In the Senate of the United States,
April 4, 2000.
Resolved, That the bill from the House of Representa-
tives (H.R. 1167) entitled ‘‘An Act to amend the Indian Self-
Determination and Education Assistance Act to provide for
further self-governance by Indian tribes, and for other pur-
poses.’’, do pass with the following
AMENDMENT:
Strike out all after the enacting clause and insert:
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Tribal Self-Governance
Amendments of 2000’’.
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-govern-
HR 1167 EAS
ance, 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 Federal
bureaucracy, with its centralized rules and regula-
tions, has eroded tribal self-governance and dominates
tribal affairs;
(4) the Tribal Self-Governance Demonstration
Project, established under title III of the Indian Self-
Determination and Education Assistance Act (25
U.S.C. 450f note) was designed to improve and per-
petuate the government-to-government relationship be-
tween 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-
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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—
(1) to permanently establish and implement trib-
al self-governance within the Department of Health
and Human Services;
(2) to call for full cooperation from the Depart-
ment of Health and Human Services and its con-
stituent agencies in the implementation of tribal self-
governance—
(A) to enable the United States to maintain
and improve its unique and continuing relation-
ship with, and responsibility to, Indian tribes;
(B) to permit each Indian tribe to choose
the extent of its participation in self-governance
in accordance with the provisions of the Indian
Self-Determination and Education Assistance
Act relating to the provision of Federal services
to Indian tribes;
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(C) to ensure the continuation of the trust
responsibility of the United States to Indian
tribes and Indian individuals;
(D) to affirm and enable the United States
to fulfill its obligations to the Indian tribes
under treaties and other laws;
(E) to strengthen the government-to-govern-
ment relationship between the United States and
Indian tribes through direct and meaningful
consultation with all tribes;
(F) to permit an orderly transition from
Federal domination of programs and services to
provide Indian tribes with meaningful authority,
control, funding, and discretion to plan, conduct,
redesign, and administer programs, services,
functions, and activities (or portions thereof)
that meet the needs of the individual tribal com-
munities;
(G) to provide for a measurable parallel re-
duction in the Federal bureaucracy as programs,
services, functions, and activities (or portion
thereof) are assumed by Indian tribes;
(H) to encourage the Secretary to identify
all programs, services, functions, and activities
(or portions thereof) of the Department of Health
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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
(I) to provide Indian tribes with the earliest
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 and Education Assist-
ance Act (25 U.S.C. 450 et seq.) is amended by adding at
the end the following:
‘‘TITLE V—TRIBAL SELF-
GOVERNANCE
‘‘SEC. 501. DEFINITIONS.
‘‘(a) IN GENERAL.—In this title:
‘‘(1) CONSTRUCTION PROJECT.—The term ‘con-
struction project’—
‘‘(A) means an organized noncontinuous
undertaking to complete a specific set of pre-
determined objectives for the planning, environ-
mental determination, design, construction, re-
pair, improvement, or expansion of buildings or
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facilities, as described in a construction project
agreement; and
‘‘(B) does not include construction program
administration and activities described in para-
graphs (1) through (3) of section 4(m), that may
otherwise be included in a funding agreement
under this title.
‘‘(2) CONSTRUCTION PROJECT AGREEMENT.—The
term ‘construction project agreement’ means a nego-
tiated agreement between the Secretary and an In-
dian tribe, that at a minimum—
‘‘(A) establishes project phase start and
completion dates;
‘‘(B) defines a specific scope of work and
standards by which it will be accomplished;
‘‘(C) identifies the responsibilities of the In-
dian tribe and the Secretary;
‘‘(D) addresses environmental consider-
ations;
‘‘(E) identifies the owner and operations
and maintenance entity of the proposed work;
‘‘(F) provides a budget;
‘‘(G) provides a payment process; and
‘‘(H) establishes the duration of the agree-
ment based on the time necessary to complete the
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specified scope of work, which may be 1 or more
years.
‘‘(3) GROSS MISMANAGEMENT.—The term ‘gross
mismanagement’ means a significant, clear, and con-
vincing violation of a compact, funding agreement, or
regulatory, or statutory requirements applicable to
Federal funds transferred to an Indian tribe by a
compact or funding agreement that results in a sig-
nificant reduction of funds available for the pro-
grams, services, functions, or activities (or portions
thereof) assumed by an Indian tribe.
‘‘(4) INHERENT FEDERAL FUNCTIONS.—The term
‘inherent Federal functions’ means those Federal func-
tions which cannot legally be delegated to Indian
tribes.
‘‘(5) INTER-TRIBAL
CONSORTIUM.—The term
‘inter-tribal consortium’ means a coalition of 2 or
more separate Indian tribes that join together for the
purpose of participating in self-governance, including
tribal organizations.
‘‘(6) SECRETARY.—The term ‘Secretary’ means
the Secretary of Health and Human Services.
‘‘(7) SELF-GOVERNANCE.—The term ‘self-govern-
ance’ means the program of self-governance estab-
lished under section 502.
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‘‘(8) TRIBAL
SHARE.—The term ‘tribal share’
means an Indian tribe’s portion of all funds and re-
sources that support secretarial programs, services,
functions, and activities (or portions thereof) that are
not required by the Secretary for performance of in-
herent Federal functions.
‘‘(b) INDIAN TRIBE.—In any case in which an Indian
tribe has authorized 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 In-
dian 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 author-
ized Indian tribe, inter-tribal consortium, or tribal organi-
zation.
‘‘SEC. 502. ESTABLISHMENT.
‘‘The Secretary shall establish and carry out a pro-
gram within the Indian Health Service of the Department
of Health and Human Services to be known as the ‘Tribal
Self-Governance Program’ in accordance with this title.
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‘‘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 GENERAL.—In addition to those Indian
tribes participating in self-governance under sub-
section (a), each year an additional 50 Indian tribes
that meet the eligibility criteria specified in sub-
section (c) shall be entitled to participate in self-gov-
ernance.
‘‘(2) TREATMENT OF CERTAIN INDIAN TRIBES.—
‘‘(A) IN GENERAL.—An Indian tribe that
has withdrawn from participation in an inter-
tribal consortium or tribal organization, in
whole or in part, shall be entitled to participate
in self-governance provided the Indian tribe
meets the eligibility criteria specified in sub-
section (c).
‘‘(B) EFFECT OF WITHDRAWAL.—If an In-
dian tribe has withdrawn from participation in
an inter-tribal consortium or tribal organiza-
tion, that Indian tribe shall be entitled to its
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tribal share of funds supporting those programs,
services, functions, and activities (or portions
thereof) that the Indian tribe will be carrying
out under the compact and funding agreement of
the Indian tribe.
‘‘(C) 
PARTICIPATION
IN
SELF-GOVERN-
ANCE.—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.—
‘‘(1) IN GENERAL.—The qualified applicant pool
for self-governance shall consist of each Indian tribe
that—
‘‘(A) successfully completes the planning
phase described in subsection (d);
‘‘(B) has requested participation in self-gov-
ernance by resolution or other official action by
the governing body of each Indian tribe to be
served; and
‘‘(C) has demonstrated, for 3 fiscal years, fi-
nancial stability and financial management ca-
pability.
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‘‘(2) CRITERIA
FOR
DETERMINING
FINANCIAL
STABILITY AND FINANCIAL MANAGEMENT CAPACITY.—
For purposes of this subsection, evidence that, during
the 3-year period referred to in paragraph (1)(C), an
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 Federal
agency shall be conclusive evidence of the required sta-
bility and capability.
‘‘(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
paragraph (1) (B) and (C) of subsection (c) shall be eligible
for grants—
‘‘(1) to plan for participation in self-governance;
and
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‘‘(2) to negotiate the terms of participation by
the Indian tribe or tribal organization in self-govern-
ance, as set forth in a compact and a funding agree-
ment.
‘‘(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 con-
sistent 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 Demonstration
Project under title III on the date of enactment of this title
shall have the option at any time after the date of enact-
ment of this title to—
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‘‘(1) retain the Tribal Self-Governance Dem-
onstration Project compact of that Indian tribe (in
whole or in part) to the extent that the provisions of
that funding agreement are not directly contrary to
any express provision of this title; or
‘‘(2) instead of retaining a compact or portion
thereof under paragraph (1), negotiate a new compact
in a manner consistent with the requirements of 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-gov-
ernance in a manner consistent with the Federal Govern-
ment’s trust responsibility, treaty obligations, and the gov-
ernment-to-government relationship between Indian tribes
and the United States.
‘‘(b) CONTENTS.—
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‘‘(1) IN GENERAL.—Each funding agreement re-
quired under subsection (a) shall, as determined by
the Indian tribe, authorize the Indian tribe to plan,
conduct, consolidate, administer, and receive full trib-
al share funding, including tribal shares of discre-
tionary Indian Health Service competitive grants (ex-
cluding 
congressionally 
earmarked 
competitive
grants), for all programs, services, functions, and ac-
tivities (or portions thereof), that are carried out for
the benefit of Indians because of their status as Indi-
ans without regard to the agency or office of the In-
dian Health Service (or of such other agency) within
which the program, service, function, or activity (or
portion thereof) is performed.
‘‘(2) INCLUSION OF CERTAIN PROGRAMS, SERV-
ICES, FUNCTIONS, AND ACTIVITIES.—Such programs,
services, functions, or activities (or portions thereof)
include all programs, services, functions, activities (or
portions thereof), including grants (which may be
added to a funding agreement after an award of such
grants), with respect to which Indian tribes or Indi-
ans are primary or significant beneficiaries, adminis-
tered by the Department of Health and Human Serv-
ices through the Indian Health Service and all local,
field, service unit, area, regional, and central head-
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quarters or national office functions administered
under the authority of—
‘‘(A) the Act of November 2, 1921 (42 Stat.
208, chapter 115; 25 U.S.C. 13);
‘‘(B) the Act of April 16, 1934 (48 Stat.
596, chapter 147; 25 U.S.C. 452 et seq.);
‘‘(C) the Act of August 5, 1954 (68 Stat.
674, chapter 658);
‘‘(D) the Indian Health Care Improvement
Act (25 U.S.C. 1601 et seq.);
‘‘(E) the Indian Alcohol and Substance
Abuse Prevention and Treatment Act of 1986 (25
U.S.C. 2401 et seq.);
‘‘(F) any other Act of Congress authorizing
any agency of the Department of Health and
Human Services to administer, carry out, or
provide financial assistance to such a program,
service, function or activity (or portions thereof)
described in this section that is carried out for
the benefit of Indians because of their status as
Indians; or
‘‘(G) any other Act of Congress authorizing
such a program, service, function, or activity (or
portions thereof) carried out for the benefit of In-
dians under which appropriations are made
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available to any agency other than an agency
within the Department of Health and Human
Services, in any case in which the Secretary ad-
ministers that program, service, function, or ac-
tivity (or portion thereof).
‘‘(c) INCLUSION IN COMPACT OR FUNDING AGREE-
MENT.—It shall not be a requirement that an Indian tribe
or Indians be identified in the authorizing statute for a pro-
gram or element of a program to be eligible for inclusion
in a compact or funding agreement under this title.
‘‘(d) FUNDING AGREEMENT TERMS.—Each funding
agreement under this title shall set forth—
‘‘(1) terms that generally identify the programs,
services, functions, and activities (or portions thereof)
to be performed or administered; and
‘‘(2) for the items identified in paragraph (1)—
‘‘(A) the general budget category assigned;
‘‘(B) the funds to be provided, including
those funds to be provided on a recurring basis;
‘‘(C) the time and method of transfer of the
funds;
‘‘(D) the responsibilities of the Secretary;
and
‘‘(E) any other provision with respect to
which the Indian tribe and the Secretary agree.
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‘‘(e) SUBSEQUENT FUNDING AGREEMENTS.—Absent
notification from an Indian tribe that is withdrawing or
retroceding the operation of 1 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 Dem-
onstration Project established under title III on the date
of enactment of this title shall have the option at any time
thereafter to—
‘‘(1) retain the Tribal Self-Governance Dem-
onstration Project funding agreement of that Indian
tribe (in whole or in part) to the extent that the pro-
visions of that funding agreement are not directly
contrary to any express provision of this title; or
‘‘(2) instead of retaining a funding agreement or
portion thereof under paragraph (1), negotiate a new
funding agreement in a manner consistent with the
requirements of this title.
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‘‘(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)) to be transferred to such Indian tribe, for such pe-
riod as may be specified in the funding agreement, subject
to annual adjustment only to reflect changes in congres-
sional appropriations by sub-sub activity excluding ear-
marks.
‘‘SEC. 506. 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, serv-
ices, 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.
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‘‘(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 the Office of Management and
Budget. No other audit or accounting standards shall
be required by the Secretary. Any claim by the Fed-
eral 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
provisions 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
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under 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 305 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 under applicable Federal law.
‘‘(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 timeframe 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) 1 year after the date of submission of
such request; or
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‘‘(ii) such date as may be mutually
agreed upon by the Secretary, the with-
drawing Indian tribe, and the participating
tribal organization or inter-tribal consor-
tium that has signed the compact or fund-
ing agreement on behalf of the withdrawing
Indian tribe, inter-tribal consortium, 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—
‘‘(A) 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) 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 allocated in the fund-
ing agreement of the inter-tribal consortium or
tribal organization); and
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‘‘(B) the funds referred to in subparagraph
(A) shall be transferred from the funding agree-
ment of the inter-tribal consortium or tribal or-
ganization, on the condition that the provisions
of sections 102 and 105(i), as appropriate, shall
apply to that withdrawing 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. 507. PROVISIONS RELATING TO THE SECRETARY.
‘‘(a) MANDATORY PROVISIONS.—
‘‘(1) HEALTH STATUS REPORTS.—Compacts or
funding agreements negotiated between the Secretary
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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 517.
‘‘(2) REASSUMPTION.—
‘‘(A) IN GENERAL.—Compacts or funding
agreements negotiated between the Secretary and
an Indian tribe shall include a provision author-
izing the Secretary to reassume operation of a
program, service, function, or activity (or por-
tions thereof) and associated funding if there is
a specific finding relative to that program, serv-
ice, function, or activity (or portion thereof) of—
‘‘(i) 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
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carry out the compact or funding agree-
ment; or
‘‘(ii) gross mismanagement with re-
spect to funds transferred to a tribe by a
compact or funding agreement, as deter-
mined by the Secretary in consultation with
the Inspector General, as appropriate.
‘‘(B) PROHIBITION.—The Secretary shall
not reassume operation of a program, service,
function, or activity (or portions thereof)
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 or gross mis-
management.
‘‘(C) EXCEPTION.—
‘‘(i) IN
GENERAL.—Notwithstanding
subparagraph (B), the Secretary may, upon
written notification to the Indian tribe, im-
mediately reassume operation of a program,
service, function, or activity (or portion
thereof) if—
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‘‘(I) the Secretary makes a find-
ing of imminent substantial and irrep-
arable 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.
‘‘(ii) REASSUMPTION.—If the Secretary
reassumes operation of a program, service,
function, or activity (or portion thereof)
under this subparagraph, the Secretary
shall provide the Indian tribe with a hear-
ing on the record not later than 10 days
after such reassumption.
‘‘(D) HEARINGS.—In any hearing or ap-
peal involving a decision to reassume operation
of a program, service, function, or activity (or
portion thereof), the Secretary shall have the bur-
den 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, in whole
or in part, on the terms of a compact or funding agreement
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(including funding levels), the Indian tribe may submit a
final offer to the Secretary. Not more than 45 days after
such submission, or within a longer time agreed upon by
the Indian tribe, the Secretary shall review and make a de-
termination 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.—
‘‘(1) IN GENERAL.—If the Secretary rejects an
offer made under subsection (b) (or 1 or more provi-
sions or funding levels in such offer), the Secretary
shall provide—
‘‘(A) a timely written notification to the In-
dian 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;
‘‘(ii) the program, function, service, or
activity (or portion thereof) that is the sub-
ject of the final offer is an inherent Federal
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function that cannot legally be delegated to
an Indian tribe;
‘‘(iii) the Indian tribe cannot carry
out the program, function, service, or activ-
ity (or portion thereof) in a manner that
would not result in significant danger or
risk to the public health; or
‘‘(iv) the Indian tribe is not eligible to
participate in self-governance under section
503;
‘‘(B) technical assistance to overcome the
objections stated in the notification required by
subparagraph (A);
‘‘(C) the Indian tribe with a hearing on the
record with the right to engage 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 pursuant to
section 110(a); and
‘‘(D) the Indian tribe with the option of en-
tering into the severable portions of a final pro-
posed compact or funding agreement, or provi-
sion thereof, (including a lesser funding amount,
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if any), that the Secretary did not reject, subject
to any additional alterations necessary to con-
form the compact or funding agreement to the
severed provisions.
‘‘(2) EFFECT OF EXERCISING CERTAIN OPTION.—
If an Indian tribe exercises the option specified in
paragraph (1)(D), that Indian tribe shall retain the
right to appeal the Secretary’s rejection under this
section, and subparagraphs (A), (B), and (C) of that
paragraph shall only apply to that portion of the pro-
posed 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 dem-
onstrating 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, in a manner consistent with the purposes speci-
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fied in section 3 of the Tribal Self-Governance Amendments
of 2000.
‘‘(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 508(c), 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 exists
under treaties, Executive orders, other laws, or court deci-
sions.
‘‘(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—
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‘‘(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. 508. 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
(c), 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 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 Management and Budget to the Department, unless the
funding agreement provides otherwise.
‘‘(b) MULTIYEAR FUNDING.—The Secretary may em-
ploy, upon tribal request, multiyear funding agreements.
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References in this title to funding agreements shall include
such multiyear funding agreements.
‘‘(c) 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 section 106(a) (2), (3),
(5), and (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 De-
partment where such functions are carried out.
‘‘(d) PROHIBITIONS.—
‘‘(1) IN GENERAL.—Except as provided in para-
graph (2), the Secretary is expressly prohibited
from—
‘‘(A) failing or refusing to transfer to an
Indian tribe its full share of any central, head-
quarters, regional, area, or service unit office or
other funds due under this Act, except as re-
quired by Federal law;
‘‘(B) withholding portions of such funds for
transfer over a period of years; and
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‘‘(C) reducing the amount of funds required
under this Act—
‘‘(i) to make funding available for self-
governance monitoring or administration
by the Secretary;
‘‘(ii) in subsequent years, except pursu-
ant to—
‘‘(I) a reduction in appropria-
tions from the previous fiscal year for
the program or function to be included
in a compact or funding agreement;
‘‘(II) a congressional directive in
legislation 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, ac-
tivity, or program for which such
funds were provided;
‘‘(iii) to pay for Federal functions, in-
cluding Federal pay costs, Federal employee
retirement benefits, automated data proc-
essing, technical assistance, and monitoring
of activities under this Act; or
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‘‘(iv) to pay for costs of Federal per-
sonnel displaced by self-determination con-
tracts under this Act or self-governance;
‘‘(2) EXCEPTION.—The funds described in para-
graph (1)(C) may be increased by the Secretary if
necessary to carry out this Act or as provided in sec-
tion 105(c)(2).
‘‘(e) 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 (includ-
ing supplies available from Federal warehouse facilities),
Federal supply sources (including lodging, airline transpor-
tation, and other means of transportation including the use
of interagency motor pool vehicles) or other Federal re-
sources (including supplies, services, and resources avail-
able to the Secretary under any procurement contracts in
which the Department is eligible to participate), the Sec-
retary shall acquire and transfer such personnel, supplies,
or resources to the Indian tribe.
‘‘(f) REIMBURSEMENT TO INDIAN HEALTH SERVICE.—
With respect to functions transferred by the Indian Health
Service to an Indian tribe, the Indian Health Service shall
provide goods and services to the Indian tribe, on a reim-
bursable basis, including payment in advance with subse-
quent adjustment. The reimbursements received from those
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goods and services, along with the funds received from the
Indian tribe pursuant to this title, may be credited to the
same or subsequent appropriation account which provided
the funding, such amounts to remain available until ex-
pended.
‘‘(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 authorized under
this title.
‘‘(h) INTEREST OR OTHER INCOME ON TRANSFERS.—
An Indian tribe is entitled to retain interest earned on any
funds paid under a compact or funding agreement to carry
out governmental or health purposes and such interest shall
not diminish the amount of funds the Indian tribe is au-
thorized to receive under its funding agreement in the year
the interest is earned or in any subsequent fiscal year.
Funds transferred under this title shall be managed using
the prudent investment standard.
‘‘(i) CARRYOVER OF 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 1
year to the next, such carryover shall not diminish the
amount of funds the Indian tribe is authorized to receive
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under its funding agreement in that or any subsequent fis-
cal 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. The Indian tribe may retain all such
income and expend such funds in the current year or in
future years except to the extent that the Indian Health
Care Improvement Act (25 U.S.C. 1601 et seq.) provides
otherwise for medicare and medicaid receipts. 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 re-
ceived 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 trans-
ferred 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 pro-
vide reasonable notice of such insufficiency to the Secretary.
If the Secretary does not increase the amount of funds
transferred under the funding agreement, the Indian tribe
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may suspend performance of the activity until such time
as additional funds are transferred.
‘‘SEC. 509. CONSTRUCTION PROJECTS.
‘‘(a) IN GENERAL.—Indian tribes participating in
tribal self-governance may carry out construction projects
under this title if they elect to assume all Federal respon-
sibilities under the National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.), the National Historic Preser-
vation Act (16 U.S.C. 470 et seq.), and related provisions
of law that would apply if the Secretary were to undertake
a construction project, by adopting a resolution—
‘‘(1) designating a certifying officer to represent
the Indian tribe and to assume the status of a respon-
sible Federal official under such laws; and
‘‘(2) accepting the jurisdiction of the Federal
court for the purpose of enforcement of the responsibil-
ities of the responsible Federal official under such en-
vironmental laws.
‘‘(b) NEGOTIATIONS.—Construction project proposals
shall be negotiated pursuant to the statutory process in sec-
tion 105(m) and resulting construction project agreements
shall be incorporated into funding agreements as addenda.
‘‘(c) CODES AND STANDARDS.—The Indian tribe and
the Secretary shall agree upon and specify appropriate
building codes and architectural and engineering standards
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(including health and safety) which shall be in conformity
with nationally recognized standards for comparable
projects.
‘‘(d) RESPONSIBILITY FOR COMPLETION.—The Indian
tribe shall assume responsibility for the successful comple-
tion of the construction project in accordance with the nego-
tiated construction project agreement.
‘‘(e) FUNDING.—Funding for construction projects car-
ried out under this title shall be included in funding agree-
ments as annual advance payments, with semiannual pay-
ments at the option of the Indian tribe. Annual advance
and semiannual payment amounts shall be determined
based on mutually agreeable project schedules reflecting
work to be accomplished within the advance payment pe-
riod, work accomplished and funds expended in previous
payment periods, and the total prior payments. The Sec-
retary shall include associated project contingency funds
with each advance payment installment. The Indian tribe
shall be responsible for the management of the contingency
funds included in funding agreements.
‘‘(f) APPROVAL.—The Secretary shall have at least 1
opportunity to approve project planning and design docu-
ments prepared by the Indian tribe in advance of construc-
tion of the facilities specified in the scope of work for each
negotiated construction project agreement or amendment
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thereof which results in a significant change in the original
scope of work. 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.
‘‘(g) WAGES.—All laborers and mechanics employed by
contractors and subcontractors in the construction, alter-
ation, or repair, including painting or decorating of a
building or other facilities in connection with construction
projects undertaken by self-governance Indian tribes under
this Act, shall be paid wages at not less than those pre-
vailing wages on similar construction in the locality as de-
termined by the Indian tribe.
‘‘(h) APPLICATION OF OTHER LAWS.—Unless other-
wise agreed to by the Indian tribe, no provision of the Office
of Federal Procurement Policy Act, the Federal Acquisition
Regulations issued pursuant thereto, or any other law or
regulation pertaining to Federal procurement (including
Executive orders) shall apply to any construction project
conducted under this title.
‘‘SEC. 510. FEDERAL PROCUREMENT LAWS AND REGULA-
TIONS.
‘‘Notwithstanding any other provision of law, unless
expressly agreed to by the participating Indian tribe, the
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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 regulations relating to procurement issued
by the Secretary), except to the extent that such laws ex-
pressly apply to Indian tribes.
‘‘SEC. 511. CIVIL ACTIONS.
‘‘(a) CONTRACT DEFINED.—For the purposes of section
110, the term ‘contract’ shall include compacts and funding
agreements entered into under this title.
‘‘(b) APPLICABILITY OF CERTAIN LAWS.—Section 2103
of the Revised Statutes (25 U.S.C. 81) and section 16 of
the Act of June 18, 1934 (48 Stat. 987; chapter 576; 25
U.S.C. 476), shall not apply to attorney and other profes-
sional contracts entered into by Indian tribes participating
in self-governance under this title.
‘‘(c) REFERENCES.—All references in this Act to sec-
tion 1 of the Act of June 26, 1936 (49 Stat. 1967; chapter
831) are hereby deemed to include the first section of the
Act of July 3, 1952 (66 Stat. 323, chapter 549; 25 U.S.C.
82a).
‘‘SEC. 512. FACILITATION.
‘‘(a) SECRETARIAL INTERPRETATION.—Except as oth-
erwise provided by law, the Secretary shall interpret all
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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) and funds
associated therewith, in the agreements entered into
under this section;
‘‘(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) IN GENERAL.—An Indian tribe may submit
a written request to waive application of a regulation
promulgated under section 517 or the authorities
specified in section 505(b) for a compact or funding
agreement entered into with the Indian Health Serv-
ice under this title, to the Secretary identifying the
applicable Federal regulation sought to be waived and
the basis for the request.
‘‘(2) APPROVAL.—Not later than 90 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
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made only upon a specific finding by the Secretary
that identified language in the regulation may not be
waived because such waiver is prohibited by Federal
law. A failure to approve or deny a waiver request
not later than 90 days after receipt shall be deemed
an approval of such request. The Secretary’s decision
shall be final for the Department.
‘‘(c) ACCESS TO FEDERAL PROPERTY.—In connection
with any compact or funding agreement executed pursuant
to this title or an agreement negotiated under the Tribal
Self-Governance Demonstration Project established under
title III, as in effect before the enactment of the Tribal Self-
Governance Amendments of 2000, 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 con-
ditions as may be agreed upon by the Secretary and
the Indian tribe for their use and maintenance;
‘‘(2) may donate to an Indian tribe title to any
personal or real property found to be excess to the
needs of any agency of the Department, or the Gen-
eral Services Administration, except that—
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‘‘(A) subject to the provisions of subpara-
graph (B), title to property and equipment fur-
nished by the Federal Government for use in the
performance of the compact or funding agree-
ment or purchased with funds under any com-
pact or funding agreement shall, unless otherwise
requested by the Indian tribe, vest in the appro-
priate Indian tribe;
‘‘(B) if property described in subparagraph
(A) has a value in excess of $5,000 at the time
of retrocession, withdrawal, or reassumption, at
the option of the Secretary upon the retrocession,
withdrawal, or reassumption, title to such prop-
erty and equipment shall revert to the Depart-
ment of Health and Human Services; and
‘‘(C) all property referred to in subpara-
graph (A) 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 Indian tribe for any purpose
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for which a compact or funding agreement is author-
ized under this title.
‘‘(d) MATCHING OR COST-PARTICIPATION REQUIRE-
MENT.—All funds provided under compacts, funding agree-
ments, 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 author-
ized and encouraged to enact legislation, and to enter into
agreements with Indian tribes to facilitate and supplement
the initiatives, programs, and policies authorized by this
title and other Federal laws benefiting Indians and Indian
tribes.
‘‘(f) 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. 513. BUDGET REQUEST.
‘‘(a) REQUIREMENT OF ANNUAL BUDGET REQUEST.—
‘‘(1) IN GENERAL.—The President shall identify
in the annual budget request submitted to Congress
under section 1105 of title 31, United States Code, all
funds necessary to fully fund all funding agreements
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authorized under this title, including funds specifi-
cally identified to fund tribal base budgets. All funds
so appropriated shall be apportioned to the Indian
Health Service. Such funds shall be provided to the
Office of Tribal Self-Governance which shall be re-
sponsible for distribution of all funds provided under
section 505.
‘‘(2) RULE OF CONSTRUCTION.—Nothing in this
subsection shall be construed to authorize the Indian
Health Service to reduce the amount of funds that a
self-governance tribe is otherwise entitled to receive
under its funding agreement or other applicable law,
whether or not such funds are apportioned to the Of-
fice of Tribal Self-Governance under this section.
‘‘(b) PRESENT
FUNDING; SHORTFALLS.—In such
budget request, the President shall identify the level of need
presently funded and any shortfall in funding (including
direct program and contract support costs) for each Indian
tribe, either directly by the Secretary of Health and Human
Services, under self-determination contracts, or under com-
pacts and funding agreements authorized under this title.
‘‘SEC. 514. REPORTS.
‘‘(a) ANNUAL REPORT.—
‘‘(1) IN GENERAL.—Not later than January 1 of
each year after the date of enactment of the Tribal
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Self-Governance Amendments of 2000, the Secretary
shall submit to the Committee on Indian Affairs of
the Senate and the Committee on Resources of the
House of Representatives a written report regarding
the administration of this title.
‘‘(2) ANALYSIS.—The report under paragraph
(1) shall include a detailed analysis of the level of
need being presently funded or unfunded for each In-
dian tribe, either directly by the Secretary, under self-
determination contracts under title I, or under com-
pacts and funding agreements authorized under this
Act. In compiling reports pursuant to this section, the
Secretary may not impose any reporting require-
ments on participating Indian tribes or tribal organi-
zations, not otherwise provided in this Act.
‘‘(b) CONTENTS.—The report under subsection (a)
shall—
‘‘(1) be compiled from information contained in
funding agreements, annual audit reports, and data
of the Secretary regarding the disposition of Federal
funds; and
‘‘(2) identify—
‘‘(A) the relative costs and benefits of self-
governance;
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‘‘(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 their members;
‘‘(C) the funds transferred to each self-gov-
ernance Indian tribe and the corresponding re-
duction in the Federal bureaucracy;
‘‘(D) the funding formula for individual
tribal shares of all headquarters funds, together
with the comments of affected Indian tribes or
tribal organizations, developed under subsection
(c); and
‘‘(E) amounts expended in the preceding fis-
cal year to carry out inherent Federal functions,
including an identification of those functions by
type and location;
‘‘(3) contain a description of the method or
methods (or any revisions thereof) used to determine
the individual tribal share of funds controlled by all
components of the Indian Health Service (including
funds assessed by any other Federal agency) for inclu-
sion in self-governance compacts or funding agree-
ments;
‘‘(4) before being submitted to Congress, be dis-
tributed to the Indian tribes for comment (with a
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comment period of no less than 30 days, beginning on
the date of distribution); and
‘‘(5) include the separate views and comments of
the Indian tribes or tribal organizations.
‘‘(c) REPORT ON FUND DISTRIBUTION METHOD.—Not
later than 180 days after the date of enactment of the Tribal
Self-Governance Amendments of 2000, the Secretary shall,
after consultation with Indian tribes, submit a written re-
port to the Committee on Resources of the House of Rep-
resentatives and the Committee on Indian Affairs of the
Senate that describes the method or methods used to deter-
mine the individual tribal share of funds controlled by all
components of the Indian Health Service (including funds
assessed by any other Federal agency) for inclusion in self-
governance compacts or funding agreements.
‘‘SEC. 515. DISCLAIMERS.
‘‘(a) NO FUNDING REDUCTION.—Nothing in this title
shall be construed to limit or reduce in any way the funding
for any program, project, or activity serving an Indian
tribe under this or other applicable Federal law. Any In-
dian tribe that alleges that a compact or funding agreement
is in violation of this section may apply the provisions of
section 110.
‘‘(b) FEDERAL TRUST
AND TREATY RESPONSIBIL-
ITIES.—Nothing in this Act shall be construed to diminish
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in any way the trust responsibility of the United States
to Indian tribes and individual Indians that exists under
treaties, Executive orders, or other laws and court decisions.
‘‘(c) TRIBAL EMPLOYMENT.—For purposes of section
2(2) of the 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.
‘‘(d) OBLIGATIONS OF THE UNITED STATES.—The In-
dian Health Service under this Act shall neither bill nor
charge those Indians who may have the economic means
to pay for services, nor require any Indian tribe to do so.
‘‘SEC. 516. APPLICATION OF OTHER SECTIONS OF THE ACT.
‘‘(a) MANDATORY APPLICATION.—All provisions of sec-
tions 5(b), 6, 7, 102 (c) and (d), 104, 105 (k) and (l), 106
(a) through (k), and 111 of this Act and section 314 of Pub-
lic Law 101–512 (coverage under chapter 171 of title 28,
United States Code, commonly known as the ‘Federal Tort
Claims Act’), to the extent not in conflict with this title,
shall apply to compacts and funding agreements authorized
by this title.
‘‘(b) DISCRETIONARY APPLICATION.—At the request of
a participating Indian tribe, any other provision of title
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I, to the extent such provision is not in conflict with this
title, shall be made a part of a funding agreement or com-
pact entered into under this title. The Secretary is obligated
to include such provision at the option of the participating
Indian tribe or tribes. If such provision is incorporated it
shall have the same force and effect as if it were set out
in full in this title. In the event an Indian tribe requests
such incorporation at the negotiation stage of a compact
or funding agreement, such incorporation shall be deemed
effective immediately and shall control the negotiation and
resulting compact and funding agreement.
‘‘SEC. 517. REGULATIONS.
‘‘(a) IN GENERAL.—
‘‘(1) PROMULGATION.—Not later than 90 days
after the date of enactment of the Tribal Self-Govern-
ance Amendments of 2000, the Secretary shall initiate
procedures under subchapter III of chapter 5 of title
5, United States Code, to negotiate and promulgate
such regulations as are necessary to carry out this
title.
‘‘(2) 
PUBLICATION
OF
PROPOSED
REGULA-
TIONS.—Proposed regulations to implement this title
shall be published in the Federal Register by the Sec-
retary no later than 1 year after the date of enact-
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ment of the Tribal Self-Governance Amendments of
2000.
‘‘(3) EXPIRATION OF AUTHORITY.—The author-
ity to promulgate regulations under paragraph (1)
shall expire 21 months after the date of enactment of
the Tribal Self-Governance Amendments of 2000.
‘‘(b) COMMITTEE.—
‘‘(1) IN
GENERAL.—A negotiated rulemaking
committee established pursuant to section 565 of title
5, United States Code, to carry out this section shall
have as its members only Federal and tribal govern-
ment representatives, a majority of whom shall be
nominated by and be representatives of Indian tribes
with funding agreements under this Act.
‘‘(2) REQUIREMENTS.—The committee shall con-
fer with, and accommodate participation by, rep-
resentatives of Indian tribes, inter-tribal consortia,
tribal organizations, and individual 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 In-
dian tribes.
‘‘(d) EFFECT.—The lack of promulgated regulations
shall not limit the effect of this title.
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‘‘(e) EFFECT
OF CIRCULARS, POLICIES, MANUALS,
GUIDANCES, AND RULES.—Unless expressly agreed to by
the participating Indian tribe in the compact or funding
agreement, the participating Indian tribe shall not be sub-
ject to any agency circular, policy, manual, guidance, or
rule adopted by the Indian Health Service, except for the
eligibility provisions of section 105(g) and regulations pro-
mulgated under section 517.
‘‘SEC. 518. APPEALS.
‘‘In any appeal (including civil actions) involving de-
cisions made by the Secretary under this title, the Secretary
shall have the burden of proof of demonstrating by clear
and convincing evidence—
‘‘(1) the validity of the grounds for the decision
made; and
‘‘(2) that the decision is fully consistent with
provisions and policies of this title.
‘‘SEC. 519. AUTHORIZATION OF APPROPRIATIONS.
‘‘(a) IN GENERAL.—There are authorized to be appro-
priated such sums as may be necessary to carry out this
title.
‘‘(b) AVAILABILITY
OF APPROPRIATIONS.—Notwith-
standing any other provision of this Act, the provision of
funds under this Act shall be subject to the availability of
appropriations and the Secretary is not required to reduce
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funding for programs, projects, or activities serving a tribe
in order to make funds available to another tribe or tribal
organization under this Act.’’.
SEC. 5. TRIBAL SELF-GOVERNANCE DEPARTMENT.
The Indian Self-Determination and Education Assist-
ance Act (25 U.S.C. 450 et seq.) is amended by adding at
the end the following:
‘‘TITLE 
VI—TRIBAL 
SELF-GOV-
ERNANCE—DEPARTMENT 
OF
HEALTH AND HUMAN SERV-
ICES
‘‘SEC. 601. DEFINITIONS.
‘‘(a) IN GENERAL.—In this title, the Secretary may
apply the definitions contained in title V.
‘‘(b) OTHER DEFINITIONS.—In this title:
‘‘(1) AGENCY.—The term the term ‘agency’
means any agency or other organizational unit of the
Department of Health and Human Services, other
than the Indian Health Service.
‘‘(2) SECRETARY.—The term ‘Secretary’ means
the Secretary of Health and Human Services.
‘‘SEC. 602. DEMONSTRATION PROJECT FEASIBILITY.
‘‘(a) STUDY.—The Secretary shall conduct a study to
determine the feasibility of a tribal self-governance dem-
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onstration project for appropriate programs, services, func-
tions, and activities (or portions thereof) of the agency.
‘‘(b) CONSIDERATIONS.—In conducting the study, the
Secretary shall consider—
‘‘(1) the probable effects on specific programs
and program beneficiaries of such a demonstration
project;
‘‘(2) statutory, regulatory, or other impediments
to implementation of such a demonstration project;
‘‘(3) strategies for implementing such a dem-
onstration project;
‘‘(4) probable costs or savings associated with
such a demonstration project;
‘‘(5) methods to assure quality and account-
ability in such a demonstration project; and
‘‘(6) such other issues that may be determined by
the Secretary or developed through consultation pur-
suant to section 603.
‘‘(c) REPORT.—Not later than 18 months after the date
of enactment of this title, the Secretary shall submit a re-
port to the Committee on Indian Affairs of the Senate and
the Committee on Resources of the House of Representatives.
The report shall contain—
‘‘(1) the results of the study under this section;
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‘‘(2) a list of programs, services, functions, and
activities (or portions thereof) within each agency
with respect to which it would be feasible to include
in a tribal self-governance demonstration project;
‘‘(3) a list of programs, services, functions, and
activities (or portions thereof) included in the list
provided pursuant to paragraph (2) that could be in-
cluded in a tribal self-governance demonstration
project without amending statutes, or waiving regula-
tions that the Secretary may not waive;
‘‘(4) a list of legislative actions required in order
to include those programs, services, functions, and ac-
tivities (or portions thereof) included in the list pro-
vided pursuant to paragraph (2) but not included in
the list provided pursuant to paragraph (3) in a trib-
al self-governance demonstration project; and
‘‘(5) any separate views of tribes and other enti-
ties consulted pursuant to section 603 related to the
information provided pursuant to paragraphs (1)
through (4).
‘‘SEC. 603. CONSULTATION.
‘‘(a) STUDY PROTOCOL.—
‘‘(1) CONSULTATION WITH INDIAN TRIBES.—The
Secretary shall consult with Indian tribes to deter-
mine a protocol for consultation under subsection (b)
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prior to consultation under such subsection with the
other entities described in such subsection.
‘‘(2) REQUIREMENTS FOR PROTOCOL.—The pro-
tocol shall require, at a minimum, that—
‘‘(A) the government-to-government relation-
ship with Indian tribes forms the basis for the
consultation process;
‘‘(B) the Indian tribes and the Secretary
jointly conduct the consultations required by this
section; and
‘‘(C) the consultation process allows for sep-
arate and direct recommendations from the In-
dian tribes and other entities described in sub-
section (b).
‘‘(b) CONDUCTING STUDY.—In conducting the study
under this title, the Secretary shall consult with Indian
tribes, States, counties, municipalities, program bene-
ficiaries, and interested public interest groups, and may
consult with other entities as appropriate.
‘‘SEC. 604. AUTHORIZATION OF APPROPRIATIONS.
‘‘There are authorized to be appropriated for fiscal
years 2000 and 2001 such sums as may be necessary to
carry out this title. Such sums shall remain available until
expended.’’.
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SEC. 6. AMENDMENTS CLARIFYING CIVIL PROCEEDINGS.
Section 102(e)(1) of the Indian Self-Determination
and Education Assistance Act (25 U.S.C. 450f(e)(1)) is
amended by inserting after ‘‘subsection (b)(3)’’ the fol-
lowing: ‘‘or any civil action conducted pursuant to section
110(a)’’.
SEC. 7. SPEEDY ACQUISITION OF GOODS, SERVICES, OR
SUPPLIES.
Section 105(k) of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450j(k)) is amended—
(1) by striking ‘‘deemed an executive agency’’
and inserting ‘‘deemed an executive agency and part
of the Indian Health Service’’; and
(2) by adding at the end the following: ‘‘For pur-
poses of carrying out such contract, grant, or agree-
ment, the Secretary shall, at the request of an Indian
tribe, enter into an agreement for the acquisition, on
behalf of the Indian tribe, of any goods, services, or
supplies available to the Secretary from the General
Services Administration or other Federal agencies
that are not directly available to the Indian tribe
under this section or under any other Federal law, in-
cluding acquisitions from prime vendors. All such ac-
quisitions shall be undertaken through the most effi-
cient and speedy means practicable, including elec-
tronic ordering arrangements.’’.
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SEC. 8. PATIENT RECORDS.
Section 105 of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450j) is amended by
adding at the end the following:
‘‘(o) PATIENT RECORDS.—
‘‘(1) IN GENERAL.—At the option of an Indian
tribe or tribal organization, patient records may be
deemed to be Federal records under those provisions
of title 44, United States Code, that are commonly re-
ferred to as the ‘Federal Records Act of 1950’ for the
limited purposes of making such records eligible for
storage by Federal Records Centers to the same extent
and in the same manner as other Department of
Health and Human Services patient records.
‘‘(2) TREATMENT OF RECORDS.—Patient records
that are deemed to be Federal records under those pro-
visions of title 44, United States Code, that are com-
monly referred to as the ‘Federal Records Act of 1950’
pursuant to this subsection shall not be considered
Federal records for the purposes of chapter 5 of title
5, United States Code.’’.
SEC. 9. ANNUAL REPORTS.
Section 106 of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450j-1) is amended—
(1) by redesignating subsections (c) through (n)
as subsections (d) through (o), respectively; and
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(2) by inserting after subsection (b), the fol-
lowing:
‘‘(c) ANNUAL REPORTS.—Not later than May 15 of
each year, the Secretary shall prepare and submit to Con-
gress an annual report on the implementation of this Act.
Such report shall include—
‘‘(1) an accounting of the total amounts of funds
provided for each program and the budget activity for
direct program costs and contract support costs of
tribal organizations under self-determination;
‘‘(2) an accounting of any deficiency in funds
needed to provide required contract support costs to
all contractors for the fiscal year for which the report
is being submitted;
‘‘(3) the indirect cost rate and type of rate for
each tribal organization that has been negotiated with
the appropriate Secretary;
‘‘(4) the direct cost base and type of base from
which the indirect cost rate is determined for each
tribal organization;
‘‘(5) the indirect cost pool amounts and the types
of costs included in the indirect cost pool; and
‘‘(6) an accounting of any deficiency in funds
needed to maintain the preexisting level of services to
any Indian tribes affected by contracting activities
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under this Act, and a statement of the amount of
funds needed for transitional purposes to enable con-
tractors to convert from a Federal fiscal year account-
ing cycle, as authorized by section 105(d).’’.
SEC. 10. REPEAL.
(a) IN GENERAL.—Title III of the Indian Self-Deter-
mination and Education Assistance Act (25 U.S.C. 450f
note) is repealed.
(b) EFFECTIVE DATE.—This section shall take effect
on October 1, 1999.
SEC. 11. SAVINGS PROVISION.
Funds appropriated for title III of the Indian Self-
Determination and Education Assistance Act (25 U.S.C.
450f note) shall be available for use under title V of such
Act.
SEC. 12. OFFICE OF ASSISTANT SECRETARY FOR INDIAN
HEALTH.
(a) ESTABLISHMENT.—There is established within the
Department of Health and Human Services the Office of
the Assistant Secretary for Indian Health in order to, in
a manner consistent with the government-to-government re-
lationship between the United States and Indian tribes—
(1) facilitate advocacy for the development of ap-
propriate Indian health policy; and
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(2) promote consultation on matters related to
Indian health.
(b) ASSISTANT SECRETARY FOR INDIAN HEALTH.—In
addition to the functions performed on the date of enact-
ment of this Act by the Director of the Indian Health Serv-
ice, the Assistant Secretary for Indian Health shall perform
such functions as the Secretary of Health and Human Serv-
ices (referred to in this section as the ‘‘Secretary’’) may des-
ignate. The Assistant Secretary for Indian Health shall—
(1) report directly to the Secretary concerning
all policy- and budget-related matters affecting In-
dian health;
(2) collaborate with the Assistant Secretary for
Health concerning appropriate matters of Indian
health that affect the agencies of the Public Health
Service;
(3) advise each Assistant Secretary of the De-
partment of Health and Human Services concerning
matters of Indian health with respect to which that
Assistant Secretary has authority and responsibility;
(4) advise the heads of other agencies and pro-
grams of the Department of Health and Human Serv-
ices concerning matters of Indian health with respect
to which those heads have authority and responsi-
bility; and
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(5) coordinate the activities of the Department of
Health and Human Services concerning matters of
Indian health.
(c) REFERENCES.—Reference in any other Federal
law, Executive order, rule, regulation, or delegation of au-
thority, or any document of or relating to the Director of
the Indian Health Service shall be deemed to refer to the
Assistant Secretary for Indian Health.
(d) RATE OF PAY.—
(1) POSITIONS AT LEVEL IV.—Section 5315 of
title 5, United States Code, is amended—
(A) by striking the following:
‘‘Assistant Secretaries of Health and Human
Services (6).’’; and
(B) by inserting the following:
‘‘Assistant Secretaries of Health and Human
Services (7).’’.
(2) POSITIONS AT LEVEL V.—Section 5316 of
title 5, United States Code, is amended by striking
the following:
‘‘Director, Indian Health Service, Department of
Health and Human Services.’’.
(e) DUTIES OF ASSISTANT SECRETARY FOR INDIAN
HEALTH.—Section 601(a) of the Indian Health Care Im-
provement Act (25 U.S.C. 1661(a)) is amended—
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(1) by inserting ‘‘(1)’’ after ‘‘(a)’’;
(2) in the second sentence of paragraph (1), as
so designated, by striking ‘‘a Director,’’ and inserting
‘‘the Assistant Secretary for Indian Health,’’; and
(3) by striking the third sentence of paragraph
(1) and all that follows through the end of the sub-
section and inserting the following: ‘‘The Assistant
Secretary for Indian Health shall carry out the duties
specified in paragraph (2).
‘‘(2) The Assistant Secretary for Indian Health
shall—
‘‘(A) report directly to the Secretary concerning
all policy- and budget-related matters affecting In-
dian health;
‘‘(B) collaborate with the Assistant Secretary for
Health concerning appropriate matters of Indian
health that affect the agencies of the Public Health
Service;
‘‘(C) advise each Assistant Secretary of the De-
partment of Health and Human Services concerning
matters of Indian health with respect to which that
Assistant Secretary has authority and responsibility;
‘‘(D) advise the heads of other agencies and pro-
grams of the Department of Health and Human Serv-
ices concerning matters of Indian health with respect
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to which those heads have authority and responsi-
bility; and
‘‘(E) coordinate the activities of the Department
of Health and Human Services concerning matters of
Indian health.’’.
(f) CONTINUED SERVICE BY INCUMBENT.—The indi-
vidual serving in the position of Director of the Indian
Health Service on the date preceding the date of enactment
of this Act may serve as Assistant Secretary for Indian
Health, at the pleasure of the President after the date of
enactment of this Act.
(g) CONFORMING AMENDMENTS.—
(1) AMENDMENTS TO INDIAN HEALTH CARE IM-
PROVEMENT ACT.—The Indian Health Care Improve-
ment Act (25 U.S.C. 1601 et seq.) is amended—
(A) in section 601—
(i) in subsection (c), by striking ‘‘Di-
rector of the Indian Health Service’’ both
places it appears and inserting ‘‘Assistant
Secretary for Indian Health’’; and
(ii) in subsection (d), by striking ‘‘Di-
rector of the Indian Health Service’’ and
inserting ‘‘Assistant Secretary for Indian
Health’’; and
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(B) in section 816(c)(1), by striking ‘‘Direc-
tor of the Indian Health Service’’ and inserting
‘‘Assistant Secretary for Indian Health’’.
(2) AMENDMENTS
TO
OTHER
PROVISIONS
OF
LAW.—The following provisions are each amended by
striking ‘‘Director of the Indian Health Service’’ each
place it appears and inserting ‘‘Assistant Secretary
for Indian Health’’:
(A) Section 203(a)(1) of the Rehabilitation
Act of 1973 (29 U.S.C. 761b(a)(1)).
(B) Subsections (b) and (e) of section 518 of
the Federal Water Pollution Control Act (33
U.S.C. 1377 (b) and (e)).
(C) Section 803B(d)(1) of the Native Amer-
ican Programs Act of 1974 (42 U.S.C. 2991b–
2(d)(1)).
SEC. 13. APPLICATION TO ALASKA.
(a) Notwithstanding any other provision of law, noth-
ing in this Act, the amendments made thereby, nor its im-
plementation, shall affect—
(1) the right of the Consortium of Southcentral
Foundation to carry out the programs, functions,
services and activities as specified in section 325 of
Public Law 105–83 (111 Stat. 55–56), or
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(2) the prohibitions in section 351 of section
101(e) of Division A, Public Law 105–277.
(b) Section 351 of section 101(e) of Division A, Public
Law 105–277 and section 326 of Public Law 105–83 (111
Stat. 57) are amended by inserting ‘‘as amended’’ after the
phrase ‘‘Public Law 93–638 (25 U.S.C. 450 et seq.)’’ where
such phrase appears in each section.
Attest:
Secretary.
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