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[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 1715 Reported in Senate (RS)]

                                                       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.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Department of the Interior Tribal 
Self-Governance Act of <DELETED>2003</DELETED> 2004''.

SEC. 2. AMENDMENT.

    The Indian Self-Determination and Education Assistance Act is 
amended by striking title IV (25 U.S.C. 458aa et seq.) and inserting 
the following:

                   ``TITLE IV--TRIBAL SELF-GOVERNANCE

``SEC. 401. DEFINITIONS.

    ``In this title:
            ``(1) Compact.--The term `compact' means a compact under 
        section 404.
            ``(2) Construction program.--The term `construction 
        program' means a tribal undertaking to complete any or all 
        included programs relating to the administration, planning, 
        environmental determination, design, construction, repair, 
        improvement, or expansion of roads, bridges, buildings, 
        structures, systems, or other facilities for purposes of 
        housing, law enforcement, detention, sanitation, water supply, 
        education, administration, community health, irrigation, 
        agriculture, conservation, flood control, transportation, or 
        port facilities or for other tribal purposes.
            ``(3) Construction project.--The term `construction 
        project' means a tribal undertaking that constructs 1 or more 
        roads, bridges, buildings, structures, systems, or other 
        facilities for purposes of housing, law enforcement, detention, 
        sanitation, water supply, education, administration, community 
        health, irrigation, agriculture, conservation, flood control, 
        transportation, or port facilities or for other tribal 
        purposes.
            ``(4) Department.--The term `Department' means the 
        Department of the Interior.
            ``(5) Funding agreement.--The term `funding agreement' 
        means a funding agreement under section 405(b).
            ``(6) Gross mismanagement.--The term `gross mismanagement' 
        means a significant violation, shown by clear and convincing 
        evidence, of a compact, funding agreement, or statutory or 
        regulatory requirement applicable to Federal funds transferred 
        to an Indian tribe by a compact or funding agreement that 
        results in a significant reduction of funds being made 
        available for the included programs assumed by an Indian tribe.
            ``(7) Included program.--The term `included program' means 
        a program that is eligible for inclusion under a funding 
        agreement (including any portion of such a program and any 
        function, service, or activity performed under such a program).
            ``(8) Indian tribe.--The term `Indian tribe', in a case in 
        which an Indian tribe authorizes another Indian tribe, an 
        inter-tribal consortium, or a tribal organization to plan for 
        or carry out an included program on its behalf in accordance 
        with section 403(a)(3), includes the other authorized Indian 
        tribe, inter-tribal consortium, or tribal organization.
            ``(9) Inherent federal function.--The term `inherent 
        Federal function' means a Federal function that cannot legally 
        be delegated to an Indian tribe.
            ``(10) Inter-tribal consortium.--
                    ``(A) In general.--The term `inter-tribal 
                consortium' means a coalition of 2 or more separate 
                Indian tribes that join together for the purpose of 
                participating in self-governance.
                    ``(B) Inclusion.--The term `inter-tribal 
                organization' includes a tribal organization.
            ``(11) Secretary.--The term `Secretary' means the Secretary 
        of the Interior.
            ``(12) Self-governance.--The term `self-governance' means 
        the program of self-governance established under section 402.
            ``(13) Tribal share.--The term `tribal share' means an 
        Indian tribe's portion of all funds and resources that support 
        secretarial included programs that are not required by the 
        Secretary for the performance of inherent Federal functions.

``SEC. 402. ESTABLISHMENT.

    ``The Secretary shall carry out a program within the Department to 
be known as the `Tribal Self-Governance Program'.

``SEC. 403. SELECTION OF PARTICIPATING INDIAN TRIBES.

    ``(a) In General.--
            ``(1) Continuing participation.--An Indian tribe that was 
        participating in the Tribal Self-Governance Demonstration 
        Project at the Department under title III on October 25, 1994, 
        may elect to participate in self-governance under this title.
            ``(2) Additional participants.--
                    ``(A) In general.--In addition to Indian tribes 
                participating in self-governance under paragraph (1), 
                an Indian tribe that meets the eligibility criteria 
                specified in subsection (b) shall be entitled to 
                participate in self-governance.
                    ``(B) No limitation.--The Secretary shall not limit 
                the number of additional Indian tribes to be selected 
                each year from among Indian tribes that are eligible 
under subsection (b).
            ``(3) Other authorized indian tribe, inter-tribal 
        consortium, or tribal government.--If an Indian tribe 
        authorizes another Indian tribe, an inter-tribal consortium, or 
a tribal organization to plan for or carry out an included program on 
its behalf under this title, the authorized Indian tribe, inter-tribal 
consortium, or tribal organization shall have the rights and 
responsibilities of the authorizing Indian tribe (except as otherwise 
provided in the authorizing resolution).
            ``(4) Joint participation.--Two or more Indian tribes that 
        are not otherwise eligible under subsection (b) may be treated 
        as a single Indian tribe for the purpose of participating in 
        self-governance as a consortium if--
                    ``(A) if each Indian tribe so requests; and
                    ``(B) the consortium itself is eligible under 
                subsection (b).
            ``(5) Tribal withdrawal from a consortium.--
                    ``(A) In general.--An Indian tribe that withdraws 
                from participation in an inter-tribal consortium or 
                tribal organization, in whole or in part, shall be 
                entitled to participate in self-governance if the 
                Indian tribe is eligible under subsection (b).
                    ``(B) Effect of withdrawal.--If an Indian tribe 
                withdraws from participation in an inter-tribal 
                consortium or tribal organization, the Indian tribe 
                shall be entitled to its tribal share of funds and 
                resources supporting the included programs that the 
                Indian tribe will be carrying out under the compact and 
                funding agreement of the Indian tribe.
                    ``(C) Participation in self-governance.--The 
                withdrawal of an Indian tribe from an inter-tribal 
                consortium or tribal organization shall not affect the 
                eligibility of the inter-tribal consortium or tribal 
                organization to participate in self-governance on 
                behalf of 1 or more other Indian tribes.
                    ``(D) Withdrawal process.--
                            ``(i) In general.--An Indian tribe may 
                        fully or partially withdraw from a 
                        participating inter-tribal consortium or tribal 
                        organization its tribal share of any included 
                        program that is included in a compact or 
                        funding agreement.
                            ``(ii) Effective date.--
                                    ``(I) In general.--A withdrawal 
                                under clause (i) shall become effective 
                                on the date specified in the resolution 
                                that authorizes transfer to the 
                                participating tribal organization or 
                                inter-tribal consortium.
                                    ``(II) No specified date.--In the 
                                absence of a date specified in the 
                                resolution, the withdrawal shall become 
                                effective on--
                                            ``(aa) the earlier of--

                                                    ``(AA) 1 year after 
                                                the date of submission 
                                                of the request; or

                                                    ``(BB) the date on 
                                                which the funding 
                                                agreement expires; or

                                            ``(bb) such date as may be 
                                        agreed on by the Secretary, the 
                                        withdrawing Indian tribe, and 
                                        the tribal organization or 
                                        inter-tribal consortium that 
                                        signed the compact or funding 
                                        agreement on behalf of the 
                                        withdrawing Indian tribe, 
                                        inter-tribal consortium, or 
                                        tribal organization.
                    ``(E) Distribution of funds.--If an Indian tribe or 
                tribal organization eligible to enter into a self-
                determination contract under title I or a compact or 
                funding agreement under this title fully or partially 
                withdraws from a participating inter-tribal consortium 
                or tribal organization, the withdrawing Indian tribe--
                            ``(i) may elect to enter into a self-
                        determination contract or compact, in which 
                        case--
                                    ``(I) the withdrawing Indian tribe 
                                or tribal organization shall be 
                                entitled to its tribal share of funds 
                                and resources supporting the included 
                                programs that the Indian tribe will be 
                                carrying out under its own self-
                                determination contract or compact and 
                                funding agreement (calculated on the 
                                same basis as the funds were initially 
                                allocated to the funding agreement of 
                                the inter-tribal consortium or tribal 
                                organization); and
                                    ``(II) the funds referred to in 
                                subclause (I) shall be withdrawn by the 
                                Secretary from the funding agreement of 
                                the inter-tribal consortium or tribal 
                                organization and transferred to the 
                                withdrawing Indian tribe, on the 
                                condition that sections 102 and 105(i), 
                                as appropriate, shall apply to the 
                                withdrawing Indian tribe; or
                            ``(ii) may elect not to enter into a self-
                        determination contract or compact, in which 
                        case all funds not obligated by the inter-
                        tribal consortium associated with the 
                        withdrawing Indian tribe's returned included 
                        programs, less closeout costs, shall be 
                        returned by the inter-tribal consortium to the 
                        Secretary for operation of the included 
                        programs included in the withdrawal.
                    ``(F) Return to mature contract status.--If an 
                Indian tribe elects to operate all or some included 
                programs carried out under a compact or funding 
                agreement under this title through a self-determination 
                contract under title I, at the option of the Indian 
                tribe, the resulting self-determination contract shall 
                be a mature self-determination contract.
    ``(b) Eligibility.--To be eligible to participate in self-
governance, an Indian tribe shall--
            ``(1) complete the planning phase described in subsection 
        (c);
            ``(2) request participation in self-governance by 
        resolution or other official action by the tribal governing 
        body; and
            ``(3) demonstrate, for the 3 fiscal years preceding the 
        date on which the Indian tribe requests participation, 
        financial stability and financial management capability as 
        evidenced by the Indian tribe's having no uncorrected 
        significant and material audit exceptions in the required 
        annual audit of its self-determination or self-governance 
        agreements with any Federal agency.
    ``(c) Planning Phase.--
            ``(1) In general.--An Indian tribe seeking to participate 
        in self-governance shall complete a planning phase in 
        accordance with this subsection.
            ``(2) Activities.--The planning phase--
                    ``(A) shall be conducted to the satisfaction of the 
                Indian tribe; and
                    ``(B) shall include--
                            ``(i) legal and budgetary research; and
                            ``(ii) internal tribal government planning 
                        and organizational preparation.
    ``(d) Grants.--
            ``(1) In general.--Subject to the availability of 
        appropriations, an Indian tribe that meets the requirements of 
        paragraphs (2) and (3) of subsection (b) shall be eligible for 
        grants--
                    ``(A) to plan for participation in self-governance; 
                and
                    ``(B) to negotiate the terms of participation by 
                the Indian tribe or tribal organization in self-
                governance, as set forth in a compact and a funding 
                agreement.
            ``(2) Receipt of grant not required.--Receipt of a grant 
        under paragraph (1) shall not be a requirement of participation 
        in self-governance.

``SEC. 404. COMPACTS.

    ``(a) In General.--The Secretary shall negotiate and enter into a 
written compact with an Indian tribe participating in self-governance 
in a manner that is consistent with the trust responsibility of the 
Federal Government, treaty obligations, and the government-to-
government relationship between Indian tribes and the United States.
    ``(b) Contents.--A compact under subsection (a) shall--
            ``(1) specify the general terms of the government-to-
        government relationship between the Indian tribe and the 
        Secretary; and
            ``(2) include such terms as the parties intend shall 
        control year after year.
    ``(c) Amendment.--A compact under subsection (a) may be amended 
only by agreement of the parties.
    ``(d) Effective Date.--The effective date of a compact under 
subsection (a) shall be--
            ``(1) the date of the execution of the compact by the 
        Indian tribe; or
            ``(2) another date agreed to by the parties.
    ``(e) Duration.--A compact under subsection (a) shall remain in 
effect for so long as permitted by Federal law or until terminated by 
written agreement, retrocession, or reassumption.
    ``(f) Existing Compacts.--An Indian tribe participating in self-
governance under this title, as in effect on the date of enactment of 
the Department of the Interior Tribal Self-Governance Act of 
<DELETED>2003</DELETED> 2004, shall have the option at any time after 
that date--
            ``(1) to retain its negotiated compact (in whole or in 
        part) to the extent that the provisions of the compact are not 
        directly contrary to any express provision of this title; or
            ``(2) to negotiate a new compact in a manner consistent 
        with this title.

``SEC. 405. FUNDING AGREEMENTS.

    ``(a) In General.--The Secretary shall negotiate and enter into a 
written funding agreement with the governing body of an Indian tribe in 
a manner that is consistent with the trust responsibility of the 
Federal Government, treaty obligations, and the government-to-
government relationship between Indian tribes and the United States.
    ``(b) Included Programs.--
            ``(1) Bureau of indian affairs and office of special 
        trustee.--
                    ``(A) In general.--A funding agreement shall, as 
                determined by the Indian tribe, authorize the Indian 
                tribe to plan, conduct, consolidate, administer, and 
                receive full tribal share funding for all programs 
                carried out by the Bureau of Indian Affairs and the 
                Office of Special Trustee, without regard to the agency 
                or office within which the program is performed 
                (including funding for agency, area, and central office 
functions in accordance with section 409(c)), that--
                            ``(i) are provided for in the Act of April 
                        16, 1934 (25 U.S.C. 452 et seq.);
                            ``(ii) the Secretary administers for the 
                        benefit of Indians under the Act of November 2, 
                        1921 (25 U.S.C. 13), or any subsequent Act;
                            ``(iii) the Secretary administers for the 
                        benefit of Indians with appropriations made to 
                        agencies other than the Department of the 
                        Interior; or
                            ``(iv) are provided for the benefit of 
                        Indians because of their status as Indians.
                    ``(B) Inclusions.--Programs described in 
                subparagraph (A) shall include all programs with 
                respect to which Indian tribes or Indians are primary 
                or significant beneficiaries.
            ``(2) Other agencies.--A funding agreement under subsection 
        (a) shall, as determined by the Indian tribe, authorize the 
        Indian tribe to plan, conduct, consolidate, administer, and 
        receive full tribal share funding for all programs carried out 
        by the Secretary outside the Bureau of Indian Affairs, without 
        regard to the agency or office within which the program is 
        performed, including funding for agency, area, and central 
        office functions in accordance with subsection 409(c), to the 
        extent that the included programs are within the scope of 
        paragraph (1).
            ``(3) Discretionary programs.--A funding agreement under 
        subsection (a) may, in accordance with such additional terms as 
        the parties consider to be appropriate, include programs 
administered by the Secretary, in addition to programs described in 
paragraphs (1) and (2), that are of special geographical, historical, 
or cultural significance to the Indian tribe.
            ``(4) Competitive bidding.--Nothing in this section--
                    ``(A) supersedes any express statutory requirement 
                for competitive bidding; or
                    ``(B) prohibits the inclusion in a funding 
                agreement of a program in which non-Indians have an 
                incidental or legally identifiable interest.
            ``(5) Excluded funding.--A funding agreement shall not 
        authorize an Indian tribe to plan, conduct, administer, or 
        receive tribal share funding under any program that--
                    ``(A) is provided under the Tribally Controlled 
                Community College Assistance Act of 1978 (25 U.S.C. 
                1801 et seq.);
                    ``(B) is provided for elementary and secondary 
                schools under the formula developed under section 1128 
                of the Education Amendments of 1978 (25 U.S.C. 2008); 
                and
                    ``(C) is provided for the Flathead Agency 
                Irrigation Division or the Flathead Agency Power 
                Division (except that nothing in this section affects 
                the contract authority of the Flathead Agency 
                Irrigation Division or the Flathead Agency Power 
                Division under section 102).
            ``(6) Services, functions, and responsibilities.--A funding 
        agreement shall specify--
                    ``(A) the services to be provided under the funding 
                agreement;
                    ``(B) the functions to be performed under the 
                funding agreement; and
                    ``(C) the responsibilities of the Indian tribe and 
                the Secretary under the funding agreement.
            ``(7) Base budget.--A funding agreement shall, at the 
        option of the Indian tribe, provide for a stable base budget 
        specifying the recurring funds (including funds available under 
        section 106(a)) to be transferred to the Indian tribe, for such 
        period as the Indian tribe specifies in the funding agreement, 
        subject to annual adjustment only to reflect changes in 
        congressional appropriations.
            ``(8) No waiver of trust responsibility.--A funding 
        agreement shall prohibit the Secretary from waiving, modifying, 
        or diminishing in any way the trust responsibility of the 
        United States with respect to Indian tribes and individual 
        Indians that exists under treaties, Executive orders, court 
        decisions, and other laws.
    ``(c) Amendment.--The Secretary shall not revise, amend, or require 
additional terms in a new or subsequent funding agreement without the 
consent of the Indian tribe.
    ``(d) Effective Date.--A funding agreement shall become effective 
on the date specified in the funding agreement.
    ``(e) Existing and Subsequent Funding Agreements.--
            ``(1) Subsequent funding agreements.--Absent notification 
        from an Indian tribe that is withdrawing or retroceding the 
        operation of 1 or more included programs identified in a 
        funding agreement, or unless otherwise agreed to by the parties 
        to the funding agreement--
                    ``(A) a funding agreement shall remain in effect 
                until a subsequent funding agreement is executed; and
                    ``(B) the term of the subsequent funding agreement 
                shall be retroactive to the end of the term of the 
                preceding funding agreement.
            ``(2) Existing funding agreements.--An Indian tribe that 
        was participating in self-governance under this title on the 
        date of enactment of the Department of the Interior Tribal 
        Self-Governance Act of <DELETED>2003</DELETED> 2004 shall have 
        the option at any time after that date--
                    ``(A) to retain its existing funding agreement (in 
                whole or in part) to the extent that the provisions of 
                that funding agreement are not directly contrary to any 
                express provision of this title; or
                    ``(B) to negotiate a new funding agreement in a 
                manner consistent with this title.
            ``(3) Multiyear funding agreements.--An Indian tribe may, 
        at the discretion of the Indian tribe, negotiate with the 
        Secretary for a funding agreement with a term that exceeds 1 
        year.

``SEC. 406. GENERAL PROVISIONS.

    ``(a) Applicability.--An Indian tribe may include in any compact or 
funding agreement provisions that reflect the requirements of this 
title.
    ``(b) Conflicts of Interest.--An Indian tribe participating in 
self-governance shall ensure that internal measures are in place to 
address, pursuant to tribal law and procedures, conflicts of interest 
in the administration of included programs.
    ``(c) Audits.--
            ``(1) Single agency audit act.--Chapter 75 of title 31, 
        United States Code, shall apply to a funding agreement under 
        this title.
            ``(2) Cost principles.--An Indian tribe shall apply cost 
        principles under the applicable Office of Management and Budget 
        circular, except as modified by--
                    ``(A) section 106 of this Act or any other 
                provision of law; or
                    ``(B) any exemptions to applicable Office of 
                Management and Budget circulars granted by the Office 
                of Management and Budget.
            ``(3) Federal claims.--Any claim by the Federal Government 
        against an Indian tribe relating to funds received under a 
        funding agreement based on an audit under this subsection shall 
        be subject to section 106(f).
    ``(d) Redesign and Consolidation.--An Indian tribe may redesign or 
consolidate included programs or reallocate funds for included programs 
in any manner that the Indian tribe determines to be in the best 
interest of the Indian community being served, so long as the redesign 
or consolidation does not have the effect of denying eligibility for 
services to population groups otherwise eligible to be served under 
applicable Federal law.
    ``(e) Retrocession.--
            ``(1) In general.--An Indian tribe may fully or partially 
        retrocede to the Secretary any included program under a compact 
        or funding agreement.
            ``(2) Effective date.--
                    ``(A) Agreement.--Unless the Indian tribe rescinds 
                a request for retrocession, the retrocession shall 
                become effective on the date specified by the parties 
                in the compact or funding agreement.
                    ``(B) No agreement.--In the absence of such a 
                specification, the retrocession shall become effective 
                on--
                            ``(i) the earlier of--
                                    ``(I) the date that is 1 year after 
                                the date of submission of the request; 
                                or
                                    ``(II) the date on which the 
                                funding agreement expires; or
                            ``(ii) such date as may be agreed on by the 
                        Secretary and the Indian tribe.
    ``(f) Nonduplication.--A funding agreement shall provide that, for 
the period for which, and to the extent to which, funding is provided 
to an Indian tribe under this title, the Indian tribe--
            ``(1) shall not be entitled to enter into a contract with 
        the Secretary for funds under section 102, except that the 
        Indian tribe shall be eligible for new included programs on the 
        same basis as other Indian tribes; and
            ``(2) shall be responsible for the administration of 
        included programs in accordance with the compact or funding 
        agreement.
    ``(g) Records.--
            ``(1) In general.--Unless an Indian tribe specifies 
        otherwise in the compact or funding agreement, records of an 
        Indian tribe shall not be treated as agency records for 
        purposes of chapter 5 of title 5, United States Code.
            ``(2) Recordkeeping system.--An Indian tribe shall--
                    ``(A) maintain a recordkeeping system; and
                    ``(B) on 30 days' notice, provide the Secretary 
                with reasonable access to the records to enable the 
                Department to meet the requirements of sections 3101 
                through 3106 of title 44, United States Code.

``SEC. 407. PROVISIONS RELATING TO THE SECRETARY.

    ``(a) Trust Evaluations.--A funding agreement shall include a 
provision to monitor the performance of trust functions by the Indian 
tribe through the annual trust evaluation.
    ``(b) Reassumption.--
            ``(1) In general.--A compact or funding agreement shall 
        include provisions for the Secretary to reassume an included 
        program and associated funding if there is a specific finding 
        relating to that included program of--
                    ``(A) imminent jeopardy to a physical trust asset, 
                natural resource, or public health and safety that--
                            ``(i) is caused by an act or omission of 
                        the Indian tribe; and
                            ``(ii) arises out of a failure to carry out 
                        the compact or funding agreement; or
                    ``(B) gross mismanagement with respect to funds 
                transferred to an Indian tribe by a compact or funding 
                agreement, as determined by the Secretary in 
                consultation with the Inspector General, as 
                appropriate.
            ``(2) Prohibition.--The Secretary shall not reassume 
        operation of an included program unless--
                    ``(A) the Secretary first provides written notice 
                and a hearing on the record to the Indian tribe; and
                    ``(B) the Indian tribe does not take corrective 
                action to remedy gross mismanagement or the imminent 
                jeopardy to a physical trust asset, natural resource, 
                or public health and safety.
            ``(3) Exception.--
                    ``(A) In general.--Notwithstanding subparagraph 
                (2), the Secretary may, on written notice to the Indian 
                tribe, immediately reassume operation of an included 
                program if--
                            ``(i) the Secretary makes a finding of 
                        <DELETED>both imminent and substantial jeopardy 
                        and irreparable harm</DELETED> imminent, 
                        substantial, and irreparable harm to a 
physical trust asset, a natural resource, or the public health and 
safety caused by an act or omission of the Indian tribe; and
                            ``(ii) the <DELETED>imminent and 
                        substantial jeopardy and irreparable harm</DELETED> 
                        imminent, substantial, and irreparable harm to 
                        the physical trust asset, natural resource, or 
                        public health and safety arises out of a 
                        failure by the Indian tribe to carry out its 
compact or funding agreement.
                    ``(B) Reassumption.--If the Secretary reassumes 
                operation of an included program under subparagraph 
                (A), the Secretary shall provide the Indian tribe with 
                a hearing on the record not later than 10 days after 
                the date of reassumption.
    ``(c) Inability To Agree on Compact or Funding Agreement.--
            ``(1) Final offer.--If the Secretary and a participating 
        Indian tribe are unable to agree, in whole or in part, on the 
        terms of a compact or funding agreement (including funding 
        levels), the Indian tribe may submit a final offer to the 
        Secretary.
            ``(2) Determination.--Not more than 45 days after the date 
        of submission of a final offer, or as otherwise agreed to by 
        the Indian tribe, the Secretary shall review and make a 
        determination with respect to the final offer.
            ``(3) No timely determination.--If the Secretary fails to 
        make a determination with respect to a final offer within the 
        time specified in paragraph (2), the Secretary shall be deemed 
        to have agreed to the offer.
            ``(4) Rejection of final offer.--
                    ``(A) In general.--If the Secretary rejects a final 
                offer (or 1 or more provisions or funding levels in a 
                final offer), the Secretary shall--
                            ``(i) provide timely written notification 
                        to the Indian tribe that contains a specific 
                        finding that clearly demonstrates, or that is 
                        supported by a controlling legal authority, 
                        that--
                                    ``(I) the amount of funds proposed 
                                in the final offer exceeds the 
                                applicable funding level to which the 
                                Indian tribe is entitled under this 
                                title;
                                    ``(II) the included program that is 
                                the subject of the final offer is an 
                                inherent Federal function;
                                    ``(III) the Indian tribe cannot 
                                carry out the included program in a 
                                manner that would not result in 
                                significant danger or risk to the 
                                public health; or
                                    ``(IV) the Indian tribe is not 
                                eligible to participate in self-
                                governance under section 403(b);
                            ``(ii) provide technical assistance to 
                        overcome the objections stated in the 
                        notification required by clause (i);
                            ``(iii) provide the Indian tribe a hearing 
                        on the record with the right to engage in full 
                        discovery relevant to any issue raised in the 
                        matter and the opportunity for appeal on the 
                        objections raised (except that the Indian tribe 
                        may, in lieu of filing an appeal, directly 
                        proceed to bring a civil action in United 
                        States district court under section 110(a)); 
                        and
                            ``(iv) provide the Indian tribe the option 
                        of entering into the severable portions of a 
                        final proposed compact or funding agreement 
                        (including a lesser funding amount, if any), 
                        that the Secretary did not reject, subject to 
                        any additional alterations necessary to conform 
                        the compact or funding agreement to the severed 
                        provisions.
                    ``(B) Effect of exercising certain option.--If an 
                Indian tribe exercises the option specified in 
                subparagraph (A)(iv)--
                            ``(i) the Indian tribe shall retain the 
                        right to appeal the rejection by the Secretary 
                        under this section; and
                            ``(ii) clauses (i), (ii), and (iii) of that 
                        subparagraph shall apply only to the portion of 
                        the proposed final compact or funding agreement 
                        that was rejected by the Secretary.
    ``(d) Burden of Proof.--In any administrative hearing or appeal or 
civil action brought under this section, the Secretary shall have the 
burden of demonstrating by clear and convincing evidence the validity 
of the grounds for rejecting a final offer made under subsection (c) or 
the grounds for a reassumption under subsection (b).
    ``(e) Good Faith.--
            ``(1) In general.--In the negotiation of compacts and 
        funding agreements, the Secretary shall at all times negotiate 
        in good faith to maximize implementation of the self-governance 
        policy.
            ``(2) Policy.--The Secretary shall carry out this Act in a 
        manner that maximizes the policy of tribal self-governance.
    ``(f) Savings.--To the extent that included programs carried out by 
Indian tribes under this title reduce the administrative or other 
responsibilities of the Secretary with respect to the operation of 
Indian programs and result in savings that have not otherwise been 
included in the amount of tribal shares and other funds determined 
under section 409(c), the Secretary shall make such savings available 
to the Indian tribes, inter-tribal consortia, or tribal organizations 
for the provision of additional services to program beneficiaries in a 
manner equitable to directly served, contracted, and included programs.
    ``(g) Trust Responsibility.--The Secretary may not waive, modify, 
or diminish in any way the trust responsibility of the United States 
with respect to Indian tribes and individual Indians that exists under 
treaties, Executive orders, other laws, or court decisions.
    ``(h) Decisionmaker.--A decision that constitutes final agency 
action and relates to an appeal within the Department brought under 
subsection (c)(4) may be made--
            ``(1) by an official of the Department who holds a position 
        at a higher organizational level within the Department than the 
level of the departmental agency in which the decision that is the 
subject of the appeal was made; or
            ``(2) by an administrative law judge.
    ``(i) Rule of Construction.--Each provision of this title and each 
provision of a compact or funding agreement shall be liberally 
construed for the benefit of the Indian tribe participating in self-
governance, and any ambiguity shall be resolved in favor of the Indian 
tribe.

``SEC. 408. CONSTRUCTION PROGRAMS AND CONSTRUCTION PROJECTS.

    ``(a) In General.--An Indian tribe participating in self-governance 
may carry out a construction program or construction project under this 
title in the same manner as the Indian tribe carries out other included 
programs under this title, consistent with the provisions of all 
applicable Federal laws.
    ``(b) Federal Functions.--An Indian tribe participating in self-
governance may, in carrying out construction projects under this title, 
elect to assume all Federal responsibilities under the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), the National 
Historic Preservation Act (16 U.S.C. 470 et seq.), and related 
provisions of law that would apply if the Secretary were to carry out a 
construction project, by adopting a resolution--
            ``(1) designating a certifying officer to represent the 
        Indian tribe and to assume the status of a responsible Federal 
        official under those laws; and
            ``(2) accepting the jurisdiction of the Federal courts for 
        the purpose of enforcement of the responsibilities of the 
        responsible Federal official under applicable environmental 
        law.
    ``(c) Negotiations.--
            ``(1) In general.--In accordance with all applicable 
        Federal laws, a construction program or construction project 
        shall be treated in the same manner and be subject to all 
        provisions of this Act as are all other tribal assumptions of 
        included programs under this Act.
            ``(2) Construction projects.--A provision shall be included 
        in the funding agreement that, for each construction project--
                    ``(A) states the approximate start and completion 
                dates of the construction project, which may extend for 
                1 or more years;
                    ``(B) provides a general description of the 
                construction project;
                    ``(C) states the responsibilities of the Indian 
                tribe and the Secretary with respect to the 
                construction project;
                    ``(D) describes--
                            ``(i) the ways in which the Indian tribe 
                        will address project-related environmental 
                        considerations; and
                            ``(ii) the standards by which the Indian 
                        tribe will accomplish the construction project; 
                        and
                    ``(E) the amount of funds provided for the 
                construction project.
    ``(d) Codes and Standards; Tribal Assurances.--A funding agreement 
shall contain a certification by the Indian tribe that the Indian tribe 
will establish and enforce procedures designed to ensure that all 
construction-related included programs carried out through the funding 
agreement adhere to building codes and other codes and architectural 
and engineering standards (including public health and safety 
standards) identified by the Indian tribe in the funding agreement, 
which codes and standards shall be in conformity with nationally 
recognized standards for comparable projects in comparable locations.
    ``(e) Responsibility for Completion.--The Indian tribe shall assume 
responsibility for the successful completion of a construction project 
in accordance with the funding agreement.
    ``(f) Funding.--
            ``(1) In general.--At the option of an Indian tribe, full 
        funding for a construction program or construction project 
        carried out under this title shall be included in a funding 
        agreement as an annual advance payment.
            ``(2) Entitlement.--Notwithstanding the annual advance 
        payment provisions or any other provision of law, an Indian 
        tribe shall be entitled to receive in its initial funding 
        agreement all funds made available to the Secretary for 
        multiyear construction programs and projects carried out under 
        this title.
            ``(3) Contingency funds.--The Secretary shall include 
        associated project contingency funds in an advance payment 
        described in paragraph (1), and the Indian tribe shall be 
        responsible for the management of the contingency funds 
        included in the funding agreement.
            ``(4) Reallocation of savings.--
                    ``(A) In general.--Notwithstanding any other 
                provision of an annual Act of appropriation or other 
                Federal law, an Indian tribe may reallocate any 
                financial savings realized by the Indian tribe arising 
                from efficiencies in the design, construction, or any 
                other aspect of a construction program or construction 
                project.
                    ``(B) Purposes.--A reallocation under subparagraph 
                (A) shall be for construction-related activity purposes 
                generally similar to those for which the funds were 
                appropriated and distributed to the Indian tribe under 
                the funding agreement.
    ``(g) Approval.--
            ``(1) In general.--If the planning and design documents for 
        a construction project are prepared by an Indian tribe in a 
        manner that is consistent with the certification given by the 
        Indian tribe as required under subsection (d), approval by the 
        Secretary of a funding agreement providing for the assumption 
        of the construction project shall be deemed to be an approval 
        by the Secretary of the construction project planning and 
        design documents.
            ``(2) Reports.--The Indian tribe shall provide the 
        Secretary with construction project progress and financial 
        reports not less than semiannually.
            ``(3) Inspections.--The Secretary may conduct onsite 
        project inspections at a construction project semiannually or 
        on an alternate schedule agreed to by the Secretary and the 
        Indian tribe.
    ``(h) Wages.--
            ``(1) In general.--All laborers and mechanics employed by a 
        contractor or subcontractor in the construction, alteration, or 
        repair (including painting and decorating) of a building or 
        other facility in connection with a construction project funded 
        by the United States under this title shall be paid wages at 
        not less than the amounts of wages prevailing on similar 
        construction in the locality as determined by the Secretary of 
        Labor in accordance with subchapter IV of chapter 31 of title 
        40, United States Code.
            ``(2) Authority.--With respect to construction, alteration, 
        or repair work to which that subchapter is applicable under 
        this subsection, the Secretary of Labor shall have the 
        authority and functions specified in the Reorganization Plan 
        numbered 14, of 1950.
            ``(3) Applicability of subsection.--Notwithstanding any 
        other provision of law, this subsection does not apply to any 
        portion of a construction project carried out under this Act--
                    ``(A) that is funded from a non-Federal source, 
                regardless of whether the non-Federal funds are 
                included with Federal funds for administrative 
                convenience; or
                    ``(B) that is performed by a laborer or mechanic 
                employed directly by an Indian tribe or tribal 
                organization.
            ``(4) Applicability of tribal law.--This subsection does 
        not apply to a compact or funding agreement if the compact, 
        self-determination contract, or funding agreement is otherwise 
        covered by a law (including a regulation) adopted by an Indian 
        tribe that requires the payment of not less than prevailing 
        wages, as determined by the Indian tribe.
    ``(i) Applicability of Other Law.--Unless otherwise agreed to by 
the Indian tribe, no provision of the Office of Federal Procurement 
Policy Act (41 U.S.C. 401 et seq.), the Federal Acquisition Regulation, 
or any other law or regulation pertaining to Federal procurement 
(including Executive orders) shall apply to any construction program or 
project conducted under this title.

``SEC. 409. PAYMENT.

    ``(a) In General.--At the request of the governing body of the 
Indian tribe and under the terms of a funding agreement, the Secretary 
shall provide funding to the Indian tribe to carry out the funding 
agreement.
    ``(b) Advance Annual Payment.--At the option of the Indian tribe, a 
funding agreement shall provide for an advance annual payment to an 
Indian tribe.
    ``(c) Amount.--Subject to subsection (e) and sections 405 and 406 
of this title, the Secretary shall provide funds to the Indian tribe 
under a funding agreement for included programs in the amount that is 
equal to the amount that the Indian tribe would have been entitled to 
receive under contracts and grants under this Act (including amounts 
for direct program and contract support costs and, in addition, any 
funds that are specifically or functionally related to the provision by 
the Secretary of services and benefits to the Indian tribe or its 
members) without regard to the organization level within the Federal 
agency in which the included programs are carried out.
    ``(d) Timing.--Unless the funding agreement provides otherwise, the 
transfer of funds shall be made not later than 10 days after the 
apportionment of funds by the Office of Management and Budget to the 
Department.
    ``(e) Availability.--Funds for trust services to individual Indians 
shall be available under a funding agreement only to the extent that 
the same services that would have been provided by the Secretary are 
provided to individual Indians by the Indian tribe.
    ``(f) Multiyear Funding.--A funding agreement may provide for 
multiyear funding.
    ``(g) Limitation on Authority of the Secretary.--The Secretary 
shall not--
            ``(1) fail to transfer to an Indian tribe its full share of 
        any central, headquarters, regional, area, or service unit 
        office or other funds due under this Act, except as required by 
        Federal law;
            ``(2) withhold any portion of such funds for transfer over 
        a period of years; or
            ``(3) reduce the amount of funds required under this Act--
                    ``(A) to make funding available for self-governance 
                monitoring or administration by the Secretary;
                    ``(B) in subsequent years, except as necessary as a 
                result of--
                            ``(i) a reduction in appropriations from 
                        the previous fiscal year for the program to be 
                        included in a compact or funding agreement;
                            ``(ii) a congressional directive in 
                        legislation or an accompanying report;
                            ``(iii) a tribal authorization;
                            ``(iv) a change in the amount of pass-
                        through funds subject to the terms of the 
                        funding agreement; or
                            ``(v) completion of an activity under an 
                        included program for which the funds were 
                        provided;
                    ``(C) to pay for Federal functions, including--
                            ``(i) Federal pay costs;
                            ``(ii) Federal employee retirement 
                        benefits;
                            ``(iii) automated data processing;
                            ``(iv) technical assistance; and
                            ``(v) monitoring of activities under this 
                        Act; or
                    ``(D) to pay for costs of Federal personnel 
                displaced by self-determination contracts under this 
                Act or self-governance.
    ``(h) Federal Resources.--If an Indian tribe elects to carry out a 
compact or funding agreement with the use of Federal personnel, Federal 
supplies (including supplies available from Federal warehouse 
facilities), Federal supply sources (including lodging, airline 
transportation, and other means of transportation including the use of 
interagency motor pool vehicles), or other Federal resources (including 
supplies, services, and resources available to the Secretary under any 
procurement contracts in which the Department is eligible to 
participate), the Secretary shall acquire and transfer such personnel, 
supplies, or resources to the Indian tribe.
    ``(i) Prompt Payment Act.--Chapter 39 of title 31, United States 
Code, shall apply to the transfer of funds due under a compact or 
funding agreement authorized under this Act.
    ``(j) Interest or Other Income.--
            ``(1) In general.--An Indian tribe may retain interest or 
        income earned on any funds paid under a compact or funding 
        agreement to carry out governmental purposes.
            ``(2) No effect on other amounts.--The retention of 
        interest or income under paragraph (1) shall not diminish the 
        amount of funds that an Indian tribe is entitled to receive 
        under a funding agreement in the year in which the interest or 
        income is earned or in any subsequent fiscal year.
            ``(3) Investment standard.--Funds transferred under this 
        title shall be managed using the prudent investment standard.
    ``(k) Carryover of Funds.--
            ``(1) In general.--Notwithstanding any provision of an Act 
        of appropriation, all funds paid to an Indian tribe in 
        accordance with a compact or funding agreement shall remain 
        available until expended.
            ``(2) Effect of carryover.--If an Indian tribe elects to 
        carry over funding from 1 year to the next, the carryover shall 
        not diminish the amount of funds that the Indian tribe is 
        entitled to receive under a funding agreement in that fiscal 
        year or any subsequent fiscal year.
    ``(l) Limitation of Costs.--
            ``(1) In general.--An Indian tribe shall not be obligated 
        to continue performance that requires an expenditure of funds 
        in excess of the amount of funds transferred under a compact or 
        funding agreement.
            ``(2) Notice of insufficiency.--If at any time an Indian 
        tribe has reason to believe that the total amount provided for 
        a specific activity under a compact or funding agreement is 
        insufficient, the Indian tribe shall provide reasonable notice 
        of the insufficiency to the Secretary.
            ``(3) Suspension of performance.--If the Secretary does not 
        increase the amount of funds transferred under the funding 
        agreement, the Indian tribe may suspend performance of the 
        activity until such time as additional funds are transferred.

``SEC. 410. CIVIL ACTIONS.

    ``(a) Inclusion as Contract.--Except as provided in subsection (b), 
for the purposes of section 110, the term `contract' shall include a 
funding agreement.
    ``(b) Contracts With Professionals.--For the period during which a 
funding agreement is in effect, section 2103 of the Revised Statutes 
(25 U.S.C. 81), and section 16 of the Act of June 18, 1934 (25 U.S.C. 
476) shall not apply to a contract between an attorney or other 
professional and an Indian tribe.

``SEC. 411. FACILITATION.

    ``(a) In General.--Except as otherwise provided by law, the 
Secretary shall interpret each Federal law (including a regulation) in 
a manner that facilitates--
            ``(1) the inclusion of included programs in funding 
        agreements; and
            ``(2) the implementation of funding agreements.
    ``(b) Regulation Waiver.--
            ``(1) Request.--An Indian tribe may submit a written 
        request for a waiver to the Secretary identifying the specific 
        text in regulation sought to be waived and the basis for the 
        request.
            ``(2) Determination by the secretary.--Not later than 60 
        days after the date of receipt by the Secretary of a request 
        under paragraph (1), the Secretary shall approve or deny the 
        requested waiver in writing to the Indian tribe.
            ``(3) Ground for denial.--The Secretary may deny a request 
        for a waiver only on a specific finding by the Secretary that 
        the identified text in the regulation may not be waived because 
        such a waiver is prohibited by Federal law.
            ``(4) Failure to make determination.--If the Secretary 
        fails to approve or deny a waiver request within the time 
        required under paragraph (2), the Secretary shall be deemed to 
        have approved the request.
            ``(5) Finality.--The Secretary's decision shall be final 
        for the Department.

``SEC. 412. DISCLAIMERS.

    ``Nothing in this title expands or alters any statutory authority 
of the Secretary so as to authorize the Secretary to enter into any 
funding agreement under section 405(b)(2) or 415(c)(1)--
            ``(1) with respect to an inherent Federal function;
            ``(2) in a case in which the statute establishing a program 
        does not authorize the type of participation sought by the 
        Indian tribe (without regard to whether 1 or more Indian tribes 
        are identified in the authorizing statute); or
            ``(3) limits or reduces in any way the services, contracts, 
        or funds that any other Indian tribe or tribal organization is 
        eligible to receive under section 102 or any other applicable 
        Federal law.

``SEC. 413. APPLICABILITY OF OTHER PROVISIONS.

    ``(a) Mandatory Application.--Sections 5(d), 6, 102(c), 104, 
105(f), 110, and 111 apply to compacts and funding agreements under 
this title.
    ``(b) Discretionary Application.--
            ``(1) In general.--At the option of a participating Indian 
        tribe, any or all of the provisions of title I or title V shall 
        be incorporated in a compact or funding agreement.
            ``(2) Effect.--Each incorporated provision--
                    ``(A) shall have the same effect as if the 
                provision were set out in full in this title; and
                    ``(B) shall be deemed to supplement or replace any 
                related provision in this title and to apply to any 
                agency otherwise governed by this title.
            ``(3) Effective date.--If an Indian tribe requests 
        incorporation at the negotiation stage of a compact or funding 
        agreement, the incorporation--
                    ``(A) shall be effective immediately; and
                    ``(B) shall control the negotiation and resulting 
                compact and funding agreement.

``SEC. 414. BUDGET REQUEST.

    ``(a) Requirement of Annual Budget Request.--
            ``(1) In general.--The President shall identify in the 
        annual budget request submitted to Congress under section 1105 
        of title 31, United States Code, all funds necessary to fully 
        fund all funding agreements authorized under this title.
            ``(2) Duty of secretary.--The Secretary shall ensure that 
        there are included, in each budget request, requests for funds 
        in amounts that are sufficient for planning and negotiation 
        grants and sufficient to cover any shortfall in funding 
        identified under subsection (b).
            ``(3) Timing.--All funds included within funding agreements 
        shall be provided to the Office of Self-Governance not later 
        than 15 days after the date on which funds are apportioned to 
        the Department.
            ``(4) Distribution of funds.--The Office of Self-Governance 
        shall be responsible for distribution of all funds provided 
        under this title.
            ``(5) Rule of construction.--Nothing in this subsection 
        authorizes the Secretary to reduce the amount of funds that an 
        Indian tribe is otherwise entitled to receive under a funding 
        agreement or other applicable law.
    ``(b) Present Funding; Shortfalls.--In all budget requests, the 
President shall identify the level of need presently funded and any 
shortfall in funding (including direct program costs, tribal shares and 
contract support costs) for each Indian tribe, either directly by the 
Secretary of Interior, under self-determination contracts, or under 
compacts and funding agreements.

``SEC. 415. REPORTS.

    ``(a) In General.--
            ``(1) Requirement.--On January 1 of each year, the 
        Secretary shall submit to Congress a report regarding the 
        administration of this title.
            ``(2) Analysis.--A report under paragraph (1) shall include 
        a detailed analysis of tribal unmet need for each Indian tribe, 
        either directly by the Secretary, under self-determination 
        contracts under title I, or under compacts and funding 
        agreements authorized under this subchapter.
            ``(3) No additional reporting requirements.--In preparing 
        reports under paragraph (1), the Secretary may not impose any 
        reporting requirement on participating Indian tribes not 
        otherwise provided for by this Act.
    ``(b) Contents.--A report under subsection (a) shall--
            ``(1) be compiled from information contained in funding 
        agreements, annual audit reports, and data of the Secretary 
        regarding the disposition of Federal funds;
            ``(2) identify--
                    ``(A) the relative costs and benefits of self-
                governance;
                    ``(B) with particularity, all funds that are 
                specifically or functionally related to the provision 
                by the Secretary of services and benefits to self-
                governance Indian tribes and members of Indian tribes;
                    ``(C) the funds transferred to each Indian tribe 
                and the corresponding reduction in the Federal 
                bureaucracy;
                    ``(D) the funding formula for individual tribal 
                shares of all Central Office funds, with the comments 
                of affected Indian tribes, developed under subsection 
                (d); and
                    ``(E) amounts expended in the preceding fiscal year 
                to carry out inherent Federal functions, including an 
                identification of inherent Federal functions by type 
                and location;
            ``(3) contain a description of the methods used to 
        determine the individual tribal share of funds controlled by 
        all components of the Department (including funds assessed by 
        any other Federal agency) for inclusion in compacts or funding 
        agreements;
            ``(4) before being submitted to Congress, be distributed to 
        the Indian tribes for comment (with a comment period of not 
        less than 30 days); and
            ``(5) include the separate views and comments of each 
        Indian tribe or tribal organization.
    ``(c) Report on Non-BIA Programs.--
            ``(1) In general.--In order to optimize opportunities for 
        including non-Bureau of Indian Affairs included programs in 
        agreements with Indian tribes participating in self-governance 
under this title, the Secretary shall--
                    ``(A) review all included programs administered by 
                the Department, other than through the Bureau of Indian 
                Affairs, without regard to the agency or office 
                concerned;
                    ``(B) not later than January 1, <DELETED>2004</DELETED> 
                2005, submit to Congress--
                            ``(i) a list of all such included programs 
                        that the Secretary determines, with the 
                        concurrence of Indian tribes participating in 
                        self-governance, are eligible to be included in 
                        a funding agreement at the request of a 
                        participating Indian tribe; and
                            ``(ii) a list of all such included programs 
                        for which Indian tribes have requested to 
                        include in a funding agreement under section 
                        405(b)(3) due to the special geographic, 
                        historical, or cultural significance to the 
                        Indian tribe, indicating whether each request 
                        was granted or denied and stating the grounds 
                        for any denial.
            ``(2) Programmatic targets.--The Secretary shall establish 
        programmatic targets, after consultation with Indian tribes 
        participating in self-governance, to encourage bureaus of the 
        Department to ensure that a significant portion of those 
        included programs are included in funding agreements.
            ``(3) Publication.--The lists and targets under paragraphs 
        (1) and (2) shall be published in the Federal Register and be 
        made available to any Indian tribe participating in self-
        governance.
            ``(4) Annual review.--
                    ``(A) In general.--The Secretary shall annually 
                review and publish in the Federal Register, after 
                consultation with Indian tribes participating in self-
                governance, revised lists and programmatic targets.
                    ``(B) Contents.--The revised lists and programmatic 
                targets shall include all included programs that were 
                eligible for contracting in the original list published 
                in the Federal Register in 1995, except for included 
                programs specifically determined not to be contractible 
                as a matter of law.
    ``(d) Report on Central Office Funds.--Not later than January 1, 
<DELETED>2004</DELETED> 2005, the Secretary shall, in consultation with 
Indian tribes, develop a funding formula to determine the individual 
tribal share of funds controlled by the Central Office of the Bureau of 
Indian Affairs for inclusion in the self-governance compacts.

``SEC. 416. REGULATIONS.

    ``(a) In General.--
            ``(1) Promulgation.--Not later than 90 days after the date 
        of the enactment of the Department of the Interior Tribal Self-
        Governance Act of <DELETED>2003</DELETED> 2004, the Secretary 
        shall initiate procedures under subchapter III of chapter 5, of 
        title 5, United States Code, to negotiate and promulgate such 
        regulations as are necessary to carry out the amendments made 
        by that Act.
            ``(2) Publication of proposed regulations.--Proposed 
        regulations to implement the amendments shall be published in 
        the Federal Register not later than 1 year after the date of 
        enactment of that Act.
            ``(3) Expiration of authority.--The authority to promulgate 
        regulations under paragraph (1) shall expire on the date that 
        is 18 months after the date of enactment of that Act.
    ``(b) Committee.--
            ``(1) Membership.--A negotiated rulemaking committee 
        established under section 565 of title 5, United States Code, 
        to carry out this section shall have as its members only 
        Federal and tribal government representatives.
            ``(2) Lead agency.-- Among the Federal representatives, the 
        Office of Self-Governance shall be the lead agency for the 
        Department of the Interior.
    ``(c) Adaptation of Procedures.--The Secretary shall adapt the 
negotiated rulemaking procedures to the unique context of self-
governance and the government-to-government relationship between the 
United States and Indian tribes.
    ``(d) Effect.--
            ``(1) Repeal.--All regulatory provisions under part 1000 of 
        title 25, Code of Federal Regulations, are repealed on the date 
        of enactment of the Department of the Interior Tribal Self-
        Governance Act of <DELETED>2003</DELETED> 2004.
            ``(2) Effectiveness without regard to regulations.--The 
        lack of promulgated regulations shall not limit the effect of 
        this Act.
            ``(3) Interim provision.--Notwithstanding this subsection, 
        any regulation under part 1000 of title 25, Code of Federal 
        Regulations, shall remain in effect, at an Indian tribe's 
        option, in implementing compacts until regulations are 
        promulgated.

``SEC. 417. EFFECT OF CIRCULARS, POLICIES, MANUALS, GUIDANCES, AND 
              RULES.

    ``Unless expressly agreed to by a participating Indian tribe in a 
compact or funding agreement, the participating Indian tribe shall not 
be subject to any agency circular, policy, manual, guidance, or rule 
adopted by the Department, except for--
            ``(1) the eligibility provisions of section 105(g); and
            ``(2) regulations promulgated under section 416.

``SEC. 418. APPEALS.

    ``In any administrative appeal or civil action for judicial review 
of any decision made by the Secretary under this title, the Secretary 
shall have the burden of proof of demonstrating by clear and convincing 
evidence--
            ``(1) the validity of the grounds for the decision; and
            ``(2) the consistency of the decision with the provisions 
        and policies of this title.

``SEC. 419. AUTHORIZATION OF APPROPRIATIONS.

    ``There are authorized to be appropriated such sums 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 Education Assistance Act to 
           provide further self-governance by Indian tribes.

_______________________________________________________________________

                           November 16, 2004

                        Reported with amendments
```