‘‘(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).
‘‘(f) OTHER RESOURCES.—In the event an Indian
tribe elects to carry out a compact or funding agreement
with the use of Federal personnel, Federal supplies (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 and shall acquire and transfer such
personnel, supplies, or resources to the Indian tribe.
‘‘(g) REIMBURSEMENT
TO INDIAN HEALTH SERV-
ICE.—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 ad-
vance with subsequent adjustment, and the reimbursements
received therefrom, along with the funds received from the
Indian tribe pursuant to this title, may be credited to the
same or subsequent appropriation account which provided
the funding, such amounts to remain available until ex-
pended.
‘‘(h) 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.
‘‘(i) 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.
‘‘(j) CARRYOVER 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 diminish the amount of
funds the Indian tribe is authorized to receive under its
funding agreement in that or any subsequent fiscal year.
‘‘(k) 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 Medicaid and Medicare 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.
‘‘(l) LIMITATION OF COSTS.—An Indian tribe shall not
be obligated to continue performance that requires an ex-
penditure 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. 510. CONSTRUCTION PROJECTS.
‘‘(a) IN GENERAL.—Unless agreed to by the partici-
pating Indian tribe, no provision of the Office of Federal
Procurement Policy Act or the Federal acquisition regula-
tions or any other general law or regulation pertaining to
Federal procurement (including executive orders), shall
apply to any construction activity included in a compact
or funding agreement.
‘‘(b) HEALTH AND SAFETY STANDARDS.—In all con-
struction projects performed pursuant to this title, the par-
ties shall specify appropriate health and safety standards
relevant to the construction activity which shall be in con-
formity with nationally recognized standards for com-
parable projects.
‘‘SEC. 511. FEDERAL PROCUREMENT LAWS AND REGULA-
TIONS.
‘‘Notwithstanding any other provision of law, unless
expressly agreed to by the participating Indian tribe, the
compacts and funding agreements entered into under this
title shall not be subject to Federal contracting or coopera-
tive agreement laws and regulations (including executive
orders and the Secretary’s procurement regulations), except
to the extent that such laws expressly apply to Indian
tribes.
‘‘SEC. 512. 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.
‘‘SEC. 513. FACILITATION.
‘‘(a) SECRETARIAL INTERPRETATION.—Except as oth-
erwise 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 for a com-
pact or funding agreement entered into with the In-
dian Health Service under this title, to the Secretary
identifying the applicable Federal regulation 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
waive application of a regulation for a compact or
funding agreement entered into under this title, the
Secretary shall either approve or deny the requested
waiver in writing. A denial may be made only upon
a specific finding by the Secretary that identified lan-
guage in the regulation may not be waived because
such waiver is prohibited by Federal law. A failure
to approve or deny a waiver request not later than
90 days after receipt shall be deemed an approval of
such request. The Secretary’s decision shall be final
for the Department.
‘‘(c) ACCESS TO FEDERAL PROPERTY.—In connection
with any compact or funding agreement executed pursuant
to this title or an agreement negotiated under the Tribal
Self-Governance Project established under title III, as in ef-
fect before the enactment of the Tribal Self-Governance
Amendments of 1998, upon the request of an Indian tribe,
the Secretary—
‘‘(1) shall permit an Indian tribe to use existing
school buildings, hospitals, and other facilities and all
equipment therein or appertaining thereto and other
personal property owned by the Government within
the Secretary’s jurisdiction under such terms and con-
ditions as may be agreed upon by the Secretary and
the tribe for their use and maintenance;
‘‘(2) may donate to an Indian tribe title to any
personal or real property found to be excess to the
needs of any agency of the Department, or the Gen-
eral Services Administration, except that—
‘‘(A) subject to the provisions of subpara-
graph (B), title to property and equipment fur-
nished by the Federal Government for use in the
performance of the compact or funding agree-
ment or purchased with funds under any com-
pact or funding agreement shall, unless otherwise
requested by the Indian tribe, vest in the appro-
priate Indian tribe;
‘‘(B) if property described in subparagraph
(A) has a value in excess of $5,000 at the time
of retrocession, withdrawal, or reassumption, at
the option of the Secretary upon the retrocession,
withdrawal, or reassumption, title to such prop-
erty and equipment shall revert to the Depart-
ment of Health and Human Services; and
‘‘(C) all property referred to in subpara-
graph (A) shall remain eligible for replacement,
maintenance, and improvement on the same
basis as if title to such property were vested in
the United States; and
‘‘(3) shall acquire excess or surplus Government
personal or real property for donation to an Indian
tribe if the Secretary determines the property is ap-
propriate for use by the entity for any purpose for
which a compact or funding agreement is authorized
under this title.
‘‘(d) MATCHING OR COST-PARTICIPATION REQUIRE-
MENT.—All funds provided under compacts, funding agree-
ments, or grants made pursuant to this Act, shall be treated
as non-Federal funds for purposes of meeting matching or
cost participation requirements under any other Federal or
non-Federal program.
‘‘(e) STATE FACILITATION.—States are hereby author-
ized and encouraged to enact legislation, and to enter into
agreements with Indian tribes to facilitate and supplement
the initiatives, programs, and policies authorized by this
title and other Federal laws benefiting Indians and Indian
tribes.
‘‘(f) RULES OF CONSTRUCTION.—Each provision of
this title and each provision of a compact or funding agree-
ment shall be liberally construed for the benefit of the In-
dian tribe participating in Self-Governance and any ambi-
guity shall be resolved in favor of the Indian tribe.
‘‘SEC. 514. BUDGET REQUEST.
‘‘(a) IN GENERAL.—The President shall identify in the
annual budget request submitted to the Congress under sec-
tion 1105 of title 31, United States Code, all funds nec-
essary to fully fund all funding agreements authorized
under this title, including funds specifically identified to
fund tribal base budgets. All funds so identified shall be ap-
portioned to the Indian Health Service, Office of Tribal
Self-Governance. The Office shall be responsible for distribu-
tion of all funds provided under section 505. Nothing in
this provision shall be construed to authorize the IHS to
reduce the amount of funds that a Self-Governance tribe is
otherwise entitled to receive under its funding agreement
or other applicable law, whether or not such funds are ap-
portioned to the Office of Tribal Self-Governance under this
section.
‘‘(b) PRESENT
FUNDING; SHORTFALLS.—In such
budget request, the President shall identify the level of need
presently funded and any shortfall in funding (including
direct program and contract support costs) for each Indian
tribe in the United States, either directly by the Secretary,
under self-determination contracts, or under compacts and
funding agreements authorized under this title.
‘‘SEC. 515. REPORTS.
‘‘(a) ANNUAL REPORT.—The Secretary shall submit to
Congress on January 1 of each year following the date of
enactment of this title a written report regarding the ad-
ministration of this title. Such report shall include a de-
tailed report on the level of need being presently funded or
unfunded for each Indian tribe in the United States, either
directly by the Secretary, under self-determination con-
tracts under this Act, or under compacts and funding agree-
ments authorized under 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;
‘‘(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 central and headquarters funds, to-
gether with the comments of affected Indian tribes or
tribal organizations, developed under subsection (c);
‘‘(5) identify amounts expended in the preceding
fiscal year to carry out inherent Federal functions,
including an identification of those functions by type
and location;
‘‘(6) include the separate views and comments of
the Indian tribes or tribal organizations; and
‘‘(7) prior to being submitted to Congress, be dis-
tributed to the Indian tribes for comment, such com-
ment period to be for no less than 30 days.
In compiling this report the Secretary shall not impose any
reporting requirements on participating Indian tribes or
tribal organizations, not otherwise provided in this Act.
‘‘(c) REPORT ON IHS FUNDS.—Not later than 180
days after the date of enactment of this title, the Secretary
shall, in consultation with Indian tribes, report on funding
formula or formulas used to determine the individual tribal
share of funds controlled by all components of the Indian
Health Service (including funds assessed by any other Fed-
eral agency) for inclusion in Self-Governance compacts or
funding agreements. The Secretary shall include such for-
mula or formulas (or any revisions thereof) in the annual
report submitted to the Congress under subsection (b), to-
gether with the views of the affected Indian tribes and tribal
organizations.
‘‘SEC. 516. DISCLAIMERS.
‘‘(a) NO FUNDING REDUCTION.—Nothing in this title
shall be construed to limit or reduce in any way the funding
for any program, project, or activity serving an Indian
tribe under this or other applicable Federal law. Any In-
dian tribe that alleges that a compact or funding agreement
is in violation of this section may apply the provisions of
section 110.
‘‘(b) FEDERAL TRUST
AND TREATY RESPONSIBIL-
ITIES.—Nothing in this Act shall be construed to diminish
in any way the trust responsibility of the United States
to Indian tribes and individual Indians that exist under
treaties, Executive orders, or other laws and court decisions.
‘‘(c) TRIBAL EMPLOYMENT.—For purposes of section
2(2) of the Act of July 5, 1935 (49 Stat. 450, chapter 372)
(commonly known as the National Labor Relations Act),
an Indian tribe carrying out a self-determination contract,
compact, annual funding agreement, grant, or cooperative
agreement under this Act shall not be considered an em-
ployer.
‘‘(d) OBLIGATIONS OF THE UNITED STATES.—The In-
dian Health Service shall neither bill nor charge those Indi-
ans who may have the economic means to pay for services,
nor require any Indian tribe to do so.
‘‘SEC. 517. APPLICATION OF OTHER SECTIONS OF THE ACT.
‘‘(a) MANDATORY APPLICATION.—All provisions of sec-
tions 6, 7, 8, 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 authorized 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 obligated
to include such provision at the option of the participating
Indian tribe or tribes. If such provision is incorporated it
shall have the same force and effect as if it were set out
in full in this title. In the event an Indian tribe requests
such incorporation at the negotiation stage of a compact
or funding agreement, such incorporation shall be deemed
effective immediately and shall control the negotiation and
resulting compact and funding agreement.
‘‘SEC. 518. REGULATIONS.
‘‘(a) IN GENERAL.—
‘‘(1) Not later than 90 days after the date of en-
actment of this title, the Secretary shall initiate pro-
cedures under subchapter III of chapter 5 of title 5,
United States Code, to negotiate and promulgate such
regulations as are necessary to carry out this title.
‘‘(2) Proposed regulations to implement this title
shall be published in the Federal Register by the Sec-
retary no later than 1 year after the date of enact-
ment of this title.
‘‘(3) No regulations to implement this title may
be published unless they are recommended by the com-
mittee formed under subsection (b).
‘‘(4) The authority to promulgate regulations
under this title shall expire 21 months after the date
of enactment of this title.
‘‘(b) COMMITTEE.—A negotiated rulemaking commit-
tee established pursuant to section 565 of title 5, United
States Code, to carry out this section shall have as its mem-
bers only Federal and tribal government representatives, a
majority of whom shall be nominated by and be representa-
tives of Indian tribes with funding agreements under this
title, and the Committee shall confer with, and accommo-
date participation by, representatives of Indian tribes,
inter-tribal consortia, tribal organizations, and individual
tribal members.
‘‘(c) ADAPTATION OF PROCEDURES.—The Secretary
shall adapt the negotiated rulemaking procedures to the
unique context of Self-Governance and the government-to-
government relationship between the United States and In-
dian tribes.
‘‘(d) EFFECT.—The lack of promulgated regulations
shall not limit the effect of this title.
‘‘(e) EFFECT
OF CIRCULARS, POLICIES, MANUALS,
GUIDANCES, AND RULES.—Unless expressly agreed to by
the participating Indian tribe in the compact or funding
agreement, the participating Indian tribe shall not be sub-
ject to any agency circular, policy, manual, guidance, or
rule adopted by the Indian Health Service, except as pro-
vided in section 105(g) and 510.
‘‘SEC. 519. APPEALS.
‘‘In any appeal (including civil actions) involving de-
cisions made by the Secretary under this title, the Secretary
shall have the burden of proof of demonstrating by clear
and convincing evidence—
‘‘(1) the validity of the grounds for the decision
made; and
‘‘(2) the decision is fully consistent with provi-
sions and policies of this title.
‘‘SEC. 520. AUTHORIZATION OF APPROPRIATIONS.
‘‘There are authorized to be appropriated such sums
as may be necessary to carry out this title.’’.
SEC. 5. AMENDMENTS CLARIFYING CIVIL PROCEEDINGS.
(a) BURDEN
OF PROOF
IN DISTRICT COURT AC-
TIONS.—Section 102(e)(1) of the Indian Self-Determination
and Education Assistance Act (25 U.S.C. 450f(e)(1)) is
amended by inserting after ‘‘subsection (b)(3)’’ the follow-
ing: ‘‘or any civil action conducted pursuant to section
110(a)’’.
(b) CONFIRMATION
OF TRIAL
DE NOVO.—Section
110(a) of the Indian Self-Determination and Education As-
sistance Act (25 U.S.C. 450m–1) is amended by adding at
the end the following new sentence: ‘‘In any action brought
under this subsection, the district courts shall conduct a
trial de novo with full rights of discovery and proceed in
accordance with the Federal Rules of Civil Procedure.’’.
(c) EFFECTIVE DATE.—This section shall apply to any
proceedings commenced after October 25, 1994.
SEC. 6. REPEAL.
(a) IN GENERAL.—Title III of the Indian Self-Deter-
mination and Education Assistance Act (25 U.S.C. 450f
note) is hereby repealed.
(b) EFFECTIVE DATE.—This section shall take effect
on October 1, 1998.
SEC. 7. EFFECTIVE DATE.
Except as otherwise provided, the provisions of this Act
shall take effect on the date of the enactment of this Act.