8621 et seq.). 

24 ‘‘(iii) The Community Services Block 

25 Grant Program under the Community Serv-
26 

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1 ices Block Grant Act (42 U.S.C. 9901 et 

2 seq.). 

3 ‘‘(iv) The Child Care and Development 

4 Fund under the Child Care and Develop5 ment Block Grant Act (42 U.S.C. 9858 et 

6 seq.). 

7 ‘‘(v) The native employment works 

8 program under section 412(a)(2) of the So9 cial Security Act (42 U.S.C. 612(a)(2)). 

10 ‘‘(vi) The Head Start Program under 

11 the Head Start Act (42 U.S.C. 9831 et seq.). 

12 ‘‘(vii) Child welfare services programs 

13 under part B of title IV of the Social Secu14 rity Act (42 U.S.C. 620 et seq.). 

15 ‘‘(viii) The promoting safe and stable 

16 families program under part B of title IV 

17 of the Social Security Act (42 U.S.C. 620 et 

18 seq.). 

19 ‘‘(ix) Family violence prevention 

20 grants for battered women’s shelters under 

21 the Family Violence Prevention and Serv22 ices Act (42 U.S.C. 10401 et seq.). 

23 ‘‘(C) SUBSTANCE ABUSE AND MENTAL

24 HEALTH SERVICES ADMINISTRATION.—Targeted 

25 capacity expansion program under title V of the 
27 

•S 1696 RS 

1 Public Health Service Act (42 U.S.C. 290aa et 

2 seq.). 

3 ‘‘(D) BLOCK GRANTS REGARDING MENTAL

4 HEALTH AND SUBSTANCE ABUSE.—Mental health 

5 and substance abuse block grant programs under 

6 title XIX of the Public Health Services Act (42 

7 U.S.C. 300x et seq.). 

8 ‘‘(E) HEALTH RESOURCES AND SERVICES

9 ADMINISTRATION.—Community health center 

10 grants under section 330 of the Public Health 

11 Service Act (42 U.S.C. 254b). 

12 ‘‘(3) ADDITIONAL INCLUDED PROGRAMS.—The 

13 Secretary may identify not more than 6 additional 

14 programs annually for inclusion in the demonstration 

15 project, including— 

16 ‘‘(A) all other programs in which Indian 

17 tribes are eligible to participate; 

18 ‘‘(B) all other programs for which Indians 

19 are eligible beneficiaries; and 

20 ‘‘(C) competitive grants for which an In21 dian tribe receives an individual or cooperative 

22 award, on the condition that the Indian tribe 

23 agree in the funding agreement to restrictions re24 garding program redesign and budget realloca25 tion for any competitive awards. 
28 

•S 1696 RS 

1 ‘‘(4) CONTENTS.—A funding agreement— 

2 ‘‘(A) shall specify— 

3 ‘‘(i) the services to be provided; 

4 ‘‘(ii) the functions to be performed; and 

5 ‘‘(iii) the responsibilities of the Indian 

6 tribe and the Secretary; 

7 ‘‘(B) shall provide for payment by the Sec8 retary to the Indian tribe of funds in accordance 

9 with section 605; 

10 ‘‘(C) shall not allow the Secretary to waive, 

11 modify, or diminish in any way the trust re12 sponsibility of the United States with respect to 

13 Indian tribes and individual Indians that exist 

14 under treaties, Executive orders, and Acts of 

15 Congress; and 

16 ‘‘(D) shall allow for retrocession of included 

17 programs under section 105(e). 

18 ‘‘SEC. 605. TRANSFER OF FUNDS. 

19 ‘‘(a) TRANSFER.— 

20 ‘‘(1) IN GENERAL.—Under any compact or fund21 ing agreement entered into under this title, the Sec22 retary shall transfer to the Indian tribe all funds pro23 vided for in the funding agreement. 
29 

•S 1696 RS 

1 ‘‘(2) TIMING.—Unless the funding agreement 

2 provides otherwise, at the request of the Indian 

3 tribe— 

4 ‘‘(A) funding shall be paid in 1 annual 

5 lump sum payment; and 

6 ‘‘(B) the transfer shall be made not later 

7 than 10 days after the apportionment of funds 

8 by the Office of Management and Budget to the 

9 Department of Health and Human Services. 

10 ‘‘(b) AMOUNT OF FUNDING.— 

11 ‘‘(1) FUNDING FORMULAS.— 

12 ‘‘(A) IN GENERAL.—Any statutory funding 

13 formula for an included program shall be used to 

14 identify the funds to be paid to an Indian tribe. 

15 ‘‘(B) ADEQUACY.—Subject to the avail16 ability of appropriations, an additional funding 

17 amount may be provided by the Secretary to 

18 permit the successful implementation of the dem19 onstration project. 

20 ‘‘(C) NEGOTIATION.—The Secretary and the 

21 participating Indian tribe shall determine the 

22 overall funding amount through negotiation. 

23 ‘‘(2) MATCHING REQUIREMENT.—An Indian 

24 tribe may request a waiver of any matching require25 ment applicable to an included program, and the Sec-
30 

•S 1696 RS 

1 retary shall liberally grant such reasonable waiver re2 quests. 

3 ‘‘(3) CONTRACT SUPPORT COSTS.—There shall be 

4 added to the amount required by paragraph (1) con5 tract support costs as specified in paragraphs (2), (3), 

6 (5), and (6) of section 106(a). 

7 ‘‘(4) ADMINISTRATIVE FUND SHARES.— 

8 ‘‘(A) IN GENERAL.—An Indian tribe may 

9 negotiate for a tribal share of administrative 

10 funds without regard to the organizational level 

11 at which the included programs are carried out. 

12 ‘‘(B) INCLUSION.—A tribal share under sub13 paragraph (A) shall include a share for training 

14 and technical assistance services performed by a 

15 contractor. 

16 ‘‘SEC. 606. GENERAL PROVISIONS. 

17 ‘‘(a) REDESIGN, CONSOLIDATION, AND REALLOCA18 TION.— 

19 ‘‘(1) IN GENERAL.—To the extent allowed under 

20 the statutory provisions of the included programs in21 cluded in the funding agreement, and subject to the 

22 terms of the funding agreement, an Indian tribe 

23 may— 

24 ‘‘(A) redesign or consolidate the included 

25 programs under the funding agreement if the In-
31 

•S 1696 RS 

1 dian tribe agrees to abide by the statutory pur2 poses of the program; and 

3 ‘‘(B) reallocate or redirect funds for the in4 cluded programs, among the included programs 

5 under the funding agreement, so long as all dem6 onstration project costs using those funds meet 

7 allowable cost standards as required by section 

8 506(c). 

9 ‘‘(2) WAIVERS.— 

10 ‘‘(A) IN GENERAL.—At the request of an In11 dian tribe and consistent with section 512(b), the 

12 Secretary shall grant a waiver of final regula13 tions for the duration of the demonstration 

14 project to facilitate the ability of an Indian tribe 

15 to redesign included programs or reallocate funds 

16 under paragraph (1). 

17 ‘‘(B) DOCUMENTATION.—The Secretary 

18 shall document all requests for a waiver under 

19 subparagraph (A), including a description of— 

20 ‘‘(i) the reasons for each request; 

21 ‘‘(ii) the effect of the waiver on the In22 dian tribe making the request; and 

23 ‘‘(iii) the views of the Indian tribe re24 garding the requested waiver. 
32 

•S 1696 RS 

1 ‘‘(b) INABILITY TO AGREE ON COMPACT OR FUNDING

2 AGREEMENT.— 

3 ‘‘(1) FINAL OFFER.—If the Secretary and an In4 dian tribe are unable to agree, in whole or in part, 

5 on the terms of a compact or funding agreement (in6 cluding funding levels), the Indian tribe may submit 

7 a final offer to the Secretary. 

8 ‘‘(2) DETERMINATION.—Not later than 45 days 

9 after the date of submission of a final offer, or as oth10 erwise agreed to by the Indian tribe, the Secretary 

11 shall review and make a determination with respect 

12 to the final offer. 

13 ‘‘(3) NO TIMELY DETERMINATION.—If the Sec14 retary fails to make a determination with respect to 

15 a final offer within the time specified in paragraph 

16 (2), the Secretary shall be deemed to have agreed to 

17 the final offer. 

18 ‘‘(4) REJECTION OF FINAL OFFER.— 

19 ‘‘(A) IN GENERAL.—If the Secretary rejects 

20 a final offer, the Secretary shall— 

21 ‘‘(i) submit to the Indian tribe a writ22 ten statement clearly setting forth the rea23 sons for rejecting the final offer; and 

24 ‘‘(ii) provide the Indian tribe with a 

25 hearing on the record (except that the In-
33 

•S 1696 RS 

1 dian tribe may, in lieu of such a hearing, 

2 file an appeal of the rejection to the Intra3 Departmental Council on Native American 

4 Affairs, the decision of which shall be final 

5 and not subject to judicial review). 

6 ‘‘(B) BURDEN OF PROOF.—In a hearing or 

7 appeal under subparagraph (A)(ii), the Sec8 retary shall have the burden of proving by clear 

9 and convincing evidence the validity of the 

10 grounds for rejecting the final offer. 

11 ‘‘(c) OTHER FUNDING.—Participation by an Indian 

12 tribe in the demonstration project under this title shall not 

13 affect the amount of funding that the Indian tribe would 

14 receive under the laws (including regulations) governing the 

15 included programs if the Indian tribe did not participate. 

16 ‘‘(d) DUPLICATION OF ELIGIBILITY.—To the max17 imum extent practicable, an Indian tribe shall make efforts 

18 to coordinate with appropriate States to identify dually eli19 gible individuals to address the potential for the provision 

20 of duplicate benefits. 

21 ‘‘(e) APPEALS.—Except as provided in subsection (b), 

22 a compact or funding agreement under this title shall be 

23 considered to be a contract for the purposes of section 110. 

24 ‘‘(f) REGULATIONS; OTHER AGENCY STATEMENTS.— 
34 

•S 1696 RS 

1 ‘‘(1) REGULATIONS.—Unless otherwise waived 

2 pursuant to section 606, an Indian tribe shall comply 

3 with final regulations for the included programs in 

4 connection with the demonstration project. 

5 ‘‘(2) OTHER AGENCY STATEMENTS.—Unless ex6 pressly agreed to by an Indian tribe in a compact or 

7 funding agreement, the Indian tribe shall not be sub8 ject to any agency circular, policy, manual, guidance, 

9 or rules, except as provided under paragraph (1). 

10 ‘‘(g) APPLICABILITY OF OTHER PROVISIONS.—The fol11 lowing provisions of this Act shall apply to a compact or 

12 funding agreements entered into under this title: 

13 ‘‘(1) Section 102(d). 

14 ‘‘(2) Section 506(b) (conflicts of interest). 

15 ‘‘(3) Section 506(c)(1) (Single Agency Audit 

16 Act). 

17 ‘‘(4) Section 506(c)(2) (cost principles). 

18 ‘‘(5) Section 506(c) (records). 

19 ‘‘(6) Section 507(c)(1)(A) (grounds for rejecting 

20 a final offer). 

21 ‘‘(7) Section 508(g) (prompt payment). 

22 ‘‘(8) Section 506(h) (nonduplication). 

23 ‘‘(9) Section 508(h) (interest or other income on 

24 transfers). 

25 ‘‘(10) Section 508(i) (carryover of funds). 
35 

•S 1696 RS 

1 ‘‘(11) Section 509 (construction projects). 

2 ‘‘(12) Section 510 (Federal procurement laws). 

3 ‘‘(13) Section 512(b) (regulation waivers). 

4 ‘‘SEC. 607. REPORT. 

5 ‘‘(a) IN GENERAL.—The Secretary shall annually sub6 mit to Congress a report on the relative costs and benefits 

7 of the demonstration project using evaluation and reporting 

8 data provided by participating Indian tribes. 

9 ‘‘(b) BASELINE MEASUREMENTS.— 

10 ‘‘(1) IN GENERAL.—A report under subsection 

11 (a) shall be based on baseline measurements developed 

12 jointly by the Secretary and participating Indian 

13 tribes. 

14 ‘‘(2) FINANCIAL ASSISTANCE.—The Secretary 

15 shall provide financial assistance to Indian tribes to 

16 assist Indian tribes in evaluating and reporting on 

17 the demonstration project. 

18 ‘‘(c) CONTENTS.—A report under subsection (a) 

19 shall— 

20 ‘‘(1) verify that the participating Indian tribes 

21 met the statutory purposes of the included programs; 

22 ‘‘(2) confirm that key self-governance principles 

23 were carried out as Indian tribes operated the in24 cluded programs; and 
36 

•S 1696 RS 

1 ‘‘(3) separately include Federal and tribal view2 points regarding— 

3 ‘‘(A) the merger of included programs oper4 ated under this title and self-governance prin5 ciples; and 

6 ‘‘(B) the impact on program beneficiaries. 

7 ‘‘SEC. 608. AUTHORIZATION OF APPROPRIATIONS. 

8 ‘‘There are authorized to be appropriated such sums 

9 as are necessary to carry out this title, to remain available 

10 until expended.’’. 

Calendar No. 803 

108TH CONGRESS 

2D SESSION S. 1696 

[Report No. 108–412] 

A BILL 

To amend the Indian Self-Determination and Eduernance by Indian tribes. cation Assistance Act to provide further self-govNOVEMBER 16, 2004 

Reported with an amendment