Union Calendar No. 271
106TH CONGRESS
1ST SESSION
H. R. 1167
[Report No. 106–477]
A BILL
To amend the Indian Self-Determination and Edu-
cation Assistance Act to provide for further self-
governance by Indian tribes, and for other pur-
poses.
NOVEMBER 17, 1999
Reported with an amendment, committed to the Com-
mittee of the Whole House on the State of the Union,
and ordered to be printed
IB
Union Calendar No. 271
106TH CONGRESS
1ST SESSION
H. R. 1167
[Report No. 106–477]
To amend the Indian Self-Determination and Education Assistance Act to
provide for further self-governance by Indian tribes, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
MARCH 17, 1999
Mr. GEORGE MILLER of California (for himself, Mr. YOUNG of Alaska, Mr.
KILDEE, Mr. DEFAZIO, Mr. FALEOMAVAEGA, Mr. ABERCROMBIE, Mr.
ROMERO-BARCELO´, Mr. UNDERWOOD, Mr. KENNEDY of Rhode Island,
Mr. INSLEE, Mr. HAYWORTH, Mr. MCDERMOTT, Ms. PELOSI, Mr.
BROWN of California, Mr. OBERSTAR, Mr. FILNER, Mr. PASTOR, Mr.
FRANK of Massachusetts, Mr. MARTINEZ, Ms. STABENOW, Mr. TOWNS,
Mrs. MINK of Hawaii, Mr. PICKERING, Mr. ALLEN, Mr. STUPAK, and
Mr. FROST) introduced the following bill; which was referred to the Com-
mittee on Resources
NOVEMBER 17, 1999
Additional sponsors: Mr. WAXMAN, Mrs. CAPPS, Mrs. CHRISTENSEN, and Mr.
BLUMENAUER
NOVEMBER 17, 1999
Reported with an amendment, committed to the Committee of the Whole
House on the State of the Union, and ordered to be printed
[Strike out all after the enacting clause and insert the part printed in italic]
[For text of introduced bill, see copy of bill as introduced on March 17, 1999]
A BILL
To amend the Indian Self-Determination and Education As-
sistance Act to provide for further self-governance by
Indian tribes, and for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Tribal Self-Governance
Amendments of 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 govern-
ment-to-government relationship with Indian tribes,
including the right of the Indian tribes to self-govern-
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-
ing for Federal programs, services, functions, and ac-
tivities (or portions thereof)—
(A) is an appropriate and effective means of
implementing the Federal policy of government-
to-government relations with Indian tribes; and
(B) strengthens the Federal policy of Indian
self-determination.
SEC. 3. DECLARATION OF POLICY.
It is the policy of Congress to—
(1) permanently establish and implement tribal
self-governance within the Department of Health and
Human Services;
(2) call for full cooperation from the Department
of Health and Human Services and its constituent
agencies in the implementation of tribal self-
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;
(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 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 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 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 or-
ganized noncontinuous undertaking to complete a spe-
cific set of predetermined objectives for the planning,
environmental determination, design, construction,
repair, improvement, or expansion of buildings or fa-
cilities, as described in a construction project agree-
ment. The term ‘construction project’ does not mean
construction program administration and activities
described in paragraphs (1) through (3) of section
4(m), which may otherwise be included in a funding
agreement under this title;
‘‘(2) the term ‘construction project agreement’
means a negotiated agreement between the Secretary
and an Indian tribe which 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/
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
specified scope of work, which may be 1 or more
years;
‘‘(3) the term ‘inherent Federal functions’ means
those Federal functions which cannot legally be dele-
gated to Indian tribes;
‘‘(4) the term ‘inter-tribal consortium’ means a
coalition of two or more separate Indian tribes that
join together for the purpose of participating in self-
governance, including, but not limited to, a tribal or-
ganization;
‘‘(5) the term ‘gross mismanagement’ means a
significant, clear, and convincing violation of com-
pact, funding agreement, or regulatory, or statutory
requirements applicable to Federal funds transferred
to a tribe by a compact or funding agreement that re-
sults in a significant reduction of funds available for
the programs, services, functions, or activities (or por-
tions thereof) assumed by an Indian tribe;
‘‘(6) the term ‘tribal shares’ means an Indian
tribe’s portion of all funds and resources that support
secretarial programs, services, functions, and activi-
ties (or portions thereof) that are not required by the
Secretary for performance of inherent Federal func-
tions;
‘‘(7) the term ‘Secretary’ means the Secretary of
Health and Human Services; and
‘‘(8) the term ‘self-governance’ means the pro-
gram established pursuant to section 501.
‘‘(b) INDIAN TRIBE.—Where an Indian tribe has au-
thorized another Indian tribe, an inter-tribal consortium,
or a tribal organization to plan for or carry out programs,
services, functions, or activities (or portions thereof) on its
behalf under this title, the authorized Indian tribe, inter-
tribal consortium, or tribal organization shall have the
rights and responsibilities of the authorizing Indian tribe
(except as otherwise provided in the authorizing resolution
or in this title). In such event, the term ‘Indian tribe’ as
used in this title shall include such other authorized Indian
tribe, inter-tribal consortium, or tribal organization.
‘‘SEC. 503. SELECTION OF PARTICIPATING INDIAN TRIBES.
‘‘(a) CONTINUING PARTICIPATION.—Each Indian tribe
that is participating in the Tribal Self-Governance Dem-
onstration Project under title III on the date of enactment
of this title may elect to participate in self-governance
under this title under existing authority as reflected in trib-
al 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 en-
titled to participate in self-governance.
‘‘(2)(A) An Indian tribe that has withdrawn
from participation in an inter-tribal consortium or
tribal organization, in whole or in part, shall be enti-
tled to participate in self-governance provided the In-
dian 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 agree-
ment.
‘‘(C) In no event shall the withdrawal of an In-
dian tribe from an inter-tribal consortium or tribal
organization affect the eligibility of the inter-tribal
consortium or tribal organization to participate in
self-governance.
‘‘(c) APPLICANT POOL.—The qualified applicant pool
for self-governance shall consist of each Indian tribe that—
‘‘(1) successfully completes the planning phase
described in subsection (d);
‘‘(2) has requested participation in self-govern-
ance by resolution or other official action by the gov-
erning body (or bodies) of the Indian tribe or tribes
to be served; and
‘‘(3) has demonstrated, for the previous 3 fiscal
years, financial stability and financial management
capability.
Evidence that during such years the Indian tribe had no
uncorrected significant and material audit exceptions in
the required annual audit of the Indian tribe’s self-deter-
mination contracts or self-governance funding agreements
shall be conclusive evidence of the required stability and ca-
pability 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-
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 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-
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 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.—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 activities
(or portions thereof), that are carried out for the benefit
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, serv-
ices, functions, activities (or portions thereof) where Indian
tribes or Indians are primary or significant 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, re-
gional, and central headquarters or national office func-
tions administered under the authority of—
‘‘(1) the Act of November 2, 1921 (25 U.S.C. 13);
‘‘(2) the Act of April 16, 1934 (25 U.S.C. 452 et
seq.);
‘‘(3) the Act of August 5, 1954 (68 Stat. 674);
‘‘(4) the Indian Health Care Improvement Act
(25 U.S.C. 1601 et seq.);
‘‘(5) the Indian Alcohol and Substance Abuse
Prevention and Treatment Act of 1986 (25 U.S.C.
2401 et seq.);
‘‘(6) any other Act of Congress authorizing agen-
cies of the Department of Health and Human Serv-
ices to administer, carry out, or provide financial as-
sistance to such programs, functions, or activities (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, including those
to be provided on a recurring basis, the time and method
of transfer of the funds, the responsibilities of the Secretary,
and any other provisions to which the Indian tribe and the
Secretary agree.
‘‘(e) SUBSEQUENT FUNDING AGREEMENTS.—Absent
notification from an Indian tribe that is withdrawing or
retroceding the operation of one or more programs, services,
functions, or activities (or portions thereof) identified in a
funding agreement, or unless otherwise agreed to by the par-
ties, each funding agreement shall remain in full force and
effect until a subsequent funding agreement is executed, and
the terms of the subsequent funding agreement shall be ret-
roactive to the end of the term of the preceding funding
agreement.
‘‘(f) EXISTING FUNDING AGREEMENTS.—Each Indian
tribe participating in the Tribal Self-Governance 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 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.
‘‘(g) STABLE BASE FUNDING.—At the option of an In-
dian tribe, a funding agreement may provide for a stable
base budget specifying the recurring funds (including, for
purposes of this provision, funds available under section
106(a) of the Act) to be transferred to such Indian tribe,
for such period as may be specified in the funding agree-
ment, subject to annual adjustment only to reflect changes
in congressional appropriations by sub-sub activity exclud-
ing earmarks.
‘‘SEC. 506. 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.
‘‘(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 other provisions of law, or by any
exemptions to applicable Office of Management and
Budget Circulars subsequently granted by Office of
Management and Budget. No other audit or account-
ing standards shall be required by the Secretary. Any
claim by the Federal Government against the Indian
tribe relating to funds received under a funding
agreement based on any audit under this subsection
shall be subject to the 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
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 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 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 time frame specified by the parties in
the compact or funding agreement. In the absence of such
a specification, such retrocession shall become effective on—
‘‘(1) the earlier of—
‘‘(A) one year from the date of submission
of such request; or
‘‘(B) the date on which the funding agree-
ment expires; or
‘‘(2) such date as may be mutually agreed by the
Secretary and the Indian tribe.
‘‘(g) WITHDRAWAL.—
‘‘(1) PROCESS.—An Indian tribe may fully or
partially withdraw from a participating inter-tribal
consortium or tribal organization its share of any
program, function, service, or activity (or portions
thereof) included in a compact or funding agreement.
Such withdrawal shall become effective within the
time frame specified in the resolution which author-
izes transfer to the participating tribal organization
or inter-tribal consortium. In the absence of a specific
time frame set forth in the resolution, such with-
drawal shall become effective on—
‘‘(A) the earlier of—
‘‘(i) one year from the date of submis-
sion of such request; or
‘‘(ii) the date on which the funding
agreement expires; or
‘‘(B) such date as may be mutually agreed
upon by the Secretary, the withdrawing Indian
tribe, and the participating tribal organization
or inter-tribal consortium that has signed the
compact or funding agreement on behalf of the
withdrawing Indian tribe, inter-tribal consor-
tium, or tribal organization.
‘‘(2) DISTRIBUTION OF FUNDS.—When an In-
dian tribe or tribal organization eligible to enter into
a self-determination contract under title I or a com-
pact or funding agreement under this title fully or
partially withdraws from a participating inter-tribal
consortium or tribal organization, the withdrawing
Indian tribe or tribal organization shall be entitled to
its tribal share of funds supporting those programs,
services, functions, or activities (or portions thereof)
which it will be carrying out under its own self-deter-
mination contract or compact and funding agreement
(calculated on the same basis as the funds were ini-
tially allocated in the funding agreement of the inter-
tribal consortium or tribal organization), and such
funds shall be transferred from the funding agreement
of the inter-tribal consortium or tribal organization,
provided that the provisions of sections 102 and
105(i), as appropriate, shall apply to such with-
drawing Indian tribe.
‘‘(3) REGAINING MATURE CONTRACT STATUS.—If
an Indian tribe elects to operate all or some pro-
grams, services, functions, or activities (or portions
thereof) carried out under a compact or funding
agreement under this title through a self-determina-
tion contract under title I, at the option of the Indian
tribe, the resulting self-determination contract shall be
a mature self-determination contract.
‘‘(h) NONDUPLICATION.—For the period for which, and
to the extent to which, funding is provided under this title
or under the compact or funding agreement, the Indian
tribe shall not be entitled to contract with the Secretary
for such funds under section 102, except that such Indian
tribe shall be eligible for new programs on the same basis
as other Indian tribes.
‘‘SEC. 507. PROVISIONS RELATING TO THE SECRETARY.
‘‘(a) MANDATORY PROVISIONS.—
‘‘(1) HEALTH STATUS REPORTS.—Compacts or
funding agreements negotiated between the Secretary
and an Indian tribe shall include a provision that re-
quires the Indian tribe to report on health status and
service delivery—
‘‘(A) to the extent such data is not otherwise
available to the Secretary and specific funds for
this purpose are provided by the Secretary under
the funding agreement; and
‘‘(B) if such reporting shall impose mini-
mal burdens on the participating Indian tribe
and such requirements are promulgated under
section 517.
‘‘(2) REASSUMPTION—(A) Compacts and fund-
ing agreements negotiated between the Secretary and
an Indian tribe shall include a provision authorizing
the Secretary to reassume operation of a program,
service, function, or activity (or portions thereof) and
associated funding if there is a specific finding rel-
ative 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.
‘‘(B) The Secretary shall not reassume operation
of a program, service, function, or activity (or por-
tions thereof) unless (i) the Secretary has first pro-
vided 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, serv-
ice, function, or activity (or portion thereof) and asso-
ciated funding if (i) the Secretary makes a finding of
imminent substantial and irreparable endangerment
of the public health caused by an act or omission of
the Indian tribe; and (ii) the endangerment arises out
of a failure to carry out the compact or funding
agreement. If the Secretary reassumes operation of a
program, service, function, or activity (or portion
thereof) under this subparagraph, the Secretary shall
provide the tribe with a hearing on the record not
later than 10 days after such reassumption.
‘‘(D) In any hearing or appeal involving a deci-
sion to reassume operation of a program, service,
function, or activity (or portion thereof), the Sec-
retary shall have the burden of proof of demonstrating
by clear and convincing evidence the validity of the
grounds for the reassumption.
‘‘(b) FINAL OFFER.—In the event the Secretary and
a participating Indian tribe are unable to agree, in whole
or in part, on the terms of a compact or funding agreement
(including funding levels), the Indian tribe may submit a
final offer to the Secretary. 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.—If the Secretary
rejects an offer made under subsection (b) (or one or more
provisions or funding levels in such offer), the Secretary
shall provide—
‘‘(1) a timely written notification to the Indian
tribe that contains a specific finding that clearly
demonstrates, or that is supported by a controlling
legal authority, that—
‘‘(A) the amount of funds proposed in the
final offer exceeds the applicable funding level to
which the Indian tribe is entitled under this
title;
‘‘(B) the program, function, service, or ac-
tivity (or portion thereof) that is the subject of
the final offer is an inherent Federal function
that cannot legally be delegated to an Indian
tribe;
‘‘(C) the Indian tribe cannot carry out the
program, function, service, or activity (or por-
tion thereof) in a manner that would not result
in 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 paragraph
(1);
‘‘(3) the Indian tribe with a hearing on the
record with the right to engage in full discovery rel-
evant to any issue raised in the matter and the op-
portunity for appeal on the objections raised, pro-
vided that the Indian tribe may, in lieu of filing such
appeal, directly proceed to initiate an action in a
Federal district court pursuant to section 110(a); and
‘‘(4) the Indian tribe with the option of entering
into the severable portions of a final proposed com-
pact or funding agreement, or provision thereof, (in-
cluding lesser funding amount, if any), that the Sec-
retary did not reject, subject to any additional alter-
ations necessary to conform the compact or funding
agreement to the severed provisions. If an Indian
tribe exercises the option specified herein, it shall re-
tain the right to appeal the Secretary’s rejection
under this section, and paragraphs (1), (2), and (3)
shall only apply to that portion of the proposed final
compact, funding agreement or provision thereof that
was rejected by the Secretary.
‘‘(d) BURDEN OF PROOF.—With respect to any hear-
ing or appeal or civil action conducted pursuant to this
section, the Secretary shall have the burden of 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, consistent with section 3.
‘‘(f) SAVINGS.—To the extent that programs, functions,
services, or activities (or portions thereof) carried out by
Indian tribes under this title reduce the administrative or
other responsibilities of the Secretary with respect to the
operation of Indian programs and result in savings that
have not otherwise been included in the amount of tribal
shares and other funds determined under section 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—
‘‘(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 is hereby
authorized to employ, upon tribal request, multiyear fund-
ing agreements, and references in this title to funding agree-
ments shall include such multiyear 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 sections 106(a)(2),
(a)(3), (a)(5), and (a)(6), including any funds that are spe-
cifically or functionally related to the provision by the Sec-
retary of services and benefits to the Indian tribe or its
members, all without regard to the organizational level
within the Department where such functions are carried
out.
‘‘(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—
‘‘(A) to make funding available for self-gov-
ernance 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, including
Federal pay costs, Federal employee retirement
benefits, automated data processing, technical as-
sistance, and monitoring of activities under this
Act; or
‘‘(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 (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 is authorized to 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 is
authorized to provide goods and services to the Indian tribe,
on a reimbursable basis, including payment in advance
with subsequent adjustment, and the reimbursements re-
ceived therefrom, along with the funds received from the In-
dian 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 Act 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 one
year to the next, such carryover shall not diminish the
amount of funds the Indian tribe is authorized to receive
under its funding agreement in that or any subsequent 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 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 program in-
come 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 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
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, the Historic Preservation Act, and related provisions
of law that would apply if the Secretary were to undertake
a construction project, by adopting a resolution (1) desig-
nating 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 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
buildings codes and architectural/engineering standards
(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 one
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
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 on-site 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 build-
ing 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 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 author-
ity and functions set forth in Reorganization Plan Num-
bered 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 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
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 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 con-
tracts entered into by Indian tribes participating 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, 1936 (25