II 

Calendar No. 804 

108TH CONGRESS 

2D SESSION S. 1715 

[Report No. 108–413] 

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 3, 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 amendments 

[Omit the part struck through 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, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Department of the In5 terior Tribal Self-Governance Act of 2003 2004’’. 
2 

•S 1715 RS 

1 SEC. 2. AMENDMENT. 

2 The Indian Self-Determination and Education Assist3 ance Act is amended by striking title IV (25 U.S.C. 458aa 

4 et seq.) and inserting the following: 

5 ‘‘TITLE IV—TRIBAL SELF6 GOVERNANCE 

7 ‘‘SEC. 401. DEFINITIONS. 

8 ‘‘In this title: 

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

10 compact under section 404. 

11 ‘‘(2) CONSTRUCTION PROGRAM.—The term 

12 ‘construction program’ means a tribal undertaking 

13 to complete any or all included programs relating to 

14 the administration, planning, environmental deter15 mination, design, construction, repair, improvement, 

16 or expansion of roads, bridges, buildings, structures, 

17 systems, or other facilities for purposes of housing, 

18 law enforcement, detention, sanitation, water supply, 

19 education, administration, community health, irriga20 tion, agriculture, conservation, flood control, trans21 portation, or port facilities or for other tribal pur22 poses. 

23 ‘‘(3) CONSTRUCTION PROJECT.—The term ‘con24 struction project’ means a tribal undertaking that 

25 constructs 1 or more roads, bridges, buildings, struc26 tures, systems, or other facilities for purposes of 
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1 housing, law enforcement, detention, sanitation, 

2 water supply, education, administration, community 

3 health, irrigation, agriculture, conservation, flood 

4 control, transportation, or port facilities or for other 

5 tribal purposes. 

6 ‘‘(4) DEPARTMENT.—The term ‘Department’ 

7 means the Department of the Interior. 

8 ‘‘(5) FUNDING AGREEMENT.—The term ‘fund9 ing agreement’ means a funding agreement under 

10 section 405(b). 

11 ‘‘(6) GROSS MISMANAGEMENT.—The term 

12 ‘gross mismanagement’ means a significant viola13 tion, shown by clear and convincing evidence, of a 

14 compact, funding agreement, or statutory or regu15 latory requirement applicable to Federal funds 

16 transferred to an Indian tribe by a compact or fund17 ing agreement that results in a significant reduction 

18 of funds being made available for the included pro19 grams assumed by an Indian tribe. 

20 ‘‘(7) INCLUDED PROGRAM.—The term ‘included 

21 program’ means a program that is eligible for inclu22 sion under a funding agreement (including any por23 tion of such a program and any function, service, or 

24 activity performed under such a program). 
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1 ‘‘(8) INDIAN TRIBE.—The term ‘Indian tribe’, 

2 in a case in which an Indian tribe authorizes an3 other Indian tribe, an inter-tribal consortium, or a 

4 tribal organization to plan for or carry out an in5 cluded program on its behalf in accordance with sec6 tion 403(a)(3), includes the other authorized Indian 

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

8 ‘‘(9) INHERENT FEDERAL FUNCTION.—The 

9 term ‘inherent Federal function’ means a Federal 

10 function that cannot legally be delegated to an In11 dian tribe. 

12 ‘‘(10) INTER-TRIBAL CONSORTIUM.— 

13 ‘‘(A) IN GENERAL.—The term ‘inter-tribal 

14 consortium’ means a coalition of 2 or more sep15 arate Indian tribes that join together for the 

16 purpose of participating in self-governance. 

17 ‘‘(B) INCLUSION.—The term ‘inter-tribal 

18 organization’ includes a tribal organization. 

19 ‘‘(11) SECRETARY.—The term ‘Secretary’ 

20 means the Secretary of the Interior. 

21 ‘‘(12) SELF-GOVERNANCE.—The term ‘self-gov22 ernance’ means the program of self-governance es23 tablished under section 402. 

24 ‘‘(13) TRIBAL SHARE.—The term ‘tribal share’ 

25 means an Indian tribe’s portion of all funds and re-
5 

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1 sources that support secretarial included programs 

2 that are not required by the Secretary for the per3 formance of inherent Federal functions. 

4 ‘‘SEC. 402. ESTABLISHMENT. 

5 ‘‘The Secretary shall carry out a program within the 

6 Department to be known as the ‘Tribal Self-Governance 

7 Program’. 

8 ‘‘SEC. 403. SELECTION OF PARTICIPATING INDIAN TRIBES. 

9 ‘‘(a) IN GENERAL.— 

10 ‘‘(1) CONTINUING PARTICIPATION.—An Indian 

11 tribe that was participating in the Tribal Self-Gov12 ernance Demonstration Project at the Department 

13 under title III on October 25, 1994, may elect to 

14 participate in self-governance under this title. 

15 ‘‘(2) ADDITIONAL PARTICIPANTS.— 

16 ‘‘(A) IN GENERAL.—In addition to Indian 

17 tribes participating in self-governance under 

18 paragraph (1), an Indian tribe that meets the 

19 eligibility criteria specified in subsection (b) 

20 shall be entitled to participate in self-govern21 ance. 

22 ‘‘(B) NO LIMITATION.—The Secretary 

23 shall not limit the number of additional Indian 

24 tribes to be selected each year from among In25 dian tribes that are eligible under subsection (b). 
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1 ‘‘(3) OTHER AUTHORIZED INDIAN TRIBE, 

2 INTER-TRIBAL CONSORTIUM, OR TRIBAL GOVERN3 MENT.—If an Indian tribe authorizes another Indian 

4 tribe, an inter-tribal consortium, or a tribal organiza5 tion to plan for or carry out an included program on 

6 its behalf under this title, the authorized Indian tribe, 

7 inter-tribal consortium, or tribal organization shall 

8 have the rights and responsibilities of the authorizing 

9 Indian tribe (except as otherwise provided in the au10 thorizing resolution). 

11 ‘‘(4) JOINT PARTICIPATION.—Two or more In12 dian tribes that are not otherwise eligible under sub13 section (b) may be treated as a single Indian tribe 

14 for the purpose of participating in self-governance as 

15 a consortium if— 

16 ‘‘(A) if each Indian tribe so requests; and 

17 ‘‘(B) the consortium itself is eligible under 

18 subsection (b). 

19 ‘‘(5) TRIBAL WITHDRAWAL FROM A CONSOR20 TIUM.— 

21 ‘‘(A) IN GENERAL.—An Indian tribe that 

22 withdraws from participation in an inter-tribal 

23 consortium or tribal organization, in whole or in 

24 part, shall be entitled to participate in self-gov-
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1 ernance if the Indian tribe is eligible under sub2 section (b). 

3 ‘‘(B) EFFECT OF WITHDRAWAL.—If an In4 dian tribe withdraws from participation in an 

5 inter-tribal consortium or tribal organization, 

6 the Indian tribe shall be entitled to its tribal 

7 share of funds and resources supporting the in8 cluded programs that the Indian tribe will be 

9 carrying out under the compact and funding 

10 agreement of the Indian tribe. 

11 ‘‘(C) PARTICIPATION IN SELF-GOVERN12 ANCE.—The withdrawal of an Indian tribe from 

13 an inter-tribal consortium or tribal organization 

14 shall not affect the eligibility of the inter-tribal 

15 consortium or tribal organization to participate 

16 in self-governance on behalf of 1 or more other 

17 Indian tribes. 

18 ‘‘(D) WITHDRAWAL PROCESS.— 

19 ‘‘(i) IN GENERAL.—An Indian tribe 

20 may fully or partially withdraw from a par21 ticipating inter-tribal consortium or tribal 

22 organization its tribal share of any in23 cluded program that is included in a com24 pact or funding agreement. 

25 ‘‘(ii) EFFECTIVE DATE.— 
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1 ‘‘(I) IN GENERAL.—A withdrawal 

2 under clause (i) shall become effective 

3 on the date specified in the resolution 

4 that authorizes transfer to the partici5 pating tribal organization or inter6 tribal consortium. 

7 ‘‘(II) NO SPECIFIED DATE.—In 

8 the absence of a date specified in the 

9 resolution, the withdrawal shall be10 come effective on— 

11 ‘‘(aa) the earlier of— 

12 ‘‘(AA) 1 year after the 

13 date of submission of the re14 quest; or 

15 ‘‘(BB) the date on 

16 which the funding agree17 ment expires; or 

18 ‘‘(bb) such date as may be 

19 agreed on by the Secretary, the 

20 withdrawing Indian tribe, and 

21 the tribal organization or inter22 tribal consortium that signed the 

23 compact or funding agreement on 

24 behalf of the withdrawing Indian 
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1 tribe, inter-tribal consortium, or 

2 tribal organization. 

3 ‘‘(E) DISTRIBUTION OF FUNDS.—If an In4 dian tribe or tribal organization eligible to enter 

5 into a self-determination contract under title I 

6 or a compact or funding agreement under this 

7 title fully or partially withdraws from a partici8 pating inter-tribal consortium or tribal organi9 zation, the withdrawing Indian tribe— 

10 ‘‘(i) may elect to enter into a self-de11 termination contract or compact, in which 

12 case— 

13 ‘‘(I) the withdrawing Indian tribe 

14 or tribal organization shall be entitled 

15 to its tribal share of funds and re16 sources supporting the included pro17 grams that the Indian tribe will be 

18 carrying out under its own self-deter19 mination contract or compact and 

20 funding agreement (calculated on the 

21 same basis as the funds were initially 

22 allocated to the funding agreement of 

23 the inter-tribal consortium or tribal 

24 organization); and 
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1 ‘‘(II) the funds referred to in 

2 subclause (I) shall be withdrawn by 

3 the Secretary from the funding agree4 ment of the inter-tribal consortium or 

5 tribal organization and transferred to 

6 the withdrawing Indian tribe, on the 

7 condition that sections 102 and 

8 105(i), as appropriate, shall apply to 

9 the withdrawing Indian tribe; or 

10 ‘‘(ii) may elect not to enter into a self11 determination contract or compact, in 

12 which case all funds not obligated by the 

13 inter-tribal consortium associated with the 

14 withdrawing Indian tribe’s returned in15 cluded programs, less closeout costs, shall 

16 be returned by the inter-tribal consortium 

17 to the Secretary for operation of the in18 cluded programs included in the with19 drawal. 

20 ‘‘(F) RETURN TO MATURE CONTRACT STA21 TUS.—If an Indian tribe elects to operate all or 

22 some included programs carried out under a 

23 compact or funding agreement under this title 

24 through a self-determination contract under 

25 title I, at the option of the Indian tribe, the re-
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1 sulting self-determination contract shall be a 

2 mature self-determination contract. 

3 ‘‘(b) ELIGIBILITY.—To be eligible to participate in 

4 self-governance, an Indian tribe shall— 

5 ‘‘(1) complete the planning phase described in 

6 subsection (c); 

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

8 resolution or other official action by the tribal gov9 erning body; and 

10 ‘‘(3) demonstrate, for the 3 fiscal years pre11 ceding the date on which the Indian tribe requests 

12 participation, financial stability and financial man13 agement capability as evidenced by the Indian tribe’s 

14 having no uncorrected significant and material audit 

15 exceptions in the required annual audit of its self16 determination or self-governance agreements with 

17 any Federal agency. 

18 ‘‘(c) PLANNING PHASE.— 

19 ‘‘(1) IN GENERAL.—An Indian tribe seeking to 

20 participate in self-governance shall complete a plan21 ning phase in accordance with this subsection. 

22 ‘‘(2) ACTIVITIES.—The planning phase— 

23 ‘‘(A) shall be conducted to the satisfaction 

24 of the Indian tribe; and 

25 ‘‘(B) shall include— 
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1 ‘‘(i) legal and budgetary research; and 

2 ‘‘(ii) internal tribal government plan3 ning and organizational preparation. 

4 ‘‘(d) GRANTS.— 

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

6 of appropriations, an Indian tribe that meets the re7 quirements of paragraphs (2) and (3) of subsection 

8 (b) shall be eligible for grants— 

9 ‘‘(A) to plan for participation in self-gov10 ernance; and 

11 ‘‘(B) to negotiate the terms of participa12 tion by the Indian tribe or tribal organization 

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

14 and a funding agreement. 

15 ‘‘(2) RECEIPT OF GRANT NOT REQUIRED.—Re16 ceipt of a grant under paragraph (1) shall not be a 

17 requirement of participation in self-governance. 

18 ‘‘SEC. 404. COMPACTS. 

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

20 and enter into a written compact with an Indian tribe par21 ticipating in self-governance in a manner that is consistent 

22 with the trust responsibility of the Federal Government, 

23 treaty obligations, and the government-to-government re24 lationship between Indian tribes and the United States. 
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1 ‘‘(b) CONTENTS.—A compact under subsection (a) 

2 shall— 

3 ‘‘(1) specify the general terms of the govern4 ment-to-government relationship between the Indian 

5 tribe and the Secretary; and 

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

7 shall control year after year. 

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

9 may be amended only by agreement of the parties. 

10 ‘‘(d) EFFECTIVE DATE.—The effective date of a com11 pact under subsection (a) shall be— 

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

13 by the Indian tribe; or 

14 ‘‘(2) another date agreed to by the parties. 

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

16 shall remain in effect for so long as permitted by Federal 

17 law or until terminated by written agreement, retroces18 sion, or reassumption. 

19 ‘‘(f) EXISTING COMPACTS.—An Indian tribe partici20 pating in self-governance under this title, as in effect on 

21 the date of enactment of the Department of the Interior 

22 Tribal Self-Governance Act of 2003 2004, shall have the 

23 option at any time after that date— 

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

25 or in part) to the extent that the provisions of the 
14 

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1 compact are not directly contrary to any express 

2 provision of this title; or 

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

4 consistent with this title. 

5 ‘‘SEC. 405. FUNDING AGREEMENTS. 

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

7 and enter into a written funding agreement with the gov8 erning body of an Indian tribe in a manner that is con9 sistent with the trust responsibility of the Federal Govern10 ment, treaty obligations, and the government-to-govern11 ment relationship between Indian tribes and the United 

12 States. 

13 ‘‘(b) INCLUDED PROGRAMS.— 

14 ‘‘(1) BUREAU OF INDIAN AFFAIRS AND OFFICE

15 OF SPECIAL TRUSTEE.— 

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

17 shall, as determined by the Indian tribe, au18 thorize the Indian tribe to plan, conduct, con19 solidate, administer, and receive full tribal 

20 share funding for all programs carried out by 

21 the Bureau of Indian Affairs and the Office of 

22 Special Trustee, without regard to the agency 

23 or office within which the program is performed 

24 (including funding for agency, area, and central 
15 

•S 1715 RS 

1 office functions in accordance with section 

2 409(c)), that— 

3 ‘‘(i) are provided for in the Act of 

4 April 16, 1934 (25 U.S.C. 452 et seq.); 

5 ‘‘(ii) the Secretary administers for the 

6 benefit of Indians under the Act of Novem7 ber 2, 1921 (25 U.S.C. 13), or any subse8 quent Act; 

9 ‘‘(iii) the Secretary administers for 

10 the benefit of Indians with appropriations 

11 made to agencies other than the Depart12 ment of the Interior; or 

13 ‘‘(iv) are provided for the benefit of 

14 Indians because of their status as Indians. 

15 ‘‘(B) INCLUSIONS.—Programs described in 

16 subparagraph (A) shall include all programs 

17 with respect to which Indian tribes or Indians 

18 are primary or significant beneficiaries. 

19 ‘‘(2) OTHER AGENCIES.—A funding agreement 

20 under subsection (a) shall, as determined by the In21 dian tribe, authorize the Indian tribe to plan, con22 duct, consolidate, administer, and receive full tribal 

23 share funding for all programs carried out by the 

24 Secretary outside the Bureau of Indian Affairs, 

25 without regard to the agency or office within which 
16 

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1 the program is performed, including funding for 

2 agency, area, and central office functions in accord3 ance with subsection 409(c), to the extent that the 

4 included programs are within the scope of paragraph 

5 (1). 

6 ‘‘(3) DISCRETIONARY PROGRAMS.—A funding 

7 agreement under subsection (a) may, in accordance 

8 with such additional terms as the parties consider to 

9 be appropriate, include programs administered by the 

10 Secretary, in addition to programs described in para11 graphs (1) and (2), that are of special geographical, 

12 historical, or cultural significance to the Indian tribe. 

13 ‘‘(4) COMPETITIVE BIDDING.—Nothing in this 

14 section— 

15 ‘‘(A) supersedes any express statutory re16 quirement for competitive bidding; or 

17 ‘‘(B) prohibits the inclusion in a funding 

18 agreement of a program in which non-Indians 

19 have an incidental or legally identifiable inter20 est. 

21 ‘‘(5) EXCLUDED FUNDING.—A funding agree22 ment shall not authorize an Indian tribe to plan, 

23 conduct, administer, or receive tribal share funding 

24 under any program that— 
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1 ‘‘(A) is provided under the Tribally Con2 trolled Community College Assistance Act of 

3 1978 (25 U.S.C. 1801 et seq.); 

4 ‘‘(B) is provided for elementary and sec5 ondary schools under the formula developed 

6 under section 1128 of the Education Amend7 ments of 1978 (25 U.S.C. 2008); and 

8 ‘‘(C) is provided for the Flathead Agency 

9 Irrigation Division or the Flathead Agency 

10 Power Division (except that nothing in this sec11 tion affects the contract authority of the Flat12 head Agency Irrigation Division or the Flathead 

13 Agency Power Division under section 102). 

14 ‘‘(6) SERVICES, FUNCTIONS, AND RESPONSIBIL15 ITIES.—A funding agreement shall specify— 

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

17 funding agreement; 

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

19 the funding agreement; and 

20 ‘‘(C) the responsibilities of the Indian tribe 

21 and the Secretary under the funding agreement. 

22 ‘‘(7) BASE BUDGET.—A funding agreement 

23 shall, at the option of the Indian tribe, provide for 

24 a stable base budget specifying the recurring funds 

25 (including funds available under section 106(a)) to 
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1 be transferred to the Indian tribe, for such period as 

2 the Indian tribe specifies in the funding agreement, 

3 subject to annual adjustment only to reflect changes 

4 in congressional appropriations. 

5 ‘‘(8) NO WAIVER OF TRUST RESPONSIBILITY.— 

6 A funding agreement shall prohibit the Secretary 

7 from waiving, modifying, or diminishing in any way 

8 the trust responsibility of the United States with re9 spect to Indian tribes and individual Indians that ex10 ists under treaties, Executive orders, court decisions, 

11 and other laws. 

12 ‘‘(c) AMENDMENT.—The Secretary shall not revise, 

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

14 funding agreement without the consent of the Indian tribe. 

15 ‘‘(d) EFFECTIVE DATE.—A funding agreement shall 

16 become effective on the date specified in the funding 

17 agreement. 

18 ‘‘(e) EXISTING AND SUBSEQUENT FUNDING AGREE19 MENTS.— 

20 ‘‘(1) SUBSEQUENT FUNDING AGREEMENTS.— 

21 Absent notification from an Indian tribe that is 

22 withdrawing or retroceding the operation of 1 or 

23 more included programs identified in a funding 

24 agreement, or unless otherwise agreed to by the par25 ties to the funding agreement— 
19 

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

2 effect until a subsequent funding agreement is 

3 executed; and 

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

5 agreement shall be retroactive to the end of the 

6 term of the preceding funding agreement. 

7 ‘‘(2) EXISTING FUNDING AGREEMENTS.—An 

8 Indian tribe that was participating in self-govern9 ance under this title on the date of enactment of the 

10 Department of the Interior Tribal Self-Governance 

11 Act of 2003 2004 shall have the option at any time 

12 after that date— 

13 ‘‘(A) to retain its existing funding agree14 ment (in whole or in part) to the extent that 

15 the provisions of that funding agreement are 

16 not directly contrary to any express provision of 

17 this title; or 

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

19 in a manner consistent with this title. 

20 ‘‘(3) MULTIYEAR FUNDING AGREEMENTS.—An 

21 Indian tribe may, at the discretion of the Indian 

22 tribe, negotiate with the Secretary for a funding 

23 agreement with a term that exceeds 1 year. 
20 

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1 ‘‘SEC. 406. GENERAL PROVISIONS. 

2 ‘‘(a) APPLICABILITY.—An Indian tribe may include 

3 in any compact or funding agreement provisions that re4 flect the requirements of this title. 

5 ‘‘(b) CONFLICTS OF INTEREST.—An Indian tribe 

6 participating in self-governance shall ensure that internal 

7 measures are in place to address, pursuant to tribal law 

8 and procedures, conflicts of interest in the administration 

9 of included programs. 

10 ‘‘(c) AUDITS.— 

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

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

13 funding agreement under this title. 

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

15 apply cost principles under the applicable Office of 

16 Management and Budget circular, except as modi17 fied by— 

18 ‘‘(A) section 106 of this Act or any other 

19 provision of law; or 

20 ‘‘(B) any exemptions to applicable Office 

21 of Management and Budget circulars granted 

22 by the Office of Management and Budget. 

23 ‘‘(3) FEDERAL CLAIMS.—Any claim by the Fed24 eral Government against an Indian tribe relating to 

25 funds received under a funding agreement based on 
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1 an audit under this subsection shall be subject to 

2 section 106(f). 

3 ‘‘(d) REDESIGN AND CONSOLIDATION.—An Indian 

4 tribe may redesign or consolidate included programs or re5 allocate funds for included programs in any manner that 

6 the Indian tribe determines to be in the best interest of 

7 the Indian community being served, so long as the rede8 sign or consolidation does not have the effect of denying 

9 eligibility for services to population groups otherwise eligi10 ble to be served under applicable Federal law. 

11 ‘‘(e) RETROCESSION.— 

12 ‘‘(1) IN GENERAL.—An Indian tribe may fully 

13 or partially retrocede to the Secretary any included 

14 program under a compact or funding agreement. 

15 ‘‘(2) EFFECTIVE DATE.— 

16 ‘‘(A) AGREEMENT.—Unless the Indian 

17 tribe rescinds a request for retrocession, the 

18 retrocession shall become effective on the date 

19 specified by the parties in the compact or fund20 ing agreement. 

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

22 such a specification, the retrocession shall be23 come effective on— 

24 ‘‘(i) the earlier of— 
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1 ‘‘(I) the date that is 1 year after 

2 the date of submission of the request; 

3 or 

4 ‘‘(II) the date on which the fund5 ing agreement expires; or 

6 ‘‘(ii) such date as may be agreed on 

7 by the Secretary and the Indian tribe. 

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

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

10 to which, funding is provided to an Indian tribe under this 

11 title, the Indian tribe— 

12 ‘‘(1) shall not be entitled to enter into a con13 tract with the Secretary for funds under section 102, 

14 except that the Indian tribe shall be eligible for new 

15 included programs on the same basis as other Indian 

16 tribes; and 

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

18 of included programs in accordance with the com19 pact or funding agreement. 

20 ‘‘(g) RECORDS.— 

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

22 specifies otherwise in the compact or funding agree23 ment, records of an Indian tribe shall not be treated 

24 as agency records for purposes of chapter 5 of title 

25 5, United States Code. 
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1 ‘‘(2) RECORDKEEPING SYSTEM.—An Indian 

2 tribe shall— 

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

4 ‘‘(B) on 30 days’ notice, provide the Sec5 retary with reasonable access to the records to 

6 enable the Department to meet the require7 ments of sections 3101 through 3106 of title 

8 44, United States Code. 

9 ‘‘SEC. 407. PROVISIONS RELATING TO THE SECRETARY. 

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

11 shall include a provision to monitor the performance of 

12 trust functions by the Indian tribe through the annual 

13 trust evaluation. 

14 ‘‘(b) REASSUMPTION.— 

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

16 agreement shall include provisions for the Secretary 

17 to reassume an included program and associated 

18 funding if there is a specific finding relating to that 

19 included program of— 

20 ‘‘(A) imminent jeopardy to a physical trust 

21 asset, natural resource, or public health and 

22 safety that— 

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

24 the Indian tribe; and 
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1 ‘‘(ii) arises out of a failure to carry 

2 out the compact or funding agreement; or 

3 ‘‘(B) gross mismanagement with respect to 

4 funds transferred to an Indian tribe by a com5 pact or funding agreement, as determined by 

6 the Secretary in consultation with the Inspector 

7 General, as appropriate. 

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

9 reassume operation of an included program unless— 

10 ‘‘(A) the Secretary first provides written 

11 notice and a hearing on the record to the In12 dian tribe; and 

13 ‘‘(B) the Indian tribe does not take correc14 tive action to remedy gross mismanagement or 

15 the imminent jeopardy to a physical trust asset, 

16 natural resource, or public health and safety. 

17 ‘‘(3) EXCEPTION.— 

18 ‘‘(A) IN GENERAL.—Notwithstanding sub19 paragraph (2), the Secretary may, on written 

20 notice to the Indian tribe, immediately re21 assume operation of an included program if— 

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

23 both imminent and substantial jeopardy 

24 and irreparable harm imminent, substan25 tial, and irreparable harm to a physical 
25 

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1 trust asset, a natural resource, or the public 

2 health and safety caused by an act or omis3 sion of the Indian tribe; and 

4 ‘‘(ii) the imminent and substantial 

5 jeopardy and irreparable harm imminent, 

6 substantial, and irreparable harm to the 

7 physical trust asset, natural resource, or 

8 public health and safety arises out of a 

9 failure by the Indian tribe to carry out its 

10 compact or funding agreement. 

11 ‘‘(B) REASSUMPTION.—If the Secretary re12 assumes operation of an included program 

13 under subparagraph (A), the Secretary shall 

14 provide the Indian tribe with a hearing on the 

15 record not later than 10 days after the date of 

16 reassumption. 

17 ‘‘(c) INABILITY TO AGREE ON COMPACT OR FUND18 ING AGREEMENT.— 

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

20 participating Indian tribe are unable to agree, in 

21 whole or in part, on the terms of a compact or fund22 ing agreement (including funding levels), the Indian 

23 tribe may submit a final offer to the Secretary. 

24 ‘‘(2) DETERMINATION.—Not more than 45 

25 days after the date of submission of a final offer, or 
26 

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1 as otherwise agreed to by the Indian tribe, the Sec2 retary shall review and make a determination with 

3 respect to the final offer. 

4 ‘‘(3) NO TIMELY DETERMINATION.—If the Sec5 retary fails to make a determination with respect to 

6 a final offer within the time specified in paragraph 

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

8 the offer. 

9 ‘‘(4) REJECTION OF FINAL OFFER.— 

10 ‘‘(A) IN GENERAL.—If the Secretary re11 jects a final offer (or 1 or more provisions or 

12 funding levels in a final offer), the Secretary 

13 shall— 

14 ‘‘(i) provide timely written notification 

15 to the Indian tribe that contains a specific 

16 finding that clearly demonstrates, or that 

17 is supported by a controlling legal author18 ity, that— 

19 ‘‘(I) the amount of funds pro20 posed in the final offer exceeds the 

21 applicable funding level to which the 

22 Indian tribe is entitled under this 

23 title; 
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1 ‘‘(II) the included program that 

2 is the subject of the final offer is an 

3 inherent Federal function; 

4 ‘‘(III) the Indian tribe cannot 

5 carry out the included program in a 

6 manner that would not result in sig7 nificant danger or risk to the public 

8 health; or 

9 ‘‘(IV) the Indian tribe is not eli10 gible to participate in self-governance 

11 under section 403(b); 

12 ‘‘(ii) provide technical assistance to 

13 overcome the objections stated in the noti14 fication required by clause (i); 

15 ‘‘(iii) provide the Indian tribe a hear16 ing on the record with the right to engage 

17 in full discovery relevant to any issue 

18 raised in the matter and the opportunity 

19 for appeal on the objections raised (except 

20 that the Indian tribe may, in lieu of filing 

21 an appeal, directly proceed to bring a civil 

22 action in United States district court 

23 under section 110(a)); and 

24 ‘‘(iv) provide the Indian tribe the op25 tion of entering into the severable portions 
28 

•S 1715 RS 

1 of a final proposed compact or funding 

2 agreement (including a lesser funding 

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

4 reject, subject to any additional alterations 

5 necessary to conform the compact or fund6 ing agreement to the severed provisions. 

7 ‘‘(B) EFFECT OF EXERCISING CERTAIN

8 OPTION.—If an Indian tribe exercises the op9 tion specified in subparagraph (A)(iv)— 

10 ‘‘(i) the Indian tribe shall retain the 

11 right to appeal the rejection by the Sec12 retary under this section; and 

13 ‘‘(ii) clauses (i), (ii), and (iii) of that 

14 subparagraph shall apply only to the por15 tion of the proposed final compact or fund16 ing agreement that was rejected by the 

17 Secretary. 

18 ‘‘(d) BURDEN OF PROOF.—In any administrative 

19 hearing or appeal or civil action brought under this sec20 tion, the Secretary shall have the burden of demonstrating 

21 by clear and convincing evidence the validity of the 

22 grounds for rejecting a final offer made under subsection 

23 (c) or the grounds for a reassumption under subsection 

24 (b). 

25 ‘‘(e) GOOD FAITH.— 
29 

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1 ‘‘(1) IN GENERAL.—In the negotiation of com2 pacts and funding agreements, the Secretary shall at 

3 all times negotiate in good faith to maximize imple4 mentation of the self-governance policy. 

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

6 this Act in a manner that maximizes the policy of 

7 tribal self-governance. 

8 ‘‘(f) SAVINGS.—To the extent that included programs 

9 carried out by Indian tribes under this title reduce the 

10 administrative or other responsibilities of the Secretary 

11 with respect to the operation of Indian programs and re12 sult in savings that have not otherwise been included in 

13 the amount of tribal shares and other funds determined 

14 under section 409(c), the Secretary shall make such sav15 ings available to the Indian tribes, inter-tribal consortia, 

16 or tribal organizations for the provision of additional serv17 ices to program beneficiaries in a manner equitable to di18 rectly served, contracted, and included programs. 

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

20 not waive, modify, or diminish in any way the trust re21 sponsibility of the United States with respect to Indian 

22 tribes and individual Indians that exists under treaties, 

23 Executive orders, other laws, or court decisions. 

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

25 final agency action and relates to an appeal within the 
30 

•S 1715 RS 

1 Department brought under subsection (c)(4) may be 

2 made— 

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

4 a position at a higher organizational level within the 

5 Department than the level of the departmental agen6 cy in which the decision that is the subject of the 

7 appeal was made; or 

8 ‘‘(2) by an administrative law judge. 

9 ‘‘(i) RULE OF CONSTRUCTION.—Each provision of 

10 this title and each provision of a compact or funding 

11 agreement shall be liberally construed for the benefit of 

12 the Indian tribe participating in self-governance, and any 

13 ambiguity shall be resolved in favor of the Indian tribe. 

14 ‘‘SEC. 408. CONSTRUCTION PROGRAMS AND CONSTRUC15 TION PROJECTS. 

16 ‘‘(a) IN GENERAL.—An Indian tribe participating in 

17 self-governance may carry out a construction program or 

18 construction project under this title in the same manner 

19 as the Indian tribe carries out other included programs 

20 under this title, consistent with the provisions of all appli21 cable Federal laws. 

22 ‘‘(b) FEDERAL FUNCTIONS.—An Indian tribe partici23 pating in self-governance may, in carrying out construc24 tion projects under this title, elect to assume all Federal 

25 responsibilities under the National Environmental Policy 
31 

•S 1715 RS 

1 Act of 1969 (42 U.S.C. 4321 et seq.), the National His2 toric Preservation Act (16 U.S.C. 470 et seq.), and related 

3 provisions of law that would apply if the Secretary were 

4 to carry out a construction project, by adopting a resolu5 tion— 

6 ‘‘(1) designating a certifying officer to rep7 resent the Indian tribe and to assume the status of 

8 a responsible Federal official under those laws; and 

9 ‘‘(2) accepting the jurisdiction of the Federal 

10 courts for the purpose of enforcement of the respon11 sibilities of the responsible Federal official under ap12 plicable environmental law. 

13 ‘‘(c) NEGOTIATIONS.— 

14 ‘‘(1) IN GENERAL.—In accordance with all ap15 plicable Federal laws, a construction program or 

16 construction project shall be treated in the same 

17 manner and be subject to all provisions of this Act 

18 as are all other tribal assumptions of included pro19 grams under this Act. 

20 ‘‘(2) CONSTRUCTION PROJECTS.—A provision 

21 shall be included in the funding agreement that, for 

22 each construction project— 

23 ‘‘(A) states the approximate start and 

24 completion dates of the construction project, 

25 which may extend for 1 or more years; 
32 

•S 1715 RS 

1 ‘‘(B) provides a general description of the 

2 construction project; 

3 ‘‘(C) states the responsibilities of the In4 dian tribe and the Secretary with respect to the 

5 construction project; 

6 ‘‘(D) describes— 

7 ‘‘(i) the ways in which the Indian 

8 tribe will address project-related environ9 mental considerations; and 

10 ‘‘(ii) the standards by which the In11 dian tribe will accomplish the construction 

12 project; and 

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

14 construction project. 

15 ‘‘(d) CODES AND STANDARDS; TRIBAL ASSUR16 ANCES.—A funding agreement shall contain a certification 

17 by the Indian tribe that the Indian tribe will establish and 

18 enforce procedures designed to ensure that all construc19 tion-related included programs carried out through the 

20 funding agreement adhere to building codes and other 

21 codes and architectural and engineering standards (includ22 ing public health and safety standards) identified by the 

23 Indian tribe in the funding agreement, which codes and 

24 standards shall be in conformity with nationally recog-
33 

•S 1715 RS 

1 nized standards for comparable projects in comparable lo2 cations. 

3 ‘‘(e) RESPONSIBILITY FOR COMPLETION.—The In4 dian tribe shall assume responsibility for the successful 

5 completion of a construction project in accordance with 

6 the funding agreement. 

7 ‘‘(f) FUNDING.— 

8 ‘‘(1) IN GENERAL.—At the option of an Indian 

9 tribe, full funding for a construction program or 

10 construction project carried out under this title shall 

11 be included in a funding agreement as an annual ad12 vance payment. 

13 ‘‘(2) ENTITLEMENT.—Notwithstanding the an14 nual advance payment provisions or any other provi15 sion of law, an Indian tribe shall be entitled to re16 ceive in its initial funding agreement all funds made 

17 available to the Secretary for multiyear construction 

18 programs and projects carried out under this title. 

19 ‘‘(3) CONTINGENCY FUNDS.—The Secretary 

20 shall include associated project contingency funds in 

21 an advance payment described in paragraph (1), and 

22 the Indian tribe shall be responsible for the manage23 ment of the contingency funds included in the fund24 ing agreement. 

25 ‘‘(4) REALLOCATION OF SAVINGS.— 
34 

•S 1715 RS 

1 ‘‘(A) IN GENERAL.—Notwithstanding any 

2 other provision of an annual Act of appropria3 tion or other Federal law, an Indian tribe may 

4 reallocate any financial savings realized by the 

5 Indian tribe arising from efficiencies in the de6 sign, construction, or any other aspect of a con7 struction program or construction project. 

8 ‘‘(B) PURPOSES.—A reallocation under 

9 subparagraph (A) shall be for construction-re10 lated activity purposes generally similar to 

11 those for which the funds were appropriated 

12 and distributed to the Indian tribe under the 

13 funding agreement. 

14 ‘‘(g) APPROVAL.— 

15 ‘‘(1) IN GENERAL.—If the planning and design 

16 documents for a construction project are prepared 

17 by an Indian tribe in a manner that is consistent 

18 with the certification given by the Indian tribe as re19 quired under subsection (d), approval by the Sec20 retary of a funding agreement providing for the as21 sumption of the construction project shall be deemed 

22 to be an approval by the Secretary of the construc23 tion project planning and design documents. 
35 

•S 1715 RS 

1 ‘‘(2) REPORTS.—The Indian tribe shall provide 

2 the Secretary with construction project progress and 

3 financial reports not less than semiannually. 

4 ‘‘(3) INSPECTIONS.—The Secretary may con5 duct onsite project inspections at a construction 

6 project semiannually or on an alternate schedule 

7 agreed to by the Secretary and the Indian tribe. 

8 ‘‘(h) WAGES.— 

9 ‘‘(1) IN GENERAL.—All laborers and mechanics 

10 employed by a contractor or subcontractor in the 

11 construction, alteration, or repair (including painting 

12 and decorating) of a building or other facility in con13 nection with a construction project funded by the 

14 United States under this title shall be paid wages at 

15 not less than the amounts of wages prevailing on 

16 similar construction in the locality as determined by 

17 the Secretary of Labor in accordance with sub18 chapter IV of chapter 31 of title 40, United States 

19 Code. 

20 ‘‘(2) AUTHORITY.—With respect to construc21 tion, alteration, or repair work to which that sub22 chapter is applicable under this subsection, the Sec23 retary of Labor shall have the authority and func24 tions specified in the Reorganization Plan numbered 

25 14, of 1950. 
36 

•S 1715 RS 

1 ‘‘(3) APPLICABILITY OF SUBSECTION.—Not2 withstanding any other provision of law, this sub3 section does not apply to any portion of a construc4 tion project carried out under this Act— 

5 ‘‘(A) that is funded from a non-Federal 

6 source, regardless of whether the non-Federal 

7 funds are included with Federal funds for ad8 ministrative convenience; or 

9 ‘‘(B) that is performed by a laborer or me10 chanic employed directly by an Indian tribe or 

11 tribal organization. 

12 ‘‘(4) APPLICABILITY OF TRIBAL LAW.—This 

13 subsection does not apply to a compact or funding 

14 agreement if the compact, self-determination con15 tract, or funding agreement is otherwise covered by 

16 a law (including a regulation) adopted by an Indian 

17 tribe that requires the payment of not less than pre18 vailing wages, as determined by the Indian tribe. 

19 ‘‘(i) APPLICABILITY OF OTHER LAW.—Unless other20 wise agreed to by the Indian tribe, no provision of the Of21 fice of Federal Procurement Policy Act (41 U.S.C. 401 

22 et seq.), the Federal Acquisition Regulation, or any other 

23 law or regulation pertaining to Federal procurement (in24 cluding Executive orders) shall apply to any construction 

25 program or project conducted under this title. 
37 

•S 1715 RS 

1 ‘‘SEC. 409. PAYMENT. 

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

3 body of the Indian tribe and under the terms of a funding 

4 agreement, the Secretary shall provide funding to the In5 dian tribe to carry out the funding agreement. 

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

7 the Indian tribe, a funding agreement shall provide for 

8 an advance annual payment to an Indian tribe. 

9 ‘‘(c) AMOUNT.—Subject to subsection (e) and sec10 tions 405 and 406 of this title, the Secretary shall provide 

11 funds to the Indian tribe under a funding agreement for 

12 included programs in the amount that is equal to the 

13 amount that the Indian tribe would have been entitled to 

14 receive under contracts and grants under this Act (includ15 ing amounts for direct program and contract support costs 

16 and, in addition, any funds that are specifically or func17 tionally related to the provision by the Secretary of serv18 ices and benefits to the Indian tribe or its members) with19 out regard to the organization level within the Federal 

20 agency in which the included programs are carried out. 

21 ‘‘(d) TIMING.—Unless the funding agreement pro22 vides otherwise, the transfer of funds shall be made not 

23 later than 10 days after the apportionment of funds by 

24 the Office of Management and Budget to the Department. 

25 ‘‘(e) AVAILABILITY.—Funds for trust services to indi26 vidual Indians shall be available under a funding agree-
38 

•S 1715 RS 

1 ment only to the extent that the same services that would 

2 have been provided by the Secretary are provided to indi3 vidual Indians by the Indian tribe. 

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

5 may provide for multiyear funding. 

6 ‘‘(g) LIMITATION ON AUTHORITY OF THE SEC7 RETARY.—The Secretary shall not— 

8 ‘‘(1) fail to transfer to an Indian tribe its full 

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

10 service unit office or other funds due under this Act, 

11 except as required by Federal law; 

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

13 transfer over a period of years; or 

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

15 this Act— 

16 ‘‘(A) to make funding available for self17 governance monitoring or administration by the 

18 Secretary; 

19 ‘‘(B) in subsequent years, except as nec20 essary as a result of— 

21 ‘‘(i) a reduction in appropriations 

22 from the previous fiscal year for the pro23 gram to be included in a compact or fund24 ing agreement; 
39 

•S 1715 RS 

1 ‘‘(ii) a congressional directive in legis2 lation or an accompanying report; 

3 ‘‘(iii) a tribal authorization; 

4 ‘‘(iv) a change in the amount of pass5 through funds subject to the terms of the 

6 funding agreement; or 

7 ‘‘(v) completion of an activity under 

8 an included program for which the funds 

9 were provided; 

10 ‘‘(C) to pay for Federal functions, includ11 ing— 

12 ‘‘(i) Federal pay costs; 

13 ‘‘(ii) Federal employee retirement ben14 efits; 

15 ‘‘(iii) automated data processing; 

16 ‘‘(iv) technical assistance; and 

17 ‘‘(v) monitoring of activities under 

18 this Act; or 

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

20 displaced by self-determination contracts under 

21 this Act or self-governance. 

22 ‘‘(h) FEDERAL RESOURCES.—If an Indian tribe 

23 elects to carry out a compact or funding agreement with 

24 the use of Federal personnel, Federal supplies (including 

25 supplies available from Federal warehouse facilities), Fed-
40 

•S 1715 RS 

1 eral supply sources (including lodging, airline transpor2 tation, and other means of transportation including the 

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

4 resources (including supplies, services, and resources 

5 available to the Secretary under any procurement con6 tracts in which the Department is eligible to participate), 

7 the Secretary shall acquire and transfer such personnel, 

8 supplies, or resources to the Indian tribe. 

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

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

11 due under a compact or funding agreement authorized 

12 under this Act. 

13 ‘‘(j) INTEREST OR OTHER INCOME.— 

14 ‘‘(1) IN GENERAL.—An Indian tribe may retain 

15 interest or income earned on any funds paid under 

16 a compact or funding agreement to carry out gov17 ernmental purposes. 

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

19 retention of interest or income under paragraph (1) 

20 shall not diminish the amount of funds that an In21 dian tribe is entitled to receive under a funding 

22 agreement in the year in which the interest or in23 come is earned or in any subsequent fiscal year. 
41 

•S 1715 RS 

1 ‘‘(3) INVESTMENT STANDARD.—Funds trans2 ferred under this title shall be managed using the 

3 prudent investment standard. 

4 ‘‘(k) CARRYOVER OF FUNDS.— 

5 ‘‘(1) IN GENERAL.—Notwithstanding any provi6 sion of an Act of appropriation, all funds paid to an 

7 Indian tribe in accordance with a compact or fund8 ing agreement shall remain available until expended. 

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

10 tribe elects to carry over funding from 1 year to the 

11 next, the carryover shall not diminish the amount of 

12 funds that the Indian tribe is entitled to receive 

13 under a funding agreement in that fiscal year or any 

14 subsequent fiscal year. 

15 ‘‘(l) LIMITATION OF COSTS.— 

16 ‘‘(1) IN GENERAL.—An Indian tribe shall not 

17 be obligated to continue performance that requires 

18 an expenditure of funds in excess of the amount of 

19 funds transferred under a compact or funding agree20 ment. 

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

22 time an Indian tribe has reason to believe that the 

23 total amount provided for a specific activity under a 

24 compact or funding agreement is insufficient, the In-
42 

•S 1715 RS 

1 dian tribe shall provide reasonable notice of the in2 sufficiency to the Secretary. 

3 ‘‘(3) SUSPENSION OF PERFORMANCE.—If the 

4 Secretary does not increase the amount of funds 

5 transferred under the funding agreement, the Indian 

6 tribe may suspend performance of the activity until 

7 such time as additional funds are transferred. 

8 ‘‘SEC. 410. CIVIL ACTIONS. 

9 ‘‘(a) INCLUSION AS CONTRACT.—Except as provided 

10 in subsection (b), for the purposes of section 110, the term 

11 ‘contract’ shall include a funding agreement. 

12 ‘‘(b) CONTRACTS WITH PROFESSIONALS.—For the 

13 period during which a funding agreement is in effect, sec14 tion 2103 of the Revised Statutes (25 U.S.C. 81), and 

15 section 16 of the Act of June 18, 1934 (25 U.S.C. 476) 

16 shall not apply to a contract between an attorney or other 

17 professional and an Indian tribe. 

18 ‘‘SEC. 411. FACILITATION. 

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

20 law, the Secretary shall interpret each Federal law (includ21 ing a regulation) in a manner that facilitates— 

22 ‘‘(1) the inclusion of included programs in 

23 funding agreements; and 

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

25 ‘‘(b) REGULATION WAIVER.— 
43 

•S 1715 RS 

1 ‘‘(1) REQUEST.—An Indian tribe may submit a 

2 written request for a waiver to the Secretary identi3 fying the specific text in regulation sought to be 

4 waived and the basis for the request. 

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

6 Not later than 60 days after the date of receipt by 

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

8 Secretary shall approve or deny the requested waiver 

9 in writing to the Indian tribe. 

10 ‘‘(3) GROUND FOR DENIAL.—The Secretary 

11 may deny a request for a waiver only on a specific 

12 finding by the Secretary that the identified text in 

13 the regulation may not be waived because such a 

14 waiver is prohibited by Federal law. 

15 ‘‘(4) FAILURE TO MAKE DETERMINATION.—If 

16 the Secretary fails to approve or deny a waiver re17 quest within the time required under paragraph (2), 

18 the Secretary shall be deemed to have approved the 

19 request. 

20 ‘‘(5) FINALITY.—The Secretary’s decision shall 

21 be final for the Department. 

22 ‘‘SEC. 412. DISCLAIMERS. 

23 ‘‘Nothing in this title expands or alters any statutory 

24 authority of the Secretary so as to authorize the Secretary 
44 

•S 1715 RS 

1 to enter into any funding agreement under section 

2 405(b)(2) or 415(c)(1)— 

3 ‘‘(1) with respect to an inherent Federal func4 tion; 

5 ‘‘(2) in a case in which the statute establishing 

6 a program does not authorize the type of participa7 tion sought by the Indian tribe (without regard to 

8 whether 1 or more Indian tribes are identified in the 

9 authorizing statute); or 

10 ‘‘(3) limits or reduces in any way the services, 

11 contracts, or funds that any other Indian tribe or 

12 tribal organization is eligible to receive under section 

13 102 or any other applicable Federal law. 

14 ‘‘SEC. 413. APPLICABILITY OF OTHER PROVISIONS. 

15 ‘‘(a) MANDATORY APPLICATION.—Sections 5(d), 6, 

16 102(c), 104, 105(f), 110, and 111 apply to compacts and 

17 funding agreements under this title. 

18 ‘‘(b) DISCRETIONARY APPLICATION.— 

19 ‘‘(1) IN GENERAL.—At the option of a partici20 pating Indian tribe, any or all of the provisions of 

21 title I or title V shall be incorporated in a compact 

22 or funding agreement. 

23 ‘‘(2) EFFECT.—Each incorporated provision— 

24 ‘‘(A) shall have the same effect as if the 

25 provision were set out in full in this title; and 
45 

•S 1715 RS 

1 ‘‘(B) shall be deemed to supplement or re2 place any related provision in this title and to 

3 apply to any agency otherwise governed by this 

4 title. 

5 ‘‘(3) EFFECTIVE DATE.—If an Indian tribe re6 quests incorporation at the negotiation stage of a 

7 compact or funding agreement, the incorporation— 

8 ‘‘(A) shall be effective immediately; and 

9 ‘‘(B) shall control the negotiation and re10 sulting compact and funding agreement. 

11 ‘‘SEC. 414. BUDGET REQUEST. 

12 ‘‘(a) REQUIREMENT OF ANNUAL BUDGET RE13 QUEST.— 

14 ‘‘(1) IN GENERAL.—The President shall iden15 tify in the annual budget request submitted to Con16 gress under section 1105 of title 31, United States 

17 Code, all funds necessary to fully fund all funding 

18 agreements authorized under this title. 

19 ‘‘(2) DUTY OF SECRETARY.—The Secretary 

20 shall ensure that there are included, in each budget 

21 request, requests for funds in amounts that are suf22 ficient for planning and negotiation grants and suffi23 cient to cover any shortfall in funding identified 

24 under subsection (b). 
46 

•S 1715 RS 

1 ‘‘(3) TIMING.—All funds included within fund2 ing agreements shall be provided to the Office of 

3 Self-Governance not later than 15 days after the 

4 date on which funds are apportioned to the Depart5 ment. 

6 ‘‘(4) DISTRIBUTION OF FUNDS.—The Office of 

7 Self-Governance shall be responsible for distribution 

8 of all funds provided under this title. 

9 ‘‘(5) RULE OF CONSTRUCTION.—Nothing in 

10 this subsection authorizes the Secretary to reduce 

11 the amount of funds that an Indian tribe is other12 wise entitled to receive under a funding agreement 

13 or other applicable law. 

14 ‘‘(b) PRESENT FUNDING; SHORTFALLS.—In all 

15 budget requests, the President shall identify the level of 

16 need presently funded and any shortfall in funding (in17 cluding direct program costs, tribal shares and contract 

18 support costs) for each Indian tribe, either directly by the 

19 Secretary of Interior, under self-determination contracts, 

20 or under compacts and funding agreements. 

21 ‘‘SEC. 415. REPORTS. 

22 ‘‘(a) IN GENERAL.— 

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

24 year, the Secretary shall submit to Congress a re25 port regarding the administration of this title. 
47 

•S 1715 RS 

1 ‘‘(2) ANALYSIS.—A report under paragraph (1) 

2 shall include a detailed analysis of tribal unmet need 

3 for each Indian tribe, either directly by the Sec4 retary, under self-determination contracts under title 

5 I, or under compacts and funding agreements au6 thorized under this subchapter. 

7 ‘‘(3) NO ADDITIONAL REPORTING REQUIRE8 MENTS.—In preparing reports under paragraph (1), 

9 the Secretary may not impose any reporting require10 ment on participating Indian tribes not otherwise 

11 provided for by this Act. 

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

13 shall— 

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

15 funding agreements, annual audit reports, and data 

16 of the Secretary regarding the disposition of Federal 

17 funds; 

18 ‘‘(2) identify— 

19 ‘‘(A) the relative costs and benefits of self20 governance; 

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

22 specifically or functionally related to the provi23 sion by the Secretary of services and benefits to 

24 self-governance Indian tribes and members of 

25 Indian tribes; 
48 

•S 1715 RS 

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

2 tribe and the corresponding reduction in the 

3 Federal bureaucracy; 

4 ‘‘(D) the funding formula for individual 

5 tribal shares of all Central Office funds, with 

6 the comments of affected Indian tribes, devel7 oped under subsection (d); and 

8 ‘‘(E) amounts expended in the preceding 

9 fiscal year to carry out inherent Federal func10 tions, including an identification of inherent 

11 Federal functions by type and location; 

12 ‘‘(3) contain a description of the methods used 

13 to determine the individual tribal share of funds con14 trolled by all components of the Department (includ15 ing funds assessed by any other Federal agency) for 

16 inclusion in compacts or funding agreements; 

17 ‘‘(4) before being submitted to Congress, be dis18 tributed to the Indian tribes for comment (with a 

19 comment period of not less than 30 days); and 

20 ‘‘(5) include the separate views and comments 

21 of each Indian tribe or tribal organization. 

22 ‘‘(c) REPORT ON NON-BIA PROGRAMS.— 

23 ‘‘(1) IN GENERAL.—In order to optimize oppor24 tunities for including non-Bureau of Indian Affairs 

25 included programs in agreements with Indian tribes 
49 

•S 1715 RS 

1 participating in self-governance under this title, the 

2 Secretary shall— 

3 ‘‘(A) review all included programs adminis4 tered by the Department, other than through 

5 the Bureau of Indian Affairs, without regard to 

6 the agency or office concerned; 

7 ‘‘(B) not later than January 1, 2004 2005, 

8 submit to Congress— 

9 ‘‘(i) a list of all such included pro10 grams that the Secretary determines, with 

11 the concurrence of Indian tribes partici12 pating in self-governance, are eligible to be 

13 included in a funding agreement at the re14 quest of a participating Indian tribe; and 

15 ‘‘(ii) a list of all such included pro16 grams for which Indian tribes have re17 quested to include in a funding agreement 

18 under section 405(b)(3) due to the special 

19 geographic, historical, or cultural signifi20 cance to the Indian tribe, indicating wheth21 er each request was granted or denied and 

22 stating the grounds for any denial. 

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

24 shall establish programmatic targets, after consulta25 tion with Indian tribes participating in self-govern-
50 

•S 1715 RS 

1 ance, to encourage bureaus of the Department to en2 sure that a significant portion of those included pro3 grams are included in funding agreements. 

4 ‘‘(3) PUBLICATION.—The lists and targets 

5 under paragraphs (1) and (2) shall be published in 

6 the Federal Register and be made available to any 

7 Indian tribe participating in self-governance. 

8 ‘‘(4) ANNUAL REVIEW.— 

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

10 annually review and publish in the Federal Reg11 ister, after consultation with Indian tribes par12 ticipating in self-governance, revised lists and 

13 programmatic targets. 

14 ‘‘(B) CONTENTS.—The revised lists and 

15 programmatic targets shall include all included 

16 programs that were eligible for contracting in 

17 the original list published in the Federal Reg18 ister in 1995, except for included programs spe19 cifically determined not to be contractible as a 

20 matter of law. 

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

22 later than January 1, 2004 2005, the Secretary shall, in 

23 consultation with Indian tribes, develop a funding formula 

24 to determine the individual tribal share of funds controlled 
51 

•S 1715 RS 

1 by the Central Office of the Bureau of Indian Affairs for 

2 inclusion in the self-governance compacts. 

3 ‘‘SEC. 416. REGULATIONS. 

4 ‘‘(a) IN GENERAL.— 

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

6 after the date of the enactment of the Department 

7 of the Interior Tribal Self-Governance Act of 2003 

8 2004, the Secretary shall initiate procedures under 

9 subchapter III of chapter 5, of title 5, United States 

10 Code, to negotiate and promulgate such regulations 

11 as are necessary to carry out the amendments made 

12 by that Act. 

13 ‘‘(2) PUBLICATION OF PROPOSED REGULA14 TIONS.—Proposed regulations to implement the 

15 amendments shall be published in the Federal Reg16 ister not later than 1 year after the date of enact17 ment of that Act. 

18 ‘‘(3) EXPIRATION OF AUTHORITY.—The author19 ity to promulgate regulations under paragraph (1) 

20 shall expire on the date that is 18 months after the 

21 date of enactment of that Act. 

22 ‘‘(b) COMMITTEE.— 

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

24 committee established under section 565 of title 5, 

25 United States Code, to carry out this section shall 
52 

•S 1715 RS 

1 have as its members only Federal and tribal govern2 ment representatives. 

3 ‘‘(2) LEAD AGENCY.— Among the Federal rep4 resentatives, the Office of Self-Governance shall be 

5 the lead agency for the Department of the Interior. 

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

7 shall adapt the negotiated rulemaking procedures to the 

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

10 Indian tribes. 

11 ‘‘(d) EFFECT.— 

12 ‘‘(1) REPEAL.—All regulatory provisions under 

13 part 1000 of title 25, Code of Federal Regulations, 

14 are repealed on the date of enactment of the Depart15 ment of the Interior Tribal Self-Governance Act of 

16 2003 2004. 

17 ‘‘(2) EFFECTIVENESS WITHOUT REGARD TO

18 REGULATIONS.—The lack of promulgated regula19 tions shall not limit the effect of this Act. 

20 ‘‘(3) INTERIM PROVISION.—Notwithstanding 

21 this subsection, any regulation under part 1000 of 

22 title 25, Code of Federal Regulations, shall remain 

23 in effect, at an Indian tribe’s option, in imple24 menting compacts until regulations are promulgated. 
53 

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1 ‘‘SEC. 417. EFFECT OF CIRCULARS, POLICIES, MANUALS, 

2 GUIDANCES, AND RULES. 

3 ‘‘Unless expressly agreed to by a participating Indian 

4 tribe in a compact or funding agreement, the participating 

5 Indian tribe shall not be subject to any agency circular, 

6 policy, manual, guidance, or rule adopted by the Depart7 ment, except for— 

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

9 and 

10 ‘‘(2) regulations promulgated under section 

11 416. 

12 ‘‘SEC. 418. APPEALS. 

13 ‘‘In any administrative appeal or civil action for judi14 cial review of any decision made by the Secretary under 

15 this title, the Secretary shall have the burden of proof of 

16 demonstrating by clear and convincing evidence— 

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

18 and 

19 ‘‘(2) the consistency of the decision with the 

20 provisions and policies of this title. 

21 ‘‘SEC. 419. AUTHORIZATION OF APPROPRIATIONS. 

22 ‘‘There are authorized to be appropriated such sums 

23 as are necessary to carry out this title.’’. 
Calendar No. 804 

108TH CONGRESS 

2D SESSION S. 1715 

[Report No. 108–413] 

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 amendments