IB 
Union Calendar No. 348 
111TH CONGRESS 
2D SESSION 
H. R. 4347 
[Report No. 111–603] 
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 
DECEMBER 16, 2009 
Mr. BOREN (for himself and Mr. WALZ) introduced the following bill; which 
was referred to the Committee on Natural Resources 
SEPTEMBER 16, 2010 
Additional sponsors: Mr. HEINRICH, Mr. KILDEE, Mr. YOUNG of Alaska, Mrs. 
NAPOLITANO, Mr. FALEOMAVAEGA, Mr. SABLAN, Mr. COLE, Ms. RICH-
ARDSON, Mr. CLAY, Mr. HONDA, Mr. LARSEN of Washington, Mr. INS-
LEE, Mr. REHBERG, and Mr. PETERSON 
SEPTEMBER 16, 2010 
Reported with an amendment, committed to the Committee of the Whole 
House on the State of the Union, and ordered to be printed 
[Strike out all after the enacting clause and insert the part printed in italic] 
[For text of introduced bill, see copy of bill as introduced on December 16, 2009] 
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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. 
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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 ‘‘De-
partment of the Interior Tribal Self-Governance Act of 
2010’’. 
(b) TABLE OF CONTENTS.—The table of contents of this 
Act is as follows: 
Sec. 1. Short title; table of contents. 
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-Deter-
mination and Education Assistance Act (25 U.S.C. 450b) 
is amended by striking subsection (j) and inserting the fol-
lowing: 
‘‘(j) ‘self-determination contract’ means a con-
tract entered into (or a grant or cooperative agree-
ment used under section 9) under title I between a 
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tribal organization and the appropriate Secretary for 
the planning, conduct, and administration of pro-
grams or services that are otherwise provided to In-
dian 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 (or grant or cooperative agreement used under 
section 9) under title I shall be— 
‘‘(1) considered to be a procurement con-
tract; or 
‘‘(2) subject to any Federal procurement 
law (including regulations);’’. 
(b) REPORTING AND AUDIT REQUIREMENTS.—Section 
5(b) of the Indian Self-Determination and Education As-
sistance Act (25 U.S.C. 450c(b)) is amended by striking 
‘‘after completion of the project or undertaking referred to 
in the preceding subsection of this section’’ and inserting 
‘‘after the date on which a report is submitted to the Sec-
retary under subsection (a)’’. 
(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 Assistance Act, 
as amended (25 U.S.C. 450 et seq.) (Public Law 93–638, 
as amended, 88 Stat. 2203) and section 314 of the Depart-
ment of the Interior and Related Agencies Appropriations 
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Act, 1991 (Public Law 101–512; 104 Stat. 1959), apply to 
compacts and funding agreements entered into under title 
IV. 
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 defined 
in section 3 of the Indian Financing Act of 1974 (25 
U.S.C. 1452)), except that’’; 
(2) by striking subsection (e) and inserting the 
following: 
‘‘(e) APPEALS.—In any appeal (including civil ac-
tions) involving decisions made by the Secretary under this 
title, the Secretary shall have the burden of proof of dem-
onstrating, by a preponderance of the evidence— 
‘‘(1) the validity of the grounds for the decision 
made; and 
‘‘(2) that the decision is fully consistent with the 
provisions and policies of this title.’’; and 
(3) by adding at the end the following: 
‘‘(f) GOOD FAITH REQUIREMENT.—In the negotiation 
of compacts and funding agreements, the Secretary shall at 
all times negotiate in good faith to maximize implementa-
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tion of the self-governance policy. The Secretary shall carry 
out this title in a manner that maximizes the policy of trib-
al self-governance, in a manner consistent with the purposes 
specified in section 3 of the Tribal Self-Governance Amend-
ments of 2000 (Public Law 106–260; 25 U.S.C. 458aaa 
note).’’. 
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’’; 
(2) by striking subsection (j) and inserting the 
following: 
‘‘(j) REDESIGN AND CONSOLIDATION.—If an Indian 
tribe can demonstrate, for the previous three fiscal years, 
the financial stability and financial management capa-
bility as evidenced by the Indian tribe having no material 
audit exceptions in the required annual audit of the self- 
determination contracts of the Indian tribe, then the Indian 
tribe may redesign or consolidate programs, services, func-
tions, and activities (or portions thereof) included in a 
funding agreement under this title and reallocate or redirect 
funds for such programs, services, functions, and activities 
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(or portions thereof) that are eligible to be included in Con-
solidated Tribal Government Programs in any manner that 
the Indian tribe determines to be in the best interest of the 
health and welfare of the Indian community being served, 
only if the redesign or consolidation does not have the effect 
of denying eligibility for services to population groups oth-
erwise eligible to be served under applicable Federal law.’’; 
and 
(3) by adding at the end the following: 
‘‘(p) INTERPRETATION
BY SECRETARY.—Except as 
otherwise provided by law, the Secretary shall interpret all 
Federal laws (including regulations) and Executive orders 
in a manner that facilitates, to the maximum extent prac-
ticable— 
‘‘(1) the inclusion in self-determination contracts 
and funding agreements of— 
‘‘(A) applicable programs, services, func-
tions, and activities (or portions thereof); and 
‘‘(B) funds associated with those programs, 
services, functions, and activities; 
‘‘(2) the implementation of self-determination 
contracts and funding agreements; and 
‘‘(3) the achievement of tribal health objectives.’’. 
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SEC. 104. CONTRACT FUNDING AND INDIRECT COSTS. 
Section 106(a)(3)(A) of the Indian Self-Determination 
and Education Assistance Act (25 U.S.C. 450j–1(a)(3)(A)) 
is amended— 
(1) in clause (i), by striking ‘‘, and’’ at the end 
and inserting a semicolon; 
(2) in clause (ii), by striking ‘‘expense related to 
the overhead incurred’’ and inserting in lieu thereof 
‘‘expenses incurred by the governing body of the In-
dian tribe or tribal organization and overhead in-
curred’’; 
(3) in clause (ii), by striking the comma at the 
end and inserting ‘‘; and’’; and 
(4) by inserting after clause (ii) the following: 
‘‘(iii) not less than 50 percent of the expenses in-
curred by the governing body of a Indian tribe or 
tribal organization relating to a Federal program, 
function, service, or activity pursuant to the contract 
(which expenses shall be considered to be reasonable 
and allowable without documentation for the purpose 
of this paragraph), except that in the case of a Indian 
tribe or tribal organization which derives all or sub-
stantially all of its program revenue from other gov-
ernments or organizations, not less than 100 percent 
of such expenses shall be considered to be reasonable 
and allowable without documentation.’’. 
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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 ‘‘con-
tain’’; and 
(2) in subsection (f)(2)(A)(ii) of the model agree-
ment contained in subsection (c), by inserting ‘‘sub-
ject to subsections (a) and (b) of section 102 of the In-
dian Self-Determination and Education Assistance 
Act (25 U.S.C. 450f),’’ before ‘‘such other provisions’’. 
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. 450 et seq.) is amended 
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. 
‘‘(2) CONSTRUCTION PROGRAM.—The term ‘con-
struction program’ or ‘construction project’ means a 
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tribal undertaking relating to the administration, 
planning, environmental determination, design, con-
struction, repair, improvement, or expansion of roads, 
bridges, buildings, structures, systems, or other facili-
ties for purposes of housing, law enforcement, deten-
tion, sanitation, water supply, education, administra-
tion, community, health, irrigation, agriculture, con-
servation, flood control, transportation, or port facili-
ties, or for other tribal purposes. 
‘‘(3) DEPARTMENT.—The term ‘Department’ 
means the Department of the Interior. 
‘‘(4) FUNDING AGREEMENT.—The term ‘funding 
agreement’ means a funding agreement entered into 
under section 405. 
‘‘(5) GROSS MISMANAGEMENT.—The term ‘gross 
mismanagement’ means a significant violation, 
shown by a preponderance of the evidence, of a com-
pact, funding agreement, or statutory or regulatory 
requirement applicable to Federal funds— 
‘‘(A) for a program administered by an In-
dian tribe; or 
‘‘(B) under a compact or funding agreement 
that results in a significant reduction of funds 
available for the programs assumed by an In-
dian tribe. 
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‘‘(6) PROGRAM.—The term ‘program’ means any 
program, function, service, or activity (or portion 
thereof) within the Department of the Interior that is 
included in a funding agreement. 
‘‘(7) INHERENT FEDERAL FUNCTION.—The term 
‘inherent Federal function’ means a Federal function 
that may not legally be delegated to an Indian tribe. 
‘‘(8) SECRETARY.—The term ‘Secretary’ means 
the Secretary of the Interior. 
‘‘(9) SELF-GOVERNANCE.—The term ‘self-govern-
ance’ means the program of self-governance estab-
lished under section 402. 
‘‘(10) TRIBAL SHARE.—The term ‘tribal share’ 
means an Indian tribe’s portion of all funds and re-
sources that support any program within the Bureau 
of Indian Affairs, the Office of Special Trustee, and 
the Office of the Assistant Secretary for Indian Af-
fairs and that are not required by the Secretary for 
the performance of an inherent Federal function. 
‘‘SEC. 402. ESTABLISHMENT. 
‘‘The Secretary shall carry out a program within the 
Department to be known as the ‘Tribal Self-Governance 
Program’. 
‘‘SEC. 403. SELECTION OF PARTICIPATING INDIAN TRIBES. 
‘‘(a) IN GENERAL.— 
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‘‘(1) PARTICIPANTS.— 
‘‘(A) The Secretary, acting through the Di-
rector of the Office of Self-Governance, may select 
up to 50 new Indian tribes per year from those 
eligible under subsection (b) to participate in 
self-governance. 
‘‘(B) If each Indian tribe requests, two 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 organi-
zation shall have the rights and responsibilities of the 
authorizing Indian tribe (except as otherwise pro-
vided 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 
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‘‘(B) the tribal organization itself or at least 
one 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 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 one or more other In-
dian tribes provided that the tribal organization 
still qualifies under subsection (b). 
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‘‘(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. The Indian tribe 
shall provide a copy of the tribal resolution 
to the Secretary. 
‘‘(ii) EFFECTIVE DATE.— 
‘‘(I) IN GENERAL.—A withdrawal 
under clause (i) shall become effective 
on the date specified in the tribal reso-
lution and that is mutually agreed 
upon by the Secretary, the with-
drawing Indian tribe, and the tribal 
organization that signed the compact 
and funding agreement on behalf of the 
withdrawing Indian tribe or tribal or-
ganization. 
‘‘(II) NO
SPECIFIED
DATE.—In 
the absence of a date specified in the 
resolution, the withdrawal shall become 
effective on— 
‘‘(aa) the earlier of— 
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‘‘(AA) 1 year after the 
date of submission of the re-
quest; or 
‘‘(BB) the date on which 
the funding agreement ex-
pires; 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 fund-
ing agreement on behalf of the 
withdrawing Indian tribe or trib-
al organization. 
‘‘(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 a self-deter-
mination contract or compact, in which 
case— 
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‘‘(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-determination 
contract or compact and funding 
agreement (calculated on the same 
basis as the funds were initially allo-
cated to the funding agreement of the 
tribal organization); and 
‘‘(II) the funds referred to in sub-
clause (I) shall be withdrawn by the 
Secretary from the funding agreement 
of the tribal organization and trans-
ferred to the withdrawing Indian tribe, 
on the condition that the provisions of 
sections 102 and 105(i), as appro-
priate, shall apply to the withdrawing 
Indian tribe; or 
‘‘(ii) may elect not to enter a self-deter-
mination contract or compact, in which 
case all funds not obligated by the tribal or-
ganization associated with the withdrawing 
Indian tribe’s returned programs, less close- 
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out costs, shall be returned by the tribal or-
ganization to the Secretary for operation of 
the programs 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-deter-
mination contract as long as the Indian tribe 
meets the requirements set forth in section 4(h) 
of this Act. 
‘‘(b) ELIGIBILITY.—To be eligible to participate in 
self-governance, an Indian tribe shall— 
‘‘(1) successfully complete the planning phase de-
scribed 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 preceding 
the date on which the Indian tribe requests participa-
tion, financial stability and financial management 
capability as evidenced by the Indian tribe having no 
uncorrected significant and material audit exceptions 
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in the required annual audit of its self-determination 
or self-governance agreements with any Federal agen-
cy. 
‘‘(c) PLANNING PHASE.— 
‘‘(1) IN GENERAL.—An Indian tribe seeking to 
begin participation in self-governance shall complete 
a planning phase in accordance with this subsection. 
‘‘(2) ACTIVITIES.—The planning phase— 
‘‘(A) shall be conducted to the satisfaction of 
the Indian tribe; and 
‘‘(B) shall include— 
‘‘(i) legal and budgetary research; and 
‘‘(ii) internal tribal government plan-
ning and organizational preparation. 
‘‘(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 participation 
by the Indian tribe or tribal organization in self- 
governance, as set forth in a compact and a 
funding agreement. 
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‘‘(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 partici-
pating in self-governance in a manner consistent with the 
trust responsibility of the Federal Government, treaty obli-
gations, and the government-to-government relationship be-
tween 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. 
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‘‘(e) DURATION.—A compact under subsection (a) shall 
remain in effect for so long as permitted by Federal law 
or 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 the enactment of the Department of the Interior 
Tribal Self-Governance Act of 2010, 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 pro-
vision of this title; or 
‘‘(2) to negotiate a new compact in a manner 
consistent with this title. 
‘‘SEC. 405. FUNDING AGREEMENTS. 
‘‘(a) IN GENERAL.—The Secretary shall negotiate and 
enter into a written funding agreement with the governing 
body of an Indian tribe or tribal organization in a manner 
consistent with the trust responsibility of the Federal Gov-
ernment, treaty obligations, and the government-to-govern-
ment relationship between Indian tribes and the United 
States. 
‘‘(b) INCLUDED PROGRAMS.— 
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‘‘(1) BUREAU OF INDIAN AFFAIRS AND OFFICE 
OF SPECIAL TRUSTEE.— 
‘‘(A) IN GENERAL.—A funding agreement 
shall, as determined by the Indian tribe, author-
ize the Indian tribe to plan, conduct, consolidate, 
administer, and receive full tribal share funding 
for all programs carried out by the Bureau of 
Indian Affairs, the Office of the Assistant Sec-
retary for Indian Affairs, and the Office of Spe-
cial Trustee, without regard to the agency or of-
fice within which the program is performed (in-
cluding funding for agency, area, and central of-
fice functions in accordance with subsection 
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 Department 
of the Interior; or 
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‘‘(iv) are provided for the benefit of In-
dians because of their status as Indians. 
‘‘(B) INCLUSIONS.—Programs described in 
subparagraph (A) shall include all programs 
with respect to which Indian tribes or Indians 
are primary or significant beneficiaries. 
‘‘(2) DISCRETIONARY
PROGRAMS
OF
SPECIAL 
SIGNIFICANCE.—A funding agreement under sub-
section (a) may, in accordance with such additional 
terms as the parties consider to be appropriate, in-
clude 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 geographic, historical, or 
cultural significance to the Indian tribe. Such agree-
ments, including the additional terms, shall be gov-
erned by the provisions of this title, except that, sub-
ject to the discretion of the Secretary— 
‘‘(A) the Indian tribe may have realloca-
tion, consolidation, and redesign authority over 
any program assumed under this paragraph (2); 
‘‘(B) the Secretary may reassume any pro-
gram and associated funding assumed under this 
paragraph (2) upon a specific finding by the 
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Secretary of a gross violation by the Indian tribe 
of the terms of the funding agreement; 
‘‘(C) the Secretary may require special 
terms and conditions regarding a construction 
program or project assumed under this para-
graph (2) notwithstanding the provisions of sec-
tion 408; 
‘‘(D) all Federal regulations that otherwise 
govern the operation of any program assumed 
under this paragraph (2) apply to the Indian 
tribe unless a specific regulation is waived by the 
Secretary under the procedures set forth in sec-
tion 410(b)(2), which waiver request may be de-
nied 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 
‘‘(E) a stable base budget, as described in 
paragraph (7), may be provided for any pro-
gram assumed under this paragraph (2). 
‘‘(3) PROGRAMS
OTHERWISE
AVAILABLE.—A 
funding agreement shall, as determined by the Indian 
tribe, authorize the Indian tribe to plan, conduct, 
consolidate, administer, and receive full tribal share 
funding for any program administered by the Depart-
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ment of the Interior other than through the Bureau 
of Indian Affairs, the Office of the Assistant Secretary 
for Indian Affairs, or the Office of the Special Trust-
ee, that is otherwise available to Indian tribes or In-
dians under section 102 of this Act. 
‘‘(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, con-
duct, administer, or receive tribal share funding 
under any program that— 
‘‘(A) is provided under the Tribally Con-
trolled College or University Assistance Act of 
1978 (25 U.S.C. 1801 et seq.); and 
‘‘(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). 
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‘‘(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 funding agreement pur-
suant to subsections (b)(1) and (b)(3) shall, at the op-
tion of the Indian tribe, provide for a stable base 
budget specifying the recurring funds (including 
funds available under section 106(a)) to be trans-
ferred to the Indian tribe, for such period as the In-
dian tribe specifies in the funding agreement, subject 
to annual adjustment only to reflect changes in con-
gressional appropriations. Upon agreement by the 
Secretary, a funding agreement under subsection 
(b)(2) may also provide for a stable base budget sub-
ject to the terms of this provision. 
‘‘(8) NO WAIVER OF TRUST RESPONSIBILITY.—A 
funding agreement shall prohibit the Secretary from 
waiving, modifying, or diminishing in any way the 
trust responsibility of the United States with respect 
to Indian tribes and individual Indians that exists 
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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 agree-
ment. 
‘‘(e) EXISTING AND SUBSEQUENT FUNDING AGREE-
MENTS.— 
‘‘(1) SUBSEQUENT FUNDING AGREEMENTS.—Ab-
sent notification from an Indian tribe that it is with-
drawing or retroceding the operation of one or more 
programs identified in a funding agreement under 
subsections (b)(1) or (b)(3), or unless otherwise agreed 
to by the parties to the 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 effect 
or by the nature of any noncontinuing program, 
services, functions, or activities contained in a 
funding agreement; and 
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‘‘(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 funding to 
which the Indian tribe is entitled. 
‘‘(2) DISPUTES.—Disputes over the implementa-
tion of paragraph (1)(A) shall be subject to section 
407(c). 
‘‘(3) EXISTING FUNDING AGREEMENTS.—An In-
dian tribe that was participating in self-governance 
under this title on the date of enactment of the De-
partment of the Interior Tribal Self-Governance Act 
of 2010 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 not di-
rectly 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 one year. 
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‘‘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 par-
ticipating 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 modified 
by— 
‘‘(A) any provision of law, including section 
106 of this Act; or 
‘‘(B) any exemptions to applicable Office of 
Management and Budget circulars subsequently 
granted by the Office of Management and Budg-
et. 
‘‘(3) FEDERAL CLAIMS.—Any claim by the Fed-
eral Government against the Indian tribe relating to 
funds received under a funding agreement based on 
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any audit under this subsection shall be subject to the 
provisions of section 106(f). 
‘‘(d) REDESIGN
AND CONSOLIDATION.—An Indian 
tribe may redesign or consolidate programs or reallocate 
funds for programs in any manner that the Indian tribe 
deems to be in the best interest of the Indian community 
being served, so long as the redesign or consolidation does 
not have the effect of denying eligibility for services to popu-
lation groups otherwise eligible to be served under applica-
ble Federal law, except that, with respect to the reallocation, 
consolidation, and redesign of programs described in section 
405(b)(2), a joint agreement between the Secretary and the 
Indian tribe shall be required. 
‘‘(e) RETROCESSION.— 
‘‘(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 the Indian tribe 
rescinds the request for retrocession, such ret-
rocession shall become effective on the date speci-
fied by the parties in the compact or funding 
agreement. 
‘‘(B) NO AGREEMENT.—In the absence of a 
specification of an effective date in the compact 
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or funding agreement, the retrocession shall be-
come effective on— 
‘‘(i) the earlier of— 
‘‘(I) one year after the date of sub-
mission of such request; or 
‘‘(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— 
‘‘(1) shall not be entitled to contract with the 
Secretary for funds under section 102, except that 
such 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 fund-
ing 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-
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ered 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 30 days’ notice, provide the Sec-
retary with reasonable access to the records to 
enable the Department to meet the requirements 
of sections 3101 through 3106 of title 44, United 
States Code. 
‘‘SEC. 407. PROVISIONS RELATED TO THE SECRETARY. 
‘‘(a) TRUST EVALUATIONS.—A funding agreement 
shall include a provision to monitor the performance of 
trust functions by the Indian tribe through the annual trust 
evaluation. 
‘‘(b) REASSUMPTION.— 
‘‘(1) IN GENERAL.—A compact or funding agree-
ment shall include provisions for the Secretary to re-
assume 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 
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‘‘(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 Inspector 
General, as appropriate. 
‘‘(2) PROHIBITION.—The Secretary shall not re-
assume operation of a program in whole or part un-
less— 
‘‘(A) the Secretary first provides written no-
tice and a hearing on the record to the Indian 
tribe; and 
‘‘(B) the Indian tribe does not take correc-
tive action to remedy the mismanagement of the 
funds or programs, or the imminent jeopardy to 
a trust asset, natural resource, or public 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 
both imminent and substantial jeopardy 
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and irreparable 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 Indian 
tribe to carry out the terms of its compact 
or funding agreement. 
‘‘(B) REASSUMPTION.—If the Secretary re-
assumes operation of a program under subpara-
graph (A), the Secretary shall provide the Indian 
tribe with a hearing on the record not later than 
10 days after the date of reassumption. 
‘‘(c) INABILITY TO AGREE ON COMPACT OR FUNDING 
AGREEMENT.— 
‘‘(1) FINAL OFFER.—If the Secretary and a par-
ticipating Indian tribe are unable to agree, in whole 
or in part, on the terms of a compact or funding 
agreement (including funding levels), the Indian tribe 
may submit a final offer to the Secretary. 
‘‘(2) DETERMINATION.—Not more than 45 days 
after the date of submission of a final offer, or as oth-
erwise agreed to by the Indian tribe, the Secretary 
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shall review and make a determination with respect 
to the final offer. 
‘‘(3) NO TIMELY DETERMINATION.—If the Sec-
retary fails to make a determination with respect to 
a final offer within the time specified in paragraph 
(2), the Secretary shall be deemed to have agreed to 
the offer. 
‘‘(4) REJECTION OF FINAL OFFER.— 
‘‘(A) IN GENERAL.—If the Secretary rejects 
a final offer (or one or more provisions or fund-
ing levels in a final offer), the Secretary shall— 
‘‘(i) provide timely written notification 
to the Indian tribe that contains a specific 
finding that clearly demonstrates, or that is 
supported by a controlling legal authority, 
that— 
‘‘(I) the amount of funds proposed 
in the final offer exceeds the applicable 
funding level to which the Indian tribe 
is entitled under this title because it 
would reduce the funds that any other 
Indian tribe or tribal organization is 
entitled to receive under Federal law; 
‘‘(II) the program that is the sub-
ject of the final offer is an inherent 
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Federal function or is subject to the 
discretion of the Secretary under sec-
tion 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; 
‘‘(IV) the Indian tribe is not eligi-
ble to participate in self-governance 
under section 403(b); or 
‘‘(V) the funding agreement would 
violate Federal statute or regulation; 
‘‘(ii) provide technical assistance to 
overcome the objections stated in the notifi-
cation required by clause (i); 
‘‘(iii) provide the Indian tribe with a 
hearing on the record with the right to en-
gage in full discovery relevant to any issue 
raised in the matter and the opportunity 
for appeal on the objections raised (except 
that the Indian tribe may, in lieu of filing 
such appeal, directly proceed to initiate an 
action in a Federal district court under sec-
tion 110(a)); and 
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‘‘(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 OP-
TION.—If an Indian tribe exercises the option 
specified in subparagraph (A)(iv)— 
‘‘(i) the Indian tribe shall retain the 
right to appeal the rejection by the 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 Sec-
retary. 
‘‘(d) BURDEN
OF PROOF.—In any administrative 
hearing or appeal or civil action brought under this section, 
the Secretary shall have the burden of demonstrating by a 
preponderance of the evidence the validity of the grounds 
for rejecting a final offer made under subsection (c) or the 
grounds for a reassumption under subsection (b). 
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‘‘(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.—To the extent that programs carried 
out for the benefit of Indian tribes and tribal organizations 
under this title reduce the administrative or other respon-
sibilities of the Secretary with respect to the operation of 
Indian programs and result in savings that have not other-
wise been included in the amount of tribal shares and other 
funds determined under section 409(c), except for programs 
entered into funding agreements under section 405(b)(2), 
the Secretary shall make such savings available to the In-
dian tribes or tribal organizations for the provision of addi-
tional services to program beneficiaries in a manner equi-
table to directly served, contracted, and compacted pro-
grams. For any savings generated as a result of the assump-
tion of a program by an Indian tribe under section 
405(b)(2), such savings shall be made available to that In-
dian tribe. 
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‘‘(g) TRUST RESPONSIBILITY.—The Secretary may not 
waive, modify, or diminish in any way the trust responsi-
bility of the United States with respect to Indian tribes and 
individual Indians that exists under treaties, Executive or-
ders, other laws, or court decisions. 
‘‘(h) DECISIONMAKER.—A decision that constitutes 
final agency action and relates to an appeal within the De-
partment conducted under subsection (c)(4) may be made— 
‘‘(1) by an official of the Department who holds 
a position at a higher organizational level within the 
Department than the level of the departmental agency 
in which the decision that is the subject of the appeal 
was made; or 
‘‘(2) by an administrative law judge. 
‘‘(i) RULES OF CONSTRUCTION.—Each provision of 
this title and each provision of a compact or funding agree-
ment shall be liberally construed for the benefit of the In-
dian tribe participating in self-governance, and any ambi-
guity 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 
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construction project under this title, an Indian tribe may, 
subject to the Secretary’s agreement, elect to assume some 
Federal responsibilities under the National Environmental 
Policy Act of 1969 (42 U.S.C. 4321 et seq.), the National 
Historic Preservation Act (16 U.S.C. 470 et seq.), and re-
lated provisions of law and regulations that would apply 
if the Secretary were to undertake a construction project, 
by adopting a resolution— 
‘‘(1) designating a certifying tribal officer to rep-
resent the Indian tribe and to assume the status of a 
responsible Federal official under such laws; and 
‘‘(2) accepting the jurisdiction of the Federal 
courts for the purpose of enforcing the responsibilities 
of the certifying tribal officer assuming the status of 
a responsible Federal official under such laws. 
‘‘(c) SAVINGS CLAUSE.—Notwithstanding subsection 
(b), nothing in this Act authorizes the Secretary to include 
in any compact or funding agreement duties of the Sec-
retary under the National Environmental Policy Act, the 
National Historic Preservation Act, and other related pro-
visions of law that are inherent Federal functions. 
‘‘(d) CODES AND STANDARDS.—In carrying out a con-
struction project under this title, an Indian tribe shall— 
‘‘(1) adhere to applicable Federal, State, local, 
and tribal building codes architectural and engineer-
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ing standards and applicable Federal guidelines re-
garding design, space, and operational standards, ap-
propriate for the particular project; and 
‘‘(2) use only architects and engineers who are 
licensed to practice in the State in which the facility 
will be built and who certify— 
‘‘(A) that they are qualified to perform the 
work required by the specific construction in-
volved; and 
‘‘(B) upon completion of design, that the 
plans and specifications meet or exceed the ap-
plicable construction and safety codes. 
‘‘(e) TRIBAL ACCOUNTABILITY.— 
‘‘(1) In carrying out a construction project 
under this title, an Indian tribe shall assume respon-
sibility for the successful completion of the construc-
tion project and of a facility that is usable for the 
purpose for which it was funded. 
‘‘(2) For each construction project carried out by 
an Indian tribe under this title, the Indian tribe and 
the Secretary shall negotiate a provision to be in-
cluded in the funding agreement that identifies— 
‘‘(A) the approximate start and completion 
dates for the project, which may extend over a 
period of one or more years; 
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‘‘(B) a general description of the project, in-
cluding the scope of work, references to design 
criteria, and other terms and conditions; 
‘‘(C) the responsibilities of the Indian tribe 
and the Secretary for the project; 
‘‘(D) how project-related environmental con-
siderations will be addressed; 
‘‘(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, statutes, and 
regulations; 
‘‘(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 In-
dian 
tribes, 
based 
upon 
the 
review 
and 
verification by the Secretary, to his or her satis-
faction, that the Indian tribe has secured upon 
completion the review and approval of the plans 
and specifications, sufficiency of design, life safe-
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ty, and code compliance by qualified, licensed, 
and independent architects and engineers. 
‘‘(f) FUNDING.—Funding appropriated for construc-
tion projects carried out under this title shall be included 
in funding agreements as annual or semiannual advance 
payments at the option of the Indian tribe. The Secretary 
shall include all associated project contingency funds with 
each advance payment. The Indian tribe shall be respon-
sible for the management of such contingency 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 450j(m) 
of title 25 and any resulting construction project agreement 
shall be incorporated into the funding agreement as ad-
denda. 
‘‘(h) FEDERAL REVIEW AND VERIFICATION.—The Sec-
retary shall have at least one opportunity to review and 
verify, to the satisfaction of the Secretary, that project plan-
ning and design documents prepared by the Indian tribe 
in advance of initial construction are in conformity with 
the obligations of the Indian tribe under subsection (c) and, 
before they are implemented, at least one opportunity to 
review and verify to the satisfaction of the Secretary that 
subsequent document amendments which result in a signifi-
cant change in construction are in conformity with the obli-
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gations of the Indian tribe under subsection (c). The Indian 
tribe shall provide the Secretary with project progress and 
financial reports not less than semiannually. The Secretary 
may conduct onsite project oversight visits semiannually or 
on an alternate schedule agreed to by the Secretary and the 
Indian tribe. 
‘‘(i) APPLICATION OF OTHER LAWS.—Unless otherwise 
agreed to by the Indian tribe, no provision of the Office 
of Federal Procurement Policy Act (41 U.S.C. 401 et seq.), 
the Federal Acquisition Regulations issued pursuant there-
to, or any other law or regulation pertaining to Federal 
procurement (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-
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 the Indian tribe and under the terms of an agree-
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ment, 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 provide 
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 organiza-
tion level within the Department in which the pro-
grams are carried out. 
‘‘(2) SAVINGS CLAUSE.—Nothing in this section 
shall be construed to reduce funds of or provided to 
another Indian tribe. 
‘‘(d) TIMING.—Pursuant to the terms of any compact 
or funding agreement entered into under this part, the Sec-
retary shall transfer to the Indian tribe all funds provided 
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for in the funding agreement, pursuant to subsection (c), 
and provide funding for periods covered by joint resolution 
adopted by Congress making continuing appropriations, to 
the extent permitted by such resolution. Within 12 months 
from the date of enactment of this bill, in any instance 
where a funding agreement requires an annual transfer of 
funding to be made at the beginning of a fiscal year, or 
requires semiannual or other periodic 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 apportionment of such funds by the Office of Man-
agement and Budget to the Department, unless the funding 
agreement provides otherwise. 
‘‘(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 
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for programs eligible under section 405(b)(1) or 
(b)(3), 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-gov-
ernance 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-
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 provided; 
‘‘(C) to pay for Federal functions, includ-
ing— 
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‘‘(i) Federal pay costs; 
‘‘(ii) Federal employee retirement bene-
fits; 
‘‘(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 the use 
of Federal personnel, Federal supplies (including supplies 
available from Federal warehouse facilities), Federal supply 
sources (including lodging, airline transportation, and 
other means of transportation including the use of inter-
agency motor pool vehicles), or other Federal resources (in-
cluding supplies, services, and resources available to the 
Secretary under any procurement contracts in which the 
Department is eligible to participate), the Secretary shall, 
as soon as practicable, transfer such personnel, or acquire 
such supplies, or resources to the Indian tribe under this 
title. 
‘‘(i) PROMPT PAYMENT ACT.—Chapter 39 of title 31, 
United States Code, shall apply to the transfer of funds due 
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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 govern-
mental purposes. 
‘‘(2) NO EFFECT ON OTHER AMOUNTS.—The re-
tention of interest or income under paragraph (1) 
shall not diminish the amount of funds an Indian 
tribe is entitled to receive under a funding agreement 
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 Indian 
tribe using the prudent investment standard, provided 
that the Secretary shall not be liable for any invest-
ment losses of funds managed by the Indian tribe 
which are not otherwise guaranteed or insured by the 
Federal Government. 
‘‘(k) CARRYOVER OF FUNDS.— 
‘‘(1) IN GENERAL.—Notwithstanding any provi-
sion of an Act of appropriation, all funds paid to an 
Indian tribe in accordance with a compact or fund-
ing agreement shall remain available until expended. 
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‘‘(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 ex-
penditure of funds in excess of the amount of funds 
transferred under a compact or funding agreement. 
‘‘(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 com-
pact or funding agreement is insufficient, the Indian 
tribe shall provide reasonable notice of such insuffi-
ciency 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. 
‘‘(m) DISTRIBUTION OF FUNDS.—The Office of Self- 
Governance shall be responsible for distribution of all Bu-
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reau of Indian Affairs funds provided under this title unless 
otherwise agreed by the parties. 
‘‘SEC. 410. FACILITATION. 
‘‘(a) IN GENERAL.—Except as otherwise provided by 
law, the Secretary shall interpret each Federal law and reg-
ulation in a manner that facilitates— 
‘‘(1) the inclusion of programs in funding agree-
ments; and 
‘‘(2) the implementation of funding agreements. 
‘‘(b) REGULATION WAIVER.— 
‘‘(1) REQUEST.—An Indian tribe may submit a 
written request for a waiver to the Secretary identi-
fying the specific text in regulation sought to be 
waived and the basis for the request. 
‘‘(2) DETERMINATION BY THE SECRETARY.—Not 
later than 120 days after receipt by the Secretary of 
a request under paragraph (1), the Secretary shall 
approve or deny the requested waiver in writing to 
the Indian tribe. 
‘‘(3) GROUND FOR DENIAL.—The Secretary may 
deny a request under paragraph (1)— 
‘‘(A) for a program eligible under sections 
405(b)(1) and 405(b)(3) only upon a specific 
finding by the Secretary that the identified text 
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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), on a specific finding by the Secretary 
that the identified text in the regulation may not 
be waived because such a waiver is prohibited 
under Federal law. 
‘‘(4) FAILURE TO MAKE DETERMINATION.—If the 
Secretary fails to approve or deny a waiver request 
within the time required under paragraph (2), the 
Secretary shall be deemed to have approved the re-
quest. 
‘‘(5) FINALITY.—The Secretary’s decision shall 
be final for the Department. 
‘‘SEC. 411. DISCLAIMERS. 
‘‘Nothing in this title expands or alters any statutory 
authority of the Secretary so as to authorize the 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 whether 
one or more Indian tribes are identified in the au-
thorizing law); or 
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‘‘(3) which limits or reduces in any way the 
services, contracts, or funds that any other Indian 
tribe or tribal organization is eligible to receive under 
section 102 or any other applicable Federal law. 
‘‘SEC. 412. DISCRETIONARY APPLICATION OF OTHER SEC-
TIONS. 
‘‘(a) IN GENERAL.—At the option of a participating 
Indian tribe or Indian tribes, any of the provisions of title 
I shall be incorporated in any Department compact or 
funding agreement. 
‘‘(b) EFFECT.—Each incorporated provision— 
‘‘(1) shall have the same force and effect as if set 
out in full in this title; and 
‘‘(2) shall be deemed to supplement or replace 
any related provision in this title and to 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 fund-
ing agreement, the incorporation— 
‘‘(1) shall be deemed effective immediately; and 
‘‘(2) shall control the negotiation and resulting 
compact and funding agreement. 
‘‘SEC. 413. FUNDING NEEDS. 
‘‘(a) REQUIREMENT OF ANNUAL BUDGET REQUEST.— 
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‘‘(1) IN GENERAL.—The President shall identify 
in a report to accompany the annual budget request 
submitted to Congress under section 1105 of title 31, 
United States Code, all amounts necessary to fully 
fund all funding agreements entered into under this 
Act. 
‘‘(2) DUTY OF SECRETARY.—The Secretary shall 
identify in a report which accompanies each budget 
request the amount of funds that are sufficient for 
planning and negotiation grants and sufficient to 
cover any shortfall in funding identified under sub-
section (b). 
‘‘(3) RULE OF CONSTRUCTION.—Nothing in this 
subsection authorizes the Secretary to reduce the 
amount of funds that an Indian tribe is otherwise en-
titled to receive under a funding agreement or other 
applicable law. 
‘‘(b) PRESENT FUNDING; SHORTFALLS.—In each re-
port identified in subsection (a), the Secretary shall identify 
the level of need presently funded and any shortfall in fund-
ing (including direct program costs, tribal shares, and con-
tract support costs) for each Indian tribe, either directly 
by the Secretary, under self-determination contracts, or 
under compacts and funding agreements. The first report 
identified in subsection (a) shall be limited to the Bureau 
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of Indian Affairs agency office and shall be due on Feb-
ruary 1, 2012. The next report due on February 1, 2013, 
shall include all funding at the Bureau of Indian Affairs 
agency and regional offices. The next report due on Feb-
ruary 1, 2014, and all subsequent reports, shall include all 
funding at the Bureau of Indian Affairs agency, regional, 
and central offices, the Office of the Assistant Secretary for 
Indian Affairs, and the Office of the Special Trustee. 
‘‘SEC. 414. REPORTS. 
‘‘(a) IN GENERAL.— 
‘‘(1) REQUIREMENT.—On February 1 of each 
year, the Secretary shall submit to Congress a report 
regarding the administration of this title. 
‘‘(2) ANALYSIS.—A report under paragraph (1) 
shall include a detailed analysis of tribal unmet need 
for each Indian tribe, whether the Indian tribe is 
served directly by the Secretary, under self-determina-
tion contracts under title I, or under compacts and 
funding agreements authorized under this title. 
‘‘(3) NO
ADDITIONAL
REPORTING
REQUIRE-
MENTS.—In preparing reports under paragraph (1), 
the Secretary may not impose any reporting require-
ments on participating Indian tribes not otherwise 
provided by 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 In-
dian tribes; 
‘‘(C) the funds transferred to each Indian 
tribe and the corresponding reduction in the 
Federal employees and workload; 
‘‘(D) the funding formula for individual 
tribal shares of all Central Office funds, together 
with the comments of affected Indian tribes, de-
veloped under subsection (d); and 
‘‘(E) amounts expended in the preceding fis-
cal year to carry out inherent Federal functions, 
including an identification of inherent Federal 
functions; 
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‘‘(3) contain a description of the methods used to 
determine the individual tribal share of funds con-
trolled by all components of the Department (includ-
ing funds assessed by any other Federal agency) for 
inclusion in compacts or funding agreements; 
‘‘(4) before being submitted to Congress, be dis-
tributed to the Indian tribes for comment (with a 
comment period of no less than 30 days); and 
‘‘(5) include the separate views and comments of 
each Indian tribe or tribal organization. 
‘‘(c) REPORT ON NON-BIA, NON-OST PROGRAMS.— 
‘‘(1) IN GENERAL.—In order to optimize oppor-
tunities for Indian tribes participating in self-govern-
ance under this title, the Secretary shall— 
‘‘(A) review all programs administered by 
the Department, other than through the Bureau 
of Indian Affairs, the Office of the Assistant Sec-
retary for Indian Affairs, or the Office of Special 
Trustee, without regard to the agency or office 
concerned; and 
‘‘(B) not later than January 1 of each year, 
submit to Congress— 
‘‘(i) a list of all such programs that the 
Secretary determines, with the concurrence 
of Indian tribes participating in self-gov-
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ernance under this title, are eligible to be 
included in a funding agreement at the re-
quest of a participating Indian tribe; and 
‘‘(ii) a list of all such programs for 
which Indian tribes have requested to in-
clude in a funding agreement under section 
405(b)(2) or 405(b)(3), indicating whether 
each request was granted or denied, and 
stating the grounds for any denial. 
‘‘(2) PROGRAMMATIC TARGETS.—The Secretary 
shall establish programmatic targets, after consulta-
tion with Indian tribes participating in self-govern-
ance, to encourage bureaus of the Department to en-
sure that a significant portion of the programs identi-
fied in paragraph (1) are included in funding agree-
ments. 
‘‘(3) PUBLICATION.—The lists and targets under 
paragraphs (1) and (2) shall be published in the Fed-
eral Register and made available to any Indian tribe 
participating in self-governance. 
‘‘(4) ANNUAL REVIEW.— 
‘‘(A) IN GENERAL.—The Secretary shall an-
nually review and publish in the Federal Reg-
ister, after consultation with Indian tribes par-
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ticipating in self-governance, revised lists and 
programmatic targets. 
‘‘(B) CONTENTS.—The revised lists and pro-
grammatic targets shall include all programs 
that were eligible for contracting in the original 
list published in the Federal Register in 1995, 
except for programs specifically determined not 
to be contractible as a matter of law. 
‘‘(d) REPORT ON CENTRAL OFFICE FUNDS.—Not later 
than February 1, 2012, the Secretary shall, in consultation 
with Indian tribes, develop a funding formula to determine 
the individual tribal share of funds controlled by the Cen-
tral Office of the Bureau of Indian Affairs and the Office 
of the Special Trustee and the Office of the Assistant Sec-
retary for Indian Affairs for inclusion in the compacts. 
‘‘SEC. 415. REGULATIONS. 
‘‘(a) IN GENERAL.— 
‘‘(1) PROMULGATION.—Not later than 90 days 
after the date of the enactment of the Department of 
the Interior Tribal Self-Governance Act of 2009, the 
Secretary shall initiate procedures under subchapter 
III of chapter 5 of title 5, United States Code, to ne-
gotiate and promulgate such regulations as are nec-
essary to carry out the amendments made by this 
title. 
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