Union Calendar No. 436
105TH CONGRESS
2D SESSION
H. R. 1833
[Report No. 105–765]
A BILL
To amend the Indian Self-Determination and Edu-
cation Assistance Act to provide for further Self-
Governance by Indian Tribes, and for other pur-
poses.
OCTOBER 2, 1998
Reported with an amendment, committed to the Commit-
tee of the Whole House on the State of the Union, and
ordered to be printed
IB
Union Calendar No. 436
105TH CONGRESS
2D SESSION
H. R. 1833
[Report No. 105–765]
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
OCTOBER 2, 1998
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 June 7, 1997]
A BILL
To amend the Indian Self-Determination and Education
Assistance 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 1998’’.
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 govern-
ment-to-government relationship with Indian tribes,
including the right of the Indian tribes to Self-Gov-
ernance, as reflected in the Constitution, treaties, Fed-
eral statutes, and the course of dealings of the United
States with Indian tribes;
(3) although progress has been made, the Federal
bureaucracy, with its centralized rules and regula-
tions, has eroded tribal Self-Governance and domi-
nates tribal affairs;
(4) the Tribal Self-Governance Project, estab-
lished under title III of the Indian Self-Determina-
tion and Education Assistance Act of 1975 (25 U.S.C.
450f note) was designed to improve and perpetuate
the government-to-government relationship between
Indian 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 and
to satisfy its obligations to the Indian tribes under
treaties and other laws; and
(6) Congress has reviewed the results of the Trib-
al Self-Governance Demonstration Project and finds
that transferring full control and funding to tribal
governments, upon tribal request, over decision mak-
ing for Federal programs, services, functions, and ac-
tivities (or portions thereof)—
(A) is an appropriate and effective means of
implementing the Federal policy of government-
to-government relations with Indian tribes; and
(B) strengthens the Federal policy of Indian
self-determination.
SEC. 3. DECLARATION OF POLICY.
It is the policy of Congress to—
(1) permanently establish and implement tribal
Self-Governance within the Department of Health and
Human Services;
(2) call for full cooperation from the Department
of Health and Human Services and its constituent
agencies in the implementation of tribal Self-Govern-
ance—
meet the needs of the individual tribal commu-
nities;
(H) to provide for a measurable parallel re-
duction in the Federal bureaucracy as programs,
services, functions, and activities (or portions
thereof) are assumed by Indian tribes;
(I) to encourage the Secretary to identify all
programs, services, functions, and activities (or
portions thereof) of the Department of Health
and Human Services that may be managed by
an Indian tribe under this Act and to assist In-
dian tribes in assuming responsibility for such
programs, services, functions, and activities (or
portions thereof); and
(J) to provide Indian tribes with the earli-
est opportunity to administer programs, services,
functions, and activities (or portions thereof)
from throughout the Department of Health and
Human Services.
SEC. 4. TRIBAL SELF-GOVERNANCE.
The Indian Self-Determination Act (25 U.S.C. 450 et
seq.) is amended by adding at the end the following new
title:
‘‘TITLE V—TRIBAL SELF-
GOVERNANCE
‘‘SEC. 501. ESTABLISHMENT.
‘‘The Secretary of Health and Human Services shall
establish and carry out a program within the Department
of Health and Human Services to be known as the ‘Tribal
Self-Governance Program’ in accordance with this title.
‘‘SEC. 502. DEFINITIONS.
‘‘(a) IN GENERAL.—For purposes of this title—
‘‘(1) the term ‘inherent Federal functions’ means
those Federal functions which cannot legally be dele-
gated to Indian tribes;
‘‘(2) the term ‘inter-tribal consortium’ means a
coalition of two or more separate Indian tribes that
join together for the purpose of participating in Self-
Governance, including, but not limited to, a tribal or-
ganization;
‘‘(3) the term ‘tribal shares’ means an Indian
tribe’s portion of all funds and resources that support
secretarial programs, services, functions, and activi-
ties (or portions thereof) that are not required by the
Secretary for performance of inherent Federal func-
tions;
‘‘(4) the term ‘Secretary’ means the Secretary of
Health and Human Services; and
‘‘(5) the term ‘Self-Governance’ means the pro-
gram established pursuant to section 501.
‘‘(b) INDIAN TRIBE.—Where an Indian tribe has au-
thorized another Indian tribe, an inter-tribal consortium,
or a tribal organization to plan for or carry out programs,
services, functions, or activities (or portions thereof) on its
behalf under this title, the authorized Indian tribe, inter-
tribal consortium, or tribal organization shall have the
rights and responsibilities of the authorizing Indian tribe
(except as otherwise provided in the authorizing resolution
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 Dem-
onstration Project under title III on the date of enactment
of this title may elect to participate in Self-Governance
under this title under existing authority as reflected in trib-
al resolution.
‘‘(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 that meet the eli-
gibility criteria specified in subsection (c) shall be en-
titled to participate in Self-Governance.
‘‘(2)(A) An Indian tribe that has withdrawn
from participation in an inter-tribal consortium or
tribal organization, in whole or in part, shall be enti-
tled to participate in Self-Governance provided the
Indian tribe meets the eligibility criteria specified in
subsection (c).
‘‘(B) If an Indian tribe has withdrawn from
participation in an inter-tribal consortium or tribal
organization, it shall be entitled to its tribal share of
funds supporting those programs, services, functions,
and activities (or portions thereof) that it will be car-
rying out under its compact and funding agreement.
‘‘(C) In no event shall the withdrawal of an In-
dian 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 each 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 3 fiscal
years, financial stability and financial management
capability.
Evidence that during such years the Indian tribe had no
uncorrected significant and material audit exceptions in
the required annual audit of the Indian tribe’s self-deter-
mination contracts or Self-Governance funding agreements
with any Federal agency shall be conclusive evidence of the
required 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 be conducted to the satis-
faction of the Indian tribe and shall include—
‘‘(1) legal and budgetary research; and
‘‘(2) internal tribal government planning and
organizational preparation relating to the adminis-
tration of health care programs.
‘‘(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 grants—
‘‘(1) to plan for participation in Self-Govern-
ance; and
‘‘(2) to negotiate the terms of participation by
the Indian tribe or tribal organization in Self-Gov-
ernance, 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 requirement of
participation in Self-Governance.
‘‘SEC. 504. COMPACTS.
‘‘(a) COMPACT REQUIRED.—The Secretary shall nego-
tiate 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,
treaty obligations, and the government-to-government rela-
tionship between Indian 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 the tribal Self-Governance on the date of enact-
ment of this title shall have the option at any time there-
after to—
‘‘(1) retain its Tribal Self-Governance Project
compact (in whole or in part) to the extent the provi-
sions of such compact are not directly contrary to
any express provision of this title, or
‘‘(2) negotiate 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 par-
ties, and shall remain in effect for so long as permitted by
Federal law or until terminated by mutual written agree-
ment, retrocession, or reassumption.
‘‘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, treaty obligations, and the
government-to-government relationship between Indian
tribes and the United States.
‘‘(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 full tribal share funding for
all programs, services, functions, and activities (or portions
thereof), including tribal shares of discretionary Indian
Health Service competitive grants (excluding congression-
ally earmarked competitive grants), that are carried out for
the benefit of Indians because of their status as Indians (in-
cluding all programs, services, functions, or activities (or
portions thereof) where Indian tribes or Indians are pri-
mary or significant beneficiaries, administered by the De-
partment of Health and Human Services through the In-
dian Health Service and grants (which may be added to
a funding agreement after award of such grants)) without
regard to the agency or office of the Indian Health Service
(or of such other agency) within which the program, service,
function, or activity (or portion thereof) is performed, in-
cluding tribal share funding for all local, field, service unit,
area, regional, and central headquarters or national office
functions 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 agen-
cies of the Department of Health and Human Serv-
ices to administer, carry out or provide financial as-
sistance to such programs, services, functions or ac-
tivities (or portions thereof) described in this section;
or
‘‘(7) any other act of Congress authorizing such
programs, services, functions or activities (or portions
thereof) under which appropriations are made to
agencies other than agencies within the Department of
Health and Human Services, when the Secretary ad-
ministers such programs, services, functions or activi-
ties (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, including those
to be provided on a recurring basis, the time and method
of transfer of the funds, the responsibilities of the Secretary,
and any other provisions to which the Indian tribe and the
Secretary agree.
‘‘(e) SUBSEQUENT FUNDING AGREEMENTS.—Absent
notification from an Indian tribe that is withdrawing or
retroceding the operation of one or more programs, services,
functions, or activities (or portions thereof) identified in a
funding agreement, or unless otherwise agreed to by the par-
ties, each funding agreement shall remain in full force and
effect until a subsequent funding agreement is executed, and
the terms of the subsequent funding agreement shall be ret-
roactive to the end of the term of the preceding funding
agreement.
‘‘(f) EXISTING FUNDING AGREEMENTS.—Each Indian
tribe participating in the Tribal Self-Governance Project
established under title III, as in force before the enactment
of the Tribal Self-Governance Amendments of 1998, on the
date of enactment of this title shall have the option at any
time thereafter to—
‘‘(1) retain its Tribal Self-Governance Project
funding agreement (in whole or in part) to the extent
the provisions of such funding agreement are not di-
rectly 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.
‘‘(g) STABLE BASE FUNDING.—At the option of an In-
dian tribe, a funding agreement may provide for a stable
base budget specifying the recurring funds (including, for
purposes of this provision, funds available under section
106(a) of the Act) to be transferred to such Indian tribe,
for such period as may be specified in the funding agree-
ment, subject to annual adjustment only to reflect changes
in congressional appropriations by sub-sub activity exclud-
ing earmarks.
‘‘SEC. 506. SELF-GOVERNANCE FEASIBILITY STUDY.
‘‘(a) IN GENERAL.—The Secretary shall conduct a
study, in consultation with Indian tribes and other entities
specified in subsection (b), to determine the feasibility of
including in Self-Governance, on a demonstration project
basis, programs of the Department of Health and Human
Services, other than the Indian Health Service, that benefit
Indian tribes or their members, and to identify the pro-
grams suitable for inclusion in such demonstration.
‘‘(b) ENTITIES TO BE CONSULTED.—In conducting
the study required under this section, the Secretary shall
consult with Indian tribes, States, counties and municipali-
ties, program beneficiaries, and concerned public interest
groups, and may consult with other entities as the Secretary
finds appropriate.
‘‘(c) ISSUES.—The study under this section shall con-
sider the following issues with respect to the feasibility and
design of a Self-Governance demonstration:
‘‘(1) The probable effects on specific programs
and program beneficiaries.
‘‘(2) Statutory, regulatory, or operational im-
pediments to implementation.
‘‘(3) Strategies for facilitating Self-Governance.
‘‘(4) Probable costs associated with Self-Govern-
ance.
‘‘(5) Methods to ensure quality and accountabil-
ity in Self-Governance demonstrations.
‘‘(6) Such other issues as may be identified by
the Secretary.
‘‘(d) REPORT
TO CONGRESS.—Not later than 18
months after the date of the enactment of this Act, the Sec-
retary shall report to the Congress the findings and conclu-
sions of the study under this section and any separate or
dissenting views of the entities consulted pursuant to sub-
section (b).
‘‘(e) AUTHORIZATION OF APPROPRIATIONS.—There are
authorized to be appropriated for fiscal years 1999 and
2000 such sums as necessary to carry out the purposes of
this section, to remain available until expended.
‘‘SEC. 507. GENERAL PROVISIONS.
‘‘(a) APPLICABILITY.—The provisions of this section
shall apply to compacts and funding agreements negotiated
under this title and an Indian tribe may, at its option,
include provisions that reflect such requirements in a com-
pact or funding agreement.
‘‘(b) CONFLICTS OF INTEREST.—Indian tribes partici-
pating in Self-Governance under this title shall ensure that
internal measures are in place to address conflicts of inter-
est in the administration of Self-Governance programs,
services, functions, or activities (or portions thereof).
‘‘(c) AUDITS.—
‘‘(1) SINGLE
AGENCY
AUDIT
ACT.—The provi-
sions of chapter 75 of title 31, United States Code re-
quiring 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 modified
by section 106, or by any exemptions to applicable
Office of Management and Budget Circulars subse-
quently granted by Office of Management and Budget.
No other audit or accounting standards shall be re-
quired by the Secretary. 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 pro-
visions of section 106(f).
‘‘(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 recordkeeping system requirements
under the sections 3101 through 3106 of title 44,
United States Code.
‘‘(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 redi-
rect funds for such programs, services, functions, and activi-
ties (or portions thereof) in any manner which the Indian
tribe deems to be in the best interest of the health and wel-
fare of the Indian community being served, only if the rede-
sign or consolidation does not have the effect of denying eli-
gibility for services to population groups otherwise eligible
to be served.
‘‘(f) RETROCESSION.—An Indian tribe may retrocede,
fully or partially, to the Secretary programs, services, func-
tions, or activities (or portions thereof) included in the com-
pact or funding agreement. Unless the Indian tribe rescinds
the request for retrocession, such retrocession 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 agreement.
Such withdrawal shall become effective within the
time frame specified in the resolution which author-
izes transfer to the participating tribal organization
or inter-tribal consortium. In the absence of a specific
time frame set forth in the resolution, such with-
drawal 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 withdrawing Indian
tribe and the participating tribal organization
or inter-tribal consortium that has signed the
compact or funding agreement on behalf of the
withdrawing Indian tribe, inter-tribal consor-
tium, or tribal organization.
‘‘(2) DISTRIBUTION OF FUNDS.—When an In-
dian tribe or tribal organization eligible to enter into
a self-determination contract under title I or a com-
pact 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-deter-
mination contract or compact and funding agreement
(calculated on the same basis as the funds were ini-
tially allocated in the funding agreement of the inter-
tribal consortium or tribal organization), and such
funds shall be transferred from the funding agreement
of the inter-tribal consortium or tribal organization,
provided that the provisions of sections 102, 105(i),
and 506, as appropriate, shall apply to such with-
drawing Indian tribe.
‘‘(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, at the option of the Indian
tribe, the resulting self-determination contract shall be
a mature self-determination contract.
‘‘(h) NONDUPLICATION.—For the period for which, and
to the extent to which, funding is provided under this title
or under the compact or funding agreement, the Indian
tribe shall not be entitled to contract with the Secretary
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. 508. PROVISIONS RELATING TO THE SECRETARY.
‘‘(a) MANDATORY PROVISIONS.—
‘‘(1) HEALTH STATUS REPORTS.—Compacts or
funding agreements negotiated between the Secretary
and an Indian tribe shall include a provision that re-
quires the Indian tribe to report on health status and
service delivery—
‘‘(A) 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 agreement; and
‘‘(B) if such reporting shall impose mini-
mal burdens on the participating Indian tribe
and such requirements are promulgated under
section 518 of this title.
‘‘(2) REASSUMPTION.—(A) Contracts 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 imminent endangerment of the public
health caused by an act or omission of the Indian
tribe, and the imminent endangerment arises out of
a failure to carry out the compact or funding agree-
ment.
‘‘(B) The Secretary shall not reassume operation
of a program, service, function, or activity unless (i)
the Secretary has first provided written notice and a
hearing on the record to the Indian tribe; and (ii) the
Indian tribe has not taken corrective action to remedy
the imminent endangerment to public health.
‘‘(C) Notwithstanding subparagraph (B), the
Secretary may, upon written notification to the tribe,
immediately reassume operation of a program, serv-
ice, function, or activity (or portion thereof) if (i) the
Secretary makes a finding of imminent substantial
and irreparable endangerment of the public health
caused by an act or omission of the Indian tribe; and
(ii) the endangerment arises out of a failure to carry
out the compact or funding agreement. If the Sec-
retary reassumes operation of a program, service,
function, or activity (or portion thereof) under this
subparagraph, the Secretary shall provide the tribe
with a hearing on the record not later than 10 days
after such reassumption.
‘‘(D) In any hearing or appeal involving a deci-
sion to reassume operation of a program, service,
function, or activity (or portion thereof), the Sec-
retary shall have the burden of proof of demonstrating
by clear and convincing 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, 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. The Secretary shall have no
more than 45 days after such submission, or within a longer
time agreed upon by the Indian tribe made in compliance
to review and make a determination with respect to such
offer. In the absence of a timely rejection of the offer, in
whole or in part, made in compliance with subsection (c),
the offer shall be deemed agreed to by the Secretary.
‘‘(c) REJECTION OF FINAL OFFERS.—If the Secretary
rejects an offer, made under subsection (b) (or one or more
provisions or funding levels in such offer), the Secretary
shall provide—
‘‘(1) a 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—
‘‘(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 cannot legally be delegated to an Indian
tribe;
‘‘(C) the Indian tribe cannot carry out the
program, function, service, or activity (or por-
tion thereof) in a manner that would not result
in imminent danger to the public health; or
‘‘(D) the tribe is not eligible to participate
in Self-Governance under section 503 of this
title;
‘‘(2) technical assistance to overcome the objec-
tions stated in the notification required by paragraph
(1);
‘‘(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 initiate an action in a
Federal district court pursuant to section 110(a); and
‘‘(4) the Indian tribe with the option of entering
into the severable portions of a final proposed com-
pact or funding agreement, or provision thereof, (in-
cluding lesser funding amount, if any), that the Sec-
retary did not reject, subject to any additional alter-
ations necessary to conform the compact or funding
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.—With respect to any hear-
ing or appeal or civil action conducted pursuant to this
section, the Secretary shall have the burden of demonstrat-
ing by clear and convincing evidence the validity of the
grounds for rejecting the offer (or a provision thereof) made
under subsection (b).
‘‘(e) GOOD FAITH.—In the negotiation of compacts
and funding agreements the Secretary shall at all times ne-
gotiate 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 3.
‘‘(f) SAVINGS.—To the extent that programs, functions,
services, or activities (or portions thereof) carried out by
Indian tribes under this title reduce the administrative 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 509(d), the
Secretary shall make such savings available to the Indian
tribes, inter-tribal consortia, or tribal organizations for the
provision of additional services to program beneficiaries in
a manner equitable to directly served, contracted, and com-
pacted 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 re-
spect to Indian tribes and individual Indians that exist
under treaties, Executive orders, other laws, and/or court
decisions.
‘‘(h) DECISIONMAKER.—A decision that constitutes
final agency action and relates to an appeal within the De-
partment of Health and Human Services conducted under
subsection (c) shall be made either—
‘‘(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 judge.
‘‘SEC. 509. TRANSFER OF FUNDS.
‘‘(a) IN GENERAL.—Pursuant to the terms of any com-
pact or funding agreement entered into under this title, the
Secretary shall transfer to the Indian tribe all funds pro-
vided for in the funding agreement, pursuant to subsection
(d), and provide funding for periods covered by joint resolu-
tion adopted by Congress making continuing appropria-
tions, to the extent permitted by such resolutions. 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 semi-annual 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 Management and Budget to the Department, unless the
funding agreement provides otherwise.
‘‘(b) MULTI-YEAR FUNDING.—The Secretary is hereby
authorized to employ, upon tribal request, multi-year fund-
ing agreements for construction or other multi-year activi-
ties, and references in this title to funding agreements shall
include such multi-year agreements.
‘‘(c) FUNDING FOR CONSTRUCTION PROGRAMS.—Com-
pacts or funding agreements authorized by this title, includ-
ing agreements encompassing construction programs, shall
provide for advance transfers of funding to the Indian tribe
in the form of full funding or annual or semi-annual in-
stallments, at the discretion of the Indian tribe.
‘‘(d) AMOUNT OF FUNDING.—The Secretary shall pro-
vide funds under a funding agreement under this title in
an amount equal to the amount that the Indian tribe would
have been entitled to receive under self-determination con-
tracts under this Act, including amounts for direct program
costs specified under section 106(a)(1) and amounts for con-
tract support costs specified under sections 106(a)(2),
(a)(3), (a)(5), and (a)(6), including any funds that are spe-
cifically or functionally related to the provision by the Sec-
retary 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, headquarters, re-
gional, area, or service unit office or other funds due
under this Act, except as required by other Federal
law;
‘‘(2) withholding portions of such funds for
transfer over a period of years; and
‘‘(3) reducing the amount of funds required here-
in—
‘‘(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 for which such funds were pro-
vided;