I 

112TH CONGRESS 

1ST SESSION H. R. 2444 

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

provide further self-governance by Indian tribes, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JULY 7, 2011 

Mr. BOREN (for himself, Mr. COLE, Mrs. NAPOLITANO, Mr. HONDA, Mr. INSLEE, Mr. KILDEE, Ms. MCCOLLUM, Mr. MARKEY, Mr. FALEOMAVAEGA, 

Mr. SABLAN, and Mr. YOUNG of Alaska) introduced the following bill; 

which was referred to the Committee on Natural Resources 

A BILL 

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

tribes, and for other purposes. 

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

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Department of the Interior Tribal Self-Governance Act 

6 of 2011’’. 

7 (b) TABLE OF CONTENTS.—The table of contents of 

8 this Act is as follows: 

Sec. 1. Short title; table of contents. 


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TITLE I—INDIAN SELF–DETERMINATION 

Sec. 101. Definitions; reporting and audit requirements; application of provisions. 

Sec. 102. Contracts by Secretary of Interior. 

Sec. 103. Administrative provisions. 

Sec. 104. Contract funding and indirect costs. 

Sec. 105. Contract or grant specifications. 

TITLE II—TRIBAL SELF–GOVERNANCE 

Sec. 201. Tribal self-governance. 

1 TITLE I—INDIAN SELF– 

2 DETERMINATION 

3 SEC. 101. DEFINITIONS; REPORTING AND AUDIT REQUIRE4 MENTS; APPLICATION OF PROVISIONS. 

5 (a) DEFINITIONS.—Section 4 of the Indian Self-De6 termination and Education Assistance Act (25 U.S.C. 

7 450b) is amended by striking subsection (j) and inserting 

8 the following: 

9 ‘‘(j) ‘self-determination contract’ means a contract 

10 entered into under title I (or a grant or cooperative agree11 ment used under section 9) between a tribal organization 

12 and the appropriate Secretary for the planning, conduct, 

13 and administration of programs or services that are other14 wise provided to Indian tribes and members of Indian 

15 tribes pursuant to Federal law, subject to the condition 

16 that, except as provided in section 105(a)(3), no contract 

17 entered into under title I (or grant or cooperative agree18 ment used under section 9) shall be— 

19 ‘‘(1) considered to be a procurement contract; 

20 or 


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1 ‘‘(2) except as provided in section 107(a)(1), 

2 subject to any Federal procurement law (including 

3 regulations);’’. 

4 (b) REPORTING AND AUDIT REQUIREMENTS.—Sec5 tion 5(b) of the Indian Self-Determination and Education 

6 Assistance Act (25 U.S.C. 450c(b)) is amended— 

7 (1) by striking ‘‘after completion of the project 

8 or undertaking referred to in the preceding sub9 section of this section’’ and inserting ‘‘after the re10 tention period for the report that is submitted to the 

11 Secretary under subsection (a)’’; and 

12 (2) by adding at the end the following: ‘‘The re13 tention period shall be defined in regulations pro14 mulgated by the Secretary pursuant to section 

15 415.’’. 

16 (c) APPLICATION OF OTHER PROVISIONS.—Sections 

17 4, 5, 6, 7, 102(c), 104, 105(a)(1), 105(f), 110, and 111 

18 of the Indian Self-Determination and Education Assist19 ance Act, as amended (25 U.S.C. 450 et seq.) (Public Law 

20 93–638; 88 Stat. 2203) and section 314 of the Depart21 ment of the Interior and Related Agencies Appropriations 

22 Act, 1991 (Public Law 101–512; 104 Stat. 1959), apply 

23 to compacts and funding agreements entered into under 

24 title IV. 


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1 SEC. 102. CONTRACTS BY SECRETARY OF INTERIOR. 

2 Section 102 of the Indian Self-Determination and 

3 Education Assistance Act (25 U.S.C. 450f) is amended— 

4 (1) in subsection (c)(2), by striking ‘‘economic 

5 enterprises’’ and all that follows through ‘‘except 

6 that’’ and inserting ‘‘economic enterprises (as de7 fined in section 3 of the Indian Financing Act of 

8 1974 (25 U.S.C. 1452)), except that’’; and 

9 (2) by adding at the end the following: 

10 ‘‘(f) GOOD FAITH REQUIREMENT.—In the negotia11 tion of contracts and funding agreements, the Secretary 

12 shall— 

13 ‘‘(1) at all times negotiate in good faith to 

14 maximize implementation of the self-determination 

15 policy; and 

16 ‘‘(2) carry out this Act in a manner that maxi17 mizes the policy of tribal self-determination, in a 

18 manner consistent with the purposes specified in sec19 tion 3. 

20 ‘‘(g) RULE OF CONSTRUCTION.—Each provision of 

21 this Act and each provision of a contract or funding agree22 ment shall be liberally construed for the benefit of the In23 dian tribe participating in self-determination, and any am24 biguity shall be resolved in favor of the Indian tribe.’’. 


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1 SEC. 103. ADMINISTRATIVE PROVISIONS. 

2 Section 105 of the Indian Self-Determination and 

3 Education Assistance Act (25 U.S.C. 450j) is amended— 

4 (1) in subsection (b), in the first sentence, by 

5 striking ‘‘pursuant to’’ and all that follows through 

6 ‘‘of this Act’’ and inserting ‘‘pursuant to sections 

7 102 and 103’’; and 

8 (2) by adding at the end the following: 

9 ‘‘(m) INTERPRETATION BY SECRETARY.—Except as 

10 otherwise provided by law, the Secretary shall interpret 

11 all Federal laws (including regulations) and Executive or12 ders in a manner that facilitates, to the maximum extent 

13 practicable— 

14 ‘‘(1) the inclusion in self-determination con15 tracts and funding agreements of— 

16 ‘‘(A) applicable programs, services, func17 tions, and activities (or portions thereof); and 

18 ‘‘(B) funds associated with those pro19 grams, services, functions, and activities; 

20 ‘‘(2) the implementation of self-determination 

21 contracts and funding agreements; and 

22 ‘‘(3) the achievement of tribal health objec23 tives.’’. 


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1 SEC. 104. CONTRACT FUNDING AND INDIRECT COSTS. 

2 Section 106(a)(3) of the Indian Self-Determination 

3 and Education Assistance Act (25 U.S.C. 450j–1(a)(3)) 

4 is amended— 

5 (1) in subparagraph (A)— 

6 (A) in clause (i), by striking ‘‘, and’’ and 

7 inserting ‘‘; and’’; and 

8 (B) in clause (ii), by striking ‘‘expense re9 lated to the overhead incurred’’ and inserting 

10 ‘‘expense incurred by the governing body of the 

11 Indian tribe or tribal organization and any 

12 overhead expense incurred’’; 

13 (2) by redesignating subparagraph (B) as sub14 paragraph (C); and 

15 (3) by inserting after subparagraph (A) the fol16 lowing: 

17 ‘‘(B) In calculating the reimbursement rate 

18 for expenses described in subparagraph (A)(ii), 

19 not less than 50 percent of the expenses de20 scribed in subparagraph (A)(ii) that are in21 curred by the governing body of an Indian tribe 

22 or tribal organization relating to a Federal pro23 gram, function, service, or activity carried out 

24 pursuant to the contract shall be considered to 

25 be reasonable and allowable.’’. 


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1 SEC. 105. CONTRACT OR GRANT SPECIFICATIONS. 

2 Section 108 of the Indian Self-Determination and 

3 Education Assistance Act (25 U.S.C. 450l) is amended— 

4 (1) in subsection (a)(2), by inserting ‘‘subject 

5 to subsections (a) and (b) of section 102,’’ before 

6 ‘‘contain’’; and 

7 (2) in subsection (f)(2)(A)(ii) of the model 

8 agreement contained in subsection (c), by inserting 

9 ‘‘subject to subsections (a) and (b) of section 102 of 

10 the Indian Self-Determination and Education Assist11 ance Act (25 U.S.C. 450f),’’ before ‘‘such other pro12 visions’’. 

13 TITLE II—TRIBAL SELF– 

14 GOVERNANCE 

15 SEC. 201. TRIBAL SELF-GOVERNANCE. 

16 Title IV of the Indian Self-Determination and Edu17 cation Assistance Act (25 U.S.C. 458aa et seq.) is amend18 ed to read as follows: 

19 ‘‘TITLE IV—TRIBAL SELF– 

20 GOVERNANCE 

21 ‘‘SEC. 401. DEFINITIONS. 

22 ‘‘In this title: 

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

24 self-governance compact entered into under section 

25 404. 


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1 ‘‘(2) CONSTRUCTION PROGRAM; CONSTRUCTION

2 PROJECT.—The term ‘construction program’ or ‘con3 struction project’ means a tribal undertaking relat4 ing to the administration, planning, environmental 

5 determination, design, construction, repair, improve6 ment, or expansion of roads, bridges, buildings, 

7 structures, systems, or other facilities for purposes 

8 of housing, law enforcement, detention, sanitation, 

9 water supply, education, administration, community, 

10 health, irrigation, agriculture, conservation, flood 

11 control, transportation, or port facilities, or for other 

12 tribal purposes. 

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

14 means the Department of the Interior. 

15 ‘‘(4) FUNDING AGREEMENT.—The term ‘fund16 ing agreement’ means a funding agreement entered 

17 into under section 405. 

18 ‘‘(5) GROSS MISMANAGEMENT.—The term 

19 ‘gross mismanagement’ means a significant viola20 tion, shown by a preponderance of the evidence, of 

21 a compact, funding agreement, or statutory or regu22 latory requirement applicable to Federal funds— 

23 ‘‘(A) for a program administered by an In24 dian tribe; or 


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1 ‘‘(B) under a compact or funding agree2 ment that results in a significant reduction of 

3 funds available for the programs assumed by an 

4 Indian tribe. 

5 ‘‘(6) INHERENT FEDERAL FUNCTION.—The 

6 term ‘inherent Federal function’ means a Federal 

7 function that may not legally be delegated to an In8 dian tribe. 

9 ‘‘(7) PROGRAM.—The term ‘program’ means 

10 any program, function, service, or activity (or por11 tion thereof) within the Department that is included 

12 in a funding agreement. 

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

14 the Secretary of the Interior. 

15 ‘‘(9) SELF-GOVERNANCE.—The term ‘self-gov16 ernance’ means the Tribal Self-Governance Program 

17 established under section 402. 

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

19 means an Indian tribe’s portion of all funds and re20 sources that— 

21 ‘‘(A) support any program within the Bu22 reau of Indian Affairs, the Office of Special 

23 Trustee, or the Office of the Assistant Sec24 retary for Indian Affairs; and 


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1 ‘‘(B) are not required by the Secretary for 

2 the performance of an inherent Federal func3 tion. 

4 ‘‘SEC. 402. ESTABLISHMENT. 

5 ‘‘The Secretary shall establish and carry out a pro6 gram within the Department to be known as the ‘Tribal 

7 Self-Governance Program’. 

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

9 ‘‘(a) IN GENERAL.— 

10 ‘‘(1) PARTICIPANTS.— 

11 ‘‘(A) IN GENERAL.—The Secretary, acting 

12 through the Director of the Office of Self-Gov13 ernance, may select up to 50 new Indian tribes 

14 per year from those eligible under subsection 

15 (b) to participate in self-governance. 

16 ‘‘(B) JOINT PARTICIPATION.—On the re17 quest of each participating Indian tribe, 2 or 

18 more otherwise eligible Indian tribes may be 

19 treated as a single Indian tribe for the purpose 

20 of participating in self-governance. 

21 ‘‘(2) OTHER AUTHORIZED INDIAN TRIBE OR

22 TRIBAL ORGANIZATION.—If an Indian tribe author23 izes another Indian tribe or a tribal organization to 

24 plan for or carry out a program on its behalf under 

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1 nization shall have the rights and responsibilities of 

2 the authorizing Indian tribe (except as otherwise 

3 provided in the authorizing resolution). 

4 ‘‘(3) JOINT PARTICIPATION.—Two or more In5 dian tribes that are not otherwise eligible under sub6 section (b) may be treated as a single Indian tribe 

7 for the purpose of participating in self-governance as 

8 a tribal organization if— 

9 ‘‘(A) each Indian tribe so requests; and 

10 ‘‘(B) the tribal organization itself, or at 

11 least 1 of the Indian tribes participating in the 

12 tribal organization, is eligible under subsection 

13 (b). 

14 ‘‘(4) TRIBAL WITHDRAWAL FROM A TRIBAL OR15 GANIZATION.— 

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

17 withdraws from participation in a tribal organi18 zation, in whole or in part, shall be entitled to 

19 participate in self-governance if the Indian tribe 

20 is eligible under subsection (b). 

21 ‘‘(B) EFFECT OF WITHDRAWAL.—If an In22 dian tribe withdraws from participation in a 

23 tribal organization, the Indian tribe shall be en24 titled to its tribal share of funds and resources 

25 supporting the programs that the Indian tribe 


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1 is entitled to carry out under the compact and 

2 funding agreement of the Indian tribe. 

3 ‘‘(C) PARTICIPATION IN SELF-GOVERN4 ANCE.—The withdrawal of an Indian tribe from 

5 a tribal organization shall not affect the eligi6 bility of the tribal organization to participate in 

7 self-governance on behalf of 1 or more other In8 dian tribes, if the tribal organization still quali9 fies under subsection (b). 

10 ‘‘(D) WITHDRAWAL PROCESS.— 

11 ‘‘(i) IN GENERAL.—An Indian tribe 

12 may, by tribal resolution, fully or partially 

13 withdraw its tribal share of any program 

14 in a funding agreement from a partici15 pating tribal organization. 

16 ‘‘(ii) NOTIFICATION.—The Indian 

17 tribe shall provide a copy of the tribal reso18 lution described in clause (i) to the Sec19 retary. 

20 ‘‘(iii) EFFECTIVE DATE.— 

21 ‘‘(I) IN GENERAL.—A withdrawal 

22 under clause (i) shall become effective 

23 on the date that is specified in the 

24 tribal resolution and mutually agreed 

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1 drawing Indian tribe, and the tribal 

2 organization that signed the compact 

3 and funding agreement on behalf of 

4 the withdrawing Indian tribe or tribal 

5 organization. 

6 ‘‘(II) NO SPECIFIED DATE.—In 

7 the absence of a date specified in the 

8 resolution, the withdrawal shall be9 come effective on— 

10 ‘‘(aa) the earlier of— 

11 ‘‘(AA) 1 year after the 

12 date of submission of the re13 quest; and 

14 ‘‘(BB) the date on 

15 which the funding agree16 ment expires; or 

17 ‘‘(bb) such date as may be 

18 mutually agreed upon by the Sec19 retary, the withdrawing Indian 

20 tribe, and the tribal organization 

21 that signed the compact and 

22 funding agreement on behalf of 

23 the withdrawing Indian tribe or 

24 tribal organization. 


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1 ‘‘(E) DISTRIBUTION OF FUNDS.—If an In2 dian tribe or tribal organization eligible to enter 

3 into a self-determination contract under title I 

4 or a compact or funding agreement under this 

5 title fully or partially withdraws from a partici6 pating tribal organization, the withdrawing In7 dian tribe— 

8 ‘‘(i) may elect to enter into a self-de9 termination contract or compact, in which 

10 case— 

11 ‘‘(I) the withdrawing Indian tribe 

12 or tribal organization shall be entitled 

13 to its tribal share of unexpended 

14 funds and resources supporting the 

15 programs that the Indian tribe will be 

16 carrying out under its own self-deter17 mination contract or compact and 

18 funding agreement (calculated on the 

19 same basis as the funds were initially 

20 allocated to the funding agreement of 

21 the tribal organization); and 

22 ‘‘(II) the funds referred to in 

23 subclause (I) shall be withdrawn by 

24 the Secretary from the funding agree25 ment of the tribal organization and 


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1 transferred to the withdrawing Indian 

2 tribe, on the condition that sections 

3 102 and 105(i), as appropriate, shall 

4 apply to the withdrawing Indian tribe; 

5 or 

6 ‘‘(ii) may elect not to enter into a self7 determination contract or compact, in 

8 which case all unexpended funds and re9 sources associated with the withdrawing 

10 Indian tribe’s returned programs (cal11 culated on the same basis as the funds 

12 were initially allocated to the funding 

13 agreement of the tribal organization) shall 

14 be returned by the tribal organization to 

15 the Secretary for operation of the pro16 grams included in the withdrawal. 

17 ‘‘(F) RETURN TO MATURE CONTRACT STA18 TUS.—If an Indian tribe elects to operate all or 

19 some programs carried out under a compact or 

20 funding agreement under this title through a 

21 self-determination contract under title I, at the 

22 option of the Indian tribe, the resulting self-de23 termination contract shall be a mature self-de24 termination contract as long as the Indian tribe 


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1 meets the requirements set forth in section 

2 4(h). 

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

4 self-governance, an Indian tribe shall— 

5 ‘‘(1) successfully complete the planning phase 

6 described in subsection (c); 

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

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

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

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

14 having no uncorrected significant and material audit 

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

17 any Federal agency. 

18 ‘‘(c) PLANNING PHASE.— 

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

20 begin participation in self-governance shall complete 

21 a planning phase as provided in this subsection. 

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

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

24 the Indian tribe; and 

25 ‘‘(B) include— 


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

2 ‘‘(ii) internal tribal government plan3 ning, training, and organizational prepara4 tion. 

5 ‘‘(d) GRANTS.— 

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

7 of appropriations, an Indian tribe or tribal organiza8 tion that meets the requirements of paragraphs (2) 

9 and (3) of subsection (b) shall be eligible for 

10 grants— 

11 ‘‘(A) to plan for participation in self-gov12 ernance; and 

13 ‘‘(B) to negotiate the terms of participa14 tion by the Indian tribe or tribal organization 

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

16 and a funding agreement. 

17 ‘‘(2) RECEIPT OF GRANT NOT REQUIRED.—Re18 ceipt of a grant under paragraph (1) shall not be a 

19 requirement of participation in self-governance. 

20 ‘‘SEC. 404. COMPACTS. 

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

22 and enter into a written compact with each Indian tribe 

23 participating in self-governance in a manner consistent 

24 with the trust responsibility of the Federal Government, 


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1 treaty obligations, and the government-to-government re2 lationship between Indian tribes and the United States. 

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

4 shall— 

5 ‘‘(1) specify and affirm the general terms of the 

6 government-to-government relationship between the 

7 Indian tribe and the Secretary; and 

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

9 shall control during the term of the compact. 

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

11 may be amended only by agreement of the parties. 

12 ‘‘(d) EFFECTIVE DATE.—The effective date of a com13 pact under subsection (a) shall be— 

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

15 by the parties; or 

16 ‘‘(2) another date agreed upon by the parties. 

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

18 shall remain in effect— 

19 ‘‘(1) for so long as permitted by Federal law; 

20 or 

21 ‘‘(2) until termination by written agreement, 

22 retrocession, or reassumption. 

23 ‘‘(f) EXISTING COMPACTS.—An Indian tribe partici24 pating in self-governance under this title, as in effect on 

25 the date of enactment of the Department of the Interior 


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1 Tribal Self-Governance Act of 2011, shall have the option 

2 at any time after that date— 

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

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

5 compact are not directly contrary to any express 

6 provision of this title; or 

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

8 consistent with this title. 

9 ‘‘SEC. 405. FUNDING AGREEMENTS. 

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

11 and enter into a written funding agreement with the gov12 erning body of an Indian tribe or tribal organization in 

13 a manner consistent with the trust responsibility of the 

14 Federal Government, treaty obligations, and the govern15 ment-to-government relationship between Indian tribes 

16 and the United States. 

17 ‘‘(b) INCLUDED PROGRAMS.— 

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

19 OF SPECIAL TRUSTEE.— 

20 ‘‘(A) IN GENERAL.—The Secretary is di21 rected, upon the request of any Indian tribe or 

22 tribal organization, to enter into a funding 

23 agreement to plan, conduct, consolidate, admin24 ister, and receive full tribal share funding for 

25 all programs selected by the Indian tribe and 


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1 carried out by the Bureau of Indian Affairs, the 

2 Office of the Assistant Secretary for Indian Af3 fairs, and the Office of the Special Trustee, 

4 without regard to the agency or office within 

5 which the program is performed (including 

6 funding for agency, area, and central office 

7 functions in accordance with section 409(c)), 

8 that— 

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

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

11 ‘‘(ii) the Secretary administers for the 

12 benefit of Indians under the Act of Novem13 ber 2, 1921 (25 U.S.C. 13), or any subse14 quent Act; 

15 ‘‘(iii) the Secretary administers for 

16 the benefit of Indians with appropriations 

17 made to agencies other than the Depart18 ment of the Interior; or 

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

20 Indians because of their status as Indians. 

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

22 subparagraph (A) shall include all programs 

23 with respect to which Indian tribes or Indians 

24 are primary or significant beneficiaries. 


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1 ‘‘(2) DISCRETIONARY PROGRAMS OF SPECIAL

2 SIGNIFICANCE.— 

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

4 under subsection (a) may, in accordance with 

5 such additional terms as the parties consider to 

6 be appropriate, include programs, services, 

7 functions, and activities (or portions thereof), 

8 administered by the Secretary, in addition to 

9 programs described in paragraphs (1) and (3), 

10 that are of special geographical, historical, or 

11 cultural significance to the Indian tribe. 

12 ‘‘(B) GOVERNING PROVISIONS.—A funding 

13 agreement described in subparagraph (A), in14 cluding the additional terms, shall be governed 

15 by this title, except that, subject to the discre16 tion of the Secretary— 

17 ‘‘(i) in accordance with section 

18 406(d), the Indian tribe may have realloca19 tion, consolidation, and redesign authority 

20 over any program assumed under this 

21 paragraph; 

22 ‘‘(ii) notwithstanding section 408, the 

23 Secretary may require special terms and 

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1 gram or project assumed under this para2 graph; 

3 ‘‘(iii) all Federal regulations that oth4 erwise govern the operation of any pro5 gram assumed under this paragraph apply 

6 to the Indian tribe, unless a specific regu7 lation is waived by the Secretary under the 

8 procedures set forth in section 410(b)(2), 

9 which waiver request may be denied upon 

10 a specific finding by the Secretary that the 

11 waiver is prohibited by Federal law or is 

12 inconsistent with the express provisions of 

13 the funding agreement; and 

14 ‘‘(iv) a stable base budget, as de15 scribed in paragraph (7)(B), may be pro16 vided for any program assumed under this 

17 paragraph. 

18 ‘‘(3) PROGRAMS OTHERWISE AVAILABLE.—The 

19 Secretary is directed, upon the request of any Indian 

20 tribe or tribal organization, to enter into a funding 

21 agreement to plan, conduct, consolidate, administer, 

22 and receive full funding for any program selected by 

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1 dian Affairs, or the Office of the Special Trustee, 

2 that the Secretary has determined is otherwise avail3 able to Indian tribes or Indians under section 102. 

4 Nothing in this paragraph may be construed to pro5 vide any Indian tribe with a preference with respect 

6 to the opportunity of that Indian tribe to administer 

7 programs, services, functions, or activities, or por8 tions thereof, unless that preference is otherwise 

9 provided for by law. 

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

11 section— 

12 ‘‘(A) supersedes any express statutory re13 quirement for competitive bidding; or 

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

15 agreement of a program in which non-Indians 

16 have an incidental or legally identifiable inter17 est. 

18 ‘‘(5) EXCLUDED FUNDING.—A funding agree19 ment shall not authorize an Indian tribe to plan, 

20 conduct, administer, or receive tribal share funding 

21 under any program that— 

22 ‘‘(A) is provided under the Tribally Con23 trolled Colleges and Universities Assistance Act 

24 of 1978 (25 U.S.C. 1801 et seq.); and 


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1 ‘‘(B) is provided for elementary and sec2 ondary schools under the formula developed 

3 under section 1127 of the Education Amend4 ments of 1978 (25 U.S.C. 2007). 

5 ‘‘(6) SERVICES, FUNCTIONS, AND RESPONSIBIL6 ITIES.—A funding agreement shall specify— 

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

8 funding agreement; 

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

10 the funding agreement; and 

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

12 and the Secretary under the funding agreement. 

13 ‘‘(7) BASE BUDGET.— 

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

15 pursuant to paragraph (1) shall, at the option 

16 of the Indian tribe, provide for a stable base 

17 budget specifying the recurring funds (which 

18 may include funds available under section 

19 106(a)) to be transferred to the Indian tribe, 

20 for such period as the Indian tribe specifies in 

21 the funding agreement, subject to annual ad22 justment only to reflect changes in congres23 sional appropriations. 

24 ‘‘(B) DISCRETIONARY PROGRAMS OF SPE25 CIAL SIGNIFICANCE.—Upon agreement by the 


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1 Secretary, a funding agreement under para2 graphs (2) and (3) may also provide for a sta3 ble base budget. 

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

5 A funding agreement shall prohibit the Secretary 

6 from waiving, modifying, or diminishing in any way 

7 the trust responsibility of the United States with re8 spect to Indian tribes and individual Indians that ex9 ists under treaties, Executive orders, court decisions, 

10 and other laws. 

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

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

13 funding agreement without the consent of the Indian tribe, 

14 unless such terms are required by Federal law. 

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

16 become effective on the date specified in the funding 

17 agreement. 

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

20 ‘‘(1) SUBSEQUENT FUNDING AGREEMENTS.— 

21 Absent notification from an Indian tribe that the In22 dian tribe is withdrawing or retroceding the oper23 ation of 1 or more programs identified in a funding 

24 agreement under paragraph (1) or (3) of subsection 

25 (b), or unless otherwise agreed to by the parties to 


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1 the funding agreement or by the nature of any non2 continuing program, service, function, or activity 

3 contained in a funding agreement— 

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

5 full force and effect until a subsequent funding 

6 agreement is executed, with funding paid annu7 ally for each fiscal year the agreement is in ef8 fect; and 

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

10 agreement shall be retroactive to the end of the 

11 term of the preceding funding agreement for 

12 the purposes of calculating the amount of fund13 ing to which the Indian tribe is entitled. 

14 ‘‘(2) DISPUTES.—Disputes over the implemen15 tation of paragraph (1)(A) shall be subject to section 

16 407(c). 

17 ‘‘(3) EXISTING FUNDING AGREEMENTS.—An 

18 Indian tribe that was participating in self-govern19 ance under this title on the date of enactment of the 

20 Department of the Interior Tribal Self-Governance 

21 Act of 2011 shall have the option at any time after 

22 that date— 

23 ‘‘(A) to retain its existing funding agree24 ment (in whole or in part) to the extent that 

25 the provisions of that funding agreement are 


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1 not directly contrary to any express provision of 

2 this title; or 

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

4 in a manner consistent with this title. 

5 ‘‘(4) MULTIYEAR FUNDING AGREEMENTS.—An 

6 Indian tribe may, at the discretion of the Indian 

7 tribe, negotiate with the Secretary for a funding 

8 agreement with a term that exceeds 1 year. 

9 ‘‘SEC. 406. GENERAL PROVISIONS. 

10 ‘‘(a) APPLICABILITY.—An Indian tribe and the Sec11 retary shall include in any compact or funding agreement 

12 provisions that reflect the requirements of this title. 

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

14 participating in self-governance shall ensure that internal 

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

16 and procedures, conflicts of interest in the administration 

17 of programs. 

18 ‘‘(c) AUDITS.— 

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

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

21 funding agreement under this title. 

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

23 apply cost principles under the applicable Office of 

24 Management and Budget circular, except as modi25 fied by— 


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1 ‘‘(A) any provision of law, including section 

2 106; or 

3 ‘‘(B) any exemptions to applicable Office 

4 of Management and Budget circulars subse5 quently granted by the Office of Management 

6 and Budget. 

7 ‘‘(3) FEDERAL CLAIMS.—Any claim by the Fed8 eral Government against an Indian tribe relating to 

9 funds received under a funding agreement based on 

10 any audit under this subsection shall be subject to 

11 section 106(f). 

12 ‘‘(d) REDESIGN AND CONSOLIDATION.—Except as 

13 provided in section 408, an Indian tribe may redesign or 

14 consolidate programs or reallocate funds for programs in 

15 any manner that the Indian tribe determines to be in the 

16 best interest of the Indian community being served, so 

17 long as that the redesign or consolidation does not have 

18 the effect of denying eligibility for services to population 

19 groups otherwise eligible to be served under applicable 

20 Federal law, except that, with respect to the reallocation, 

21 consolidation, and redesign of programs described in sec22 tions 405(b)(2) and 405(b)(3), a joint agreement between 

23 the Secretary and the Indian tribe shall be required. 

24 ‘‘(e) RETROCESSION.— 


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

2 or partially retrocede to the Secretary any program 

3 under a compact or funding agreement. 

4 ‘‘(2) EFFECTIVE DATE.— 

5 ‘‘(A) AGREEMENT.—Unless an Indian 

6 tribe rescinds a request for retrocession under 

7 paragraph (1), the retrocession shall become ef8 fective on the date specified by the parties in 

9 the compact or funding agreement. 

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

11 a specification of an effective date in the com12 pact or funding agreement, the retrocession 

13 shall become effective on— 

14 ‘‘(i) the earlier of— 

15 ‘‘(I) 1 year after the date on 

16 which the request is submitted; and 

17 ‘‘(II) the date on which the fund18 ing agreement expires; or 

19 ‘‘(ii) such date as may be mutually 

20 agreed upon by the Secretary and the In21 dian tribe. 

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

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

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

25 title, the Indian tribe— 


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1 ‘‘(1) shall not be entitled to contract with the 

2 Secretary for funds under section 102, except that 

3 the Indian tribe shall be eligible for new programs 

4 on the same basis as other Indian tribes; and 

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

6 of programs in accordance with the compact or 

7 funding agreement. 

8 ‘‘(g) RECORDS.— 

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

10 specifies otherwise in the compact or funding agree11 ment, records of an Indian tribe shall not be consid12 ered to be Federal records for purposes of chapter 

13 5 of title 5, United States Code. 

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

15 tribe shall— 

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

17 ‘‘(B) on a notice period of not less than 30 

18 days, provide the Secretary with reasonable ac19 cess to the records to enable the Department to 

20 meet the requirements of sections 3101 through 

21 3106 of title 44, United States Code. 

22 ‘‘SEC. 407. PROVISIONS RELATED TO THE SECRETARY. 

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

24 shall include a provision to monitor the performance of 


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1 trust functions by the Indian tribe through the annual 

2 trust evaluation. 

3 ‘‘(b) REASSUMPTION.— 

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

5 agreement shall include provisions for the Secretary 

6 to reassume a program and associated funding if 

7 there is a specific finding relating to that program 

8 of— 

9 ‘‘(A) imminent jeopardy to a trust asset, 

10 natural resources, or public health and safety 

11 that— 

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

13 the Indian tribe; and 

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

15 out the compact or funding agreement; or 

16 ‘‘(B) gross mismanagement with respect to 

17 funds transferred to an Indian tribe under a 

18 compact or funding agreement, as determined 

19 by the Secretary in consultation with the In20 spector General, as appropriate. 

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

22 reassume operation of a program, in whole or part, 

23 unless— 


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1 ‘‘(A) the Secretary first provides written 

2 notice and a hearing on the record to the In3 dian tribe; and 

4 ‘‘(B) the Indian tribe does not take correc5 tive action to remedy the mismanagement of 

6 the funds or programs, or the imminent jeop7 ardy to a trust asset, natural resource, or pub8 lic health and safety. 

9 ‘‘(3) EXCEPTION.— 

10 ‘‘(A) IN GENERAL.—Notwithstanding para11 graph (2), the Secretary may, on written notice 

12 to the Indian tribe, immediately reassume oper13 ation of a program if— 

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

15 imminent and substantial jeopardy and ir16 reparable harm to a trust asset, a natural 

17 resource, or the public health and safety 

18 caused by an act or omission of the Indian 

19 tribe; and 

20 ‘‘(ii) the imminent and substantial 

21 jeopardy, and irreparable harm to the trust 

22 asset, natural resource, or public health 

23 and safety arises out of a failure by the In24 dian tribe to carry out the terms of an ap25 plicable compact or funding agreement. 


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1 ‘‘(B) REASSUMPTION.—If the Secretary re2 assumes operation of a program under subpara3 graph (A), the Secretary shall provide the In4 dian tribe with a hearing on the record not 

5 later than 10 days after the date of reassump6 tion. 

7 ‘‘(c) INABILITY TO AGREE ON COMPACT OR FUND8 ING AGREEMENT.— 

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

10 participating Indian tribe are unable to agree, in 

11 whole or in part, on the terms of a compact or fund12 ing agreement (including funding levels), the Indian 

13 tribe may submit a final offer to the Secretary. 

14 ‘‘(2) DETERMINATION.—Not more than 60 

15 days after the date of receipt of a final offer by the 

16 official(s) designated pursuant to paragraph (4), the 

17 Secretary shall review and make a determination 

18 with respect to the final offer. 

19 ‘‘(3) EXTENSIONS.—The deadline described in 

20 paragraph (2) may be extended for any length of 

21 time, as agreed upon by both the Indian tribe and 

22 the Secretary. 

23 ‘‘(4) DESIGNATED OFFICIALS.—The Secretary 

24 shall designate 1 or more appropriate officials in the 

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1 scribed in paragraph (1). The Secretary’s Executive 

2 Secretariat shall be the designated official if no 

3 other official is designated. 

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

6 a final offer within the period specified in paragraph 

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

8 the offer. 

9 ‘‘(6) REJECTION OF FINAL OFFER.— 

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

12 funding levels in a final offer), the Secretary 

13 shall— 

14 ‘‘(i) provide timely written notification 

15 to the Indian tribe that contains a specific 

16 finding that clearly demonstrates, or that 

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

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

21 applicable funding level as determined 

22 under section 450j–1(a)(1); 

23 ‘‘(II) the program that is the 

24 subject of the final offer is an inher25 ent Federal function or is subject to 


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1 the discretion of the Secretary under 

2 section 405(b)(2); 

3 ‘‘(III) the Indian tribe cannot 

4 carry out the program in a manner 

5 that would not result in significant 

6 danger or risk to the public health or 

7 safety, to natural resources, or to 

8 trust resources; 

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

11 under section 403(b); or 

12 ‘‘(V) the funding agreement 

13 would violate a Federal statute or reg14 ulation; 

15 ‘‘(ii) provide technical assistance to 

16 overcome the objections stated in the noti17 fication required by clause (i); 

18 ‘‘(iii) provide the Indian tribe with— 

19 ‘‘(I) a hearing on the record with 

20 the right to engage in full discovery 

21 relevant to any issue raised in the 

22 matter; and 

23 ‘‘(II) the opportunity for appeal 

24 on the objections raised (except that 

25 the Indian tribe may, in lieu of filing 


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1 such appeal, directly proceed to ini2 tiate an action in a United States dis3 trict court under section 110(a)); and 

4 ‘‘(iv) provide the Indian tribe the op5 tion of entering into the severable portions 

6 of a final proposed compact or funding 

7 agreement (including a lesser funding 

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

9 reject, subject to any additional alterations 

10 necessary to conform the compact or fund11 ing agreement to the severed provisions. 

12 ‘‘(B) EFFECT OF EXERCISING CERTAIN

13 OPTION.—If an Indian tribe exercises the op14 tion specified in subparagraph (A)(iv)— 

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

16 right to appeal the rejection by the Sec17 retary under this section; and 

18 ‘‘(ii) clauses (i), (ii), and (iii) of sub19 paragraph (A) shall apply only to the por20 tion of the proposed final compact or fund21 ing agreement that was rejected by the 

22 Secretary. 

23 ‘‘(d) BURDEN OF PROOF.—In any administrative ac24 tion, hearing, or appeal or civil action brought under this 

25 section, the Secretary shall have the burden of proof— 


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1 ‘‘(1) of demonstrating, by a preponderance of 

2 the evidence, the validity of the grounds for a re3 assumption under subsection (b); and 

4 ‘‘(2) of clearly demonstrating the validity of the 

5 grounds for rejecting a final offer made under sub6 section (c). 

7 ‘‘(e) GOOD FAITH.— 

8 ‘‘(1) IN GENERAL.—In the negotiation of com9 pacts and funding agreements, the Secretary shall at 

10 all times negotiate in good faith to maximize imple11 mentation of the self-governance policy. 

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

13 this title in a manner that maximizes the policy of 

14 tribal self-governance. 

15 ‘‘(f) SAVINGS.— 

16 ‘‘(1) IN GENERAL.—To the extent that pro17 grams carried out for the benefit of Indian tribes 

18 and tribal organizations under this title reduce the 

19 administrative or other responsibilities of the Sec20 retary with respect to the operation of Indian pro21 grams and result in savings that have not otherwise 

22 been included in the amount of tribal shares and 

23 other funds determined under section 409(c), except 

24 for funding agreements entered into for programs 

25 under section 405(b)(2), the Secretary shall make 


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1 such savings available to the Indian tribes or tribal 

2 organizations for the provision of additional services 

3 to program beneficiaries in a manner equitable to di4 rectly served, contracted, and compacted programs. 

5 ‘‘(2) DISCRETIONARY PROGRAMS OF SPECIAL

6 SIGNIFICANCE.—For any savings generated as a re7 sult of the assumption of a program by an Indian 

8 tribe under section 405(b)(2), such savings shall be 

9 made available to that Indian tribe. 

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

11 not waive, modify, or diminish in any way the trust re12 sponsibility of the United States with respect to Indian 

13 tribes and individual Indians that exists under treaties, 

14 Executive orders, other laws, or court decisions. 

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

16 final agency action and relates to an appeal within the 

17 Department conducted under subsection (c)(4) may be 

18 made by— 

19 ‘‘(1) an official of the Department who holds a 

20 position at a higher organizational level within the 

21 Department than the level of the departmental agen22 cy in which the decision that is the subject of the 

23 appeal was made; or 

24 ‘‘(2) an administrative law judge. 


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1 ‘‘(i) RULES OF CONSTRUCTION.—Each provision of 

2 this title and each provision of a compact or funding 

3 agreement shall be liberally construed for the benefit of 

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

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

6 ‘‘SEC. 408. CONSTRUCTION PROGRAMS AND PROJECTS. 

7 ‘‘(a) IN GENERAL.—Indian tribes participating in 

8 tribal self-governance may carry out construction projects 

9 under this title. 

10 ‘‘(b) TRIBAL OPTION TO CARRY OUT CERTAIN FED11 ERAL ENVIRONMENTAL ACTIVITIES.—In carrying out a 

12 construction project under this title, an Indian tribe may, 

13 subject to the agreement of the Secretary, elect to assume 

14 some Federal responsibilities under the National Environ15 mental Policy Act of 1969 (42 U.S.C. 4321 et seq.), the 

16 National Historic Preservation Act (16 U.S.C. 470 et 

17 seq.), and related provisions of law and regulations that 

18 would apply if the Secretary were to undertake a construc19 tion project, by adopting a resolution— 

20 ‘‘(1) designating a certifying tribal officer to 

21 represent the Indian tribe and to assume the status 

22 of a responsible Federal official under those Acts or 

23 regulations; and 

24 ‘‘(2) accepting the jurisdiction of the United 

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1 sponsibilities of the certifying tribal officer assuming 

2 the status of a responsible Federal official under 

3 those Acts or regulations. 

4 ‘‘(c) SAVINGS CLAUSE.—Notwithstanding subsection 

5 (b), nothing in this section authorizes the Secretary to in6 clude in any compact or funding agreement duties of the 

7 Secretary under the National Environmental Policy Act 

8 (42 U.S.C. 4321 et seq.), the National Historic Preserva9 tion Act (16 U.S.C. 470 et seq.), and other related provi10 sions of law that are inherent Federal functions. 

11 ‘‘(d) CODES AND STANDARDS.—In carrying out a 

12 construction project under this title, an Indian tribe 

13 shall— 

14 ‘‘(1) adhere to applicable Federal, State, local, 

15 and tribal building codes, architectural and engineer16 ing standards, and applicable Federal guidelines re17 garding design, space, and operational standards, 

18 appropriate for the particular project; and 

19 ‘‘(2) use only architects and engineers who— 

20 ‘‘(A) are licensed to practice in the State 

21 in which the facility will be built; and 

22 ‘‘(B) certify that— 

23 ‘‘(i) they are qualified to perform the 

24 work required by the specific construction 

25 involved; and 


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1 ‘‘(ii) upon completion of design, the 

2 plans and specifications meet or exceed the 

3 applicable construction and safety codes. 

4 ‘‘(e) TRIBAL ACCOUNTABILITY.— 

5 ‘‘(1) IN GENERAL.—In carrying out a construc6 tion project under this title, an Indian tribe shall as7 sume responsibility for the successful completion of 

8 the construction project and of a facility that is usa9 ble for the purpose for which the Indian tribe re10 ceived funding. 

11 ‘‘(2) REQUIREMENTS.—For each construction 

12 project carried out by an Indian tribe under this 

13 title, the Indian tribe and the Secretary shall nego14 tiate a provision to be included in the funding agree15 ment that identifies— 

16 ‘‘(A) the approximate start and completion 

17 dates for the project, which may extend over a 

18 period of 1 or more years; 

19 ‘‘(B) a general description of the project, 

20 including the scope of work, references to de21 sign criteria, and other terms and conditions; 

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

23 and the Secretary for the project; 

24 ‘‘(D) how project-related environmental 

25 considerations will be addressed; 


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

2 project; 

3 ‘‘(F) the obligations of the Indian tribe to 

4 comply with the codes referenced in subsection 

5 (c)(1) and applicable Federal laws and regula6 tions; 

7 ‘‘(G) the agreement of the parties over who 

8 will bear any additional costs necessary to meet 

9 changes in scope, or errors or omissions in de10 sign and construction; and 

11 ‘‘(H) the agreement of the Secretary to 

12 issue a certificate of occupancy, if requested by 

13 the Indian tribe, based upon the review and 

14 verification by the Secretary, to the satisfaction 

15 of the Secretary, that the Indian tribe has se16 cured upon completion the review and approval 

17 of the plans and specifications, sufficiency of 

18 design, life safety, and code compliance by 

19 qualified, licensed, and independent architects 

20 and engineers. 

21 ‘‘(f) FUNDING.— 

22 ‘‘(1) IN GENERAL.—Funding appropriated for 

23 construction projects carried out under this title 

24 shall be included in funding agreements as annual or 


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1 semiannual advance payments at the option of the 

2 Indian tribe. 

3 ‘‘(2) ADVANCE PAYMENTS.—The Secretary 

4 shall include all associated project contingency funds 

5 with each advance payment, and the Indian tribe 

6 shall be responsible for the management of such con7 tingency funds. 

8 ‘‘(g) NEGOTIATIONS.—At the option of the Indian 

9 tribe, construction project funding proposals shall be nego10 tiated pursuant to the statutory process in section 105, 

11 and any resulting construction project agreement shall be 

12 incorporated into the funding agreement as addenda. 

13 ‘‘(h) FEDERAL REVIEW AND VERIFICATION.—On a 

14 schedule negotiated by the Secretary and the Indian tribe: 

15 ‘‘(1) IN GENERAL.— 

16 ‘‘(A) The Secretary shall review and verify, 

17 to the satisfaction of the Secretary, that project 

18 planning and design documents prepared by the 

19 Indian tribe in advance of initial construction 

20 are in conformity with the obligations of the In21 dian tribe under subsection (c). 

22 ‘‘(B) Before the project planning and de23 sign documents are implemented, the Secretary 

24 shall review and verify to the satisfaction of the 

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1 ments which result in a significant change in 

2 construction are in conformity with the obliga3 tions of the Indian tribe under subsection (c). 

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

5 the Secretary with project progress and financial re6 ports not less than semiannually. 

7 ‘‘(3) OVERSIGHT VISITS.—The Secretary may 

8 conduct onsite project oversight visits semiannually 

9 or on an alternate schedule agreed to by the Sec10 retary and the Indian tribe. 

11 ‘‘(i) APPLICATION OF OTHER LAWS.—Unless other12 wise agreed to by the Indian tribe and except as otherwise 

13 provided in this Act, no provision of the Office of Federal 

14 Procurement Policy Act (41 U.S.C. 401 et seq.), the Fed15 eral Acquisition Regulations issued pursuant to that Act, 

16 or any other law or regulation pertaining to Federal pro17 curement (including Executive orders) shall apply to any 

18 construction program or project carried out under this 

19 title. 

20 ‘‘(j) FUTURE FUNDING.—Upon completion of a facil21 ity constructed under this title, the Secretary shall include 

22 the facility among those eligible for annual operation and 

23 maintenance funding support comparable to that provided 

24 for similar facilities funded by the Department as annual 

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1 cility size and complexity and other factors do not exceed 

2 the funding formula criteria for comparable buildings. 

3 ‘‘SEC. 409. PAYMENT. 

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

5 body of an Indian tribe and under the terms of an applica6 ble funding agreement, the Secretary shall provide funding 

7 to the Indian tribe to carry out the funding agreement. 

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

9 the Indian tribe, a funding agreement shall provide for 

10 an advance annual payment to an Indian tribe. 

11 ‘‘(c) AMOUNT.— 

12 ‘‘(1) IN GENERAL.—Subject to subsection (e) 

13 and sections 405 and 406, the Secretary shall pro14 vide funds to the Indian tribe under a funding 

15 agreement for programs in an amount that is equal 

16 to the amount that the Indian tribe would have been 

17 entitled to receive under contracts and grants under 

18 this Act (including amounts for direct program and 

19 contract support costs and, in addition, any funds 

20 that are specifically or functionally related to the 

21 provision by the Secretary of services and benefits to 

22 the Indian tribe or its members) without regard to 

23 the organization level within the Department at 

24 which the programs are carried out. 


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1 ‘‘(2) SAVINGS CLAUSE.—Nothing in this section 

2 reduces programs, services, or funds of, or provided 

3 to, another Indian tribe. 

4 ‘‘(d) TIMING.— 

5 ‘‘(1) IN GENERAL.—Pursuant to the terms of 

6 any compact or funding agreement entered into 

7 under this title, the Secretary shall transfer to the 

8 Indian tribe all funds provided for in the funding 

9 agreement, pursuant to subsection (c), and provide 

10 funding for periods covered by joint resolution 

11 adopted by Congress making continuing appropria12 tions, to the extent permitted by such resolution. 

13 ‘‘(2) TRANSFERS.—Not later than 1 year after 

14 the date of enactment of the Department of the In15 terior Tribal Self-Governance Act of 2011, in any in16 stance in which a funding agreement requires an an17 nual transfer of funding to be made at the beginning 

18 of a fiscal year or requires semiannual or other peri19 odic transfers of funding to be made commencing at 

20 the beginning of a fiscal year, the first such transfer 

21 shall be made not later than 10 days after the ap22 portionment of such funds by the Office of Manage23 ment and Budget to the Department, unless the 

24 funding agreement provides otherwise. 


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1 ‘‘(e) AVAILABILITY.—Funds for trust services to indi2 vidual Indians shall be available under a funding agree3 ment only to the extent that the same services that would 

4 have been provided by the Secretary are provided to indi5 vidual Indians by the Indian tribe. 

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

7 may provide for multiyear funding. 

8 ‘‘(g) LIMITATIONS ON AUTHORITY OF THE SEC9 RETARY.—The Secretary shall not— 

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

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

12 service unit office or other funds due under this title 

13 for programs eligible under paragraph (1) or (3) of 

14 section 405(b), except as required by Federal law; 

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

16 transfer over a period of years; or 

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

18 this title— 

19 ‘‘(A) to make funding available for self20 governance monitoring or administration by the 

21 Secretary; 

22 ‘‘(B) in subsequent years, except as nec23 essary as a result of— 

24 ‘‘(i) a reduction in appropriations 

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1 gram to be included in a compact or fund2 ing agreement; 

3 ‘‘(ii) a congressional directive in legis4 lation or an accompanying report; 

5 ‘‘(iii) a tribal authorization; 

6 ‘‘(iv) a change in the amount of pass7 through funds subject to the terms of the 

8 funding agreement; or 

9 ‘‘(v) completion of an activity under a 

10 program for which the funds were pro11 vided; 

12 ‘‘(C) to pay for Federal functions, includ13 ing— 

14 ‘‘(i) Federal pay costs; 

15 ‘‘(ii) Federal employee retirement ben16 efits; 

17 ‘‘(iii) automated data processing; 

18 ‘‘(iv) technical assistance; and 

19 ‘‘(v) monitoring of activities under 

20 this title; or 

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

22 displaced by self-determination contracts under 

23 this Act or self-governance under this title. 

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

25 elects to carry out a compact or funding agreement with 


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1 the use of Federal personnel, Federal supplies (including 

2 supplies available from Federal warehouse facilities), Fed3 eral supply sources (including lodging, airline transpor4 tation, and other means of transportation, including the 

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

6 resources (including supplies, services, and resources 

7 available to the Secretary under any procurement con8 tracts in which the Department is eligible to participate), 

9 the Secretary shall, as soon as practicable, acquire and 

10 transfer such personnel, supplies, or resources to the In11 dian tribe under this title. 

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

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

14 due under a compact or funding agreement authorized 

15 under this title. 

16 ‘‘(j) INTEREST OR OTHER INCOME.— 

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

18 interest or income earned on any funds paid under 

19 a compact or funding agreement to carry out gov20 ernmental purposes. 

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

22 retention of interest or income under paragraph (1) 

23 shall not diminish the amount of funds an Indian 

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1 ment in the year the interest or income is earned or 

2 in any subsequent fiscal year. 

3 ‘‘(3) INVESTMENT STANDARD.—Funds trans4 ferred under this title shall be managed by the In5 dian tribe using the prudent investment standard, 

6 provided that the Secretary shall not be liable for 

7 any investment losses of funds managed by the In8 dian tribe that are not otherwise guaranteed or in9 sured by the Federal Government. 

10 ‘‘(k) CARRYOVER OF FUNDS.— 

11 ‘‘(1) IN GENERAL.—Notwithstanding any provi12 sion of an appropriations Act, all funds paid to an 

13 Indian tribe in accordance with a compact or fund14 ing agreement shall remain available until expended. 

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

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

17 next, the carryover shall not diminish the amount of 

18 funds the Indian tribe is entitled to receive under a 

19 funding agreement in that fiscal year or any subse20 quent fiscal year. 

21 ‘‘(l) LIMITATION OF COSTS.— 

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

23 be obligated to continue performance that requires 

24 an expenditure of funds in excess of the amount of 


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1 funds transferred under a compact or funding agree2 ment. 

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

4 time the Indian tribe has reason to believe that the 

5 total amount provided for a specific activity under a 

6 compact or funding agreement is insufficient, the In7 dian tribe shall provide reasonable notice of such in8 sufficiency to the Secretary. 

9 ‘‘(3) SUSPENSION OF PERFORMANCE.—If, after 

10 notice under paragraph (2), the Secretary does not 

11 increase the amount of funds transferred under the 

12 funding agreement, the Indian tribe may suspend 

13 performance of the activity until such time as addi14 tional funds are transferred. 

15 ‘‘(4) SAVINGS CLAUSE.—Nothing in this section 

16 reduces any programs, services, or funds of, or pro17 vided to, another Indian tribe. 

18 ‘‘(m) DISTRIBUTION OF FUNDS.—The Office of Self19 Governance shall be responsible for distribution of all Bu20 reau of Indian Affairs funds provided under this title un21 less otherwise agreed by the parties to an applicable fund22 ing agreement. 


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1 ‘‘SEC. 410. FACILITATION. 

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

3 law, the Secretary shall interpret each Federal law and 

4 regulation in a manner that facilitates— 

5 ‘‘(1) the inclusion of programs in funding 

6 agreements; and 

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

8 ‘‘(b) REGULATION WAIVER.— 

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

10 to the Secretary a written request for a waiver of 

11 applicability of a Federal regulation, including— 

12 ‘‘(A) an identification of the specific text in 

13 the regulation sought to be waived; and 

14 ‘‘(B) the basis for the request. 

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

16 Not later than 120 days after receipt by the Sec17 retary and the designated officials under paragraph 

18 (4) of a request under paragraph (1), the Secretary 

19 shall approve or deny the requested waiver in writ20 ing to the Indian tribe. 

21 ‘‘(3) EXTENSIONS.—The deadline described in 

22 paragraph (2) may be extended for any length of 

23 time, as agreed upon by both the Indian tribe and 

24 the Secretary. 

25 ‘‘(4) DESIGNATED OFFICIALS.—The Secretary 

26 shall designate 1 or more appropriate officials in the 


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1 Department to receive a copy of the waiver request 

2 described in paragraph (1). 

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

4 may deny a request under paragraph (1)— 

5 ‘‘(A) for a program eligible under para6 graph (1) or (3) of section 405(b), only upon a 

7 specific finding by the Secretary that the identi8 fied text in the regulation may not be waived 

9 because such a waiver is prohibited by Federal 

10 law; and 

11 ‘‘(B) for a program eligible under section 

12 405(b)(2), upon a specific finding by the Sec13 retary that the waiver is prohibited by Federal 

14 law or is inconsistent with the express provi15 sions of the funding agreement. 

16 ‘‘(6) FAILURE TO MAKE DETERMINATION.—If 

17 the Secretary fails to approve or deny a waiver re18 quest within the period required under paragraph 

19 (2), the Secretary shall be deemed to have approved 

20 the request. 

21 ‘‘(7) FINALITY.—A decision of the Secretary 

22 under this section shall be final for the Department. 

23 ‘‘SEC. 411. DISCLAIMERS. 

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

25 authority of the Secretary in a manner that authorizes the 


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1 Secretary to enter into any agreement under section 

2 405— 

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

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

6 program explicitly prohibits the type of participation 

7 sought by the Indian tribe (without regard to wheth8 er 1 or more Indian tribes are identified in the au9 thorizing law); or 

10 ‘‘(3) that limits or reduces in any way the serv11 ices, contracts, or funds that any other Indian tribe 

12 or tribal organization is eligible to receive under sec13 tion 102 or any other applicable Federal law. 

14 ‘‘SEC. 412. DISCRETIONARY APPLICATION OF OTHER SEC15 TIONS. 

16 ‘‘(a) IN GENERAL.—Except as otherwise provided in 

17 section 101(c), at the option of a participating Indian tribe 

18 or Indian tribes, any of the provisions of title I may be 

19 incorporated in any compact or funding agreement under 

20 this title. 

21 ‘‘(b) EFFECT.—Each incorporated provision under 

22 subsection (a) shall— 

23 ‘‘(1) have the same force and effect as if set out 

24 in full in this title; 


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1 ‘‘(2) supplement or replace any related provi2 sion in this title; and 

3 ‘‘(3) apply to any agency otherwise governed by 

4 this title. 

5 ‘‘(c) EFFECTIVE DATE.—If an Indian tribe requests 

6 incorporation at the negotiation stage of a compact or 

7 funding agreement, the incorporation shall— 

8 ‘‘(1) be effective immediately; and 

9 ‘‘(2) control the negotiation and resulting com10 pact and funding agreement. 

11 ‘‘SEC. 413. ANNUAL BUDGET LIST. 

12 ‘‘The Secretary shall list, in the annual budget re13 quest submitted to Congress under section 1105 of title 

14 31, United States Code, any funds proposed to be included 

15 in funding agreements authorized under this Act. 

16 ‘‘SEC. 414. REPORTS. 

17 ‘‘(a) IN GENERAL.— 

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

19 year, the Secretary shall submit to Congress a re20 port regarding the administration of this title. 

21 ‘‘(2) ANALYSIS.—Any tribe may submit to the 

22 Office of Self-Governance and to the appropriate 

23 Committees of Congress a detailed annual analysis 

24 of unmet tribal need for funding agreements under 

25 this title. 


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1 ‘‘(b) CONTENTS.—The report under subsection (a)(1) 

2 shall— 

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

4 funding agreements, annual audit reports, and data 

5 of the Secretary regarding the disposition of Federal 

6 funds; 

7 ‘‘(2) identify— 

8 ‘‘(A) the relative costs and benefits of self9 governance; 

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

11 specifically or functionally related to the provi12 sion by the Secretary of services and benefits to 

13 self-governance Indian tribes and members of 

14 Indian tribes; 

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

16 tribe and the corresponding reduction in the 

17 Federal employees and workload; and 

18 ‘‘(D) the funding formula for individual 

19 tribal shares of all Central Office funds, to20 gether with the comments of affected Indian 

21 tribes, developed under subsection (d); 

22 ‘‘(3) before being submitted to Congress, be dis23 tributed to the Indian tribes for comment (with a 

24 comment period of no less than 30 days); 


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1 ‘‘(4) include the separate views and comments 

2 of each Indian tribe or tribal organization; and 

3 ‘‘(5) include a list of— 

4 ‘‘(A) all such programs that the Secretary 

5 determines, in consultation with Indian tribes 

6 participating in self-governance, are eligible for 

7 negotiation to be included in a funding agree8 ment at the request of a participating Indian 

9 tribe; and 

10 ‘‘(B) all such programs which Indian tribes 

11 have formally requested to include in a funding 

12 agreement under section 405(b)(2) due to the 

13 special geographic, historical, or cultural signifi14 cance of the program to the Indian tribe, indi15 cating whether each request was granted or de16 nied, and stating the grounds for any denial. 

17 ‘‘(c) REPORT ON NON-BIA, NON-OST PROGRAMS.— 

18 ‘‘(1) IN GENERAL.—In order to optimize oppor19 tunities for including non-Bureau of Indian Affairs 

20 and non-Office of Special Trustee programs in 

21 agreements with Indian tribes participating in self22 governance under this title, the Secretary shall re23 view all programs administered by the Department, 

24 other than through the Bureau of Indian Affairs or 


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1 Office of the Special Trustee, without regard to the 

2 agency or office concerned. 

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

4 shall establish programmatic targets, after consulta5 tion with Indian tribes participating in self-govern6 ance, to encourage bureaus of the Department to en7 sure that an appropriate portion of those programs 

8 are available to be included in funding agreements. 

9 ‘‘(3) PUBLICATION.—The lists under subsection 

10 (b)(5) and targets under subsection (c)(2) shall be 

11 published in the Federal Register and made avail12 able to any Indian tribe participating in self-govern13 ance. 

14 ‘‘(4) ANNUAL REVIEW.— 

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

16 annually review and publish in the Federal Reg17 ister, after consultation with Indian tribes par18 ticipating in self-governance, revised lists and 

19 programmatic targets. 

20 ‘‘(B) CONTENTS.—In preparing the revised 

21 lists and programmatic targets, the Secretary 

22 shall consider all programs that were eligible 

23 for contracting in the original list published in 

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1 grams specifically determined not to be 

2 contractible as a matter of law. 

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

4 later than January 1, 2012, the Secretary shall, in con5 sultation with Indian tribes, develop a funding formula to 

6 determine the individual tribal share of funds controlled 

7 by the Central Office of the Bureau of Indian Affairs and 

8 the Office of the Special Trustee for inclusion in the com9 pacts. 

10 ‘‘SEC. 415. REGULATIONS. 

11 ‘‘(a) IN GENERAL.— 

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

13 after the date of enactment of the Department of 

14 the Interior Tribal Self-Governance Act of 2011, the 

15 Secretary shall initiate procedures under subchapter 

16 III of chapter 5 of title 5, United States Code, to 

17 negotiate and promulgate such regulations as are 

18 necessary to carry out this title. 

19 ‘‘(2) PUBLICATION OF PROPOSED REGULA20 TIONS.—Proposed regulations to implement this title 

21 shall be published in the Federal Register not later 

22 than 21 months after the date of enactment of the 

23 Department of the Interior Tribal Self-Governance 

24 Act of 2011. 


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1 ‘‘(3) EXPIRATION OF AUTHORITY.—The author2 ity to promulgate regulations under paragraph (1) 

3 shall expire on the date that is 30 months after the 

4 date of enactment of the Department of the Interior 

5 Tribal Self-Governance Act of 2011. 

6 ‘‘(b) COMMITTEE.— 

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

8 committee established pursuant to section 565 of 

9 title 5, United States Code, to carry out this section 

10 shall have as its members only representatives of the 

11 Federal Government and tribal government. 

12 ‘‘(2) LEAD AGENCY.—Among the Federal rep13 resentatives described in paragraph (1), the Office of 

14 Self-Governance shall be the lead agency for the De15 partment. 

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

17 shall adapt the negotiated rulemaking procedures to the 

18 unique context of self-governance and the government-to19 government relationship between the United States and 

20 Indian tribes. 

21 ‘‘(d) EFFECT.— 

22 ‘‘(1) REPEAL.—The Secretary may repeal any 

23 regulation that is inconsistent with this Act. 


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1 ‘‘(2) CONFLICTING PROVISIONS.—This title 

2 shall supersede any conflicting provision of law (in3 cluding any conflicting regulations). 

4 ‘‘(3) EFFECTIVENESS WITHOUT REGARD TO

5 REGULATIONS.—The lack of promulgated regula6 tions on an issue shall not limit the effect or imple7 mentation of this title. 

8 ‘‘SEC. 416. EFFECT OF CIRCULARS, POLICIES, MANUALS, 

9 GUIDANCES, AND RULES. 

10 ‘‘Unless expressly agreed to by a participating Indian 

11 tribe in a compact or funding agreement, the participating 

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

13 policy, manual, guidance, or rule adopted by the Depart14 ment, except for— 

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

16 and 

17 ‘‘(2) regulations promulgated pursuant to sec18 tion 415. 

19 ‘‘SEC. 417. APPEALS. 

20 ‘‘Except as provided in section 407(d), in any admin21 istrative action, appeal, or civil action for judicial review 

22 of any decision made by the Secretary under this title, 

23 the Secretary shall have the burden of proof of dem24 onstrating by a preponderance of the evidence— 


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

2 and 

3 ‘‘(2) the consistency of the decision with the re4 quirements and policies of this title. 

5 ‘‘SEC. 418. APPLICATION OF OTHER PROVISIONS. 

6 ‘‘Section 314 of the Department of the Interior and 

7 Related Agencies Appropriations Act, 1991 (Public Law 

8 101–512; 104 Stat. 1959), shall apply to compacts and 

9 funding agreements entered into under this title. 

10 ‘‘SEC. 419. AUTHORIZATION OF APPROPRIATIONS. 

11 ‘‘There are authorized to be appropriated such sums 

12 as are necessary to carry out this title.’’. 

Æ 


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