I
105TH CONGRESS
1ST SESSION
H. R. 1833
To amend the Indian Self-Determination and Education Assistance Act to
provide for further Self-Governance by Indian Tribes, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
JUNE 7, 1997
Mr. MILLER of California (for himself, Mr. YOUNG of Alaska, Mr. KILDEE,
Mr. KENNEDY of Rhode Island, and Mr. FALEOMAVAEGA) introduced the
following bill; which was referred to the Committee on Resources
A BILL
To amend the Indian Self-Determination and Education As-
sistance Act to provide for 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.
This Act may be cited as the ‘‘Tribal Self-Governance
Amendments of 1997’’.
SEC. 2. FINDINGS.
Congress finds that—
(1) the tribal right of self-government flows
from the inherent sovereignty of Indian tribes and
nations;
(2) the United States recognizes a special gov-
ernment-to-government relationship with Indian
tribes, including the right of the Indian tribes to
self-governance, as reflected in the Constitution,
treaties, Federal statutes, and the course of dealings
of the United States with Indian tribes;
(3) although progress has been made, the Fed-
eral bureaucracy, with its centralized rules and regu-
lations, has eroded tribal self-governance and domi-
nates tribal affairs;
(4) the Tribal Self-Governance Demonstration
Project was designed to improve and perpetuate the
government-to-government relationship between In-
dian tribes and the United States and to strengthen
tribal control over Federal funding and program
management;
(5) although the Federal Government has made
considerable strides in improving Indian health care,
it has failed to fully meet its trust responsibilities to
the Indian tribes; and
zation to plan for or carry out programs, services, func-
tions, or activities (or portions thereof) on its behalf under
this title, the authorized Indian tribe, inter-tribal consor-
tium, or tribal organization shall have the rights and re-
sponsibilities of the authorizing Indian tribe (except as
otherwise provided in the authorizing resolution or in this
title). In such event, the term ‘Indian tribe’ as used in
this title shall include such other authorized Indian tribe,
inter-tribal consortium, or tribal organization.
‘‘SEC. 503. SELECTION OF PARTICIPATING INDIAN TRIBES.
‘‘(a) CONTINUING
PARTICIPATION.—Each Indian
tribe that is participating in the Tribal Self-Governance
Demonstration Project at the Department of Health and
Human Services under title III on the date of enactment
of this title shall thereafter participate in Self-Governance
under this title and cease participation in the Tribal Self-
Governance Demonstration Project under title III.
‘‘(b) ADDITIONAL PARTICIPANTS.—
‘‘(1) In addition to those Indian tribes partici-
pating in Self-Governance under subsection (a), each
year an additional 50 Indian tribes who meet the eli-
gibility criteria specified in subsection (c) shall be
entitled to participate in Self-Governance.
‘‘(2) An Indian tribe that has withdrawn from
participation in an inter-tribal consortium or tribal
organization that is participating in Self-Governance
shall be entitled to continue to participate in Self-
Governance provided the Indian tribe meets the eli-
gibility criteria specified in subsection (c). Such In-
dian tribe shall be entitled to its tribal share of
funds supporting those programs, services, func-
tions, or activities (or portions thereof) that it will
be carrying out under its own compact and funding
agreement. In no event shall the withdrawal of an
Indian tribe from an inter-tribal consortium or tribal
organization affect the eligibility of the inter-tribal
consortium or tribal organization to participate in
Self-Governance.
‘‘(c) APPLICANT POOL.—The qualified applicant pool
for Self-Governance shall consist of an Indian tribe that—
‘‘(1) successfully completes the planning phase
described in subsection (d);
‘‘(2) has requested participation in Self-Govern-
ance by resolution or other official action by the gov-
erning body (or bodies) of the Indian tribe or tribes
to be served; and
‘‘(3) has demonstrated, for the previous three
fiscal years, financial stability and financial manage-
ment capability. Evidence that during such years the
Indian tribe had no uncorrected significant and ma-
terial audit exceptions in the required annual audit
of the Indian tribe’s self-determination contracts or
self-governance funding agreements with any Fed-
eral agency shall be conclusive evidence of the re-
quired stability and capability for the purposes of
this subsection.
‘‘(d) PLANNING PHASE.—Each Indian tribe seeking
participation in Self-Governance shall complete a planning
phase. The planning phase shall include—
‘‘(1) legal and budgetary research; and
‘‘(2) internal tribal government planning and
organizational preparation.
‘‘(e) GRANTS.—Subject to the availability of appro-
priations, any Indian tribe meeting the requirements of
subsections (c)(2) and (3) shall be eligible for—
‘‘(1) a grant to plan for participation in Self-
Governance; and
‘‘(2) a grant to negotiate the terms of the In-
dian tribe’s or tribal organization’s participation in
Self-Governance, as set forth in a compact and a
funding agreement.
‘‘(f) RECEIPT OF GRANT NOT REQUIRED.—Receipt
of a grant under subsection (e) shall not be a prerequisite
to participation in Self-Governance.
‘‘SEC. 504. COMPACTS.
‘‘(a) COMPACT REQUIRED.—The Secretary shall ne-
gotiate and enter into a written compact with each Indian
tribe participating in Self-Governance in a manner consist-
ent with the Federal Government’s trust responsibility and
the government-to-government relationship between In-
dian tribes and the United States.
‘‘(b) CONTENTS.—Each compact required under sub-
section (a) shall set forth the general terms of the govern-
ment-to-government relationship between the Indian tribe
and the Secretary, including such terms as the parties in-
tend shall control year after year. Such compacts may only
be amended by mutual agreement of the parties.
‘‘(c) EXISTING COMPACTS.—An Indian tribe partici-
pating in Self-Governance on the date of enactment of this
title shall have the option at any time thereafter to ei-
ther—
‘‘(1) retain its existing compact (in whole or in
part) to the extent the provisions of such compact
are not directly contrary to any express provision of
this title, or
‘‘(2) adopt in lieu thereof (in whole or in part)
a new compact in conformity with this title.
‘‘(d) TERM AND EFFECTIVE DATE.—The effective
date of a compact shall be the date of the approval and
execution by the Indian tribe or another date agreed upon
by the parties, and shall remain in effect for so long as
permitted by Federal law or until terminated by mutual
written agreement.
‘‘SEC. 505. FUNDING AGREEMENTS.
‘‘(a) FUNDING AGREEMENT REQUIRED.—The Sec-
retary shall negotiate and enter into a written funding
agreement with each Indian tribe participating in Self-
Governance in a manner consistent with the Federal Gov-
ernment’s trust responsibility.
‘‘(b) CONTENTS.—Each funding agreement required
under subsection (a) shall, as determined by the Indian
tribe, authorize the Indian tribe to plan, conduct, consoli-
date, administer, and receive funding for all programs,
services, functions, and activities (or portions thereof), in-
cluding tribal shares of Indian Health Service competitive
grants, that are carried out for the benefit of Indians
(where Indian tribes or Indians are primary or significant
beneficiaries), administered by the Department of Health
and Human Services through the Indian Health Service
without regard to the agency or office of the Indian Health
Service within which the program, service, function, or ac-
tivity (or portion thereof) is performed, including tribal
share funding for all local, field, service unit, area, re-
gional, and central/headquarters or national office func-
tions administered under the authority of—
‘‘(1) the Act of November 2, 1921 (25 U.S.C.
13);
‘‘(2) the Act of April 16, 1934 (25 U.S.C. 452
et seq.);
‘‘(3) the Act of August 5, 1954 (68 Stat. 674);
‘‘(4) the Indian Health Care Improvement Act
(25 U.S.C. 1601 et seq.);
‘‘(5) the Indian Alcohol and Substance Abuse
Prevention and Treatment Act of 1986 (25 U.S.C.
2401 et seq.);
‘‘(6) any other act of Congress authorizing
agencies of the Department of Health and Human
Services to administer, carry out or provide financial
assistance to such programs, services, functions or
activities (or portions thereof) described in this sec-
tion; or
‘‘(7) any other act of Congress authorizing such
programs, services, functions or activities (or por-
tions thereof) under which appropriations are made
to agencies other than agencies within the Depart-
ment of Health and Human Services, when the Sec-
retary administers such programs, services, func-
tions or activities (or portions thereof).
‘‘(c) INCLUSION IN COMPACT OR FUNDING AGREE-
MENT.—Indian tribes or Indians need not be identified in
the authorizing statute for a program or element of a pro-
gram to be eligible for inclusion in a compact or funding
agreement under this title.
‘‘(d) FUNDING AGREEMENT TERMS.—Each funding
agreement shall set forth terms that generally identify the
programs, services, functions, and activities (or portions
thereof) to be performed or administered, the general
budget category assigned, the funds to be provided, includ-
ing those to be provided on a recurring basis, the time
and method of transfer of the funds, and any other provi-
sions to which the Indian tribe and the Secretary agree.
‘‘(e) EXISTING FUNDING AGREEMENTS.—Each In-
dian tribe participating in self-governance on the date of
enactment of this title shall have the option at any time
thereafter to either—
‘‘(1) retain its existing funding agreement (in
whole or in part) to the extent the provisions of such
funding agreement are not directly contrary to any
express provision of this title, or
‘‘(2) adopt in lieu thereof (in whole or in part)
a new funding agreement in conformity with this
title.
‘‘(f) NON-IHS DEMONSTRATION.—A compact or
funding agreement may authorize an Indian tribe to plan,
conduct, consolidate, and administer, and to receive fund-
ing for, any programs, services, functions, and activities
(or portions thereof), administered by the Department of
Health and Human Services that benefit the health or wel-
fare of Indian tribes or their members.
‘‘SEC. 506. GENERAL PROVISIONS.
‘‘(a) APPLICABILITY.—The provisions of this section
shall apply to compacts and funding agreements nego-
tiated under this title and an Indian tribe may, at its op-
tion, include provisions that reflect such requirements in
a compact or funding agreement.
‘‘(b) CONFLICTS OF INTEREST.—Indian tribes par-
ticipating in Self-Governance under this title shall assure
that internal measures are in place to address conflicts
of interest in the administration of Self-Governance pro-
grams, services, functions, or activities (or portions there-
of).
‘‘(c) AUDITS.—
‘‘(1) SINGLE AGENCY AUDIT ACT.—The provi-
sions of chapter 75 of title 31, United States Code
requiring a single agency audit report shall apply to
funding agreements 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 section 106 of title I of this Act, or by any
exemptions to applicable Office of Management and
Budget Circulars subsequently granted by Office of
Management and Budget. No other audit or ac-
counting standards shall be required by the Sec-
retary. Any claim by the Federal Government
against the Indian tribe relating to funds received
under a funding agreement based on any audit
under this subsection shall be subject to the provi-
sions of section 106(f) of this Act.
‘‘(d) RECORDS.—
‘‘(1) IN
GENERAL.—Unless an Indian tribe
specifies otherwise in the compact or funding agree-
ment, records of the Indian tribe shall not be consid-
ered Federal records for purposes of chapter 5 of
title 5, United States Code.
‘‘(2) RECORDKEEPING
SYSTEM.—The Indian
tribe shall maintain a recordkeeping system, and,
after 30 days advance notice, provide the Secretary
with reasonable access to such records to enable the
Department of Health and Human Services to meet
its minimum legal record keeping system require-
ments under the Federal Records Act, 44 U.S.C.
3101, et seq.
‘‘(e) REDESIGN AND CONSOLIDATION.—An Indian
tribe may redesign or consolidate programs, services, func-
tions, and activities (or portions thereof) included in a
funding agreement under section 505 and reallocate or re-
direct funds for such programs, services, functions, and
activities (or portions thereof) in any manner which the
Indian tribe deems to be in the best interest of the health
and welfare of the Indian community being served, except
that with respect to the redesign of programs described
in section 505(f), a joint agreement between the Secretary
and the Indian tribe shall be required.
‘‘(f) RETROCESSION.—An Indian tribe may retro-
cede, fully or partially, to the Secretary programs, serv-
ices, functions, or activities (or portions thereof) included
in the compact or funding agreement. Unless the Indian
tribe rescinds the request for retrocession, such retroces-
sion will become effective within the time frame specified
by the parties in the compact or funding agreement. In
the absence of such a specification, such retrocession shall
become effective on—
‘‘(1) the earlier of—
‘‘(A) one year from the date of submission
of such request; or
‘‘(B) the date on which the funding agree-
ment expires; or
‘‘(2) such date as may be mutually agreed by
the Secretary and the Indian tribe.
‘‘(g) WITHDRAWAL.—
‘‘(1) PROCESS.—An Indian tribe may fully or
partially withdraw from a participating inter-tribal
consortium or tribal organization its share of any
program, function, service, or activity (or portions
thereof) included in a compact or funding agree-
ment, and such withdrawal will become effective
within the time frame specified in the resolution
which authorized transfer to the participating tribal
organization or inter-tribal consortium. In the ab-
sence of a specific time frame being set forth in the
resolution, such withdrawal shall become effective
on—
‘‘(A) the earlier of—
‘‘(i) one year from the date of submis-
sion of such request; or
‘‘(ii) the date on which the funding
agreement expires; or
‘‘(B) such date as may be mutually agreed
upon by the Secretary, the participating tribal
organization or inter-tribal consortium, and the
withdrawing Indian tribe.
‘‘(2) DISTRIBUTION OF FUNDS.—When an In-
dian tribe or tribal organization eligible to enter into
a self-determination contract under title I of this Act
or a compact or funding agreement under this title
fully or partially withdraws from a participating
inter-tribal consortium or tribal organization, the
withdrawing Indian tribe or tribal organization shall
be entitled to its tribal share of funds supporting
those programs, services, functions, or activities (or
portions thereof) which it will be carrying out under
its own self-determination contract or compact and
funding agreement, and such funds shall be trans-
ferred from the amount in the funding agreement of
the inter-tribal consortium or tribal organization.
‘‘(3) REGAINING MATURE CONTRACT STATUS.—
If an Indian tribe elects to operate all or some pro-
grams, services, functions, or activities (or portions
thereof) carried out under a compact or funding
agreement under this title through a self-determina-
tion contract under title I of this Act, the resulting
self-determination contract shall be a mature self-de-
termination contract.
‘‘(h) NONDUPLICATION.—For the period for which,
and to the extent to which, funding is provided under this
section or under the compact or funding agreement, the
Indian tribe shall not be entitled to contract with the Sec-
retary for such funds under section 102, except that such
Indian tribe shall be eligible for new programs on the same
basis as other Indian tribes.
‘‘SEC. 507. PROVISIONS RELATING TO THE SECRETARY.
‘‘(a) MANDATORY PROVISIONS.—
‘‘(1) HEALTH STATUS REPORTS.—Compacts or
funding agreements negotiated between the Sec-
retary and an Indian tribe shall include a provision
that may require the Indian tribe to report on data
regarding health status and service delivery, to the
extent such data is not otherwise available to the
Secretary and specific funds for this purpose are
provided by the Secretary under the funding agree-
ment, if such reporting shall impose minimal bur-
dens on the participating Indian tribe and such re-
quirements are promulgated under section 517 of
this title.
‘‘(2) REASSUMPTION.—Compacts or funding
agreements negotiated between the Secretary and an
Indian tribe shall include a provision authorizing the
Secretary to reassume operation of a program, serv-
ice, function or activity (or portions thereof) if there
is a finding of—
‘‘(A) 
the 
violation 
of 
rights 
or
endangerment of the health, safety, or welfare
of any persons; or
‘‘(B) gross negligence or mismanagement
in the performance of the compact or funding
agreement.
The Secretary shall not reassume operation of a pro-
gram, service, function or activity unless the Sec-
retary has first provided 60 days written notice and
a hearing on the record to the Indian tribe, and the
Indian tribe has not taken corrective action. How-
ever, the Secretary may, upon written notification to
the tribe, immediately reassume operation of a pro-
gram, service, function or activity (or portions there-
of). If the Secretary makes a finding of imminent
substantial and irreparable endangerment of the
public health caused by an act or omission of the In-
dian tribe, and the endangerment arises out of a
failure to carry out the compact or funding agree-
ment, the Secretary shall provide the tribe with a
hearing on the record within ten days of the re-
assumption. In any hearing or appeal involving a de-
cision to reassume operation of a program, service,
function or activity, the Secretary shall have the
burden of proof of demonstrating by clear and con-
vincing evidence the validity of the grounds for the
reassumption.
‘‘(b) FINAL OFFER.—In the event the Secretary and
a participating Indian tribe are unable to agree on the
terms of a compact or funding agreement (including fund-
ing levels), the Indian tribe may submit a final offer to
the Secretary. If the Secretary does not reject the offer
not later than 30 days after it is submitted by the Indian
tribe, or within a longer time agreed upon by the Indian
tribe made in compliance (the offer shall be deemed agreed
to by the Secretary).
‘‘(c) REJECTION OF FINAL OFFERS.—If the Sec-
retary rejects an offer, made under subsection (b), the
Secretary shall provide—
‘‘(1) written notification to the Indian tribe that
contains a specific finding that clearly demonstrates,
or that is supported by a controlling legal authority,
that—
‘‘(A) the amount of funds proposed in the
final offer exceeds the applicable funding level
to which the Indian tribe is entitled under this
title;
‘‘(B) the program, function, service, or ac-
tivity (or portion thereof) that is the subject of
the final offer is an inherent Federal function
that may not be carried out by the Indian tribe;
‘‘(C) the Indian tribe cannot reasonably
carry out the program, function, service, or ac-
tivity (or portion thereof) in a satisfactory man-
ner; or
‘‘(D) the Indian tribe is not eligible to par-
ticipate in Self-Governance under section 503 of
this title;
‘‘(2) meaningful technical assistance to over-
come the objections stated in the notification re-
quired by paragraph (2);
‘‘(3) the Indian tribe with a hearing on the
record with the right to engage in full discovery rel-
evant to any issue raised in the matter and the op-
portunity for appeal on the objections raised, pro-
vided that the Indian tribe may, in lieu of filing such
appeal, directly proceed to Federal district court
pursuant to section110(a) of this Act; and
‘‘(4) the Indian tribe with the option of enter-
ing into the severable portions of a final proposed
compact or funding agreement, or provision thereof,
(including lesser funding amount, if any), that the
Secretary did not reject, subject to any additional al-
terations necessary to conform the compact or fund-
ing agreement to the severed provisions. If an Indian
tribe exercises the option specified herein, it shall re-
tain the right to appeal the Secretary’s rejection
under this section and paragraphs (1), (2), and (3)
shall only apply to that portion of the proposed final
compact, funding agreement or provision thereof
that was rejected by the Secretary.
‘‘(d) BURDEN OF PROOF.—
‘‘(1) With respect to any hearing or appeal con-
ducted pursuant to this section, the Secretary shall
have the burden of demonstrating by clear and con-
vincing evidence the validity of the grounds for re-
jecting the offer (or a provision thereof) made under
subsection (b).
‘‘(2) A decision that constitutes final agency ac-
tion and relates to an appeal within the Department
of Health and Human Services conducted under
subsection (c) shall be made either—
‘‘(A) by an official of the Department who
holds a position at a higher organizational level
within the Department than the level of the de-
partmental agency in which the decision that is
the subject of the appeal was made; or
‘‘(B) by an administrative judge.
‘‘(e) GOOD FAITH.—In the negotiation of compacts
and funding agreements the Secretary shall at all times
negotiate in good faith to maximize implementation of the
Self-Governance policy. The Secretary shall carry out this
title in a manner that maximizes the policy of Tribal Self-
Governance, consistent with section 103 of this Act.
‘‘(f) SAVINGS.—To the extent that programs, func-
tions, services, or activities (or portions thereof) carried
out by Indian tribes under this title reduce the administra-
tive or other responsibilities of the Secretary with respect
to the operation of Indian programs and result in savings
that have not otherwise been included in the amount of
tribal shares and other funds determined under section
508(d), the Secretary shall make such savings available
to the Indian tribes, inter-tribal consortia, or tribal organi-
zations for the provision of additional services to program
beneficiaries in a manner equitable to directly served, con-
tracted, and compacted programs.
‘‘(g) TRUST RESPONSIBILITY.—The Secretary is pro-
hibited from waiving, modifying or diminishing in any way
the trust responsibility of the United States with respect
to Indian tribes and individual Indians that exist under
treaties, Executive orders, other laws, or court decisions.
‘‘SEC. 508. TRANSFER OF FUNDS.
‘‘(a) 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 (d), and provide funding for periods covered by
joint resolution adopted by Congress making continuing
appropriations, to the extent permitted by such resolu-
tions. In any instance where a funding agreement requires
an annual transfer of funding to be made at the beginning
of a Federal fiscal year, or requires semi-annual or other
periodic transfers of funding to be made commencing at
the beginning of a Federal fiscal year, the first such trans-
fer shall be made within ten days after the apportionment
of such funds by the Office of Management and Budget
to the Department, unless the funding agreement provides
otherwise.
‘‘(b) MULTI-YEAR FUNDING.—The Secretary is here-
by authorized to employ, upon tribal request, multi-year
funding agreements for construction or other multi-year
activities, and references in this title to funding agree-
ments shall include such multi-year agreements.
‘‘(c) FUNDING
FOR CONSTRUCTION PROGRAMS.—
Compacts or funding agreements authorized by this title,
including agreements encompassing construction pro-
grams, shall provide for advance transfers of funding to
the Indian tribe in the form of annual or semi-annual in-
stallments, at the discretion of the Indian tribe.
‘‘(d) AMOUNT OF FUNDING.—Subject to the provi-
sions of section 505(f), the Secretary shall provide funds
under funding agreement under this title in an amount
equal to the amount that the Indian tribe would have been
eligible to receive under self-determination contracts under
this Act, including amounts for direct program costs speci-
fied under section 106(a)(1) and amounts for contract
support costs specified under sections 106 (a)(2), (a)(3),
(a)(5), and (a)(6), including 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,
all without regard to the organizational level within the
Department where such functions are carried out.
‘‘(e) PROHIBITIONS.—The Secretary is expressly pro-
hibited from—
‘‘(1) failing or refusing to transfer to an Indian
tribe its full share of any central, regional, or area
office or other funds due under this Act;
‘‘(2) withholding portions of such funds for
transfer over a period of years; and
‘‘(3) reducing the amount of funds required
herein—
‘‘(A) to make funding available for self-
governance monitoring or administration by the
Secretary;
‘‘(B) in subsequent years, except pursuant
to—
‘‘(i) a reduction in appropriations
from the previous fiscal year for the pro-
gram or function to be included in a com-
pact or funding agreement;
‘‘(ii) a congressional directive in legis-
lation or 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 a project, activity,
or program;
‘‘(C) to pay for Federal functions including
Federal pay costs, Federal employee retirement
benefits, automated data processing, technical
assistance, or monitoring of activities under this
Act; or
‘‘(D) to pay for costs of Federal personnel
displaced by Self-Determination contracts or
Self-Governance;
That such funds may be increased by the Secretary if nec-
essary to carry out this Act or as provided in section
105(c)(2) of this Act.
‘‘(f) OTHER RESOURCES.—In the event an Indian
tribe elects to carry out a compact or funding agreement
with the use of Federal personnel, Federal supplies (in-
cluding supplies available from Federal warehouse facili-
ties), Federal supply sources (including lodging, airline
transportation, and other means of transportation includ-
ing the use of Interagency Motor Pool vehicles) or other
Federal resources (including supplies, services, and re-
sources available to the Secretary under any procurement
contracts in which the Department is eligible to partici-
pate), the Secretary is authorized to and shall acquire and
transfer such personnel, supplies, or resources to the In-
dian tribe, on a reimbursable basis. The Secretary is au-
thorized to receive and shall retain such reimbursed
amounts and shall not remit such sums to the Treasury.
‘‘(g) 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 author-
ized under this title and the annual or first semi-annual
or other negotiated periodic transfer shall be made on or
before 10 calendar days after the date on which the Office
of Management and Budget apportions the appropriations
for that fiscal year for the programs, services, functions
or activities (or portions thereof) subject to the compact
or funding agreement.
‘‘(h) INTEREST OR OTHER INCOME ON ADVANCES.—
An Indian tribe is entitled to retain interest earned on
any funds paid under a compact or funding agreement and
such interest shall not diminish the amount of funds the
Indian tribe is authorized to receive under its funding
agreement in the year the interest is earned or in any sub-
sequent fiscal year.
‘‘(i) CARRYOVER FUNDS.—All funds paid to an In-
dian tribe in accordance with a compact or funding agree-
ment shall remain available until expended. In the event
that an Indian tribe elects to carry over funding from one
year to the next, such carryover shall not diminish the
amount of funds the Indian tribe is authorized to receive
under its funding agreement in that or any subsequent
fiscal year.
‘‘(j) PROGRAM INCOME.—All Medicare, Medicaid, or
other program income earned by an Indian tribe shall be
treated as supplemental funding to that negotiated in the
funding agreement and the Indian tribe may retain all
such income and expend such funds in the current year
or in future years. Such funds shall not result in any offset
or reduction in the amount of funds the Indian tribe is
authorized to receive under its funding agreement in the
year the program income is received or for any subsequent
fiscal year.
‘‘(k) LIMITATION OF COSTS.—An Indian tribe shall
not be obligated to continue performance that requires an
expenditure of funds in excess of the amount of funds paid
under a compact or funding agreement. If at any time the
Indian tribe has reason to believe that the total amount
provided for a specific activity in the compact or funding
agreement is insufficient the Indian tribe shall provide
reasonable notice of such insufficient funding to the Sec-
retary. If the Secretary does not increase the amount of
funds paid under the funding agreement, the Indian tribe
may suspend performance of the activity until such time
as additional funds are paid.
‘‘SEC. 509. CONSTRUCTION PROJECTS.
‘‘(a) Unless agreed to by the participating Indian
tribe, no provision of the Office of Federal Procurement
Policy Act or the Federal acquisition regulations shall
apply to any construction activity included in a compact
or funding agreement.
‘‘(b) In all construction projects performed pursuant
to this title, the parties shall specify appropriate health
and safety standards relevant to the construction activity.
‘‘SEC. 510. FEDERAL PROCUREMENT LAWS AND REGULA-
TIONS.
‘‘Notwithstanding any other provision of law, unless
expressly agreed to by the participating Indian tribe, the
compacts and funding agreements entered into under this
title shall not be subject to Federal contracting or coopera-
tive agreement laws and regulations (including executive
orders and the Secretary’s program regulations), except
to the extent that such laws expressly apply to Indian
tribes.
‘‘SEC. 511. CIVIL ACTIONS.
‘‘(a) For the purposes of section 110, the term ‘con-
tract’ shall include compacts and funding agreements en-
tered into under this title.
‘‘(c) Section 2103 of the Revised Statutes of the
United States Code (25 U.S.C. 81) and section 16 of the
Act of June 18, 1934 (25 U.S.C. 476) shall not apply
to attorney and other professional contracts entered into
by Indian tribes participating in Self-Governance under
this title.
‘‘SEC. 512. FACILITATION.
‘‘(a) SECRETARIAL INTERPRETATION.—Except as
otherwise provided by law, the Secretary shall interpret
all Federal laws, Executive orders and regulations in a
manner that will facilitate—
‘‘(1) the inclusion of programs, services, func-
tions, and activities (or portions thereof) in the
agreements entered into under this section; and
‘‘(2) the implementation of compacts and fund-
ing agreements entered into under this title; and
‘‘(3) the achievement of tribal health goals and
objectives.
‘‘(b) REGULATION WAIVER.—
‘‘(1) An Indian tribe may submit a written re-
quest to waive application of a regulation for a com-
pact or funding agreement entered into under this
title, to the Secretary identifying the applicable Fed-
eral regulation sought to be waived and the basis for
the request.
‘‘(2) Not later than 60 days after receipt by the
Secretary of a written request by an Indian tribe to
waive application of a regulation for a compact or
funding agreement entered into under this title, the
Secretary shall either approve or deny the requested
waiver in writing. A denial may be made only upon
a specific finding by the Secretary that identified
language in the regulation may not be waived be-
cause such waiver is prohibited by Federal law. A
failure to approve or deny a waiver request within
60 days shall be deemed an approval of such re-
quest. The Secretary’s decision shall be final.
‘‘(c) ACCESS TO FEDERAL PROPERTY.—In connec-
tion with any compact or funding agreement executed pur-
suant to this title, upon the request of an Indian tribe,
the Secretary—
‘‘(1) shall permit an Indian tribe to use existing
school buildings, hospitals, and other facilities and
all equipment therein or appertaining thereto and
other personal property owned by the Government
within the Secretary’s jurisdiction under such terms
and conditions as may be agreed upon by the Sec-
retary and the tribe;
‘‘(2) may donate to an Indian tribe any per-
sonal or real property found to be excess to the
needs of any agency of the Department, or the Gen-
eral Services Administration, except that—
‘‘(A) if the property has a value in excess
of $5,000, at the option of the Secretary upon
retrocession of withdrawal, or reassumption or
Self-Governance, title to such property and
equipment shall revert to the Department of
Health and Human Services; and
‘‘(B) all property shall remain eligible for
replacement, maintenance and improvement on
the same basis as if title to such property were
vested in the United States; and
‘‘(3) shall acquire excess or surplus Government
personal or real property for donation to an Indian
tribe if the Secretary determines the property is ap-
propriate for use by the entity for a purpose for
which a compact or funding agreement is authorized
under this title.
‘‘(d) MATCHING OR COST-PARTICIPATION REQUIRE-
MENT.—All funds provided under compacts, funding
agreements or grants made pursuant to this Act, shall be
treated as non-Federal funds for purposes of meeting
matching or cost participation requirements under any
other Federal or non-Federal program.
‘‘(e) STATE FACILITATION.—States are hereby au-
thorized and encouraged to enact legislation, and to enter
into agreements with Indian tribes to facilitate and supple-
ment the initiatives, programs, and policies authorized by
this Act and other Federal laws benefiting Indians and
Indian tribes.
‘‘SEC. 513. BUDGET REQUEST.
‘‘The Secretary shall identify in the annual budget
request of the President submitted to the Congress under
section 1105 of title 31, United States Code, all funds nec-
essary to fully fund all funding agreements authorized
under this title. Such request shall include a detailed re-
port on the level of need being funded or unfunded for
each Indian tribe participating in Self-Governance.
‘‘SEC. 514. REPORTS.
‘‘(a) ANNUAL REPORT.—The Secretary shall submit
to Congress on January 1 of each year following the date
of enactment of this title a written report regarding the
administration of this title. Such report shall include a de-
tailed report on the level of need being presently funded
or unfunded for each Indian tribe participating in Self-
Governance.
‘‘(b) CONTENTS.—The report shall be compiled from
information contained in funding agreements, annual
audit reports, and Secretarial data regarding the disposi-
tion of Federal funds and shall—
‘‘(1) identify the relative costs and benefits of
Self-Governance;
‘‘(2) identify, 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 their members;
‘‘(3) identify the funds transferred to each Self-
Governance Indian tribe and the corresponding re-
duction in the Federal bureaucracy;
‘‘(4) describe all activities and efforts to imple-
ment the non-Indian Health Service Demonstration
Project under section 505(f);
‘‘(5) list all programs, services, functions and
activities (or portions thereof) that the Secretary has
identified as benefiting the health or welfare of In-
dian tribes or their members;
‘‘(6) list specifically all requests for information
regarding the non-Indian Health Service Demonstra-
tion Project;
‘‘(7) list specifically all requests by an Indian
tribe for participation in the non-Indian Health
Service Demonstration Project, including disposition
of those requests and rationale for accepting or re-
jecting such requests;
‘‘(8) identify, with particularity, all programs,
services, functions and activities (or portions there-
of) and related funds and other resources trans-
ferred to an Indian tribe under the non-Indian
Health Service Demonstration Project;
‘‘(9) identify specifically all efforts being made
by the Secretary and agencies of the Department of
Health and Human Services to assist Indian tribes
to assume responsibility for programs, services, func-
tions and activities (or portions thereof) under the
non-Indian Health Service Demonstration Project;
‘‘(10) identify the funding formula for individ-
ual tribal shares of all central and headquarters
funds, together with the comments of affected In-
dian tribes or tribal organizations, developed under
subsection (c);
‘‘(11) identify amounts expended in the preced-
ing fiscal year to carry out inherent Federal func-
tions, including an identification of those functions
by type and location;
‘‘(12) include the separate views and comments
of the Indian tribes or tribal organizations; and
‘‘(13) prior to being submitted to Congress, be
distributed to the Indian tribes for comment, such
comment period to be for no less than 30 days.
In compiling this report the Secretary shall not impose
any reporting requirements on participating Indian tribes
or tribal organizations, not otherwise provided in this Act.
‘‘(c) REPORT ON IHS FUNDS.—Not later than 90
days after the date of enactment of this title, the Secretary
shall, in consultation with Indian tribes, report on funding
formula or formulas used to determine the individual trib-
al share of funds controlled by the Indian Health Service
(including funds assessed by any other Federal agency)
for inclusion in Self-Governance compacts or funding
agreements. The Secretary shall include such formula or
formulas in the annual report submitted to the Congress
under subsection (b), together with the views of the af-
fected Indian tribes and tribal organizations.
‘‘SEC. 515. DISCLAIMERS.
‘‘(a) OTHER SERVICES, CONTRACTS, AND FUNDS.—
Nothing in this title shall be construed to limit or reduce
in any way the services, contracts, or funds that any other
Indian tribe is eligible to receive under section 102 or
under any other applicable Federal law.
‘‘(b) FEDERAL TRUST RESPONSIBILITIES.—Nothing
in this Act shall be construed to diminish in any way the
trust responsibility of the United States to Indian tribes
and individual Indians that exist under treaties, Executive
Orders or other laws and court decisions.
‘‘(c) TRIBAL EMPLOYMENT.—For purposes of section
2(2), Act of July 5, 1935 (49 Stat. 450, chapter 372)
(commonly known as the National Labor Relations Act),
an Indian tribe carrying out a self-determination contract,
compact, annual funding agreement, grant, or cooperative
agreement under this Act shall not be considered an em-
ployer.
‘‘SEC. 516. APPLICATION OF OTHER SECTIONS OF THE ACT.
‘‘(a) All provisions of sections 6, 7, 102(c) and (d),
104, 105(l), 106, and 111 of this Act and section 314
of Public Law 101–512 (coverage under the Federal Tort
Claims Act) shall apply to compacts and funding agree-
ments authorized by this title.
‘‘(b) At the request of a participating Indian tribe,
any other provision of title I of this Act shall be made
a part of an funding agreement or compact entered into
under this title. If such provision is incorporated it shall
have the same force and effect as if it were set out in
full in this title. Such provision shall be deemed effective
immediately and shall control any subsequent negotiations
and resulting compact and funding agreement.
‘‘SEC. 517. REGULATIONS.
‘‘(a) IN GENERAL.—
‘‘(1) Not later than 90 days after the date of
enactment of this title, 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) Proposed regulations to implement this
title shall be published in the Federal Register by
the Secretary no later than one year after the date
of enactment of this title.
‘‘(3) No regulations may be published unless
they are recommended by the committee formed
under subsection (b).
‘‘(4) The authority to promulgate regulations
under this title shall expire 21 months after the date
of enactment of this title.
‘‘(b) COMMITTEE.—A negotiated rulemaking commit-
tee established pursuant to section 565 of title 5, United
States Code, to carry out this section shall have as its
members only Federal and tribal government representa-
tives, a majority of whom shall be nominated by and be
representatives of Indian tribes with funding agreements
under this title, and the Committee shall confer with, and
accommodate participation by, representatives of Indian
tribes, inter-tribal consortia, tribal organizations, and in-
dividual tribal members.
‘‘(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.—The lack of promulgated regulations
shall not limit the effect of this title.
‘‘SEC. 518. APPEALS.
‘‘In any appeal involving decisions made by the Sec-
retary under this title, the Secretary shall have the burden
of proof of demonstrating by clear and convincing evi-
dence—
‘‘(1) the validity of the grounds for the decision
made; and
‘‘(2) the decision is fully consistent with provi-
sions and policies of this title.’’.
SEC. 5. AMENDMENT TO PROVIDE FOR TRIAL DE NOVO.
Section 110(a) of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450m–1) is amended
by adding at the end the following new sentence: ‘‘In any
action brought under this subsection, the district courts
shall conduct a trial de novo with full rights of discovery
and proceed in accordance with the Federal Rules of Civil
Procedure.’’.
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