II 

108TH CONGRESS 

1ST SESSION S. 1715

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 

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’’. 

6 SEC. 2. AMENDMENT. 

7 The Indian Self-Determination and Education Assist8 ance Act is amended by striking title IV (25 U.S.C. 458aa 

9 et seq.) and inserting the following: 
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1 ‘‘TITLE IV—TRIBAL SELF2 GOVERNANCE 

3 ‘‘SEC. 401. DEFINITIONS. 

4 ‘‘In this title: 

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

6 compact under section 404. 

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

8 ‘construction program’ means a tribal undertaking 

9 to complete any or all included programs relating to 

10 the administration, planning, environmental deter11 mination, design, construction, repair, improvement, 

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

13 systems, or other facilities for purposes of housing, 

14 law enforcement, detention, sanitation, water supply, 

15 education, administration, community health, irriga16 tion, agriculture, conservation, flood control, trans17 portation, or port facilities or for other tribal pur18 poses. 

19 ‘‘(3) CONSTRUCTION PROJECT.—The term ‘con20 struction project’ means a tribal undertaking that 

21 constructs 1 or more roads, bridges, buildings, struc22 tures, systems, or other facilities for purposes of 

23 housing, law enforcement, detention, sanitation, 

24 water supply, education, administration, community 

25 health, irrigation, agriculture, conservation, flood 
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1 control, transportation, or port facilities or for other 

2 tribal purposes. 

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

4 means the Department of the Interior. 

5 ‘‘(5) FUNDING AGREEMENT.—The term ‘fund6 ing agreement’ means a funding agreement under 

7 section 405(b). 

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

9 ‘gross mismanagement’ means a significant viola10 tion, shown by clear and convincing evidence, of a 

11 compact, funding agreement, or statutory or regu12 latory requirement applicable to Federal funds 

13 transferred to an Indian tribe by a compact or fund14 ing agreement that results in a significant reduction 

15 of funds being made available for the included pro16 grams assumed by an Indian tribe. 

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

18 program’ means a program that is eligible for inclu19 sion under a funding agreement (including any por20 tion of such a program and any function, service, or 

21 activity performed under such a program). 

22 ‘‘(8) INDIAN TRIBE.—The term ‘Indian tribe’, 

23 in a case in which an Indian tribe authorizes an24 other Indian tribe, an inter-tribal consortium, or a 

25 tribal organization to plan for or carry out an in-
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•S 1715 IS 

1 cluded program on its behalf in accordance with sec2 tion 403(a)(3), includes the other authorized Indian 

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

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

5 term ‘inherent Federal function’ means a Federal 

6 function that cannot legally be delegated to an In7 dian tribe. 

8 ‘‘(10) INTER-TRIBAL CONSORTIUM.—

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

10 consortium’ means a coalition of 2 more sepa11 rate Indian tribes that join together for the 

12 purpose of participating in self-governance. 

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

14 organization’ includes a tribal organization. 

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

16 means the Secretary of the Interior. 

17 ‘‘(12) SELF-GOVERNANCE.—The term ‘self-gov18 ernance’ means the program of self-governance es19 tablished under section 402. 

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

21 means an Indian tribe’s portion of all funds and re22 sources that support secretarial included programs 

23 that are not required by the Secretary for the per24 formance of inherent Federal functions. 
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1 ‘‘SEC. 402. ESTABLISHMENT. 

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

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

4 Program’. 

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

6 ‘‘(a) IN GENERAL.—

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

8 tribe that was participating in the Tribal Self-Gov9 ernance Demonstration Project at the Department 

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

11 participate in self-governance under this title. 

12 ‘‘(2) ADDITIONAL PARTICIPANTS.—

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

14 tribes participating in self-governance under 

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

16 eligibility criteria specified in subsection (b) 

17 shall be entitled to participate in self-govern18 ance. 

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

20 shall not limit the number of additional Indian 

21 tribes to be selected each year from among In22 dian tribes that are eligible under subsection 

23 (b). 

24 ‘‘(3) OTHER AUTHORIZED INDIAN TRIBE, 

25 INTER-TRIBAL CONSORTIUM, OR TRIBAL GOVERN26 MENT.—If an Indian tribe authorizes another Indian
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1 tribe, an inter-tribal consortium, or a tribal organi2 zation to plan for or carry out an included program 

3 on its behalf under this title, the authorized Indian 

4 tribe, inter-tribal consortium, or tribal organization 

5 shall have the rights and responsibilities of the au6 thorizing Indian tribe (except as otherwise provided 

7 in the authorizing resolution). 

8 ‘‘(4) JOINT PARTICIPATION.—Two or more In9 dian tribes that are not otherwise eligible under sub10 section (b) may be treated as a single Indian tribe 

11 for the purpose of participating in self-governance as 

12 a consortium if—

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

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

15 subsection (b). 

16 ‘‘(5) TRIBAL WITHDRAWAL FROM A CONSOR17 TIUM.—

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

19 withdraws from participation in an inter-tribal 

20 consortium or tribal organization, in whole or in 

21 part, shall be entitled to participate in self-gov22 ernance if the Indian tribe is eligible under sub23 section (b). 

24 ‘‘(B) EFFECT OF WITHDRAWAL.—If an In25 dian tribe withdraws from participation in an 
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1 inter-tribal consortium or tribal organization, 

2 the Indian tribe shall be entitled to its tribal 

3 share of funds and resources supporting the in4 cluded programs that the Indian tribe will be 

5 carrying out under the compact and funding 

6 agreement of the Indian tribe. 

7 ‘‘(C) PARTICIPATION IN SELF-GOVERN8 ANCE.—The withdrawal of an Indian tribe from 

9 an inter-tribal consortium or tribal organization 

10 shall not affect the eligibility of the inter-tribal 

11 consortium or tribal organization to participate 

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

13 Indian tribes. 

14 ‘‘(D) WITHDRAWAL PROCESS.—

15 ‘‘(i) IN GENERAL.—An Indian tribe 

16 may fully or partially withdraw from a par17 ticipating inter-tribal consortium or tribal 

18 organization its tribal share of any in19 cluded program that is included in a com20 pact or funding agreement. 

21 ‘‘(ii) EFFECTIVE DATE.—

22 ‘‘(I) IN GENERAL.—A withdrawal 

23 under clause (i) shall become effective 

24 on the date specified in the resolution 

25 that authorizes transfer to the partici-
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1 pating tribal organization or inter2 tribal consortium. 

3 ‘‘(II) NO SPECIFIED DATE.—In 

4 the absence of a date specified in the 

5 resolution, the withdrawal shall be6 come effective on—

7 ‘‘(aa) the earlier of—

8 ‘‘(AA) 1 year after the 

9 date of submission of the re10 quest; or 

11 ‘‘(BB) the date on 

12 which the funding agree13 ment expires; or 

14 ‘‘(bb) such date as may be 

15 agreed on by the Secretary, the 

16 withdrawing Indian tribe, and 

17 the tribal organization or inter18 tribal consortium that signed the 

19 compact or funding agreement on 

20 behalf of the withdrawing Indian 

21 tribe, inter-tribal consortium, or 

22 tribal organization. 

23 ‘‘(E) DISTRIBUTION OF FUNDS.—If an In24 dian tribe or tribal organization eligible to enter 

25 into a self-determination contract under title I 
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•S 1715 IS 

1 or a compact or funding agreement under this 

2 title fully or partially withdraws from a partici3 pating inter-tribal consortium or tribal organi4 zation, the withdrawing Indian tribe—

5 ‘‘(i) may elect to enter into a self-de6 termination contract or compact, in which 

7 case—

8 ‘‘(I) the withdrawing Indian tribe 

9 or tribal organization shall be entitled 

10 to its tribal share of funds and re11 sources supporting the included pro12 grams that the Indian tribe will be 

13 carrying out under its own self-deter14 mination contract or compact and 

15 funding agreement (calculated on the 

16 same basis as the funds were initially 

17 allocated to the funding agreement of 

18 the inter-tribal consortium or tribal 

19 organization); and 

20 ‘‘(II) the funds referred to in 

21 subclause (I) shall be withdrawn by 

22 the Secretary from the funding agree23 ment of the inter-tribal consortium or 

24 tribal organization and transferred to 

25 the withdrawing Indian tribe, on the 
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1 condition that sections 102 and 

2 105(i), as appropriate, shall apply to 

3 the withdrawing Indian tribe; or 

4 ‘‘(ii) may elect not to enter into a self5 determination contract or compact, in 

6 which case all funds not obligated by the 

7 inter-tribal consortium associated with the 

8 withdrawing Indian tribe’s returned in9 cluded programs, less closeout costs, shall 

10 be returned by the inter-tribal consortium 

11 to the Secretary for operation of the in12 cluded programs included in the with13 drawal. 

14 ‘‘(F) RETURN TO MATURE CONTRACT STA15 TUS.—If an Indian tribe elects to operate all or 

16 some included programs carried out under a 

17 compact or funding agreement under this title 

18 through a self-determination contract under 

19 title I, at the option of the Indian tribe, the re20 sulting self-determination contract shall be a 

21 mature self-determination contract. 

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

23 self-governance, an Indian tribe shall—

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

25 subsection (c);
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1 ‘‘(2) request participation in self-governance by 

2 resolution or other official action by the tribal gov3 erning body; and 

4 ‘‘(3) demonstrate, for the 3 fiscal years pre5 ceding the date on which the Indian tribe requests 

6 participation, financial stability and financial man7 agement capability as evidenced by the Indian tribe’s 

8 having no uncorrected significant and material audit 

9 exceptions in the required annual audit of its self10 determination or self-governance agreements with 

11 any Federal agency. 

12 ‘‘(c) PLANNING PHASE.—

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

14 participate in self-governance shall complete a plan15 ning phase in accordance with this subsection. 

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

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

18 of the Indian tribe; and 

19 ‘‘(B) shall include—

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

21 ‘‘(ii) internal tribal government plan22 ning and organizational preparation. 

23 ‘‘(d) GRANTS.—

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

25 of appropriations, an Indian tribe that meets the re-
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•S 1715 IS 

1 quirements of paragraphs (2) and (3) of subsection 

2 (b) shall be eligible for grants—

3 ‘‘(A) to plan for participation in self-gov4 ernance; and 

5 ‘‘(B) to negotiate the terms of participa6 tion by the Indian tribe or tribal organization 

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

8 and a funding agreement. 

9 ‘‘(2) RECEIPT OF GRANT NOT REQUIRED.—Re10 ceipt of a grant under paragraph (1) shall not be a 

11 requirement of participation in self-governance. 

12 ‘‘SEC. 404. COMPACTS. 

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

14 and enter into a written compact with as Indian tribe par15 ticipating in self-governance in a manner that is consistent 

16 with the trust responsibility of the Federal Government, 

17 treaty obligations, and the government-to-government re18 lationship between Indian tribes and the United States. 

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

20 shall—

21 ‘‘(1) specify the general terms of the govern22 ment-to-government relationship between the Indian 

23 tribe and the Secretary; and 

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

25 shall control year after year. 
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1 ‘‘(c) AMENDMENT.—A compact under subsection (a) 

2 may be amended only by agreement of the parties. 

3 ‘‘(d) EFFECTIVE DATE.—The effective date of a com4 pact under subsection (a) shall be—

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

6 by the Indian tribe; or 

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

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

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

10 law or until terminated by written agreement, retroces11 sion, or reassumption. 

12 ‘‘(f) EXISTING COMPACTS.—An Indian tribe partici13 pating in self-governance under this title, as in effect on 

14 the date of enactment of the Department of the Interior 

15 Tribal Self-Governance Act of 2003, shall have the option 

16 at any time after that date—

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

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

19 compact are not directly contrary to any express 

20 provision of this title; or 

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

22 consistent with this title. 

23 ‘‘SEC. 405. FUNDING AGREEMENTS. 

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

25 and enter into a written funding agreement with the gov-
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1 erning body of an Indian tribe in a manner that is con2 sistent with the trust responsibility of the Federal Govern3 ment, treaty obligations, and the government-to-govern4 ment relationship between Indian tribes and the United 

5 States. 

6 ‘‘(b) INCLUDED PROGRAMS.—

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

8 OF SPECIAL TRUSTEE.—

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

10 shall, as determined by the Indian tribe, au11 thorize the Indian tribe to plan, conduct, con12 solidate, administer, and receive full tribal 

13 share funding for all programs carried out by 

14 the Bureau of Indian Affairs and the Office of 

15 Special Trustee, without regard to the agency 

16 or office within which the program is performed 

17 (including funding for agency, area, and central 

18 office functions in accordance with section 

19 409(c)), that—

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

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

22 ‘‘(ii) the Secretary administers for the 

23 benefit of Indians under the Act of Novem24 ber 2, 1921 (25 U.S.C. 13), or any subse25 quent Act; 
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1 ‘‘(iii) the Secretary administers for 

2 the benefit of Indians with appropriations 

3 made to agencies other than the Depart4 ment of the Interior; or 

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

6 Indians because of their status as Indians. 

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

8 subparagraph (A) shall include all programs 

9 with respect to which Indian tribes or Indians 

10 are primary or significant beneficiaries. 

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

12 under subsection (a) shall, as determined by the In13 dian tribe, authorize the Indian tribe to plan, con14 duct, consolidate, administer, and receive full tribal 

15 share funding for all programs carried out by the 

16 Secretary outside the Bureau of Indian Affairs, 

17 without regard to the agency or office within which 

18 the program is performed, including funding for 

19 agency, area, and central office functions in accord20 ance with subsection 409(c), to the extent that the 

21 included programs are within the scope of paragraph 

22 (1). 

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

24 agreement under subsection (a) may, in accordance 

25 with such additional terms as the parties consider to
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1 be appropriate, include programs administered by 

2 the Secretary, in addition to programs described in 

3 paragraphs (1) and (2), that are of special geo4 graphical, historical, or cultural significance to the 

5 Indian tribe. 

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

7 section—

8 ‘‘(A) supersedes any express statutory re9 quirement for competitive bidding; or 

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

11 agreement of a program in which non-Indians 

12 have an incidental or legally identifiable inter13 est. 

14 ‘‘(5) EXCLUDED FUNDING.—A funding agree15 ment shall not authorize an Indian tribe to plan, 

16 conduct, administer, or receive tribal share funding 

17 under any program that—

18 ‘‘(A) is provided under the Tribally Con19 trolled Community College Assistance Act of 

20 1978 (25 U.S.C. 1801 et seq.); 

21 ‘‘(B) is provided for elementary and sec22 ondary schools under the formula developed 

23 under section 1128 of the Education Amend24 ments of 1978 (25 U.S.C. 2008); and 
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1 ‘‘(C) is provided for the Flathead Agency 

2 Irrigation Division or the Flathead Agency 

3 Power Division (except that nothing in this sec4 tion affects the contract authority of the Flat5 head Agency Irrigation Division or the Flathead 

6 Agency Power Division under section 102). 

7 ‘‘(6) SERVICES, FUNCTIONS, AND RESPONSIBIL8 ITIES.—A funding agreement shall specify—

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

10 funding agreement; 

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

12 the funding agreement; and 

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

14 and the Secretary under the funding agreement. 

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

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

17 a stable base budget specifying the recurring funds 

18 (including funds available under section 106(a)) to 

19 be transferred to the Indian tribe, for such period as 

20 the Indian tribe specifies in the funding agreement, 

21 subject to annual adjustment only to reflect changes 

22 in congressional appropriations. 

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

24 A funding agreement shall prohibit the Secretary 

25 from waiving, modifying, or diminishing in any way 
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1 the trust responsibility of the United States with re2 spect to Indian tribes and individual Indians that ex3 ists under treaties, Executive orders, court decisions, 

4 and other laws. 

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

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

7 funding agreement without the consent of the Indian tribe. 

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

9 become effective on the date specified in the funding 

10 agreement. 

11 ‘‘(e) EXISTING AND SUBSEQUENT FUNDING AGREE12 MENTS.—

13 ‘‘(1) SUBSEQUENT FUNDING AGREEMENTS.—

14 Absent notification from an Indian tribe that is 

15 withdrawing or retroceding the operation of 1 or 

16 more included programs identified in a funding 

17 agreement, or unless otherwise agreed to by the par18 ties to the funding agreement—

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

20 effect until a subsequent funding agreement is 

21 executed; and 

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

23 agreement shall be retroactive to the end of the 

24 term of the preceding funding agreement. 
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1 ‘‘(2) EXISTING FUNDING AGREEMENTS.—An 

2 Indian tribe that was participating in self-govern3 ance under this title on the date of enactment of the 

4 Department of the Interior Tribal Self-Governance 

5 Act of 2003 shall have the option at any time after 

6 that date—

7 ‘‘(A) to retain its existing funding agree8 ment (in whole or in part) to the extent that 

9 the provisions of that funding agreement are 

10 not directly contrary to any express provision of 

11 this title; or 

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

13 in a manner consistent with this title. 

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

15 Indian tribe may, at the discretion of the Indian 

16 tribe, negotiate with the Secretary for a funding 

17 agreement with a term that exceeds 1 year. 

18 ‘‘SEC. 406. GENERAL PROVISIONS. 

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

20 in any compact or funding agreement provisions that re21 flect the requirements of this title. 

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

23 participating in self-governance shall ensure that internal 

24 measures are in place to address, pursuant to tribal law
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1 and procedures, conflicts of interest in the administration 

2 of included programs. 

3 ‘‘(c) AUDITS.—

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

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

6 funding agreement under this title. 

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

8 apply cost principles under the applicable Office of 

9 Management and Budget circular, except as modi10 fied by—

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

12 provision of law; or 

13 ‘‘(B) any exemptions to applicable Office 

14 of Management and Budget circulars granted 

15 by the Office of Management and Budget. 

16 ‘‘(3) FEDERAL CLAIMS.—Any claim by the Fed17 eral Government against an Indian tribe relating to 

18 funds received under a funding agreement based on 

19 an audit under this subsection shall be subject to 

20 section 106(f). 

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

22 tribe may redesign or consolidate included programs or re23 allocate funds for included programs in any manner that 

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

25 the Indian community being served, so long as the rede-
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1 sign or consolidation does not have the effect of denying 

2 eligibility for services to population groups otherwise eligi3 ble to be served under applicable Federal law. 

4 ‘‘(e) RETROCESSION.—

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

6 or partially retrocede to the Secretary any included 

7 program under a compact or funding agreement. 

8 ‘‘(2) EFFECTIVE DATE.—

9 ‘‘(A) AGREEMENT.—Unless the Indian 

10 tribe rescinds a request for retrocession, the 

11 retrocession shall become effective on the date 

12 specified by the parties in the compact or fund13 ing agreement. 

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

15 such a specification, the retrocession shall be16 come effective on—

17 ‘‘(i) the earlier of—

18 ‘‘(I) the date that is 1 year after 

19 the date of submission of the request; 

20 or 

21 ‘‘(II) the date on which the fund22 ing agreement expires; or 

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

24 by the Secretary and the Indian tribe. 
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1 ‘‘(f) NONDUPLICATION.—A funding agreement shall 

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

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

4 title, the Indian tribe—

5 ‘‘(1) shall not be entitled to enter into a con6 tract with the Secretary for funds under section 102, 

7 except that the Indian tribe shall be eligible for new 

8 included programs on the same basis as other Indian 

9 tribes; and 

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

11 of included programs in accordance with the com12 pact or funding agreement. 

13 ‘‘(g) RECORDS.—

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

15 specifies otherwise in the compact or funding agree16 ment, records of an Indian tribe shall not be treated 

17 as agency records for purposes of chapter 5 of title 

18 5, United States Code. 

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

20 tribe shall—

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

22 ‘‘(B) on 30 days’ notice, provide the Sec23 retary with reasonable access to the records to 

24 enable the Department to meet the require-
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1 ments of sections 3101 through 3106 of title 

2 44, United States Code. 

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

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

5 shall include a provision to monitor the performance of 

6 trust functions by the Indian tribe through the annual 

7 trust evaluation. 

8 ‘‘(b) REASSUMPTION.—

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

10 agreement shall include provisions for the Secretary 

11 to reassume an included program and associated 

12 funding if there is a specific finding relating to that 

13 included program of—

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

15 asset, natural resource, or public health and 

16 safety that—

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

18 the Indian tribe; and 

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

20 out the compact or funding agreement; or 

21 ‘‘(B) gross mismanagement with respect to 

22 funds transferred to an Indian tribe by a com23 pact or funding agreement, as determined by 

24 the Secretary in consultation with the Inspector 

25 General, as appropriate. 
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1 ‘‘(2) PROHIBITION.—The Secretary shall not 

2 reassume operation of an included program unless—

3 ‘‘(A) the Secretary first provides written 

4 notice and a hearing on the record to the In5 dian tribe; and 

6 ‘‘(B) the Indian tribe does not take correc7 tive action to remedy gross mismanagement or 

8 the imminent jeopardy to a physical trust asset, 

9 natural resource, or public health and safety. 

10 ‘‘(3) EXCEPTION.—

11 ‘‘(A) IN GENERAL.— Notwithstanding sub12 paragraph (2), the Secretary may, on written 

13 notice to the Indian tribe, immediately re14 assume operation of an included program if—

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

16 both imminent and substantial jeopardy 

17 and irreparable harm to a physical trust 

18 asset, a natural resource, or the public 

19 health and safety caused by an act or 

20 omission of the Indian tribe; and 

21 ‘‘(ii) the imminent and substantial 

22 jeopardy and irreparable harm to the phys23 ical trust asset, natural resource, or public 

24 health and safety arises out of a failure by
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•S 1715 IS 

1 the Indian tribe to carry out its compact 

2 or funding agreement. 

3 ‘‘(B) REASSUMPTION.—If the Secretary re4 assumes operation of an included program 

5 under subparagraph (A), the Secretary shall 

6 provide the Indian tribe with a hearing on the 

7 record not later than 10 days after the date of 

8 reassumption. 

9 ‘‘(c) INABILITY TO AGREE ON COMPACT OR FUND10 ING AGREEMENT.—

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

12 participating Indian tribe are unable to agree, in 

13 whole or in part, on the terms of a compact or fund14 ing agreement (including funding levels), the Indian 

15 tribe may submit a final offer to the Secretary. 

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

17 days after the date of submission of a final offer, or 

18 as otherwise agreed to by the Indian tribe, the Sec19 retary shall review and make a determination with 

20 respect to the final offer. 

21 ‘‘(3) NO TIMELY DETERMINATION.—If the Sec22 retary fails to make a determination with respect to 

23 a final offer within the time specified in paragraph 

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

25 the offer. 
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•S 1715 IS 

1 ‘‘(4) REJECTION OF FINAL OFFER.—

2 ‘‘(A) IN GENERAL.—If the Secretary re3 jects a final offer (or 1 or more provisions or 

4 funding levels in a final offer), the Secretary 

5 shall—

6 ‘‘(i) provide timely written notification 

7 to the Indian tribe that contains a specific 

8 finding that clearly demonstrates, or that 

9 is supported by a controlling legal author10 ity, that—

11 ‘‘(I) the amount of funds pro12 posed in the final offer exceeds the 

13 applicable funding level to which the 

14 Indian tribe is entitled under this 

15 title; 

16 ‘‘(II) the included program that 

17 is the subject of the final offer is an 

18 inherent Federal function; 

19 ‘‘(III) the Indian tribe cannot 

20 carry out the included program in a 

21 manner that would not result in sig22 nificant danger or risk to the public 

23 health; or 
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•S 1715 IS 

1 ‘‘(IV) the Indian tribe is not eli2 gible to participate in self-governance 

3 under section 403(b); 

4 ‘‘(ii) provide technical assistance to 

5 overcome the objections stated in the noti6 fication required by clause (i); 

7 ‘‘(iii) provide the Indian tribe a hear8 ing on the record with the right to engage 

9 in full discovery relevant to any issue 

10 raised in the matter and the opportunity 

11 for appeal on the objections raised (except 

12 that the Indian tribe may, in lieu of filing 

13 an appeal, directly proceed to bring a civil 

14 action in United States district court 

15 under section 110(a)); and 

16 ‘‘(iv) provide the Indian tribe the op17 tion of entering into the severable portions 

18 of a final proposed compact or funding 

19 agreement (including a lesser funding 

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

21 reject, subject to any additional alterations 

22 necessary to conform the compact or fund23 ing agreement to the severed provisions. 
28

•S 1715 IS 

1 ‘‘(B) EFFECT OF EXERCISING CERTAIN

2 OPTION.—If an Indian tribe exercises the op3 tion specified in subparagraph (A)(iv)—

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

5 right to appeal the rejection by the Sec6 retary under this section; and 

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

8 subparagraph shall apply only to the por9 tion of the proposed final compact or fund10 ing agreement that was rejected by the 

11 Secretary. 

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

13 hearing or appeal or civil action brought under this sec14 tion, the Secretary shall have the burden of demonstrating 

15 by clear and convincing evidence the validity of the 

16 grounds for rejecting a final offer made under subsection 

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

18 (b). 

19 ‘‘(e) GOOD FAITH.—

20 ‘‘(1) IN GENERAL.—In the negotiation of com21 pacts and funding agreements, the Secretary shall at 

22 all times negotiate in good faith to maximize imple23 mentation of the self-governance policy. 
29

•S 1715 IS 

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

2 this Act in a manner that maximizes the policy of 

3 tribal self-governance. 

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

5 carried out by Indian tribes under this title reduce the 

6 administrative or other responsibilities of the Secretary 

7 with respect to the operation of Indian programs and re8 sult in savings that have not otherwise been included in 

9 the amount of tribal shares and other funds determined 

10 under section 409(c), the Secretary shall make such sav11 ings available to the Indian tribes, inter-tribal consortia, 

12 or tribal organizations for the provision of additional serv13 ices to program beneficiaries in a manner equitable to di14 rectly served, contracted, and included programs. 

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

16 not waive, modify, or diminish in any way the trust re17 sponsibility of the United States with respect to Indian 

18 tribes and individual Indians that exists under treaties, 

19 Executive orders, other laws, or court decisions. 

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

21 final agency action and relates to an appeal within the 

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

23 made—

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

25 a position at a higher organizational level within the
30

•S 1715 IS 

1 Department than the level of the departmental agen2 cy in which the decision that is the subject of the 

3 appeal was made; or 

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

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

6 this title and each provision of a compact or funding 

7 agreement shall be liberally construed for the benefit of 

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

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

10 ‘‘SEC. 408. CONSTRUCTION PROGRAMS AND CONSTRUC11 TION PROJECTS. 

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

13 self-governance may carry out a construction program or 

14 construction project under this title in the same manner 

15 as the Indian tribe carries out other included programs 

16 under this title, consistent with the provisions of all appli17 cable Federal laws. 

18 ‘‘(b) FEDERAL FUNCTIONS.—An Indian tribe partici19 pating in self-governance may, in carrying out construc20 tion projects under this title, elect to assume all Federal 

21 responsibilities under the National Environmental Policy 

22 Act of 1969 (42 U.S.C. 4321 et seq.), the National His23 toric Preservation Act (16 U.S.C. 470 et seq.), and related 

24 provisions of law that would apply if the Secretary were 
31

•S 1715 IS 

1 to carry out a construction project, by adopting a resolu2 tion—

3 ‘‘(1) designating a certifying officer to rep4 resent the Indian tribe and to assume the status of 

5 a responsible Federal official under those laws; and 

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

7 courts for the purpose of enforcement of the respon8 sibilities of the responsible Federal official under ap9 plicable environmental law. 

10 ‘‘(c) NEGOTIATIONS.—

11 ‘‘(1) IN GENERAL.—In accordance with all ap12 plicable Federal laws, a construction program or 

13 construction project shall be treated in the same 

14 manner and be subject to all provisions of this Act 

15 as are all other tribal assumptions of included pro16 grams under this Act. 

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

18 shall be included in the funding agreement that, for 

19 each construction project—

20 ‘‘(A) states the approximate start and 

21 completion dates of the construction project, 

22 which may extend for 1 or more years; 

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

24 construction project; 
32

•S 1715 IS 

1 ‘‘(C) states the responsibilities of the In2 dian tribe and the Secretary with respect to the 

3 construction project; 

4 ‘‘(D) describes—

5 ‘‘(i) the ways in which the Indian 

6 tribe will address project-related environ7 mental considerations; and 

8 ‘‘(ii) the standards by which the In9 dian tribe will accomplish the construction 

10 project; and 

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

12 construction project. 

13 ‘‘(d) CODES AND STANDARDS; TRIBAL ASSUR14 ANCES.—A funding agreement shall contain a certification 

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

16 enforce procedures designed to ensure that all construc17 tion-related included programs carried out through the 

18 funding agreement adhere to building codes and other 

19 codes and architectural and engineering standards (includ20 ing public health and safety standards) identified by the 

21 Indian tribe in the funding agreement, which codes and 

22 standards shall be in conformity with nationally recog23 nized standards for comparable projects in comparable lo24 cations. 
33

•S 1715 IS 

1 ‘‘(e) RESPONSIBILITY FOR COMPLETION.—The In2 dian tribe shall assume responsibility for the successful 

3 completion of a construction project in accordance with 

4 the funding agreement. 

5 ‘‘(f) FUNDING.—

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

7 tribe, full funding for a construction program or 

8 construction project carried out under this title shall 

9 be included in a funding agreement as an annual ad10 vance payment. 

11 ‘‘(2) ENTITLEMENT.—Notwithstanding the an12 nual advance payment provisions or any other provi13 sion of law, an Indian tribe shall be entitled to re14 ceive in its initial funding agreement all funds made 

15 available to the Secretary for multiyear construction 

16 programs and projects carried out under this title. 

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

18 shall include associated project contingency funds in 

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

20 the Indian tribe shall be responsible for the manage21 ment of the contingency funds included in the fund22 ing agreement. 

23 ‘‘(4) REALLOCATION OF SAVINGS.—

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

25 other provision of an annual Act of appropria-
34

•S 1715 IS 

1 tion or other Federal law, an Indian tribe may 

2 reallocate any financial savings realized by the 

3 Indian tribe arising from efficiencies in the de4 sign, construction, or any other aspect of a con5 struction program or construction project. 

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

7 subparagraph (A) shall be for construction-re8 lated activity purposes generally similar to 

9 those for which the funds were appropriated 

10 and distributed to the Indian tribe under the 

11 funding agreement. 

12 ‘‘(g) APPROVAL.—

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

14 documents for a construction project are prepared 

15 by an Indian tribe in a manner that is consistent 

16 with the certification given by the Indian tribe as re17 quired under subsection (d), approval by the Sec18 retary of a funding agreement providing for the as19 sumption of the construction project shall be deemed 

20 to be an approval by the Secretary of the construc21 tion project planning and design documents. 

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

23 the Secretary with construction project progress and 

24 financial reports not less than semiannually.
35

•S 1715 IS 

1 ‘‘(3) INSPECTIONS.—The Secretary may con2 duct onsite project inspections at a construction 

3 project semiannually or on an alternate schedule 

4 agreed to by the Secretary and the Indian tribe. 

5 ‘‘(h) WAGES.—

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

7 employed by a contractor or subcontractor in the 

8 construction, alteration, or repair (including painting 

9 and decorating) of a building or other facility in con10 nection with a construction project funded by the 

11 United States under this title shall be paid wages at 

12 not less than the amounts of wages prevailing on 

13 similar construction in the locality as determined by 

14 the Secretary of Labor in accordance with sub15 chapter IV of chapter 31 of title 40, United States 

16 Code. 

17 ‘‘(2) AUTHORITY.—With respect to construc18 tion, alteration, or repair work to which that sub19 chapter is applicable under this subsection, the Sec20 retary of Labor shall have the authority and func21 tions specified in the Reorganization Plan numbered 

22 14, of 1950. 

23 ‘‘(3) APPLICABILITY OF SUBSECTION.—Not24 withstanding any other provision of law, this sub-
36

•S 1715 IS 

1 section does not apply to any portion of a construc2 tion project carried out under this Act—

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

4 source, regardless of whether the non-Federal 

5 funds are included with Federal funds for ad6 ministrative convenience; or 

7 ‘‘(B) that is performed by a laborer or me8 chanic employed directly by an Indian tribe or 

9 tribal organization. 

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

11 subsection does not apply to a compact or funding 

12 agreement if the compact, self-determination con13 tract, or funding agreement is otherwise covered by 

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

15 tribe that requires the payment of not less than pre16 vailing wages, as determined by the Indian tribe. 

17 ‘‘(i) APPLICABILITY OF OTHER LAW.—Unless other18 wise agreed to by the Indian tribe, no provision of the Of19 fice of Federal Procurement Policy Act (41 U.S.C. 401 

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

21 law or regulation pertaining to Federal procurement (in22 cluding Executive orders) shall apply to any construction 

23 program or project conducted under this title. 
37

•S 1715 IS 

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 IS 

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 IS 

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 IS 

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 IS 

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 IS 

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 IS 

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 IS 

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 IS 

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 IS 

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 IS 

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 IS 

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 IS 

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, sub8 mit 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 IS 

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, the Secretary shall, in con23 sultation with Indian tribes, develop a funding formula to 

24 determine the individual tribal share of funds controlled 
51

•S 1715 IS 

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 the Secretary shall initiate procedures under sub9 chapter 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) MEMEBERSHIP.—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 IS 

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. 

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

•S 1715 IS 

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.’’.

Æ