II
Calendar No. 419
106TH CONGRESS
1ST SESSION
H. R. 1167
IN THE SENATE OF THE UNITED STATES
NOVEMBER 18, 1999
Received
NOVEMBER 19, 1999
Read twice and placed on the calendar
AN ACT
To amend the Indian Self-Determination and Education As-
sistance Act to provide for further self-governance by
Indian tribes, and for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
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SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Tribal Self-Governance
Amendments of 1999’’.
SEC. 2. FINDINGS.
Congress finds that—
(1) the tribal right of self-government flows
from the inherent sovereignty of Indian tribes and
nations;
(2) the United States recognizes a special gov-
ernment-to-government relationship with Indian
tribes, including the right of the Indian tribes to
self-governance, as reflected in the Constitution,
treaties, Federal statutes, and the course of dealings
of the United States with Indian tribes;
(3) although progress has been made, the Fed-
eral bureaucracy, with its centralized rules and regu-
lations, has eroded tribal self-governance and domi-
nates tribal affairs;
(4) the Tribal Self-Governance Demonstration
Project, established under title III of the Indian
Self-Determination and Education Assistance Act
(25 U.S.C. 450f note) was designed to improve and
perpetuate the government-to-government relation-
ship between Indian tribes and the United States
and to strengthen tribal control over Federal fund-
ing and program management;
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(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
Tribal Self-Governance Demonstration Project and
finds that transferring full control and funding to
tribal governments, upon tribal request, over deci-
sion making for Federal programs, services, func-
tions, and activities (or portions thereof)—
(A) is an appropriate and effective means
of implementing the Federal policy of govern-
ment-to-government 
relations 
with 
Indian
tribes; and
(B) strengthens the Federal policy of In-
dian 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 Depart-
ment of Health and Human Services and its con-
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stituent agencies in the implementation of tribal self-
governance—
(A) to enable the United States to main-
tain and improve its unique and continuing re-
lationship 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;
(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-gov-
ernment relationship between the United States
and Indian tribes through direct and meaning-
ful consultation with all tribes;
(F) to permit an orderly transition from
Federal domination of programs and services to
provide Indian tribes with meaningful authority,
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control, funding, and discretion to plan, con-
duct, redesign, and administer programs, serv-
ices, functions, and activities (or portions there-
of) that meet the needs of the individual tribal
communities;
(G) to provide for a measurable parallel re-
duction in the Federal bureaucracy as pro-
grams, services, functions, and activities (or
portions 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 and Human Services that may be man-
aged by an Indian tribe under this Act and to
assist Indian tribes in assuming responsibility
for such programs, services, functions, and ac-
tivities (or portions thereof); and
(I) to provide Indian tribes with the ear-
liest opportunity to administer programs, serv-
ices, functions, and activities (or portions there-
of) from throughout the Department of Health
and Human Services.
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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 new titles:
‘‘TITLE V—TRIBAL SELF-
GOVERNANCE
‘‘SEC. 501. ESTABLISHMENT.
‘‘The Secretary of Health and Human Services shall
establish and carry out a program within the Indian
Health Service of the Department of Health and Human
Services to be known as the ‘Tribal Self-Governance Pro-
gram’ in accordance with this title.
‘‘SEC. 502. DEFINITIONS.
‘‘(a) IN GENERAL.—For purposes of this title—
‘‘(1) the term ‘construction project’ means an
organized noncontinuous undertaking to complete a
specific set of predetermined objectives for the plan-
ning, environmental determination, design, construc-
tion, repair, improvement, or expansion of buildings
or facilities, as described in a construction project
agreement. The term ‘construction project’ does not
mean construction program administration and ac-
tivities described in paragraphs (1) through (3) of
section 4(m), which may otherwise be included in a
funding agreement under this title;
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inter-tribal consortium, or tribal organization shall have
the rights and responsibilities of the authorizing Indian
tribe (except as otherwise provided in the authorizing reso-
lution 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. 503. SELECTION OF PARTICIPATING INDIAN TRIBES.
‘‘(a) CONTINUING
PARTICIPATION.—Each Indian
tribe that is participating in the Tribal Self-Governance
Demonstration Project under title III on the date of the
enactment of this title may elect to participate in self-gov-
ernance under this title under existing authority as re-
flected in tribal resolutions.
‘‘(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
entitled 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
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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, func-
tions, and activities (or portions thereof) that it will
be carrying 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
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‘‘(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
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
paragraphs (2) and (3) of subsection (c) shall be eligible
for grants—
‘‘(1) to plan for participation in self-governance;
and
‘‘(2) to negotiate the terms of participation by
the Indian tribe or tribal organization in self-govern-
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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 ne-
gotiate 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 re-
lationship 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 the enactment of
this title shall have the option at any time thereafter to—
‘‘(1) retain its Tribal Self-Governance Dem-
onstration Project compact (in whole or in part) to
the extent the provisions of such compact are not di-
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rectly 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 parties, and shall remain in effect for so long as
permitted by Federal law or until terminated by mutual
written agreement, 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.—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, in-
cluding tribal shares of Indian Health Service competitive
grants (excluding congressionally earmarked competitive
grants), for all programs, services, functions, and activi-
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ties (or portions thereof), that are carried out for the ben-
efit of Indians because of their status as Indians without
regard to the agency or office of the Indian Health Service
within which the program, service, function, or activity (or
portion thereof) is performed. Such programs, services,
functions, or activities (or portions thereof) include all
programs, services, functions, activities (or portions there-
of) where Indian tribes or Indians are primary or signifi-
cant beneficiaries, administered by the Department of
Health and Human Services through the Indian Health
Service and grants (which may be added to a funding
agreement after award of such grants) and 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.);
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‘‘(6) any other Act of Congress authorizing
agencies of the Department of Health and Human
Services to administer, carry out, or provide finan-
cial assistance to such programs, functions, or activi-
ties (or portions thereof) described in this section; or
‘‘(7) any other Act of Congress authorizing
such programs, 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
administers such programs, functions, or activities
(or portions thereof).
‘‘(c) INCLUSION IN COMPACT OR FUNDING AGREE-
MENT.—Indian tribes or Indians need not be identified in
the authorizing statute for a program or element of a pro-
gram to be eligible for inclusion in a compact or funding
agreement under this title.
‘‘(d) FUNDING AGREEMENT TERMS.—Each funding
agreement shall set forth terms that generally identify the
programs, services, functions, and activities (or portions
thereof) to be performed or administered, the general
budget category assigned, the funds to be provided, includ-
ing those to be provided on a recurring basis, the time
and method of transfer of the funds, the responsibilities
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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, serv-
ices, functions, or activities (or portions thereof) identified
in a funding agreement, or unless otherwise agreed to by
the parties, each funding agreement shall remain in full
force and effect until a subsequent funding agreement is
executed, and the terms of the subsequent funding agree-
ment shall be retroactive to the end of the term of the
preceding funding agreement.
‘‘(f) EXISTING FUNDING AGREEMENTS.—Each In-
dian tribe participating in the Tribal Self-Governance
Demonstration Project established under title III on the
date of the enactment of this title shall have the option
at any time thereafter to—
‘‘(1) retain its Tribal Self-Governance Dem-
onstration Project funding agreement (in whole or in
part) to the extent the provisions of such funding
agreement are not directly contrary to any express
provision of this title; or
‘‘(2) adopt in lieu thereof (in whole or in part)
a new funding agreement in conformity with this
title.
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‘‘(g) STABLE BASE FUNDING.—At the option of an
Indian 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. GENERAL PROVISIONS.
‘‘(a) APPLICABILITY.—The provisions of this section
shall apply to compacts and funding agreements nego-
tiated under this title and an Indian tribe may, at its op-
tion, include provisions that reflect such requirements in
a compact or funding agreement.
‘‘(b) CONFLICTS OF INTEREST.—Indian tribes par-
ticipating in self-governance under this title shall ensure
that internal measures are in place to address conflicts
of interest in the administration of self-governance pro-
grams, services, functions, or activities (or portions there-
of).
‘‘(c) AUDITS.—
‘‘(1) SINGLE AGENCY AUDIT ACT.—The provi-
sions of chapter 75 of title 31, United States Code,
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requiring a single agency audit report shall apply to
funding agreements under this title.
‘‘(2) COST PRINCIPLES.—An Indian tribe shall
apply cost principles under the applicable Office of
Management and Budget Circular, except as modi-
fied by section 106 or other provisions of law, or by
any exemptions to applicable Office of Management
and Budget Circulars subsequently granted by Of-
fice of Management and Budget. No other audit or
accounting standards shall be required by the Sec-
retary. Any claim by the Federal Government
against the Indian tribe relating to funds received
under a funding agreement based on any audit
under this subsection shall be subject to the provi-
sions of section 106(f).
‘‘(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
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Department of Health and Human Services to meet
its minimum legal recordkeeping system require-
ments 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 505 and reallocate or re-
direct funds for such programs, services, functions, and
activities (or portions thereof) in any manner which the
Indian tribe deems to be in the best interest of the health
and welfare of the Indian community being served, only
if the redesign or consolidation does not have the effect
of denying eligibility for services to population groups oth-
erwise eligible to be served under Federal law.
‘‘(f) RETROCESSION.—An Indian tribe may retro-
cede, fully or partially, to the Secretary programs, serv-
ices, functions, or activities (or portions thereof) included
in the compact or funding agreement. Unless the Indian
tribe rescinds the request for retrocession, such retroces-
sion will become effective within the time frame specified
by the parties in the compact or funding agreement. In
the absence of such a specification, such retrocession shall
become effective on—
‘‘(1) the earlier of—
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‘‘(A) one year from the date of submission
of such request; or
‘‘(B) the date on which the funding agree-
ment expires; or
‘‘(2) such date as may be mutually agreed by
the Secretary and the Indian tribe.
‘‘(g) WITHDRAWAL.—
‘‘(1) PROCESS.—An Indian tribe may fully or
partially withdraw from a participating inter-tribal
consortium or tribal organization its share of any
program, function, service, or activity (or portions
thereof) included in a compact or funding agree-
ment. Such withdrawal shall become effective within
the time frame specified in the resolution which au-
thorizes transfer to the participating tribal organiza-
tion or inter-tribal consortium. In the absence of a
specific time frame set forth in the resolution, such
withdrawal shall become effective on—
‘‘(A) the earlier of—
‘‘(i) one year from the date of submis-
sion of such request; or
‘‘(ii) the date on which the funding
agreement expires; or
‘‘(B) such date as may be mutually agreed
upon by the Secretary, the withdrawing Indian
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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 pro-
grams, services, functions, or activities (or portions
thereof) which it 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 funding agree-
ment of the inter-tribal consortium or tribal organi-
zation), 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 and 105(i), as appropriate, shall
apply to such withdrawing Indian tribe.
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‘‘(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 In-
dian 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 In-
dian tribe shall not be entitled to contract with the Sec-
retary for such funds under section 102, except that such
Indian tribe shall be eligible for new programs on the same
basis as other Indian tribes.
‘‘SEC. 507. PROVISIONS RELATING TO THE SECRETARY.
‘‘(a) MANDATORY PROVISIONS.—
‘‘(1) HEALTH STATUS REPORTS.—Compacts or
funding agreements negotiated between the Sec-
retary and an Indian tribe shall include a provision
that requires the Indian tribe to report on health
status and service delivery—
‘‘(A) to the extent such data is not other-
wise available to the Secretary and specific
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funds for this purpose are provided by the Sec-
retary 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) Compacts and fund-
ing agreements negotiated between the Secretary
and an Indian tribe shall include a provision author-
izing the Secretary to reassume operation of a pro-
gram, service, function, or activity (or portions
thereof) and associated funding if there is a specific
finding relative to that program, service, function, or
activity (or portion thereof) of—
‘‘(i) imminent endangerment of the public
health caused by an act or omission of the In-
dian tribe, and the imminent endangerment
arises out of a failure to carry out the compact
or funding agreement; or
‘‘(ii) gross mismanagement with respect to
funds transferred to a tribe by a compact or
funding agreement, as determined by the Sec-
retary in consultation with the Inspector Gen-
eral, as appropriate.
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‘‘(B) The Secretary shall not reassume oper-
ation 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 mismanage-
ment.
‘‘(C) Notwithstanding subparagraph (B), the
Secretary may, upon written notification to the
tribe, immediately reassume operation of a program,
service, function, or activity (or portion thereof) and
associated funding if (i) the Secretary makes a find-
ing 
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 Secretary re-
assumes operation of a program, service, function,
or activity (or portion thereof) under this subpara-
graph, 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,
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function, or activity (or portion thereof), the Sec-
retary shall have the burden of proof of dem-
onstrating by clear and convincing evidence the va-
lidity 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 agree-
ment (including funding levels), the Indian tribe may sub-
mit 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 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 Sec-
retary 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
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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 significant danger or risk to the public
health; or
‘‘(D) the tribe is not eligible to participate
in self-governance under section 503;
‘‘(2) technical assistance to overcome the objec-
tions stated in the notification required by para-
graph (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
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‘‘(4) the Indian tribe with the option of enter-
ing into the severable portions of a final proposed
compact or funding agreement, or provision thereof,
(including lesser funding amount, if any), that the
Secretary did not reject, subject to any additional al-
terations necessary to conform the compact or fund-
ing agreement to the severed provisions. If an Indian
tribe exercises the option specified herein, it shall re-
tain the right to appeal the Secretary’s rejection
under this section, and paragraphs (1), (2), and (3)
shall only apply to that portion of the proposed final
compact, funding agreement or provision thereof
that was rejected by the Secretary.
‘‘(d) BURDEN OF PROOF.—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 there-
of) made under subsection (b).
‘‘(e) GOOD FAITH.—In the negotiation of compacts
and funding agreements the Secretary shall at all times
negotiate in good faith to maximize implementation of the
self-governance policy. The Secretary shall carry out this
title in a manner that maximizes the policy of tribal self-
governance, consistent with section 3.
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‘‘(f) SAVINGS.—To the extent that programs, func-
tions, services, or activities (or portions thereof) carried
out by Indian tribes under this title reduce the administra-
tive or other responsibilities of the Secretary with respect
to the operation of Indian programs and result in savings
that have not otherwise been included in the amount of
tribal shares and other funds determined under section
508(c), the Secretary shall make such savings available
to the Indian tribes, inter-tribal consortia, or tribal organi-
zations for the provision of additional services to program
beneficiaries in a manner equitable to directly served, con-
tracted, and compacted programs.
‘‘(g) TRUST RESPONSIBILITY.—The Secretary is pro-
hibited from waiving, modifying, or diminishing in any
way the trust responsibility of the United States with 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
Department 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 agen-
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cy 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
compact or funding agreement entered into under this
title, the Secretary shall transfer to the Indian tribe all
funds provided for in the funding agreement, pursuant to
subsection (c), and provide funding for periods covered by
joint resolution adopted by Congress making continuing
appropriations, to the extent permitted by such resolu-
tions. In any instance where a funding agreement requires
an annual transfer of funding to be made at the beginning
of a fiscal year, or requires semiannual or other periodic
transfers of funding to be made commencing at the begin-
ning 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 other-
wise.
‘‘(b) MULTIYEAR FUNDING.—The Secretary is here-
by authorized to employ, upon tribal request, multiyear
funding agreements, and references in this title to funding
agreements shall include such multiyear agreements.
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‘‘(c) AMOUNT OF FUNDING.—The Secretary shall
provide 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-determina-
tion contracts under this Act, including amounts for direct
program costs specified under section 106(a)(1) and
amounts for contract support costs specified under sec-
tions 106(a)(2), (a)(3), (a)(5), and (a)(6), including any
funds that are specifically or functionally related to the
provision by the Secretary of services and benefits to the
Indian tribe or its members, all without regard to the or-
ganizational level within the Department where such func-
tions are carried out.
‘‘(d) 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 Federal law;
‘‘(2) withholding portions of such funds for
transfer over a period of years; and
‘‘(3) reducing the amount of funds required
herein—
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‘‘(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;
‘‘(C) to pay for Federal functions, includ-
ing Federal pay costs, Federal employee retire-
ment benefits, automated data processing, tech-
nical assistance, and monitoring of activities
under this Act; or
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‘‘(D) to pay for costs of Federal personnel
displaced by self-determination contracts under
this Act or self-governance;
except that such funds may be increased by the Secretary
if necessary to carry out this Act or as provided in section
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 (in-
cluding supplies available from Federal warehouse facili-
ties), Federal supply sources (including lodging, airline
transportation, and other means of transportation includ-
ing the use of interagency motor pool vehicles) or other
Federal resources (including supplies, services, and re-
sources available to the Secretary under any procurement
contracts in which the Department is eligible to partici-
pate), the Secretary is authorized to transfer such per-
sonnel, supplies, or resources to the Indian tribe.
‘‘(f) REIMBURSEMENT TO INDIAN HEALTH SERV-
ICE.—With respect to functions transferred by the Indian
Health Service to an Indian tribe, the Indian Health Serv-
ice is authorized to provide goods and services to the In-
dian tribe, on a reimbursable basis, including payment in
advance with subsequent adjustment, and the reimburse-
ments received therefrom, along with the funds received
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from the Indian tribe pursuant to this title, may be cred-
ited to the same or subsequent appropriation account
which provided the funding, such amounts to remain avail-
able until expended.
‘‘(g) PROMPT PAYMENT ACT.—Chapter 39 of title
31, United States Code, shall apply to the transfer of
funds due under a compact or funding agreement author-
ized under this title.
‘‘(h) INTEREST
OR OTHER INCOME
ON TRANS-
FERS.—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 authorized to receive under its funding
agreement in the year the interest is earned or in any sub-
sequent fiscal year. Funds transferred under this Act shall
be managed using the prudent investment standard.
‘‘(i) CARRYOVER OF FUNDS.—All funds paid to an
Indian tribe in accordance with a compact or funding
agreement shall remain available until expended. In the
event that an Indian tribe elects to carry over funding
from one year to the next, such carryover shall not dimin-
ish the amount of funds the Indian tribe is authorized to
receive under its funding agreement in that or any subse-
quent fiscal year.
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‘‘(j) PROGRAM INCOME.—All medicare, medicaid, or
other program income earned by an Indian tribe shall be
treated as supplemental funding to that negotiated in the
funding agreement and the Indian tribe may retain all
such income and expend such funds in the current year
or in future years 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,
and 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 pro-
gram income is received or for any subsequent fiscal year.
‘‘(k) LIMITATION OF COSTS.—An Indian tribe shall
not be obligated to continue performance that requires an
expenditure of funds in excess of the amount of funds
transferred 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 com-
pact or funding agreement is insufficient the Indian tribe
shall provide reasonable notice of such insufficiency to the
Secretary. If the Secretary does not increase the amount
of funds transferred under the funding agreement, the In-
dian tribe may suspend performance of the activity until
such time as additional funds are transferred.
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‘‘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, the Historic Preservation Act, and related provi-
sions of law that would apply if the Secretary were to un-
dertake a construction project, by adopting a resolution
(1) designating a certifying officer to represent the Indian
tribe and to assume the status of a responsible Federal
official under such laws, and (2) accepting the jurisdiction
of the Federal court for the purpose of enforcement of
the responsibilities of the responsible Federal official
under such environmental laws.
‘‘(b) NEGOTIATIONS.—Construction project proposals
shall be negotiated pursuant to the statutory process in
section 105(m) and resulting construction project agree-
ments shall be incorporated into funding agreements as
addenda.
‘‘(c) CODES AND STANDARDS.—The Indian tribe and
the Secretary shall agree upon and specify appropriate
buildings codes and architectural/engineering standards
(including health and safety) which shall be in conformity
with nationally recognized standards for comparable
projects.
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‘‘(d) RESPONSIBILITY FOR COMPLETION.—The In-
dian tribe shall assume responsibility for the successful
completion of the construction project in accordance with
the negotiated construction project agreement.
‘‘(e) FUNDING.—Funding for construction projects
carried out under this title shall be included in funding
agreements as annual advance payments, with semiannual
payments at the option of the Indian tribe. Annual ad-
vance and semiannual payment amounts shall be deter-
mined based on mutually agreeable project schedules re-
flecting work to be accomplished within the advance pay-
ment period, work accomplished and funds expended in
previous payment periods, and the total prior payments.
The Secretary shall include associated project contingency
funds with each advance payment installment. The Indian
tribe shall be responsible for the management of the con-
tingency funds included in funding agreements.
‘‘(f) APPROVAL.—The Secretary shall have at least
one opportunity to approve project planning and design
documents prepared by the Indian tribe in advance of con-
struction of the facilities specified in the scope of work
for each negotiated construction project agreement or
amendment thereof which results in a significant change
in the original scope of work. The Indian tribe shall pro-
vide the Secretary with project progress and financial re-
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ports not less than semiannually. The Secretary may con-
duct on-site project oversight visits semiannually or on an
alternate schedule agreed to by the Secretary and the In-
dian tribe.
‘‘(g) WAGES.—All laborers and mechanics employed
by contractors and subcontractors in the construction, al-
teration, or repair, including painting or decorating of
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
prevailing wages on similar construction in the locality as
determined by the Secretary of Labor in accordance with
the Davis-Bacon Act of March 3, 1931 (46 Stat. 1494).
With respect to construction, alteration, or repair work to
which the Act of March 3, 1921, is applicable under the
terms of this section, the Secretary of Labor shall have
the authority and functions set forth in Reorganization
Plan Numbered 14, of 1950, and section 2 of the Act of
June 13, 1934 (48 Stat. 948).
‘‘(h) APPLICATION OF OTHER LAWS.—Unless other-
wise agreed to by the Indian tribe, no provision of the Of-
fice of Federal Procurement Policy Act, the Federal Ac-
quisition Regulations issued pursuant thereto, or any
other law or regulation pertaining to Federal procurement
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(including Executive orders) shall apply to any construc-
tion 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
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 sec-
tion 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 of the United States Code
(25 U.S.C. 81) and section 16 of the Act of June 18, 1934
(25 U.S.C. 476), shall not apply to attorney and other
professional contracts entered into by Indian tribes par-
ticipating in self-governance under this title.
‘‘(c) REFERENCES.—All references in the Indian
Self-Determination and Education Assistance Act (25
U.S.C. 450 et seq.) to section 1 of the Act of June 26,
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1936 (25 U.S.C. 81) are hereby deemed to include section
1 of the Act of July 3, 1952 (25 U.S.C. 82a).
‘‘SEC. 512. FACILITATION.
‘‘(a) SECRETARIAL INTERPRETATION.—Except as
otherwise provided by law, the Secretary shall interpret
all Federal laws, Executive orders and regulations in a
manner that will facilitate—
‘‘(1) the inclusion of programs, services, func-
tions, and activities (or portions thereof) 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) An Indian tribe may submit a written re-
quest to waive application of a regulation promul-
gated under this Act 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 under this Act sought
to be waived and the basis for the request.
‘‘(2) Not later than 90 days after receipt by the
Secretary of a written request by an Indian tribe to
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waive application of a regulation under this Act for
a compact or funding agreement entered into under
this title, the Secretary shall either approve or deny
the requested waiver in writing. A denial may be
made only upon a specific finding by the Secretary
that identified language in the regulation may not be
waived 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 deci-
sion shall be final for the Department.
‘‘(c) ACCESS TO FEDERAL PROPERTY.—In connec-
tion with any compact or funding agreement executed pur-
suant 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 1999, upon the re-
quest of an Indian tribe, the Secretary—
‘‘(1) shall permit an Indian tribe to use existing
school buildings, hospitals, and other facilities and
all equipment therein or appertaining thereto and
other personal property owned by the Government
within the Secretary’s jurisdiction under such terms
and conditions as may be agreed upon by the Sec-
retary and the tribe for their use and maintenance;
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‘‘(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—
‘‘(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
agreement or purchased with funds under any
compact or funding agreement shall, unless oth-
erwise requested by the Indian tribe, vest in the
appropriate 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 retroces-
sion, withdrawal, or reassumption, title to such
property and equipment shall revert to the De-
partment 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
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‘‘(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
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
agreements, or grants made pursuant to this Act, shall
be treated as non-Federal funds for purposes of meeting
matching or cost participation requirements under any
other Federal or non-Federal program.
‘‘(e) STATE FACILITATION.—States are hereby au-
thorized and encouraged to enact legislation, and to enter
into agreements with Indian tribes to facilitate and supple-
ment the initiatives, programs, and policies authorized by
this 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
agreement shall be liberally construed for the benefit of
the Indian tribe participating in self-governance and any
ambiguity shall be resolved in favor of the Indian tribe.
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‘‘SEC. 513. BUDGET REQUEST.
‘‘(a) IN GENERAL.—The President shall identify in
the annual budget request submitted to the Congress
under section 1105 of title 31, United States Code, all
funds necessary to fully fund all funding agreements au-
thorized under this title, including funds specifically iden-
tified to fund tribal base budgets. All funds so appro-
priated shall be apportioned to the Indian Health Service.
Such funds shall be provided to the Office of Tribal Self-
Governance which shall be responsible for distribution of
all funds provided under section 505. Nothing in this pro-
vision shall be construed to authorize the Indian Health
Service to reduce the amount of funds that a self-govern-
ance tribe is otherwise entitled to receive under its funding
agreement or other applicable law, whether or not such
funds are made available to the Office of Tribal Self-Gov-
ernance 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 (in-
cluding direct program and contract support costs) for
each Indian tribe, either directly by the Secretary, under
self-determination contracts, or under compacts and fund-
ing agreements authorized under this title.
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‘‘SEC. 514. REPORTS.
‘‘(a) ANNUAL REPORT.—Not later than January 1
of each year after the date of the enactment of this title,
the Secretary shall submit to the Committee on Resources
of the House of Representatives and the Committee on
Indian Affairs of the Senate a written report regarding
the administration of this title. Such report shall include
a detailed analysis of the level of need being presently
funded or unfunded for each Indian tribe, either directly
by the Secretary, under self-determination contracts under
title I, or under compacts and funding agreements author-
ized under this Act. In compiling reports pursuant to this
section, the Secretary may not impose any reporting re-
quirements on participating Indian tribes or tribal organi-
zations, not otherwise provided in this Act.
‘‘(b) CONTENTS.—The report shall be compiled from
information contained in funding agreements, annual
audit reports, and Secretarial data regarding the disposi-
tion of Federal funds and shall—
‘‘(1) identify the relative costs and benefits of
self-governance;
‘‘(2) identify, with particularity, all funds that
are specifically or functionally related to the provi-
sion by the Secretary of services and benefits to self-
governance Indian tribes and their members;
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‘‘(3) identify the funds transferred to each self-
governance Indian tribe and the corresponding re-
duction in the Federal bureaucracy;
‘‘(4) identify the funding formula for individual
tribal shares of all headquarters funds, together with
the comments of affected Indian tribes or tribal or-
ganizations, developed under subsection (c);
‘‘(5) identify amounts expended in the pre-
ceding fiscal year to carry out inherent Federal
functions, including an identification of those func-
tions by type and location;
‘‘(6) 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 in-
clusion in self-governance compacts or funding
agreements;
‘‘(7) prior to being submitted to Congress, be
distributed to the Indian tribes for comment, such
comment period to be for no less than 30 days; and
‘‘(8) 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 the enactment
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of this title, the Secretary shall, after consultation with
Indian tribes, submit a written report to the Committee
on Resources of the House of Representatives and the
Committee on Indian Affairs of the Senate which describes
the method or methods 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 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 Indian tribe that alleges that a compact or funding
agreement is in violation of this section may apply the pro-
visions of section 110.
‘‘(b) FEDERAL TRUST AND TREATY RESPONSIBIL-
ITIES.—Nothing in this Act shall be construed to diminish
in any way the trust responsibility of the United States
to Indian tribes and individual Indians that exists under
treaties, Executive orders, or other laws and court deci-
sions.
‘‘(c) TRIBAL EMPLOYMENT.—For purposes of section
2(2) of the Act of July 5, 1935 (49 Stat. 450, chapter
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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 consid-
ered an employer.
‘‘(d) OBLIGATIONS OF THE UNITED STATES.—The
Indian 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
sections 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 Public Law 101–512 (coverage under the Federal Tort
Claims Act), to the extent not in conflict with this title,
shall apply to compacts and funding agreements author-
ized by this title.
‘‘(b) DISCRETIONARY APPLICATION.—At the request
of a participating Indian tribe, any other provision of title
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 obli-
gated to include such provision at the option of the partici-
pating Indian tribe or tribes. If such provision is incor-
porated it shall have the same force and effect as if it
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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) Not later than 90 days after the date of
the enactment of this title, the Secretary shall ini-
tiate procedures under subchapter III of chapter 5
of title 5, United States Code, to negotiate and pro-
mulgate such regulations as are necessary to carry
out this title.
‘‘(2) Proposed regulations to implement this
title shall be published in the Federal Register by
the Secretary no later than 1 year after the date of
the enactment of this title.
‘‘(3) The authority to promulgate regulations
under this title shall expire 21 months after the date
of the enactment of this title.
‘‘(b) COMMITTEE.—A negotiated rulemaking com-
mittee established pursuant to section 565 of title 5,
United States Code, to carry out this section shall have
as its members only Federal and tribal government rep-
resentatives, a majority of whom shall be nominated by