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[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 1696 Reported in Senate (RS)]

                                                       Calendar No. 803
108th CONGRESS
  2d Session
                                S. 1696

                          [Report No. 108-412]

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

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                            October 1, 2003

 Mr. Campbell (for himself and Mr. Inouye) introduced the following 
        bill; which was read twice and referred to the Committee on 
        Indian AffairsYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYY

                           November 16, 2004

              Reported by Mr. Campbell, with an amendment
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 A BILL

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

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

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Department of Health and 
Human Services Tribal Self-Governance Amendments Act of 
2003''.</DELETED>

<DELETED>SEC. 2. AMENDMENT.</DELETED>

<DELETED>    The Indian Self-Determination and Education Assistance Act 
is amended by striking title VI (25 U.S.C. 450f note; Public Law 93-
638) and inserting the following:</DELETED>

 <DELETED>``TITLE VI--TRIBAL SELF-GOVERNANCE DEMONSTRATION PROJECT FOR 
         THE DEPARTMENT OF HEALTH AND HUMAN SERVICES</DELETED>

<DELETED>``SEC. 601. DEFINITIONS.</DELETED>

<DELETED>    ``In this title:</DELETED>
        <DELETED>    ``(1) Compact.--The term `compact' means a compact 
        under section 604.</DELETED>
        <DELETED>    ``(2) Construction project.--The term 
        `construction project' has the meaning given the term in 
        section 501.</DELETED>
        <DELETED>    ``(3) Demonstration project.--The term 
        `demonstration project' means the demonstration project under 
        this title.</DELETED>
        <DELETED>    ``(4) Funding agreement.--The term `funding 
        agreement' means a funding agreement under section 
        604.</DELETED>
        <DELETED>    ``(5) Included program.--The term `included 
        program' means a program that is eligible for inclusion under a 
        funding agreement under section 604(c) (including any portion 
        of such a program and any function, service, or activity 
        performed under such a program).</DELETED>
        <DELETED>    ``(6) 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 603(a)(3), includes the other 
        authorized Indian tribe, inter-tribal consortium, or tribal 
        organization.</DELETED>
        <DELETED>    ``(7) Inter-tribal consortium.--The term `inter-
        tribal consortium' has the meaning given the term in section 
        501.</DELETED>
        <DELETED>    ``(8) Secretary.--The term `Secretary' means the 
        Secretary of Health and Human Services.</DELETED>
        <DELETED>    ``(9) Self-governance.--The term `self-governance' 
        has the meaning given the term in section 501.</DELETED>
        <DELETED>    ``(10) Tribal share.--The term `tribal share' has 
        the meaning given the term in section 501.</DELETED>

<DELETED>``SEC. 602. ESTABLISHMENT OF DEMONSTRATION -PROJECT.</DELETED>

<DELETED>    ``(a) Demonstration.--For a period of not more than 5 
years after the date of enactment of the Department of Health and Human 
Services Tribal Self-Governance Amendments Act of 2003, the Secretary 
shall carry out a project to demonstrate the effectiveness of tribal 
operation of the included programs under self-governance principles and 
authorities.</DELETED>
<DELETED>    ``(b) Administration.--The management and administration 
of the demonstration project shall be in the Office of the 
Secretary.</DELETED>

<DELETED>``SEC. 603. SELECTION OF PARTICIPATING INDIAN 
              TRIBES.</DELETED>

<DELETED>    ``(a) In General.--</DELETED>
        <DELETED>    ``(1) Continuing participation.--Not more than 50 
        Indian tribes that meet the eligibility criteria specified in 
        subsection (b) shall be entitled to participate in the 
        demonstration project.</DELETED>
        <DELETED>    ``(2) Additional participants.--If more than 50 
        eligible Indian tribes request participation, the Secretary may 
        select additional Indian tribes to participate in the 
        demonstration project.</DELETED>
        <DELETED>    ``(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).</DELETED>
<DELETED>    ``(b) Eligibility.--An Indian tribe shall be eligible to 
participate in the demonstration project if the Indian tribe, as of the 
date of enactment of the Department of Health and Human Services Tribal 
Self-Governance Amendments Act of 2003, is a party to a compact or 
funding agreement under this Act.</DELETED>
<DELETED>    ``(c) Selection.--The Secretary shall select Indian tribes 
that request participation in the demonstration project by resolution 
or other official action by the governing body of each Indian tribe to 
be served.</DELETED>
<DELETED>    ``(d) Planning and Negotiation Grants.--</DELETED>
        <DELETED>    ``(1) In general.--Subject to the availability of 
        appropriations, the Secretary shall establish a program to 
        allow Indian tribes that meet the eligibility requirements of 
        this title to be awarded a planning grant or negotiation grant, 
        or both.</DELETED>
        <DELETED>    ``(2) Receipt of Grant Not Required.--Receipt of a 
        grant under paragraph (1) by an Indian tribe is not a 
        requirement for the Indian tribe to participate in the 
        demonstration project.</DELETED>

<DELETED>``SEC. 604. COMPACTS AND FUNDING AGREEMENTS.</DELETED>

<DELETED>    ``(a) In General.--</DELETED>
        <DELETED>    ``(1) New compact and funding agreement.--Not 
        later than 60 days after the date of submission by an Indian 
        tribe of a request to participate in the demonstration project, 
        the Secretary shall negotiate and enter into a written compact 
        and funding agreement with the Indian tribe in a manner that is 
consistent with the trust responsibility of the Federal Government, 
treaty and statutory obligations, and the government-to-government 
relationship between Indian tribes and the United States.</DELETED>
        <DELETED>    ``(2) Existing compact.--Rather than enter into a 
        new compact under paragraph (1), an Indian tribe may use an 
        existing compact negotiated under title V for purposes of the 
        demonstration project.</DELETED>
<DELETED>    ``(b) Compacts.--</DELETED>
        <DELETED>    ``(1) Contents.--A compact under subsection (a) 
        shall designate--</DELETED>
                <DELETED>    ``(A) congressional policies regarding 
                tribal self-governance;</DELETED>
                <DELETED>    ``(B) the intent of the demonstration 
                project;</DELETED>
                <DELETED>    ``(C) such terms as shall control from 
                year to year; and</DELETED>
                <DELETED>    ``(D) any provisions of this title that 
                are requested by the Indian tribe.</DELETED>
        <DELETED>    ``(2) Effective date.--The effective date of a 
        compact shall be the date of execution by the Indian tribe and 
        the Secretary or another date agreed on by the 
        parties.</DELETED>
        <DELETED>    ``(3) Duration.--A compact shall remain in effect 
        so long as permitted by Federal law or until terminated by 
        agreement of the parties.</DELETED>
        <DELETED>    ``(4) Amendment.--A compact may be amended only by 
        agreement of the parties.</DELETED>
<DELETED>    ``(c) Funding Agreements.--</DELETED>
        <DELETED>    ``(1) Scope.--A funding agreement under subsection 
        (a) shall, at the option of the Indian tribe, authorize the 
        Indian tribe to plan, conduct, and administer included programs 
        administered by the Secretary through an agency of the 
        Department of Health and Human Services, set forth in 
        paragraphs (2) through (4).</DELETED>
        <DELETED>    ``(2) Initial included programs.--The following 
        programs are eligible for inclusion in a funding agreement 
        under this title:</DELETED>
                <DELETED>    ``(A) Administration on aging.--Grants for 
                Native Americans under title VI of the Older Americans 
                Act of 1965 (42 U.S.C. 3057 et seq.).</DELETED>
                <DELETED>    ``(B) Administration for children and 
                families.--</DELETED>
                        <DELETED>    ``(i) The tribal temporary 
                        assistance for needy families program under 
                        section 412(a)(1) of the Social Security Act 
                        (42 U.S.C. 612(a)(1) et seq.).</DELETED>
                        <DELETED>    ``(ii) The Low-Income Home Energy 
                        Assistance Program under the Low-Income Home 
                        Energy Assistance Act of 1981 (42 U.S.C. 8621 
                        et seq.).</DELETED>
                        <DELETED>    ``(iii) The Community Services 
                        Block Grant Program under the Community 
                        Services Block Grant Act (42 U.S.C. 9901 et 
                        seq.).</DELETED>
                        <DELETED>    ``(iv) The Child Care and 
                        Development Fund under the Child Care and 
                        Development Block Grant Act (42 U.S.C. 9858 et 
                        seq.).</DELETED>
                        <DELETED>    ``(v) The native employment works 
                        program under section 412(a)(2) of the Social 
                        Security Act (42 U.S.C. 612(a)(2)).</DELETED>
                        <DELETED>    ``(vi) The Head Start Program 
                        under the Head Start Act (42 U.S.C. 9831 et 
                        seq.).</DELETED>
                        <DELETED>    ``(vii) Child welfare services 
                        programs under part B of title IV of the Social 
                        Security Act (42 U.S.C. 620 et seq.).</DELETED>
                        <DELETED>    ``(viii) The promoting safe and 
                        stable families program under part B of title 
                        IV of the Social Security Act (42 U.S.C. 620 et 
                        seq.).</DELETED>
                        <DELETED>    ``(ix) Family violence prevention 
                        grants for battered women's shelters under the 
                        Family Violence Prevention and Services Act (42 
                        U.S.C. 10401 et seq.).</DELETED>
                <DELETED>    ``(C) Substance abuse and mental health 
                services administration.--Targeted capacity expansion 
                program under title V of the Public Health Service Act 
                (42 U.S.C. 290aa et seq.).</DELETED>
                <DELETED>    ``(D) Block grants regarding mental health 
                and substance abuse.--Mental health and substance abuse 
                block grant programs under title XIX of the Public 
                Health Services Act (42 U.S.C. 300x et seq.).</DELETED>
                <DELETED>    ``(E) Health resources and services 
                administration.--Community health center grants under 
                section 330 of the Public Health Service Act (42 U.S.C. 
                254b).</DELETED>
        <DELETED>    ``(3) Additional included programs.--The Secretary 
        may identify not more than 6 additional programs annually for 
        inclusion in the demonstration project, including--</DELETED>
                <DELETED>    ``(A) all other programs in which Indian 
                tribes are eligible to participate;</DELETED>
                <DELETED>    ``(B) all other programs for which Indians 
                are eligible beneficiaries; and</DELETED>
                <DELETED>    ``(C) competitive grants for which an 
                Indian tribe receives an individual or cooperative 
                award, on the condition that the Indian tribe agree in 
                the funding agreement to restrictions regarding program 
                redesign and budget reallocation for any competitive 
                awards.</DELETED>
        <DELETED>    ``(4) Contents.--A funding agreement--</DELETED>
                <DELETED>    ``(A) shall specify--</DELETED>
                        <DELETED>    ``(i) the services to be 
                        provided;</DELETED>
                        <DELETED>    ``(ii) the functions to be 
                        performed; and</DELETED>
                        <DELETED>    ``(iii) the responsibilities of 
                        the Indian tribe and the Secretary;</DELETED>
                <DELETED>    ``(B) shall provide for payment by the 
                Secretary to the Indian tribe of funds in accordance 
                with section 605;</DELETED>
                <DELETED>    ``(C) shall not allow the Secretary to 
                waive, modify, or diminish in any way the trust 
                responsibility of the United States with respect to 
                Indian tribes and individual Indians that exist under 
treaties, Executive orders, and Acts of Congress; and</DELETED>
                <DELETED>    ``(D) shall allow for retrocession of 
                included programs under section 105(e).</DELETED>

<DELETED>``SEC. 605. TRANSFER OF FUNDS.</DELETED>

<DELETED>    ``(a) Transfer.--</DELETED>
        <DELETED>    ``(1) In general.--Under any compact or funding 
        agreement entered into under this title, the Secretary shall 
        transfer to the Indian tribe all funds provided for in the 
        funding agreement.</DELETED>
        <DELETED>    ``(2) Timing.--Unless the funding agreement 
        provides otherwise, at the request of the Indian tribe--
        </DELETED>
                <DELETED>    ``(A) funding shall be paid in 1 annual 
                lump sum payment; and</DELETED>
                <DELETED>    ``(B) the transfer shall be made not later 
                than 10 days after the apportionment of funds by the 
                Office of Management and Budget to the Department of 
                Health and Human Services.</DELETED>
<DELETED>    ``(b) Amount of Funding.--</DELETED>
        <DELETED>    ``(1) Funding formulas.--</DELETED>
                <DELETED>    ``(A) In general.--Any statutory funding 
                formula for an included program--</DELETED>
                        <DELETED>    ``(i) shall be waived for the 
                        demonstration project under this title; 
                        and</DELETED>
                        <DELETED>    ``(ii) shall be used to determine 
                        the amount of funding provided to an Indian 
                        tribe.</DELETED>
                <DELETED>    ``(B) Adequacy.--Subject to the 
                availability of appropriations--</DELETED>
                        <DELETED>    ``(i) the funding amount shall be 
                        adequate to permit the successful 
                        implementation of the demonstration project; 
                        and</DELETED>
                        <DELETED>    ``(ii) the Secretary and the 
                        participating Indian tribe shall determine the 
                        funding amount through negotiation.</DELETED>
        <DELETED>    ``(2) Matching requirement.--An Indian tribe may 
        request a waiver of any matching requirement applicable to an 
        included program, and the Secretary shall liberally grant such 
        reasonable waiver requests.</DELETED>
        <DELETED>    ``(3) Contract support costs.--There shall be 
        added to the amount required by paragraph (1) contract support 
        costs as specified in paragraphs (2), (3), (5), and (6) of 
        section 106(a).</DELETED>
        <DELETED>    ``(4) Administrative fund shares.--</DELETED>
                <DELETED>    ``(A) In general.--An Indian tribe may 
                negotiate for a tribal share of administrative funds 
                without regard to the organizational level at which the 
                included programs are carried out.</DELETED>
                <DELETED>    ``(B) Inclusion.--A tribal share under 
                subparagraph (A) shall include a share for training and 
                technical assistance services performed by a 
                contractor.</DELETED>

<DELETED>``SEC. 606. GENERAL PROVISIONS.</DELETED>

<DELETED>    ``(a) Redesign, Consolidation, and Reallocation.--
</DELETED>
        <DELETED>    ``(1) In general.--To the extent allowed under the 
        statutory provisions of the included programs included in the 
        funding agreement, and subject to the terms of the funding 
        agreement, an Indian tribe may--</DELETED>
                <DELETED>    ``(A) redesign or consolidate the included 
                programs under the funding agreement if the Indian 
                tribe agrees to abide by the statutory purposes of the 
                program; and</DELETED>
                <DELETED>    ``(B) reallocate or redirect funds for the 
                included programs, among the included programs under 
                the funding agreement, so long as all demonstration 
                project costs using those funds meet allowable cost 
                standards as required by section 506(c).</DELETED>
        <DELETED>    ``(2) Waivers.--</DELETED>
                <DELETED>    ``(A) In general.--At the request of an 
                Indian tribe, if the Secretary determines that a waiver 
                would further the purposes of this Act, the Secretary 
                shall grant a waiver of program requirements for the 
                duration of the demonstration project to facilitate the 
                ability of an Indian tribe to redesign included 
                programs or reallocate funds under paragraph 
                (1).</DELETED>
                <DELETED>    ``(B) Documentation.--The Secretary shall 
                document all requests for a waiver under subparagraph 
                (A), including a description of--</DELETED>
                        <DELETED>    ``(i) the reasons for each 
                        request;</DELETED>
                        <DELETED>    ``(ii) the effect of the waiver on 
                        the Indian tribe making the request; 
                        and</DELETED>
                        <DELETED>    ``(iii) the views of the Indian 
                        tribe regarding the requested waiver.</DELETED>
<DELETED>    ``(b) Inability To Agree on Compact or Funding 
Agreement.--</DELETED>
        <DELETED>    ``(1) Final offer.--If the Secretary and an 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.</DELETED>
        <DELETED>    ``(2) Determination.--Not later 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.</DELETED>
        <DELETED>    ``(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 final offer.</DELETED>
        <DELETED>    ``(4) Rejection of final offer.--</DELETED>
                <DELETED>    ``(A) In general.--If the Secretary 
                rejects a final offer, the Secretary shall--</DELETED>
                        <DELETED>    ``(i) submit to the Indian tribe a 
                        written statement clearly setting forth the 
                        reasons for rejecting the final offer; 
                        and</DELETED>
                        <DELETED>    ``(ii) provide the Indian tribe 
                        with a hearing on the record (except that the 
                        Indian tribe may, in lieu of such a hearing, 
                        file an appeal of the rejection to the Intra-
                        Departmental Council on Native American 
                        Affairs, the decision of which shall be final 
                        and not subject to judicial review).</DELETED>
                <DELETED>    ``(B) Burden of proof.--In a hearing or 
                appeal under subparagraph (A)(ii), the Secretary shall 
                have the burden of proving by clear and convincing 
                evidence the validity of the grounds for rejecting the 
                final offer.</DELETED>
<DELETED>    ``(c) Other Funding.--Participation by an Indian tribe in 
the demonstration project under this title shall not affect the amount 
of funding that the Indian tribe would receive under the laws 
(including regulations) governing the included programs if the Indian 
tribe did not participate.</DELETED>
<DELETED>    ``(d) Duplication of Eligibility.--To the maximum extent 
practicable, an Indian tribe shall make efforts to coordinate with 
appropriate States to identify dually eligible individuals to address 
the potential for the provision of duplicate benefits.</DELETED>
<DELETED>    ``(e) Appeals.--Except as provided in subsection (b)(2), a 
compact or funding agreement under this title shall be considered to be 
a contract for the purposes of section 110.</DELETED>
<DELETED>    ``(f) Regulations; Other Agency Statements.--</DELETED>
        <DELETED>    ``(1) Regulations.--An Indian tribe shall comply 
        with final regulations for the included programs in connection 
        with the demonstration project.</DELETED>
        <DELETED>    ``(2) Other agency statements.--Unless expressly 
        agreed to by an Indian tribe in a compact or funding agreement, 
        the Indian tribe shall not be subject to any agency circular, 
        policy, manual, guidance, or rule that is promulgated by 
        regulation.</DELETED>
<DELETED>    ``(g) Applicability of Other Provisions.--The following 
provisions of this Act shall apply to a compact or funding agreements 
entered into under this title:</DELETED>
        <DELETED>    ``(1) Section 102(d).</DELETED>
        <DELETED>    ``(2) Section 506(b) (conflicts of 
        interest).</DELETED>
        <DELETED>    ``(3) Section 506(c)(1) (Single Agency Audit 
        Act).</DELETED>
        <DELETED>    ``(4) Section 506(c)(2) (cost 
        principles).</DELETED>
        <DELETED>    ``(5) Section 506(c) (records).</DELETED>
        <DELETED>    ``(6) Section 507(c)(1)(A) (grounds for rejecting 
        a final offers).</DELETED>
        <DELETED>    ``(7) Section 508(g) (prompt payment).</DELETED>
        <DELETED>    ``(8) Section 506(h) (nonduplication).</DELETED>
        <DELETED>    ``(9) Section 508(h) (interest or other income on 
        transfers).</DELETED>
        <DELETED>    ``(10) Section 508(i) (carryover of 
        funds).</DELETED>
        <DELETED>    ``(11) Section 509 (construction 
        projects).</DELETED>
        <DELETED>    ``(12) Section 510 (Federal procurement 
        laws).</DELETED>
        <DELETED>    ``(13) Section 512(b) (regulation 
        waivers).</DELETED>

<DELETED>``SEC. 607. REPORT.</DELETED>

<DELETED>    ``(a) In General.--The Secretary shall annually submit to 
Congress a report on the relative costs and benefits of the 
demonstration project using evaluation and reporting data provided by 
participating Indian tribes.</DELETED>
<DELETED>    ``(b) Baseline Measurements.--</DELETED>
        <DELETED>    ``(1) In general.--A report under subsection (a) 
        shall be based on baseline measurements developed jointly by 
        the Secretary and participating Indian tribes.</DELETED>
        <DELETED>    ``(2) Financial assistance.--The Secretary shall 
        provide financial assistance to Indian tribes to assist Indian 
        tribes in evaluating and reporting on the demonstration 
        project.</DELETED>
<DELETED>    ``(c) Contents.--A report under subsection (a) shall--
</DELETED>
        <DELETED>    ``(1) verify that the participating Indian tribes 
        met the statutory purposes of the included programs;</DELETED>
        <DELETED>    ``(2) confirm that key self-governance principles 
        were carried out as Indian tribes operated the included 
        programs; and</DELETED>
        <DELETED>    ``(3) separately include Federal and tribal 
        viewpoints regarding--</DELETED>
                <DELETED>    ``(A) the merger of included programs 
                operated under this title and self-governance 
                principles; and</DELETED>
                <DELETED>    ``(B) the impact on program 
                beneficiaries.</DELETED>

<DELETED>``SEC. 608. AUTHORIZATION OF APPROPRIATIONS.</DELETED>

<DELETED>    ``There are authorized to be appropriated such sums as are 
necessary to carry out this title, to remain available until 
expended.''.</DELETED>

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Department of Health and Human 
Services Tribal Self-Governance Amendments Act of 2004''.

SEC. 2. AMENDMENT.

    The Indian Self-Determination and Education Assistance Act is 
amended by striking title VI (25 U.S.C. 450f note; Public Law 93-638) 
and inserting the following:

   ``TITLE VI--TRIBAL SELF-GOVERNANCE DEMONSTRATION PROJECT FOR THE 
                DEPARTMENT OF HEALTH AND HUMAN SERVICES

``SEC. 601. DEFINITIONS.

    ``In this title:
            ``(1) Compact.--The term `compact' means a compact under 
        section 604.
            ``(2) Construction project.--The term `construction 
        project' has the meaning given the term in section 501.
            ``(3) Demonstration project.--The term `demonstration 
        project' means the demonstration project under this title.
            ``(4) Funding agreement.--The term `funding agreement' 
        means a funding agreement under section 604.
            ``(5) Included program.--The term `included program' means 
        a program that is eligible for inclusion under a funding 
        agreement under section 604(c) (including any portion of such a 
        program and any function, service, or activity performed under 
        such a program).
            ``(6) 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 603(a)(3), includes the other authorized Indian 
        tribe, inter-tribal consortium, or tribal organization.
            ``(7) Inter-tribal consortium.--The term `inter-tribal 
        consortium' has the meaning given the term in section 501.
            ``(8) Secretary.--The term `Secretary' means the Secretary 
        of Health and Human Services.
            ``(9) Self-governance.--The term `self-governance' has the 
        meaning given the term in section 501.
            ``(10) Tribal share.--The term `tribal share' has the 
        meaning given the term in section 501.

``SEC. 602. ESTABLISHMENT OF DEMONSTRATION PROJECT.

    ``(a) Demonstration.--For a period of not more than 5 years after 
the date of enactment of the Department of Health and Human Services 
Tribal Self-Governance Amendments Act of 2004, the Secretary shall 
carry out a project to demonstrate the effectiveness of tribal 
operation of the included programs under self-governance principles and 
authorities.
    ``(b) Administration.--The management and administration of the 
demonstration project shall be in the Office of the Secretary.

``SEC. 603. SELECTION OF PARTICIPATING INDIAN TRIBES.

    ``(a) In General.--
            ``(1) Continuing participation.--Not more than 50 Indian 
        tribes that meet the eligibility criteria specified in 
        subsection (b) shall be entitled to participate in the 
        demonstration project.
            ``(2) Additional participants.--If more than 50 eligible 
        Indian tribes request participation, the Secretary may select 
        additional Indian tribes to participate in the demonstration 
        project.
            ``(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).
    ``(b) Eligibility.--An Indian tribe shall be eligible to 
participate in the demonstration project if the Indian tribe, as of the 
date of enactment of the Department of Health and Human Services Tribal 
Self-Governance Amendments Act of 2004, is a party to a compact or 
funding agreement under this Act.
    ``(c) Selection.--The Secretary shall select Indian tribes that 
request participation in the demonstration project by resolution or 
other official action by the governing body of each Indian tribe to be 
served.
    ``(d) Planning and Negotiation Grants.--
            ``(1) In general.--Subject to the availability of 
        appropriations, the Secretary shall establish a program to 
        allow Indian tribes that meet the eligibility requirements of 
        this title to be awarded a planning grant or negotiation grant, 
        or both.
            ``(2) Receipt of grant not required.--Receipt of a grant 
        under paragraph (1) by an Indian tribe is not a requirement for 
        the Indian tribe to participate in the demonstration project.

``SEC. 604. COMPACTS AND FUNDING AGREEMENTS.

    ``(a) In General.--
            ``(1) New compact and funding agreement.--Not later than 60 
        days after the date of submission by an Indian tribe of a 
        request to participate in the demonstration project, the 
        Secretary shall negotiate and enter into a written compact and 
        funding agreement with the Indian tribe in a manner that is 
        consistent with the trust responsibility of the Federal 
        Government, treaty and statutory obligations, and the 
        government-to-government relationship between Indian tribes and 
        the United States.
            ``(2) Existing compact.--Rather than enter into a new 
        compact under paragraph (1), an Indian tribe may use an 
        existing compact negotiated under title V for purposes of the 
        demonstration project.
    ``(b) Compacts.--
            ``(1) Contents.--A compact under subsection (a) shall 
        designate--
                    ``(A) congressional policies regarding tribal self-
                governance;
                    ``(B) the intent of the demonstration project;
                    ``(C) such terms as shall control from year to 
                year; and
                    ``(D) any provisions of this title that are 
                requested by the Indian tribe.
            ``(2) Effective date.--The effective date of a compact 
        shall be the date of execution by the Indian tribe and the 
        Secretary or another date agreed on by the parties.
            ``(3) Duration.--A compact shall remain in effect so long 
        as permitted by Federal law or until terminated by agreement of 
        the parties.
            ``(4) Amendment.--A compact may be amended only by 
        agreement of the parties.
    ``(c) Funding Agreements.--
            ``(1) Scope.--A funding agreement under subsection (a) 
        shall, at the option of the Indian tribe, authorize the Indian 
        tribe to plan, conduct, and administer included programs 
        administered by the Secretary through an agency of the 
        Department of Health and Human Services, set forth in 
        paragraphs (2) through (4).
            ``(2) Initial included programs.--The following programs 
        are eligible for inclusion in a funding agreement under this 
        title:
                    ``(A) Administration on aging.--Grants for Native 
                Americans under title VI of the Older Americans Act of 
                1965 (42 U.S.C. 3057 et seq.).
                    ``(B) Administration for children and families.--
                            ``(i) The tribal temporary assistance for 
                        needy families program under section 412(a)(1) 
                        of the Social Security Act (42 U.S.C. 612(a)(1) 
                        et seq.).
                            ``(ii) The Low-Income Home Energy 
                        Assistance Program under the Low-Income Home 
                        Energy Assistance Act of 1981 (42 U.S.C. 8621 
                        et seq.).
                            ``(iii) The Community Services Block Grant 
                        Program under the Community Services Block 
                        Grant Act (42 U.S.C. 9901 et seq.).
                            ``(iv) The Child Care and Development Fund 
                        under the Child Care and Development Block 
                        Grant Act (42 U.S.C. 9858 et seq.).
                            ``(v) The native employment works program 
                        under section 412(a)(2) of the Social Security 
                        Act (42 U.S.C. 612(a)(2)).
                            ``(vi) The Head Start Program under the 
                        Head Start Act (42 U.S.C. 9831 et seq.).
                            ``(vii) Child welfare services programs 
                        under part B of title IV of the Social Security 
                        Act (42 U.S.C. 620 et seq.).
                            ``(viii) The promoting safe and stable 
                        families program under part B of title IV of 
                        the Social Security Act (42 U.S.C. 620 et 
                        seq.).
                            ``(ix) Family violence prevention grants 
                        for battered women's shelters under the Family 
                        Violence Prevention and Services Act (42 U.S.C. 
                        10401 et seq.).
                    ``(C) Substance abuse and mental health services 
                administration.--Targeted capacity expansion program 
                under title V of the Public Health Service Act (42 
                U.S.C. 290aa et seq.).
                    ``(D) Block grants regarding mental health and 
                substance abuse.--Mental health and substance abuse 
                block grant programs under title XIX of the Public 
                Health Services Act (42 U.S.C. 300x et seq.).
                    ``(E) Health resources and services 
                administration.--Community health center grants under 
                section 330 of the Public Health Service Act (42 U.S.C. 
                254b).
            ``(3) Additional included programs.--The Secretary may 
        identify not more than 6 additional programs annually for 
        inclusion in the demonstration project, including--
                    ``(A) all other programs in which Indian tribes are 
                eligible to participate;
                    ``(B) all other programs for which Indians are 
                eligible beneficiaries; and
                    ``(C) competitive grants for which an Indian tribe 
                receives an individual or cooperative award, on the 
                condition that the Indian tribe agree in the funding 
                agreement to restrictions regarding program redesign 
                and budget reallocation for any competitive awards.
            ``(4) Contents.--A funding agreement--
                    ``(A) shall specify--
                            ``(i) the services to be provided;
                            ``(ii) the functions to be performed; and
                            ``(iii) the responsibilities of the Indian 
                        tribe and the Secretary;
                    ``(B) shall provide for payment by the Secretary to 
                the Indian tribe of funds in accordance with section 
                605;
                    ``(C) shall not allow the Secretary to waive, 
                modify, or diminish in any way the trust responsibility 
                of the United States with respect to Indian tribes and 
                individual Indians that exist under treaties, Executive 
                orders, and Acts of Congress; and
                    ``(D) shall allow for retrocession of included 
                programs under section 105(e).

``SEC. 605. TRANSFER OF FUNDS.

    ``(a) Transfer.--
            ``(1) In general.--Under any compact or funding agreement 
        entered into under this title, the Secretary shall transfer to 
        the Indian tribe all funds provided for in the funding 
        agreement.
            ``(2) Timing.--Unless the funding agreement provides 
        otherwise, at the request of the Indian tribe--
                    ``(A) funding shall be paid in 1 annual lump sum 
                payment; and
                    ``(B) the transfer shall be made not later than 10 
                days after the apportionment of funds by the Office of 
                Management and Budget to the Department of Health and 
                Human Services.
    ``(b) Amount of Funding.--
            ``(1) Funding formulas.--
                    ``(A) In general.--Any statutory funding formula 
                for an included program shall be used to identify the 
                funds to be paid to an Indian tribe.
                    ``(B) Adequacy.--Subject to the availability of 
                appropriations, an additional funding amount may be 
                provided by the Secretary to permit the successful 
                implementation of the demonstration project.
                    ``(C) Negotiation.--The Secretary and the 
                participating Indian tribe shall determine the overall 
                funding amount through negotiation.
            ``(2) Matching requirement.--An Indian tribe may request a 
        waiver of any matching requirement applicable to an included 
        program, and the Secretary shall liberally grant such 
        reasonable waiver requests.
            ``(3) Contract support costs.--There shall be added to the 
        amount required by paragraph (1) contract support costs as 
        specified in paragraphs (2), (3), (5), and (6) of section 
        106(a).
            ``(4) Administrative fund shares.--
                    ``(A) In general.--An Indian tribe may negotiate 
                for a tribal share of administrative funds without 
                regard to the organizational level at which the 
                included programs are carried out.
                    ``(B) Inclusion.--A tribal share under subparagraph 
                (A) shall include a share for training and technical 
                assistance services performed by a contractor.

``SEC. 606. GENERAL PROVISIONS.

    ``(a) Redesign, Consolidation, and Reallocation.--
            ``(1) In general.--To the extent allowed under the 
        statutory provisions of the included programs included in the 
        funding agreement, and subject to the terms of the funding 
        agreement, an Indian tribe may--
                    ``(A) redesign or consolidate the included programs 
                under the funding agreement if the Indian tribe agrees 
                to abide by the statutory purposes of the program; and
                    ``(B) reallocate or redirect funds for the included 
                programs, among the included programs under the funding 
                agreement, so long as all demonstration project costs 
                using those funds meet allowable cost standards as 
                required by section 506(c).
            ``(2) Waivers.--
                    ``(A) In general.--At the request of an Indian 
                tribe and consistent with section 512(b), the Secretary 
                shall grant a waiver of final regulations for the 
                duration of the demonstration project to facilitate the 
                ability of an Indian tribe to redesign included 
                programs or reallocate funds under paragraph (1).
                    ``(B) Documentation.--The Secretary shall document 
                all requests for a waiver under subparagraph (A), 
                including a description of--
                            ``(i) the reasons for each request;
                            ``(ii) the effect of the waiver on the 
                        Indian tribe making the request; and
                            ``(iii) the views of the Indian tribe 
                        regarding the requested waiver.
    ``(b) Inability To Agree on Compact or Funding Agreement.--
            ``(1) Final offer.--If the Secretary and an 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 later 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 final offer.
            ``(4) Rejection of final offer.--
                    ``(A) In general.--If the Secretary rejects a final 
                offer, the Secretary shall--
                            ``(i) submit to the Indian tribe a written 
                        statement clearly setting forth the reasons for 
                        rejecting the final offer; and
                            ``(ii) provide the Indian tribe with a 
                        hearing on the record (except that the Indian 
                        tribe may, in lieu of such a hearing, file an 
                        appeal of the rejection to the Intra-
                        Departmental Council on Native American 
                        Affairs, the decision of which shall be final 
                        and not subject to judicial review).
                    ``(B) Burden of proof.--In a hearing or appeal 
                under subparagraph (A)(ii), the Secretary shall have 
                the burden of proving by clear and convincing evidence 
                the validity of the grounds for rejecting the final 
                offer.
    ``(c) Other Funding.--Participation by an Indian tribe in the 
demonstration project under this title shall not affect the amount of 
funding that the Indian tribe would receive under the laws (including 
regulations) governing the included programs if the Indian tribe did 
not participate.
    ``(d) Duplication of Eligibility.--To the maximum extent 
practicable, an Indian tribe shall make efforts to coordinate with 
appropriate States to identify dually eligible individuals to address 
the potential for the provision of duplicate benefits.
    ``(e) Appeals.--Except as provided in subsection (b), a compact or 
funding agreement under this title shall be considered to be a contract 
for the purposes of section 110.
    ``(f) Regulations; Other Agency Statements.--
            ``(1) Regulations.--Unless otherwise waived pursuant to 
        section 606, an Indian tribe shall comply with final 
        regulations for the included programs in connection with the 
        demonstration project.
            ``(2) Other agency statements.--Unless expressly agreed to 
        by an Indian tribe in a compact or funding agreement, the 
        Indian tribe shall not be subject to any agency circular, 
        policy, manual, guidance, or rules, except as provided under 
        paragraph (1).
    ``(g) Applicability of Other Provisions.--The following provisions 
of this Act shall apply to a compact or funding agreements entered into 
under this title:
            ``(1) Section 102(d).
            ``(2) Section 506(b) (conflicts of interest).
            ``(3) Section 506(c)(1) (Single Agency Audit Act).
            ``(4) Section 506(c)(2) (cost principles).
            ``(5) Section 506(c) (records).
            ``(6) Section 507(c)(1)(A) (grounds for rejecting a final 
        offer).
            ``(7) Section 508(g) (prompt payment).
            ``(8) Section 506(h) (nonduplication).
            ``(9) Section 508(h) (interest or other income on 
        transfers).
            ``(10) Section 508(i) (carryover of funds).
            ``(11) Section 509 (construction projects).
            ``(12) Section 510 (Federal procurement laws).
            ``(13) Section 512(b) (regulation waivers).

``SEC. 607. REPORT.

    ``(a) In General.--The Secretary shall annually submit to Congress 
a report on the relative costs and benefits of the demonstration 
project using evaluation and reporting data provided by participating 
Indian tribes.
    ``(b) Baseline Measurements.--
            ``(1) In general.--A report under subsection (a) shall be 
        based on baseline measurements developed jointly by the 
        Secretary and participating Indian tribes.
            ``(2) Financial assistance.--The Secretary shall provide 
        financial assistance to Indian tribes to assist Indian tribes 
        in evaluating and reporting on the demonstration project.
    ``(c) Contents.--A report under subsection (a) shall--
            ``(1) verify that the participating Indian tribes met the 
        statutory purposes of the included programs;
            ``(2) confirm that key self-governance principles were 
        carried out as Indian tribes operated the included programs; 
        and
            ``(3) separately include Federal and tribal viewpoints 
        regarding--
                    ``(A) the merger of included programs operated 
                under this title and self-governance principles; and
                    ``(B) the impact on program beneficiaries.

``SEC. 608. AUTHORIZATION OF APPROPRIATIONS.

    ``There are authorized to be appropriated such sums as are 
necessary to carry out this title, to remain available until 
expended.''.

                                                       Calendar No. 803

108th CONGRESS

  2d Session

                                S. 1696

                          [Report No. 108-412]

_______________________________________________________________________

                                 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 an amendment
```