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. INS-
LEE, 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 As-
sistance Act to provide further self-governance by Indian 
tribes, and for other purposes. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 
(a) SHORT TITLE.—This Act may be cited as the 
‘‘Department of the Interior Tribal Self-Governance Act 
of 2011’’. 
(b) TABLE OF CONTENTS.—The table of contents of 
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 provi-
sions. 
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. 
TITLE I—INDIAN SELF– 
DETERMINATION 
SEC. 101. DEFINITIONS; REPORTING AND AUDIT REQUIRE-
MENTS; APPLICATION OF PROVISIONS. 
(a) DEFINITIONS.—Section 4 of the Indian Self-De-
termination and Education Assistance Act (25 U.S.C. 
450b) is amended by striking subsection (j) and inserting 
the following: 
‘‘(j) ‘self-determination contract’ means a contract 
entered into under title I (or a grant or cooperative agree-
ment used under section 9) between a tribal organization 
and the appropriate Secretary for the planning, conduct, 
and administration of programs or services that are other-
wise provided to Indian tribes and members of Indian 
tribes pursuant to Federal law, subject to the condition 
that, except as provided in section 105(a)(3), no contract 
entered into under title I (or grant or cooperative agree-
ment used under section 9) shall be— 
‘‘(1) considered to be a procurement contract; 
or 
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‘‘(2) except as provided in section 107(a)(1), 
subject to any Federal procurement law (including 
regulations);’’. 
(b) REPORTING AND AUDIT REQUIREMENTS.—Sec-
tion 5(b) of the Indian Self-Determination and Education 
Assistance Act (25 U.S.C. 450c(b)) is amended— 
(1) by striking ‘‘after completion of the project 
or undertaking referred to in the preceding sub-
section of this section’’ and inserting ‘‘after the re-
tention period for the report that is submitted to the 
Secretary under subsection (a)’’; and 
(2) by adding at the end the following: ‘‘The re-
tention period shall be defined in regulations pro-
mulgated by the Secretary pursuant to section 
415.’’. 
(c) APPLICATION OF OTHER PROVISIONS.—Sections 
4, 5, 6, 7, 102(c), 104, 105(a)(1), 105(f), 110, and 111 
of the Indian Self-Determination and Education Assist-
ance Act, as amended (25 U.S.C. 450 et seq.) (Public Law 
93–638; 88 Stat. 2203) and section 314 of the Depart-
ment of the Interior and Related Agencies Appropriations 
Act, 1991 (Public Law 101–512; 104 Stat. 1959), apply 
to compacts and funding agreements entered into under 
title IV. 
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SEC. 102. CONTRACTS BY SECRETARY OF INTERIOR. 
Section 102 of the Indian Self-Determination and 
Education Assistance Act (25 U.S.C. 450f) is amended— 
(1) in subsection (c)(2), by striking ‘‘economic 
enterprises’’ and all that follows through ‘‘except 
that’’ and inserting ‘‘economic enterprises (as de-
fined in section 3 of the Indian Financing Act of 
1974 (25 U.S.C. 1452)), except that’’; and 
(2) by adding at the end the following: 
‘‘(f) GOOD FAITH REQUIREMENT.—In the negotia-
tion of contracts and funding agreements, the Secretary 
shall— 
‘‘(1) at all times negotiate in good faith to 
maximize implementation of the self-determination 
policy; and 
‘‘(2) carry out this Act in a manner that maxi-
mizes the policy of tribal self-determination, in a 
manner consistent with the purposes specified in sec-
tion 3. 
‘‘(g) RULE OF CONSTRUCTION.—Each provision of 
this Act and each provision of a contract or funding agree-
ment shall be liberally construed for the benefit of the In-
dian tribe participating in self-determination, and any am-
biguity shall be resolved in favor of the Indian tribe.’’. 
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SEC. 103. ADMINISTRATIVE PROVISIONS. 
Section 105 of the Indian Self-Determination and 
Education Assistance Act (25 U.S.C. 450j) is amended— 
(1) in subsection (b), in the first sentence, by 
striking ‘‘pursuant to’’ and all that follows through 
‘‘of this Act’’ and inserting ‘‘pursuant to sections 
102 and 103’’; and 
(2) by adding at the end the following: 
‘‘(m) INTERPRETATION BY SECRETARY.—Except as 
otherwise provided by law, the Secretary shall interpret 
all Federal laws (including regulations) and Executive or-
ders in a manner that facilitates, to the maximum extent 
practicable— 
‘‘(1) the inclusion in self-determination con-
tracts and funding agreements of— 
‘‘(A) applicable programs, services, func-
tions, and activities (or portions thereof); and 
‘‘(B) funds associated with those pro-
grams, services, functions, and activities; 
‘‘(2) the implementation of self-determination 
contracts and funding agreements; and 
‘‘(3) the achievement of tribal health objec-
tives.’’. 
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SEC. 104. CONTRACT FUNDING AND INDIRECT COSTS. 
Section 106(a)(3) of the Indian Self-Determination 
and Education Assistance Act (25 U.S.C. 450j–1(a)(3)) 
is amended— 
(1) in subparagraph (A)— 
(A) in clause (i), by striking ‘‘, and’’ and 
inserting ‘‘; and’’; and 
(B) in clause (ii), by striking ‘‘expense re-
lated to the overhead incurred’’ and inserting 
‘‘expense incurred by the governing body of the 
Indian tribe or tribal organization and any 
overhead expense incurred’’; 
(2) by redesignating subparagraph (B) as sub-
paragraph (C); and 
(3) by inserting after subparagraph (A) the fol-
lowing: 
‘‘(B) In calculating the reimbursement rate 
for expenses described in subparagraph (A)(ii), 
not less than 50 percent of the expenses de-
scribed in subparagraph (A)(ii) that are in-
curred by the governing body of an Indian tribe 
or tribal organization relating to a Federal pro-
gram, function, service, or activity carried out 
pursuant to the contract shall be considered to 
be reasonable and allowable.’’. 
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SEC. 105. CONTRACT OR GRANT SPECIFICATIONS. 
Section 108 of the Indian Self-Determination and 
Education Assistance Act (25 U.S.C. 450l) is amended— 
(1) in subsection (a)(2), by inserting ‘‘subject 
to subsections (a) and (b) of section 102,’’ before 
‘‘contain’’; and 
(2) in subsection (f)(2)(A)(ii) of the model 
agreement contained in subsection (c), by inserting 
‘‘subject to subsections (a) and (b) of section 102 of 
the Indian Self-Determination and Education Assist-
ance Act (25 U.S.C. 450f),’’ before ‘‘such other pro-
visions’’. 
TITLE II—TRIBAL SELF– 
GOVERNANCE 
SEC. 201. TRIBAL SELF-GOVERNANCE. 
Title IV of the Indian Self-Determination and Edu-
cation Assistance Act (25 U.S.C. 458aa et seq.) is amend-
ed to read as follows: 
‘‘TITLE IV—TRIBAL SELF– 
GOVERNANCE 
‘‘SEC. 401. DEFINITIONS. 
‘‘In this title: 
‘‘(1) COMPACT.—The term ‘compact’ means a 
self-governance compact entered into under section 
404. 
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‘‘(2) CONSTRUCTION PROGRAM; CONSTRUCTION 
PROJECT.—The term ‘construction program’ or ‘con-
struction project’ means a tribal undertaking relat-
ing to the administration, planning, environmental 
determination, design, construction, repair, improve-
ment, or expansion of roads, bridges, buildings, 
structures, systems, or other facilities for purposes 
of housing, law enforcement, detention, sanitation, 
water supply, education, administration, community, 
health, irrigation, agriculture, conservation, flood 
control, transportation, or port facilities, or for other 
tribal purposes. 
‘‘(3) DEPARTMENT.—The term ‘Department’ 
means the Department of the Interior. 
‘‘(4) FUNDING AGREEMENT.—The term ‘fund-
ing agreement’ means a funding agreement entered 
into under section 405. 
‘‘(5) 
GROSS
MISMANAGEMENT.—The 
term 
‘gross mismanagement’ means a significant viola-
tion, shown by a preponderance of the evidence, of 
a compact, funding agreement, or statutory or regu-
latory requirement applicable to Federal funds— 
‘‘(A) for a program administered by an In-
dian tribe; or 
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‘‘(B) under a compact or funding agree-
ment that results in a significant reduction of 
funds available for the programs assumed by an 
Indian tribe. 
‘‘(6) INHERENT
FEDERAL
FUNCTION.—The 
term ‘inherent Federal function’ means a Federal 
function that may not legally be delegated to an In-
dian tribe. 
‘‘(7) PROGRAM.—The term ‘program’ means 
any program, function, service, or activity (or por-
tion thereof) within the Department that is included 
in a funding agreement. 
‘‘(8) SECRETARY.—The term ‘Secretary’ means 
the Secretary of the Interior. 
‘‘(9) SELF-GOVERNANCE.—The term ‘self-gov-
ernance’ means the Tribal Self-Governance Program 
established under section 402. 
‘‘(10) TRIBAL SHARE.—The term ‘tribal share’ 
means an Indian tribe’s portion of all funds and re-
sources that— 
‘‘(A) support any program within the Bu-
reau of Indian Affairs, the Office of Special 
Trustee, or the Office of the Assistant Sec-
retary for Indian Affairs; and 
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‘‘(B) are not required by the Secretary for 
the performance of an inherent Federal func-
tion. 
‘‘SEC. 402. ESTABLISHMENT. 
‘‘The Secretary shall establish and carry out a pro-
gram within the Department to be known as the ‘Tribal 
Self-Governance Program’. 
‘‘SEC. 403. SELECTION OF PARTICIPATING INDIAN TRIBES. 
‘‘(a) IN GENERAL.— 
‘‘(1) PARTICIPANTS.— 
‘‘(A) IN GENERAL.—The Secretary, acting 
through the Director of the Office of Self-Gov-
ernance, may select up to 50 new Indian tribes 
per year from those eligible under subsection 
(b) to participate in self-governance. 
‘‘(B) JOINT PARTICIPATION.—On the re-
quest of each participating Indian tribe, 2 or 
more otherwise eligible Indian tribes may be 
treated as a single Indian tribe for the purpose 
of participating in self-governance. 
‘‘(2) OTHER
AUTHORIZED
INDIAN
TRIBE
OR 
TRIBAL ORGANIZATION.—If an Indian tribe author-
izes another Indian tribe or a tribal organization to 
plan for or carry out a program on its behalf under 
this title, the authorized Indian tribe or tribal orga-
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nization shall have the rights and responsibilities of 
the authorizing Indian tribe (except as otherwise 
provided in the authorizing resolution). 
‘‘(3) JOINT PARTICIPATION.—Two or more In-
dian tribes that are not otherwise eligible under sub-
section (b) may be treated as a single Indian tribe 
for the purpose of participating in self-governance as 
a tribal organization if— 
‘‘(A) each Indian tribe so requests; and 
‘‘(B) the tribal organization itself, or at 
least 1 of the Indian tribes participating in the 
tribal organization, is eligible under subsection 
(b). 
‘‘(4) TRIBAL WITHDRAWAL FROM A TRIBAL OR-
GANIZATION.— 
‘‘(A) IN GENERAL.—An Indian tribe that 
withdraws from participation in a tribal organi-
zation, in whole or in part, shall be entitled to 
participate in self-governance if the Indian tribe 
is eligible under subsection (b). 
‘‘(B) EFFECT OF WITHDRAWAL.—If an In-
dian tribe withdraws from participation in a 
tribal organization, the Indian tribe shall be en-
titled to its tribal share of funds and resources 
supporting the programs that the Indian tribe 
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is entitled to carry out under the compact and 
funding agreement of the Indian tribe. 
‘‘(C) PARTICIPATION
IN
SELF-GOVERN-
ANCE.—The withdrawal of an Indian tribe from 
a tribal organization shall not affect the eligi-
bility of the tribal organization to participate in 
self-governance on behalf of 1 or more other In-
dian tribes, if the tribal organization still quali-
fies under subsection (b). 
‘‘(D) WITHDRAWAL PROCESS.— 
‘‘(i) IN
GENERAL.—An Indian tribe 
may, by tribal resolution, fully or partially 
withdraw its tribal share of any program 
in a funding agreement from a partici-
pating tribal organization. 
‘‘(ii) 
NOTIFICATION.—The 
Indian 
tribe shall provide a copy of the tribal reso-
lution described in clause (i) to the Sec-
retary. 
‘‘(iii) EFFECTIVE DATE.— 
‘‘(I) IN GENERAL.—A withdrawal 
under clause (i) shall become effective 
on the date that is specified in the 
tribal resolution and mutually agreed 
upon by the Secretary, the with-
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drawing Indian tribe, and the tribal 
organization that signed the compact 
and funding agreement on behalf of 
the withdrawing Indian tribe or tribal 
organization. 
‘‘(II) NO
SPECIFIED
DATE.—In 
the absence of a date specified in the 
resolution, the withdrawal shall be-
come effective on— 
‘‘(aa) the earlier of— 
‘‘(AA) 1 year after the 
date of submission of the re-
quest; and 
‘‘(BB) 
the 
date 
on 
which the funding agree-
ment expires; or 
‘‘(bb) such date as may be 
mutually agreed upon by the Sec-
retary, the withdrawing Indian 
tribe, and the tribal organization 
that signed the compact and 
funding agreement on behalf of 
the withdrawing Indian tribe or 
tribal organization. 
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‘‘(E) DISTRIBUTION OF FUNDS.—If an In-
dian tribe or tribal organization eligible to enter 
into a self-determination contract under title I 
or a compact or funding agreement under this 
title fully or partially withdraws from a partici-
pating tribal organization, the withdrawing In-
dian tribe— 
‘‘(i) may elect to enter into a self-de-
termination contract or compact, in which 
case— 
‘‘(I) the withdrawing Indian tribe 
or tribal organization shall be entitled 
to its tribal share of unexpended 
funds and resources supporting the 
programs that the Indian tribe will be 
carrying out under its own self-deter-
mination contract or compact and 
funding agreement (calculated on the 
same basis as the funds were initially 
allocated to the funding agreement of 
the tribal organization); and 
‘‘(II) the funds referred to in 
subclause (I) shall be withdrawn by 
the Secretary from the funding agree-
ment of the tribal organization and 
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transferred to the withdrawing Indian 
tribe, on the condition that sections 
102 and 105(i), as appropriate, shall 
apply to the withdrawing Indian tribe; 
or 
‘‘(ii) may elect not to enter into a self- 
determination contract or compact, in 
which case all unexpended funds and re-
sources associated with the withdrawing 
Indian tribe’s returned programs (cal-
culated on the same basis as the funds 
were initially allocated to the funding 
agreement of the tribal organization) shall 
be returned by the tribal organization to 
the Secretary for operation of the pro-
grams included in the withdrawal. 
‘‘(F) RETURN TO MATURE CONTRACT STA-
TUS.—If an Indian tribe elects to operate all or 
some programs carried out under a compact or 
funding agreement under this title through a 
self-determination contract under title I, at the 
option of the Indian tribe, the resulting self-de-
termination contract shall be a mature self-de-
termination contract as long as the Indian tribe 
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meets the requirements set forth in section 
4(h). 
‘‘(b) ELIGIBILITY.—To be eligible to participate in 
self-governance, an Indian tribe shall— 
‘‘(1) successfully complete the planning phase 
described in subsection (c); 
‘‘(2) request participation in self-governance by 
resolution or other official action by the tribal gov-
erning body; and 
‘‘(3) demonstrate, for the 3 fiscal years pre-
ceding the date on which the Indian tribe requests 
participation, financial stability and financial man-
agement capability as evidenced by the Indian tribe 
having no uncorrected significant and material audit 
exceptions in the required annual audit of its self- 
determination or self-governance agreements with 
any Federal agency. 
‘‘(c) PLANNING PHASE.— 
‘‘(1) IN GENERAL.—An Indian tribe seeking to 
begin participation in self-governance shall complete 
a planning phase as provided in this subsection. 
‘‘(2) ACTIVITIES.—The planning phase shall— 
‘‘(A) be conducted to the satisfaction of 
the Indian tribe; and 
‘‘(B) include— 
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‘‘(i) legal and budgetary research; and 
‘‘(ii) internal tribal government plan-
ning, training, and organizational prepara-
tion. 
‘‘(d) GRANTS.— 
‘‘(1) IN GENERAL.—Subject to the availability 
of appropriations, an Indian tribe or tribal organiza-
tion that meets the requirements of paragraphs (2) 
and (3) of subsection (b) shall be eligible for 
grants— 
‘‘(A) to plan for participation in self-gov-
ernance; and 
‘‘(B) to negotiate the terms of participa-
tion by the Indian tribe or tribal organization 
in self-governance, as set forth in a compact 
and a funding agreement. 
‘‘(2) RECEIPT OF GRANT NOT REQUIRED.—Re-
ceipt of a grant under paragraph (1) shall not be a 
requirement of participation in self-governance. 
‘‘SEC. 404. COMPACTS. 
‘‘(a) IN GENERAL.—The Secretary shall negotiate 
and enter into a written compact with each Indian tribe 
participating in self-governance in a manner consistent 
with the trust responsibility of the Federal Government, 
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treaty obligations, and the government-to-government re-
lationship between Indian tribes and the United States. 
‘‘(b) CONTENTS.—A compact under subsection (a) 
shall— 
‘‘(1) specify and affirm the general terms of the 
government-to-government relationship between the 
Indian tribe and the Secretary; and 
‘‘(2) include such terms as the parties intend 
shall control during the term of the compact. 
‘‘(c) AMENDMENT.—A compact under subsection (a) 
may be amended only by agreement of the parties. 
‘‘(d) EFFECTIVE DATE.—The effective date of a com-
pact under subsection (a) shall be— 
‘‘(1) the date of the execution of the compact 
by the parties; or 
‘‘(2) another date agreed upon by the parties. 
‘‘(e) DURATION.—A compact under subsection (a) 
shall remain in effect— 
‘‘(1) for so long as permitted by Federal law; 
or 
‘‘(2) until termination by written agreement, 
retrocession, or reassumption. 
‘‘(f) EXISTING COMPACTS.—An Indian tribe partici-
pating in self-governance under this title, as in effect on 
the date of enactment of the Department of the Interior 
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Tribal Self-Governance Act of 2011, shall have the option 
at any time after that date— 
‘‘(1) to retain its negotiated compact (in whole 
or in part) to the extent that the provisions of the 
compact are not directly contrary to any express 
provision of this title; or 
‘‘(2) to negotiate a new compact in a manner 
consistent with this title. 
‘‘SEC. 405. FUNDING AGREEMENTS. 
‘‘(a) IN GENERAL.—The Secretary shall negotiate 
and enter into a written funding agreement with the gov-
erning body of an Indian tribe or tribal organization in 
a manner consistent with the trust responsibility of the 
Federal Government, treaty obligations, and the govern-
ment-to-government relationship between Indian tribes 
and the United States. 
‘‘(b) INCLUDED PROGRAMS.— 
‘‘(1) BUREAU OF INDIAN AFFAIRS AND OFFICE 
OF SPECIAL TRUSTEE.— 
‘‘(A) IN GENERAL.—The Secretary is di-
rected, upon the request of any Indian tribe or 
tribal organization, to enter into a funding 
agreement to plan, conduct, consolidate, admin-
ister, and receive full tribal share funding for 
all programs selected by the Indian tribe and 
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carried out by the Bureau of Indian Affairs, the 
Office of the Assistant Secretary for Indian Af-
fairs, and the Office of the Special Trustee, 
without regard to the agency or office within 
which the program is performed (including 
funding for agency, area, and central office 
functions in accordance with section 409(c)), 
that— 
‘‘(i) are provided for in the Act of 
April 16, 1934 (25 U.S.C. 452 et seq.); 
‘‘(ii) the Secretary administers for the 
benefit of Indians under the Act of Novem-
ber 2, 1921 (25 U.S.C. 13), or any subse-
quent Act; 
‘‘(iii) the Secretary administers for 
the benefit of Indians with appropriations 
made to agencies other than the Depart-
ment of the Interior; or 
‘‘(iv) are provided for the benefit of 
Indians because of their status as Indians. 
‘‘(B) INCLUSIONS.—Programs described in 
subparagraph (A) shall include all programs 
with respect to which Indian tribes or Indians 
are primary or significant beneficiaries. 
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‘‘(2) DISCRETIONARY
PROGRAMS
OF
SPECIAL 
SIGNIFICANCE.— 
‘‘(A) IN GENERAL.—A funding agreement 
under subsection (a) may, in accordance with 
such additional terms as the parties consider to 
be appropriate, include programs, services, 
functions, and activities (or portions thereof), 
administered by the Secretary, in addition to 
programs described in paragraphs (1) and (3), 
that are of special geographical, historical, or 
cultural significance to the Indian tribe. 
‘‘(B) GOVERNING PROVISIONS.—A funding 
agreement described in subparagraph (A), in-
cluding the additional terms, shall be governed 
by this title, except that, subject to the discre-
tion of the Secretary— 
‘‘(i) 
in 
accordance 
with 
section 
406(d), the Indian tribe may have realloca-
tion, consolidation, and redesign authority 
over any program assumed under this 
paragraph; 
‘‘(ii) notwithstanding section 408, the 
Secretary may require special terms and 
conditions regarding a construction pro-
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gram or project assumed under this para-
graph; 
‘‘(iii) all Federal regulations that oth-
erwise govern the operation of any pro-
gram assumed under this paragraph apply 
to the Indian tribe, unless a specific regu-
lation is waived by the Secretary under the 
procedures set forth in section 410(b)(2), 
which waiver request may be denied upon 
a specific finding by the Secretary that the 
waiver is prohibited by Federal law or is 
inconsistent with the express provisions of 
the funding agreement; and 
‘‘(iv) a stable base budget, as de-
scribed in paragraph (7)(B), may be pro-
vided for any program assumed under this 
paragraph. 
‘‘(3) PROGRAMS OTHERWISE AVAILABLE.—The 
Secretary is directed, upon the request of any Indian 
tribe or tribal organization, to enter into a funding 
agreement to plan, conduct, consolidate, administer, 
and receive full funding for any program selected by 
the Indian tribe and administered by the Depart-
ment other than through the Bureau of Indian Af-
fairs, the Office of the Assistant Secretary for In-
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dian Affairs, or the Office of the Special Trustee, 
that the Secretary has determined is otherwise avail-
able to Indian tribes or Indians under section 102. 
Nothing in this paragraph may be construed to pro-
vide any Indian tribe with a preference with respect 
to the opportunity of that Indian tribe to administer 
programs, services, functions, or activities, or por-
tions thereof, unless that preference is otherwise 
provided for by law. 
‘‘(4) COMPETITIVE BIDDING.—Nothing in this 
section— 
‘‘(A) supersedes any express statutory re-
quirement for competitive bidding; or 
‘‘(B) prohibits the inclusion in a funding 
agreement of a program in which non-Indians 
have an incidental or legally identifiable inter-
est. 
‘‘(5) EXCLUDED FUNDING.—A funding agree-
ment shall not authorize an Indian tribe to plan, 
conduct, administer, or receive tribal share funding 
under any program that— 
‘‘(A) is provided under the Tribally Con-
trolled Colleges and Universities Assistance Act 
of 1978 (25 U.S.C. 1801 et seq.); and 
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‘‘(B) is provided for elementary and sec-
ondary schools under the formula developed 
under section 1127 of the Education Amend-
ments of 1978 (25 U.S.C. 2007). 
‘‘(6) SERVICES, FUNCTIONS, AND RESPONSIBIL-
ITIES.—A funding agreement shall specify— 
‘‘(A) the services to be provided under the 
funding agreement; 
‘‘(B) the functions to be performed under 
the funding agreement; and 
‘‘(C) the responsibilities of the Indian tribe 
and the Secretary under the funding agreement. 
‘‘(7) BASE BUDGET.— 
‘‘(A) IN GENERAL.—A funding agreement 
pursuant to paragraph (1) shall, at the option 
of the Indian tribe, provide for a stable base 
budget specifying the recurring funds (which 
may include funds available under section 
106(a)) to be transferred to the Indian tribe, 
for such period as the Indian tribe specifies in 
the funding agreement, subject to annual ad-
justment only to reflect changes in congres-
sional appropriations. 
‘‘(B) DISCRETIONARY PROGRAMS OF SPE-
CIAL SIGNIFICANCE.—Upon agreement by the 
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Secretary, a funding agreement under para-
graphs (2) and (3) may also provide for a sta-
ble base budget. 
‘‘(8) NO WAIVER OF TRUST RESPONSIBILITY.— 
A funding agreement shall prohibit the Secretary 
from waiving, modifying, or diminishing in any way 
the trust responsibility of the United States with re-
spect to Indian tribes and individual Indians that ex-
ists under treaties, Executive orders, court decisions, 
and other laws. 
‘‘(c) AMENDMENT.—The Secretary shall not revise, 
amend, or require additional terms in a new or subsequent 
funding agreement without the consent of the Indian tribe, 
unless such terms are required by Federal law. 
‘‘(d) EFFECTIVE DATE.—A funding agreement shall 
become effective on the date specified in the funding 
agreement. 
‘‘(e) EXISTING AND SUBSEQUENT FUNDING AGREE-
MENTS.— 
‘‘(1) SUBSEQUENT
FUNDING
AGREEMENTS.— 
Absent notification from an Indian tribe that the In-
dian tribe is withdrawing or retroceding the oper-
ation of 1 or more programs identified in a funding 
agreement under paragraph (1) or (3) of subsection 
(b), or unless otherwise agreed to by the parties to 
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the funding agreement or by the nature of any non-
continuing program, service, function, or activity 
contained in a funding agreement— 
‘‘(A) a funding agreement shall remain in 
full force and effect until a subsequent funding 
agreement is executed, with funding paid annu-
ally for each fiscal year the agreement is in ef-
fect; and 
‘‘(B) the term of the subsequent funding 
agreement shall be retroactive to the end of the 
term of the preceding funding agreement for 
the purposes of calculating the amount of fund-
ing to which the Indian tribe is entitled. 
‘‘(2) DISPUTES.—Disputes over the implemen-
tation of paragraph (1)(A) shall be subject to section 
407(c). 
‘‘(3) EXISTING
FUNDING
AGREEMENTS.—An 
Indian tribe that was participating in self-govern-
ance under this title on the date of enactment of the 
Department of the Interior Tribal Self-Governance 
Act of 2011 shall have the option at any time after 
that date— 
‘‘(A) to retain its existing funding agree-
ment (in whole or in part) to the extent that 
the provisions of that funding agreement are 
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not directly contrary to any express provision of 
this title; or 
‘‘(B) to negotiate a new funding agreement 
in a manner consistent with this title. 
‘‘(4) MULTIYEAR FUNDING AGREEMENTS.—An 
Indian tribe may, at the discretion of the Indian 
tribe, negotiate with the Secretary for a funding 
agreement with a term that exceeds 1 year. 
‘‘SEC. 406. GENERAL PROVISIONS. 
‘‘(a) APPLICABILITY.—An Indian tribe and the Sec-
retary shall include in any compact or funding agreement 
provisions that reflect the requirements of this title. 
‘‘(b) CONFLICTS
OF INTEREST.—An Indian tribe 
participating in self-governance shall ensure that internal 
measures are in place to address, pursuant to tribal law 
and procedures, conflicts of interest in the administration 
of programs. 
‘‘(c) AUDITS.— 
‘‘(1) SINGLE AGENCY AUDIT ACT.—Chapter 75 
of title 31, United States Code, shall apply to a 
funding agreement under this title. 
‘‘(2) COST PRINCIPLES.—An Indian tribe shall 
apply cost principles under the applicable Office of 
Management and Budget circular, except as modi-
fied by— 
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‘‘(A) any provision of law, including section 
106; or 
‘‘(B) any exemptions to applicable Office 
of Management and Budget circulars subse-
quently granted by the Office of Management 
and Budget. 
‘‘(3) FEDERAL CLAIMS.—Any claim by the Fed-
eral Government against an Indian tribe relating to 
funds received under a funding agreement based on 
any audit under this subsection shall be subject to 
section 106(f). 
‘‘(d) REDESIGN AND CONSOLIDATION.—Except as 
provided in section 408, an Indian tribe may redesign or 
consolidate programs or reallocate funds for programs in 
any manner that the Indian tribe determines to be in the 
best interest of the Indian community being served, so 
long as that the redesign or consolidation does not have 
the effect of denying eligibility for services to population 
groups otherwise eligible to be served under applicable 
Federal law, except that, with respect to the reallocation, 
consolidation, and redesign of programs described in sec-
tions 405(b)(2) and 405(b)(3), a joint agreement between 
the Secretary and the Indian tribe shall be required. 
‘‘(e) RETROCESSION.— 
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‘‘(1) IN GENERAL.—An Indian tribe may fully 
or partially retrocede to the Secretary any program 
under a compact or funding agreement. 
‘‘(2) EFFECTIVE DATE.— 
‘‘(A) 
AGREEMENT.—Unless 
an 
Indian 
tribe rescinds a request for retrocession under 
paragraph (1), the retrocession shall become ef-
fective on the date specified by the parties in 
the compact or funding agreement. 
‘‘(B) NO AGREEMENT.—In the absence of 
a specification of an effective date in the com-
pact or funding agreement, the retrocession 
shall become effective on— 
‘‘(i) the earlier of— 
‘‘(I) 1 year after the date on 
which the request is submitted; and 
‘‘(II) the date on which the fund-
ing agreement expires; or 
‘‘(ii) such date as may be mutually 
agreed upon by the Secretary and the In-
dian tribe. 
‘‘(f) NONDUPLICATION.—A funding agreement shall 
provide that, for the period for which, and to the extent 
to which, funding is provided to an Indian tribe under this 
title, the Indian tribe— 
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‘‘(1) shall not be entitled to contract with the 
Secretary for funds under section 102, except that 
the Indian tribe shall be eligible for new programs 
on the same basis as other Indian tribes; and 
‘‘(2) shall be responsible for the administration 
of programs in accordance with the compact or 
funding agreement. 
‘‘(g) RECORDS.— 
‘‘(1) IN
GENERAL.—Unless an Indian tribe 
specifies otherwise in the compact or funding agree-
ment, records of an Indian tribe shall not be consid-
ered to be Federal records for purposes of chapter 
5 of title 5, United States Code. 
‘‘(2) RECORDKEEPING
SYSTEM.—An Indian 
tribe shall— 
‘‘(A) maintain a recordkeeping system; and 
‘‘(B) on a notice period of not less than 30 
days, provide the Secretary with reasonable ac-
cess to the records to enable the Department to 
meet the requirements of sections 3101 through 
3106 of title 44, United States Code. 
‘‘SEC. 407. PROVISIONS RELATED TO THE SECRETARY. 
‘‘(a) TRUST EVALUATIONS.—A funding agreement 
shall include a provision to monitor the performance of 
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trust functions by the Indian tribe through the annual 
trust evaluation. 
‘‘(b) REASSUMPTION.— 
‘‘(1) IN
GENERAL.—A compact or funding 
agreement shall include provisions for the Secretary 
to reassume a program and associated funding if 
there is a specific finding relating to that program 
of— 
‘‘(A) imminent jeopardy to a trust asset, 
natural resources, or public health and safety 
that— 
‘‘(i) is caused by an act or omission of 
the Indian tribe; and 
‘‘(ii) arises out of a failure to carry 
out the compact or funding agreement; or 
‘‘(B) gross mismanagement with respect to 
funds transferred to an Indian tribe under a 
compact or funding agreement, as determined 
by the Secretary in consultation with the In-
spector General, as appropriate. 
‘‘(2) PROHIBITION.—The Secretary shall not 
reassume operation of a program, in whole or part, 
unless— 
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‘‘(A) the Secretary first provides written 
notice and a hearing on the record to the In-
dian tribe; and 
‘‘(B) the Indian tribe does not take correc-
tive action to remedy the mismanagement of 
the funds or programs, or the imminent jeop-
ardy to a trust asset, natural resource, or pub-
lic health and safety. 
‘‘(3) EXCEPTION.— 
‘‘(A) IN GENERAL.—Notwithstanding para-
graph (2), the Secretary may, on written notice 
to the Indian tribe, immediately reassume oper-
ation of a program if— 
‘‘(i) the Secretary makes a finding of 
imminent and substantial jeopardy and ir-
reparable harm to a trust asset, a natural 
resource, or the public health and safety 
caused by an act or omission of the Indian 
tribe; and 
‘‘(ii) the imminent and substantial 
jeopardy, and irreparable harm to the trust 
asset, natural resource, or public health 
and safety arises out of a failure by the In-
dian tribe to carry out the terms of an ap-
plicable compact or funding agreement. 
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‘‘(B) REASSUMPTION.—If the Secretary re-
assumes operation of a program under subpara-
graph (A), the Secretary shall provide the In-
dian tribe with a hearing on the record not 
later than 10 days after the date of reassump-
tion. 
‘‘(c) INABILITY TO AGREE ON COMPACT OR FUND-
ING AGREEMENT.— 
‘‘(1) FINAL
OFFER.—If the Secretary and a 
participating Indian tribe are unable to agree, in 
whole or in part, on the terms of a compact or fund-
ing agreement (including funding levels), the Indian 
tribe may submit a final offer to the Secretary. 
‘‘(2) DETERMINATION.—Not more than 60 
days after the date of receipt of a final offer by the 
official(s) designated pursuant to paragraph (4), the 
Secretary shall review and make a determination 
with respect to the final offer. 
‘‘(3) EXTENSIONS.—The deadline described in 
paragraph (2) may be extended for any length of 
time, as agreed upon by both the Indian tribe and 
the Secretary. 
‘‘(4) DESIGNATED OFFICIALS.—The Secretary 
shall designate 1 or more appropriate officials in the 
Department to receive a copy of the final offer de-
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scribed in paragraph (1). The Secretary’s Executive 
Secretariat shall be the designated official if no 
other official is designated. 
‘‘(5) NO TIMELY DETERMINATION.—If the Sec-
retary fails to make a determination with respect to 
a final offer within the period specified in paragraph 
(2), the Secretary shall be deemed to have agreed to 
the offer. 
‘‘(6) REJECTION OF FINAL OFFER.— 
‘‘(A) IN GENERAL.—If the Secretary re-
jects a final offer (or 1 or more provisions or 
funding levels in a final offer), the Secretary 
shall— 
‘‘(i) provide timely written notification 
to the Indian tribe that contains a specific 
finding that clearly demonstrates, or that 
is supported by a controlling legal author-
ity, that— 
‘‘(I) the amount of funds pro-
posed in the final offer exceeds the 
applicable funding level as determined 
under section 450j–1(a)(1); 
‘‘(II) the program that is the 
subject of the final offer is an inher-
ent Federal function or is subject to 
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the discretion of the Secretary under 
section 405(b)(2); 
‘‘(III) the Indian tribe cannot 
carry out the program in a manner 
that would not result in significant 
danger or risk to the public health or 
safety, to natural resources, or to 
trust resources; 
‘‘(IV) the Indian tribe is not eli-
gible to participate in self-governance 
under section 403(b); or 
‘‘(V) 
the 
funding 
agreement 
would violate a Federal statute or reg-
ulation; 
‘‘(ii) provide technical assistance to 
overcome the objections stated in the noti-
fication required by clause (i); 
‘‘(iii) provide the Indian tribe with— 
‘‘(I) a hearing on the record with 
the right to engage in full discovery 
relevant to any issue raised in the 
matter; and 
‘‘(II) the opportunity for appeal 
on the objections raised (except that 
the Indian tribe may, in lieu of filing 
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such appeal, directly proceed to ini-
tiate an action in a United States dis-
trict court under section 110(a)); and 
‘‘(iv) provide the Indian tribe the op-
tion of entering into the severable portions 
of a final proposed compact or funding 
agreement (including a lesser funding 
amount, if any), that the Secretary did not 
reject, subject to any additional alterations 
necessary to conform the compact or fund-
ing agreement to the severed provisions. 
‘‘(B) EFFECT
OF
EXERCISING
CERTAIN 
OPTION.—If an Indian tribe exercises the op-
tion specified in subparagraph (A)(iv)— 
‘‘(i) the Indian tribe shall retain the 
right to appeal the rejection by the Sec-
retary under this section; and 
‘‘(ii) clauses (i), (ii), and (iii) of sub-
paragraph (A) shall apply only to the por-
tion of the proposed final compact or fund-
ing agreement that was rejected by the 
Secretary. 
‘‘(d) BURDEN OF PROOF.—In any administrative ac-
tion, hearing, or appeal or civil action brought under this 
section, the Secretary shall have the burden of proof— 
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‘‘(1) of demonstrating, by a preponderance of 
the evidence, the validity of the grounds for a re-
assumption under subsection (b); and 
‘‘(2) of clearly demonstrating the validity of the 
grounds for rejecting a final offer made under sub-
section (c). 
‘‘(e) GOOD FAITH.— 
‘‘(1) IN GENERAL.—In the negotiation of com-
pacts and funding agreements, the Secretary shall at 
all times negotiate in good faith to maximize imple-
mentation of the self-governance policy. 
‘‘(2) POLICY.—The Secretary shall carry out 
this title in a manner that maximizes the policy of 
tribal self-governance. 
‘‘(f) SAVINGS.— 
‘‘(1) IN
GENERAL.—To the extent that pro-
grams carried out for the benefit of Indian tribes 
and tribal organizations under this title reduce the 
administrative or other responsibilities of the Sec-
retary with respect to the operation of Indian pro-
grams and result in savings that have not otherwise 
been included in the amount of tribal shares and 
other funds determined under section 409(c), except 
for funding agreements entered into for programs 
under section 405(b)(2), the Secretary shall make 
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such savings available to the Indian tribes or tribal 
organizations for the provision of additional services 
to program beneficiaries in a manner equitable to di-
rectly served, contracted, and compacted programs. 
‘‘(2) DISCRETIONARY
PROGRAMS
OF
SPECIAL 
SIGNIFICANCE.—For any savings generated as a re-
sult of the assumption of a program by an Indian 
tribe under section 405(b)(2), such savings shall be 
made available to that Indian tribe. 
‘‘(g) TRUST RESPONSIBILITY.—The Secretary may 
not waive, modify, or diminish in any way the trust re-
sponsibility of the United States with respect to Indian 
tribes and individual Indians that exists under treaties, 
Executive orders, other laws, or court decisions. 
‘‘(h) DECISIONMAKER.—A decision that constitutes 
final agency action and relates to an appeal within the 
Department conducted under subsection (c)(4) may be 
made by— 
‘‘(1) an official of the Department who holds a 
position at a higher organizational level within the 
Department than the level of the departmental agen-
cy in which the decision that is the subject of the 
appeal was made; or 
‘‘(2) an administrative law judge. 
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‘‘(i) RULES OF CONSTRUCTION.—Each provision of 
this title and each provision of a compact or funding 
agreement shall be liberally construed for the benefit of 
the Indian tribe participating in self-governance, and any 
ambiguity shall be resolved in favor of the Indian tribe. 
‘‘SEC. 408. CONSTRUCTION PROGRAMS AND PROJECTS. 
‘‘(a) IN GENERAL.—Indian tribes participating in 
tribal self-governance may carry out construction projects 
under this title. 
‘‘(b) TRIBAL OPTION TO CARRY OUT CERTAIN FED-
ERAL ENVIRONMENTAL ACTIVITIES.—In carrying out a 
construction project under this title, an Indian tribe may, 
subject to the agreement of the Secretary, elect to assume 
some Federal responsibilities under the National Environ-
mental Policy Act of 1969 (42 U.S.C. 4321 et seq.), the 
National Historic Preservation Act (16 U.S.C. 470 et 
seq.), and related provisions of law and regulations that 
would apply if the Secretary were to undertake a construc-
tion project, by adopting a resolution— 
‘‘(1) designating a certifying tribal officer to 
represent the Indian tribe and to assume the status 
of a responsible Federal official under those Acts or 
regulations; and 
‘‘(2) accepting the jurisdiction of the United 
States courts for the purpose of enforcing the re-
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sponsibilities of the certifying tribal officer assuming 
the status of a responsible Federal official under 
those Acts or regulations. 
‘‘(c) SAVINGS CLAUSE.—Notwithstanding subsection 
(b), nothing in this section authorizes the Secretary to in-
clude in any compact or funding agreement duties of the 
Secretary under the National Environmental Policy Act 
(42 U.S.C. 4321 et seq.), the National Historic Preserva-
tion Act (16 U.S.C. 470 et seq.), and other related provi-
sions of law that are inherent Federal functions. 
‘‘(d) CODES AND STANDARDS.—In carrying out a 
construction project under this title, an Indian tribe 
shall— 
‘‘(1) adhere to applicable Federal, State, local, 
and tribal building codes, architectural and engineer-
ing standards, and applicable Federal guidelines re-
garding design, space, and operational standards, 
appropriate for the particular project; and 
‘‘(2) use only architects and engineers who— 
‘‘(A) are licensed to practice in the State 
in which the facility will be built; and 
‘‘(B) certify that— 
‘‘(i) they are qualified to perform the 
work required by the specific construction 
involved; and 
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‘‘(ii) upon completion of design, the 
plans and specifications meet or exceed the 
applicable construction and safety codes. 
‘‘(e) TRIBAL ACCOUNTABILITY.— 
‘‘(1) IN GENERAL.—In carrying out a construc-
tion project under this title, an Indian tribe shall as-
sume responsibility for the successful completion of 
the construction project and of a facility that is usa-
ble for the purpose for which the Indian tribe re-
ceived funding. 
‘‘(2) REQUIREMENTS.—For each construction 
project carried out by an Indian tribe under this 
title, the Indian tribe and the Secretary shall nego-
tiate a provision to be included in the funding agree-
ment that identifies— 
‘‘(A) the approximate start and completion 
dates for the project, which may extend over a 
period of 1 or more years; 
‘‘(B) a general description of the project, 
including the scope of work, references to de-
sign criteria, and other terms and conditions; 
‘‘(C) the responsibilities of the Indian tribe 
and the Secretary for the project; 
‘‘(D) how project-related environmental 
considerations will be addressed; 
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‘‘(E) the amount of funds provided for the 
project; 
‘‘(F) the obligations of the Indian tribe to 
comply with the codes referenced in subsection 
(c)(1) and applicable Federal laws and regula-
tions; 
‘‘(G) the agreement of the parties over who 
will bear any additional costs necessary to meet 
changes in scope, or errors or omissions in de-
sign and construction; and 
‘‘(H) the agreement of the Secretary to 
issue a certificate of occupancy, if requested by 
the Indian tribe, based upon the review and 
verification by the Secretary, to the satisfaction 
of the Secretary, that the Indian tribe has se-
cured upon completion the review and approval 
of the plans and specifications, sufficiency of 
design, life safety, and code compliance by 
qualified, licensed, and independent architects 
and engineers. 
‘‘(f) FUNDING.— 
‘‘(1) IN GENERAL.—Funding appropriated for 
construction projects carried out under this title 
shall be included in funding agreements as annual or 
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semiannual advance payments at the option of the 
Indian tribe. 
‘‘(2) ADVANCE
PAYMENTS.—The Secretary 
shall include all associated project contingency funds 
with each advance payment, and the Indian tribe 
shall be responsible for the management of such con-
tingency funds. 
‘‘(g) NEGOTIATIONS.—At the option of the Indian 
tribe, construction project funding proposals shall be nego-
tiated pursuant to the statutory process in section 105, 
and any resulting construction project agreement shall be 
incorporated into the funding agreement as addenda. 
‘‘(h) FEDERAL REVIEW AND VERIFICATION.—On a 
schedule negotiated by the Secretary and the Indian tribe: 
‘‘(1) IN GENERAL.— 
‘‘(A) The Secretary shall review and verify, 
to the satisfaction of the Secretary, that project 
planning and design documents prepared by the 
Indian tribe in advance of initial construction 
are in conformity with the obligations of the In-
dian tribe under subsection (c). 
‘‘(B) Before the project planning and de-
sign documents are implemented, the Secretary 
shall review and verify to the satisfaction of the 
Secretary that subsequent document amend-
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ments which result in a significant change in 
construction are in conformity with the obliga-
tions of the Indian tribe under subsection (c). 
‘‘(2) REPORTS.—The Indian tribe shall provide 
the Secretary with project progress and financial re-
ports not less than semiannually. 
‘‘(3) OVERSIGHT VISITS.—The Secretary may 
conduct onsite project oversight visits semiannually 
or on an alternate schedule agreed to by the Sec-
retary and the Indian tribe. 
‘‘(i) APPLICATION OF OTHER LAWS.—Unless other-
wise agreed to by the Indian tribe and except as otherwise 
provided in this Act, no provision of the Office of Federal 
Procurement Policy Act (41 U.S.C. 401 et seq.), the Fed-
eral Acquisition Regulations issued pursuant to that Act, 
or any other law or regulation pertaining to Federal pro-
curement (including Executive orders) shall apply to any 
construction program or project carried out under this 
title. 
‘‘(j) FUTURE FUNDING.—Upon completion of a facil-
ity constructed under this title, the Secretary shall include 
the facility among those eligible for annual operation and 
maintenance funding support comparable to that provided 
for similar facilities funded by the Department as annual 
appropriations are available and to the extent that the fa-
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cility size and complexity and other factors do not exceed 
the funding formula criteria for comparable buildings. 
‘‘SEC. 409. PAYMENT. 
‘‘(a) IN GENERAL.—At the request of the governing 
body of an Indian tribe and under the terms of an applica-
ble funding agreement, the Secretary shall provide funding 
to the Indian tribe to carry out the funding agreement. 
‘‘(b) ADVANCE ANNUAL PAYMENT.—At the option of 
the Indian tribe, a funding agreement shall provide for 
an advance annual payment to an Indian tribe. 
‘‘(c) AMOUNT.— 
‘‘(1) IN GENERAL.—Subject to subsection (e) 
and sections 405 and 406, the Secretary shall pro-
vide funds to the Indian tribe under a funding 
agreement for programs in an amount that is equal 
to the amount that the Indian tribe would have been 
entitled to receive under contracts and grants under 
this Act (including amounts for direct program and 
contract support costs and, in addition, any funds 
that are specifically or functionally related to the 
provision by the Secretary of services and benefits to 
the Indian tribe or its members) without regard to 
the organization level within the Department at 
which the programs are carried out. 
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‘‘(2) SAVINGS CLAUSE.—Nothing in this section 
reduces programs, services, or funds of, or provided 
to, another Indian tribe. 
‘‘(d) TIMING.— 
‘‘(1) IN GENERAL.—Pursuant to the terms of 
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, pursuant to subsection (c), and provide 
funding for periods covered by joint resolution 
adopted by Congress making continuing appropria-
tions, to the extent permitted by such resolution. 
‘‘(2) TRANSFERS.—Not later than 1 year after 
the date of enactment of the Department of the In-
terior Tribal Self-Governance Act of 2011, in any in-
stance in which a funding agreement requires an an-
nual transfer of funding to be made at the beginning 
of a fiscal year or requires semiannual or other peri-
odic transfers of funding to be made commencing at 
the beginning of a fiscal year, the first such transfer 
shall be made not later than 10 days after the ap-
portionment of such funds by the Office of Manage-
ment and Budget to the Department, unless the 
funding agreement provides otherwise. 
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‘‘(e) AVAILABILITY.—Funds for trust services to indi-
vidual Indians shall be available under a funding agree-
ment only to the extent that the same services that would 
have been provided by the Secretary are provided to indi-
vidual Indians by the Indian tribe. 
‘‘(f) MULTIYEAR FUNDING.—A funding agreement 
may provide for multiyear funding. 
‘‘(g) LIMITATIONS
ON AUTHORITY
OF
THE SEC-
RETARY.—The Secretary shall not— 
‘‘(1) fail to transfer to an Indian tribe its full 
share of any central, headquarters, regional, area, or 
service unit office or other funds due under this title 
for programs eligible under paragraph (1) or (3) of 
section 405(b), except as required by Federal law; 
‘‘(2) withhold any portion of such funds for 
transfer over a period of years; or 
‘‘(3) reduce the amount of funds required under 
this title— 
‘‘(A) to make funding available for self- 
governance monitoring or administration by the 
Secretary; 
‘‘(B) in subsequent years, except as nec-
essary as a result of— 
‘‘(i) a reduction in appropriations 
from the previous fiscal year for the pro-
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gram to be included in a compact or fund-
ing agreement; 
‘‘(ii) a congressional directive in legis-
lation or an accompanying report; 
‘‘(iii) a tribal authorization; 
‘‘(iv) a change in the amount of pass- 
through funds subject to the terms of the 
funding agreement; or 
‘‘(v) completion of an activity under a 
program for which the funds were pro-
vided; 
‘‘(C) to pay for Federal functions, includ-
ing— 
‘‘(i) Federal pay costs; 
‘‘(ii) Federal employee retirement ben-
efits; 
‘‘(iii) automated data processing; 
‘‘(iv) technical assistance; and 
‘‘(v) monitoring of activities under 
this title; or 
‘‘(D) to pay for costs of Federal personnel 
displaced by self-determination contracts under 
this Act or self-governance under this title. 
‘‘(h) FEDERAL RESOURCES.—If an Indian tribe 
elects to carry out a compact or funding agreement with 
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the use of Federal personnel, Federal supplies (including 
supplies available from Federal warehouse facilities), Fed-
eral supply sources (including lodging, airline transpor-
tation, and other means of transportation, including the 
use of interagency motor pool vehicles), or other Federal 
resources (including supplies, services, and resources 
available to the Secretary under any procurement con-
tracts in which the Department is eligible to participate), 
the Secretary shall, as soon as practicable, acquire and 
transfer such personnel, supplies, or resources to the In-
dian tribe under this title. 
‘‘(i) PROMPT PAYMENT ACT.—Chapter 39 of title 31, 
United States Code, shall apply to the transfer of funds 
due under a compact or funding agreement authorized 
under this title. 
‘‘(j) INTEREST OR OTHER INCOME.— 
‘‘(1) IN GENERAL.—An Indian tribe may retain 
interest or income earned on any funds paid under 
a compact or funding agreement to carry out gov-
ernmental purposes. 
‘‘(2) NO EFFECT ON OTHER AMOUNTS.—The 
retention of interest or income under paragraph (1) 
shall not diminish the amount of funds an Indian 
tribe is entitled to receive under a funding agree-
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ment in the year the interest or income is earned or 
in any subsequent fiscal year. 
‘‘(3) INVESTMENT
STANDARD.—Funds trans-
ferred under this title shall be managed by the In-
dian tribe using the prudent investment standard, 
provided that the Secretary shall not be liable for 
any investment losses of funds managed by the In-
dian tribe that are not otherwise guaranteed or in-
sured by the Federal Government. 
‘‘(k) CARRYOVER OF FUNDS.— 
‘‘(1) IN GENERAL.—Notwithstanding any provi-
sion of an appropriations Act, all funds paid to an 
Indian tribe in accordance with a compact or fund-
ing agreement shall remain available until expended. 
‘‘(2) EFFECT
OF
CARRYOVER.—If an Indian 
tribe elects to carry over funding from 1 year to the 
next, the carryover shall not diminish the amount of 
funds the Indian tribe is entitled to receive under a 
funding agreement in that fiscal year or any subse-
quent fiscal year. 
‘‘(l) LIMITATION OF COSTS.— 
‘‘(1) IN GENERAL.—An Indian tribe shall not 
be obligated to continue performance that requires 
an expenditure of funds in excess of the amount of 
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funds transferred under a compact or funding agree-
ment. 
‘‘(2) NOTICE
OF
INSUFFICIENCY.—If at any 
time the Indian tribe has reason to believe that the 
total amount provided for a specific activity under a 
compact or funding agreement is insufficient, the In-
dian tribe shall provide reasonable notice of such in-
sufficiency to the Secretary. 
‘‘(3) SUSPENSION OF PERFORMANCE.—If, after 
notice under paragraph (2), the Secretary does not 
increase the amount of funds transferred under the 
funding agreement, the Indian tribe may suspend 
performance of the activity until such time as addi-
tional funds are transferred. 
‘‘(4) SAVINGS CLAUSE.—Nothing in this section 
reduces any programs, services, or funds of, or pro-
vided to, another Indian tribe. 
‘‘(m) DISTRIBUTION OF FUNDS.—The Office of Self- 
Governance shall be responsible for distribution of all Bu-
reau of Indian Affairs funds provided under this title un-
less otherwise agreed by the parties to an applicable fund-
ing agreement. 
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‘‘SEC. 410. FACILITATION. 
‘‘(a) IN GENERAL.—Except as otherwise provided by 
law, the Secretary shall interpret each Federal law and 
regulation in a manner that facilitates— 
‘‘(1) the inclusion of programs in funding 
agreements; and 
‘‘(2) the implementation of funding agreements. 
‘‘(b) REGULATION WAIVER.— 
‘‘(1) REQUEST.—An Indian tribe may submit 
to the Secretary a written request for a waiver of 
applicability of a Federal regulation, including— 
‘‘(A) an identification of the specific text in 
the regulation sought to be waived; and 
‘‘(B) the basis for the request. 
‘‘(2) DETERMINATION BY THE SECRETARY.— 
Not later than 120 days after receipt by the Sec-
retary and the designated officials under paragraph 
(4) of a request under paragraph (1), the Secretary 
shall approve or deny the requested waiver in writ-
ing to the Indian tribe. 
‘‘(3) EXTENSIONS.—The deadline described in 
paragraph (2) may be extended for any length of 
time, as agreed upon by both the Indian tribe and 
the Secretary. 
‘‘(4) DESIGNATED OFFICIALS.—The Secretary 
shall designate 1 or more appropriate officials in the 
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Department to receive a copy of the waiver request 
described in paragraph (1). 
‘‘(5) GROUND
FOR
DENIAL.—The Secretary 
may deny a request under paragraph (1)— 
‘‘(A) for a program eligible under para-
graph (1) or (3) of section 405(b), only upon a 
specific finding by the Secretary that the identi-
fied text in the regulation may not be waived 
because such a waiver is prohibited by Federal 
law; and 
‘‘(B) for a program eligible under section 
405(b)(2), upon a specific finding by the Sec-
retary that the waiver is prohibited by Federal 
law or is inconsistent with the express provi-
sions of the funding agreement. 
‘‘(6) FAILURE TO MAKE DETERMINATION.—If 
the Secretary fails to approve or deny a waiver re-
quest within the period required under paragraph 
(2), the Secretary shall be deemed to have approved 
the request. 
‘‘(7) FINALITY.—A decision of the Secretary 
under this section shall be final for the Department. 
‘‘SEC. 411. DISCLAIMERS. 
‘‘Nothing in this title expands or alters any statutory 
authority of the Secretary in a manner that authorizes the 
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Secretary to enter into any agreement under section 
405— 
‘‘(1) with respect to an inherent Federal func-
tion; 
‘‘(2) in a case in which the law establishing a 
program explicitly prohibits the type of participation 
sought by the Indian tribe (without regard to wheth-
er 1 or more Indian tribes are identified in the au-
thorizing law); or 
‘‘(3) that limits or reduces in any way the serv-
ices, contracts, or funds that any other Indian tribe 
or tribal organization is eligible to receive under sec-
tion 102 or any other applicable Federal law. 
‘‘SEC. 412. DISCRETIONARY APPLICATION OF OTHER SEC-
TIONS. 
‘‘(a) IN GENERAL.—Except as otherwise provided in 
section 101(c), at the option of a participating Indian tribe 
or Indian tribes, any of the provisions of title I may be 
incorporated in any compact or funding agreement under 
this title. 
‘‘(b) EFFECT.—Each incorporated provision under 
subsection (a) shall— 
‘‘(1) have the same force and effect as if set out 
in full in this title; 
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‘‘(2) supplement or replace any related provi-
sion in this title; and 
‘‘(3) apply to any agency otherwise governed by 
this title. 
‘‘(c) EFFECTIVE DATE.—If an Indian tribe requests 
incorporation at the negotiation stage of a compact or 
funding agreement, the incorporation shall— 
‘‘(1) be effective immediately; and 
‘‘(2) control the negotiation and resulting com-
pact and funding agreement. 
‘‘SEC. 413. ANNUAL BUDGET LIST. 
‘‘The Secretary shall list, in the annual budget re-
quest submitted to Congress under section 1105 of title 
31, United States Code, any funds proposed to be included 
in funding agreements authorized under this Act. 
‘‘SEC. 414. REPORTS. 
‘‘(a) IN GENERAL.— 
‘‘(1) REQUIREMENT.—On January 1 of each 
year, the Secretary shall submit to Congress a re-
port regarding the administration of this title. 
‘‘(2) ANALYSIS.—Any tribe may submit to the 
Office of Self-Governance and to the appropriate 
Committees of Congress a detailed annual analysis 
of unmet tribal need for funding agreements under 
this title. 
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‘‘(b) CONTENTS.—The report under subsection (a)(1) 
shall— 
‘‘(1) be compiled from information contained in 
funding agreements, annual audit reports, and data 
of the Secretary regarding the disposition of Federal 
funds; 
‘‘(2) identify— 
‘‘(A) the relative costs and benefits of self- 
governance; 
‘‘(B) with particularity, all funds that are 
specifically or functionally related to the provi-
sion by the Secretary of services and benefits to 
self-governance Indian tribes and members of 
Indian tribes; 
‘‘(C) the funds transferred to each Indian 
tribe and the corresponding reduction in the 
Federal employees and workload; and 
‘‘(D) the funding formula for individual 
tribal shares of all Central Office funds, to-
gether with the comments of affected Indian 
tribes, developed under subsection (d); 
‘‘(3) before being submitted to Congress, be dis-
tributed to the Indian tribes for comment (with a 
comment period of no less than 30 days); 
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‘‘(4) include the separate views and comments 
of each Indian tribe or tribal organization; and 
‘‘(5) include a list of— 
‘‘(A) all such programs that the Secretary 
determines, in consultation with Indian tribes 
participating in self-governance, are eligible for 
negotiation to be included in a funding agree-
ment at the request of a participating Indian 
tribe; and 
‘‘(B) all such programs which Indian tribes 
have formally requested to include in a funding 
agreement under section 405(b)(2) due to the 
special geographic, historical, or cultural signifi-
cance of the program to the Indian tribe, indi-
cating whether each request was granted or de-
nied, and stating the grounds for any denial. 
‘‘(c) REPORT ON NON-BIA, NON-OST PROGRAMS.— 
‘‘(1) IN GENERAL.—In order to optimize oppor-
tunities for including non-Bureau of Indian Affairs 
and non-Office of Special Trustee programs in 
agreements with Indian tribes participating in self- 
governance under this title, the Secretary shall re-
view all programs administered by the Department, 
other than through the Bureau of Indian Affairs or 
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Office of the Special Trustee, without regard to the 
agency or office concerned. 
‘‘(2) PROGRAMMATIC TARGETS.—The Secretary 
shall establish programmatic targets, after consulta-
tion with Indian tribes participating in self-govern-
ance, to encourage bureaus of the Department to en-
sure that an appropriate portion of those programs 
are available to be included in funding agreements. 
‘‘(3) PUBLICATION.—The lists under subsection 
(b)(5) and targets under subsection (c)(2) shall be 
published in the Federal Register and made avail-
able to any Indian tribe participating in self-govern-
ance. 
‘‘(4) ANNUAL REVIEW.— 
‘‘(A) IN
GENERAL.—The Secretary shall 
annually review and publish in the Federal Reg-
ister, after consultation with Indian tribes par-
ticipating in self-governance, revised lists and 
programmatic targets. 
‘‘(B) CONTENTS.—In preparing the revised 
lists and programmatic targets, the Secretary 
shall consider all programs that were eligible 
for contracting in the original list published in 
the Federal Register in 1995, except for pro-
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grams 
specifically 
determined 
not 
to 
be 
contractible as a matter of law. 
‘‘(d) REPORT ON CENTRAL OFFICE FUNDS.—Not 
later than January 1, 2012, the Secretary shall, in con-
sultation with Indian tribes, develop a funding formula to 
determine the individual tribal share of funds controlled 
by the Central Office of the Bureau of Indian Affairs and 
the Office of the Special Trustee for inclusion in the com-
pacts. 
‘‘SEC. 415. REGULATIONS. 
‘‘(a) IN GENERAL.— 
‘‘(1) PROMULGATION.—Not later than 90 days 
after the date of enactment of the Department of 
the Interior Tribal Self-Governance Act of 2011, the 
Secretary shall initiate procedures under subchapter 
III of chapter 5 of title 5, United States Code, to 
negotiate and promulgate such regulations as are 
necessary to carry out this title. 
‘‘(2) PUBLICATION
OF
PROPOSED
REGULA-
TIONS.—Proposed regulations to implement this title 
shall be published in the Federal Register not later 
than 21 months after the date of enactment of the 
Department of the Interior Tribal Self-Governance 
Act of 2011. 
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‘‘(3) EXPIRATION OF AUTHORITY.—The author-
ity to promulgate regulations under paragraph (1) 
shall expire on the date that is 30 months after the 
date of enactment of the Department of the Interior 
Tribal Self-Governance Act of 2011. 
‘‘(b) COMMITTEE.— 
‘‘(1) MEMBERSHIP.—A negotiated rulemaking 
committee established pursuant to section 565 of 
title 5, United States Code, to carry out this section 
shall have as its members only representatives of the 
Federal Government and tribal government. 
‘‘(2) LEAD AGENCY.—Among the Federal rep-
resentatives described in paragraph (1), the Office of 
Self-Governance shall be the lead agency for the De-
partment. 
‘‘(c) ADAPTATION OF PROCEDURES.—The Secretary 
shall adapt the negotiated rulemaking procedures to the 
unique context of self-governance and the government-to- 
government relationship between the United States and 
Indian tribes. 
‘‘(d) EFFECT.— 
‘‘(1) REPEAL.—The Secretary may repeal any 
regulation that is inconsistent with this Act. 
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‘‘(2) CONFLICTING
PROVISIONS.—This title 
shall supersede any conflicting provision of law (in-
cluding any conflicting regulations). 
‘‘(3) EFFECTIVENESS
WITHOUT
REGARD
TO 
REGULATIONS.—The lack of promulgated regula-
tions on an issue shall not limit the effect or imple-
mentation of this title. 
‘‘SEC. 416. EFFECT OF CIRCULARS, POLICIES, MANUALS, 
GUIDANCES, AND RULES. 
‘‘Unless expressly agreed to by a participating Indian 
tribe in a compact or funding agreement, the participating 
Indian tribe shall not be subject to any agency circular, 
policy, manual, guidance, or rule adopted by the Depart-
ment, except for— 
‘‘(1) the eligibility provisions of section 105(g); 
and 
‘‘(2) regulations promulgated pursuant to sec-
tion 415. 
‘‘SEC. 417. APPEALS. 
‘‘Except as provided in section 407(d), in any admin-
istrative action, appeal, or civil action for judicial review 
of any decision made by the Secretary under this title, 
the Secretary shall have the burden of proof of dem-
onstrating by a preponderance of the evidence— 
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‘‘(1) the validity of the grounds for the decision; 
and 
‘‘(2) the consistency of the decision with the re-
quirements and policies of this title. 
‘‘SEC. 418. APPLICATION OF OTHER PROVISIONS. 
‘‘Section 314 of the Department of the Interior and 
Related Agencies Appropriations Act, 1991 (Public Law 
101–512; 104 Stat. 1959), shall apply to compacts and 
funding agreements entered into under this title. 
‘‘SEC. 419. AUTHORIZATION OF APPROPRIATIONS. 
‘‘There are authorized to be appropriated such sums 
as are necessary to carry out this title.’’. 
Æ 
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