103D CONGRESS
2D SESSION
H. R. 4842
AN ACT
To specify the terms of contracts entered into by the United
States and Indian tribal organizations under the Indian
Self-Determination and Education Assistance Act and
to provide for tribal Self-Governance, and for other pur-
poses.
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 ‘‘Indian Self-Determina-
tion Act Amendments of 1994’’.
TITLE 
I—INDIAN 
SELF-DETER-
MINATION ACT CONTRACTS
SEC. 101. SHORT TITLE.
This title may be cited as the ‘‘Indian Self-Deter-
mination Contract Reform Act of 1994’’.
SEC. 102. GENERAL AMENDMENTS.
The Indian Self-Determination and Education Assist-
ance Act (25 U.S.C. 450 et seq.) is amended—
(1) in section 4—
(A) in subsection (g), by striking ‘‘indirect
costs rate’’ and inserting ‘‘indirect cost rate’’;
(B) by striking ‘‘and’’ at the end of sub-
section (k);
(C) by striking the period at the end of
subsection (l) and inserting ‘‘; and’’; and
(D) by adding at the end the following new
subsection:
‘‘(m) ‘construction contract’ means a fixed-price or
cost-reimbursement self-determination contract for a con-
struction project, except that such term does not include
any contract—
‘‘(1) that is limited to providing planning serv-
ices and construction management services (or a
combination of such services);
‘‘(2) for the Housing Improvement Program or
roads maintenance program of the Bureau of Indian
Affairs administered by the Secretary of the Inte-
rior; or
‘‘(3) for the health facility maintenance and im-
provement program administered by the Secretary of
Health and Human Services.’’;
(2) by striking subsection (f) of section 5 and
inserting the following new subsection:
‘‘(f)(1) For each fiscal year during which an Indian
tribal organization receives or expends funds pursuant to
a contract entered into, or grant made, under this Act,
the tribal organization that requested such contract or
grant shall submit to the appropriate Secretary a single-
agency audit report required by chapter 75 of title 31,
United States Code.
‘‘(2) In addition to submitting a single-agency audit
report pursuant to paragraph (1), a tribal organization re-
ferred to in such paragraph shall submit such additional
information concerning the conduct of the program, func-
tion, service, or activity carried out pursuant to the con-
tract or grant that is the subject of the report as the tribal
organization may negotiate with the Secretary.
‘‘(3) Any disagreement over reporting requirements
shall be subject to the declination criteria and procedures
set forth in section 102.’’;
(3) in section 7(a), by striking ‘‘of subcontrac-
tors’’ and inserting in lieu thereof ‘‘or subcontrac-
tors (excluding tribes and tribal organizations)’’;
(4) at the end of section 7, add the following
new subsection:
‘‘(c) Notwithstanding subsections (a) and (b), with
respect to any self-determination contract, or portion of
a self-determination contract, that is intended to benefit
one tribe, the tribal employment or contract preference
laws adopted by such tribe shall govern with respect to
the administration of the contract or portion of the con-
tract.’’;
(5) at the end of section 102(a)(1), add the fol-
lowing new flush sentence:
‘‘The programs, functions, services, or activities that are
contracted under this paragraph shall include administra-
tive functions of the Department of the Interior and the
Department of Health and Human Services (whichever is
applicable) that support the delivery of services to Indians,
including those administrative activities supportive of, but
not included as part of, the service delivery programs de-
scribed in this paragraph that are otherwise contractable.
The administrative functions referred to in the preceding
sentence shall be contractable without regard to the orga-
nizational level within the department that carries out
such functions.’’;
(6) in section 102(a)—
(A) in paragraph (2)—
(i) in the first sentence, by inserting
‘‘, or a proposal to amend or renew a self-
determination contract,’’ before ‘‘to the
Secretary for review’’;
(ii) in the second sentence—
(I) by striking ‘‘The’’ and insert-
ing ‘‘Subject to the provisions of para-
graph (4), the’’;
(II) by inserting ‘‘and award the
contract’’ after ‘‘approve the pro-
posal’’;
(III) by striking ‘‘, within sixty
days of receipt of the proposal,’’; and
(IV) by striking ‘‘a specific find-
ing is made that’’ and inserting ‘‘the
Secretary provides written notification
to the applicant that contains a spe-
cific finding that clearly demonstrates
that, or that is supported by a con-
trolling legal authority that’’;
(iii) in subparagraph (B), by striking
‘‘or’’ after the semicolon;
(iv) in subparagraph (C), by striking
the period at the end and inserting a semi-
colon;
(v) by adding at the end the following
new subparagraphs:
‘‘(D) the amount of funds proposed under
the contract is in excess of the applicable fund-
the preceding sentence shall ensure structural integrity,
accountability of funds, adequate competition for sub-
contracting under tribal or other applicable law, the com-
mencement, performance, and completion of the contract,
adherence to project plans and specifications (including
any applicable Federal construction guidelines and manu-
als), the use of proper materials and workmanship, nec-
essary inspection and testing, and changes, modifications,
stop work, and termination of the work when warranted.’’;
and
(B) by adding at the end the following new
paragraph:
‘‘(4) The Secretary shall approve any severable por-
tion of a contract proposal that does not support a declina-
tion finding described in paragraph (2). If the Secretary
determines under such paragraph that a contract pro-
posal—
‘‘(A) proposes in part to plan, conduct, or ad-
minister a program, function, service, or activity
that is beyond the scope of programs covered under
paragraph (1), or
‘‘(B) proposes a level of funding that is in ex-
cess of the applicable level determined under section
106(a),
subject to any alteration in the scope of the proposal that
the Secretary and the tribal organization agree to, the
Secretary shall, as appropriate, approve such portion of
the program, function, service, or activity as is authorized
under paragraph (1) or approve a level of funding author-
ized under section 106(a). If a tribal organization elects
to carry out a severable portion of a contract proposal pur-
suant to this paragraph, subsection (b) shall only apply
to the portion of the contract that is declined by the Sec-
retary pursuant to this subsection.’’;
(7) in section 102(b)(3)—
(A) by inserting after ‘‘record’’ the follow-
ing: ‘‘with the right to engage in full discovery
relevant to any issue raised in the matter’’; and
(B) by inserting before the period the fol-
lowing: ‘‘, except that the tribe or tribal organi-
zation may, in lieu of filing such appeal, exer-
cise the option to initiate an action in a Federal
district court and proceed directly to such court
pursuant to section 110(a)’’;
(8) in section 102(d), by striking ‘‘as provided
in section 2671 of title 28)’’ and inserting ‘‘as pro-
vided in section 2671 of title 28, United States
Code, and including an individual who provides
health care services pursuant to a personal services
contract with a tribal organization for the provision
of services in any facility owned, operated, or con-
structed under the jurisdiction of the Indian Health
Service)’’;
(9) by adding at the end of section 102 the fol-
lowing new subsection:
‘‘(e)(1) With respect to any hearing or appeal con-
ducted pursuant to subsection (b)(3), the Secretary shall
have the burden of proof to establish by clearly dem-
onstrating the validity of the grounds for declining the
contract proposal (or portion thereof).
‘‘(2) Notwithstanding any other provision of law, a
decision by an official of the Department of the Interior
or the Department of Health and Human Services, as ap-
propriate (referred to in this paragraph as the ‘Depart-
ment’) that constitutes final agency action and that relates
to an appeal within the Department that is conducted
under subsection (b)(3) shall be made either—
‘‘(A) 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-
cy (such as the Indian Health Service or the Bureau
of Indian Affairs) in which the decision that is the
subject of the appeal was made; or
‘‘(B) by an administrative judge.’’;
(10) by striking subsection (a) of section 105
and inserting the following new subsection:
‘‘(a)(1) Notwithstanding any other provision of law,
subject to paragraph (3), the contracts and cooperative
agreements entered into with tribal organizations pursu-
ant to section 102 shall not be subject to Federal contract-
ing or cooperative agreement laws (including any regula-
tions), except to the extent that such laws expressly apply
to Indian tribes.
‘‘(2) Program standards applicable to a nonconstruc-
tion self-determination contract shall be set forth in the
contract proposal and the final contract of the tribe or
tribal organization.
‘‘(3)(A) With respect to a construction contract (or
a subcontract of such a construction contract), the provi-
sions of the Office of Federal Procurement Policy Act (41
U.S.C. 401 et seq.) and the regulations relating to acquisi-
tions promulgated under such Act shall apply only to the
extent that the application of such provision to the con-
struction contract (or subcontract) is—
‘‘(i) necessary to ensure that the contract may
be carried out in a satisfactory manner;
‘‘(ii) directly related to the construction activity;
and
‘‘(iii) not inconsistent with this Act.
‘‘(B) A list of the Federal requirements that meet
the requirements of clauses (i) through (iii) of subpara-
graph (A) shall be included in an attachment to the con-
tract pursuant to negotiations between the Secretary and
the tribal organization.
‘‘(C)(i) Except as provided in subparagraph (B), no
Federal law listed in clause (ii) or any other provision of
Federal law (including an Executive order) relating to ac-
quisition by the Federal Government shall apply to a con-
struction contract that a tribe or tribal organization enters
into under this Act, unless expressly provided in such law.
‘‘(ii) The laws listed in this paragraph are as follows:
‘‘(I) The Federal Property and Administrative
Services Act of 1949 (40 U.S.C. 471 et seq.).
‘‘(II) Section 3709 of the Revised Statutes.
‘‘(III) Section 9(c) of the Act of Aug. 2, 1946
(60 Stat. 809, chapter 744).
‘‘(IV) Title III of the Federal Property and Ad-
ministrative Services Act of 1949 (63 Stat. 393 et
seq., chapter 288).
‘‘(V) Section 13 of the Act of Oct. 3, 1944 (58
Stat. 770; chapter 479).
‘‘(VI) Chapters 21, 25, 27, 29, and 31 of title
44, United States Code.
‘‘(VII) Section 2 of the Act of June 13, 1934
(48 Stat 948, chapter 483).
‘‘(VIII) Sections 1 through 12 of the Act of
June 30, 1936 (49 Stat. 2036 et seq. chapter 881).
‘‘(IX) The Service Control Act of 1965 (41
U.S.C. 351 et seq.).
‘‘(X) The Small Business Act (15 U.S.C. 631
et seq.).
‘‘(XI) Executive Order Nos. 12138, 11246,
11701 and 11758.’’;
(11) by striking subsection (e) and inserting the
following new subsection:
‘‘(e) If an Indian tribe, or a tribal organization au-
thorized by a tribe, requests retrocession of the appro-
priate Secretary for any contract or portion of a contract
entered into pursuant to this Act, unless the tribe or tribal
organization rescinds the request for retrocession, such
retrocession shall become effective on—
‘‘(1) the earlier of—
‘‘(A) the date that is 1 year after the date
the Indian tribe or tribal organization submits
such request; or
‘‘(B) the date on which the contract ex-
pires; or
‘‘(2) such date as may be mutually agreed by
the Secretary and the Indian tribe.’’;
(12) by striking paragraph (2) of section 105(f)
and inserting the following new paragraph:
‘‘(2) donate to an Indian tribe or tribal organi-
zation title to any personal or real property found to
be excess to the needs of the Bureau of Indian Af-
fairs, the Indian Health Service, or the General
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 contract or purchased
with funds under any self-determination con-
tract or grant agreement shall, unless otherwise
requested by the tribe or tribal organization,
vest in the appropriate tribe or tribal organiza-
tion;
‘‘(B) if property described in subparagraph
(A) has a value in excess of $5,000 at the time
of the retrocession, rescission, or termination of
the self-determination contract or grant agree-
ment, at the option of the Secretary, upon the
retrocession, rescission, or termination, title to
such property and equipment shall revert to the
Department of the Interior or the Department
of Health and Human Services, as appropriate;
and
‘‘(C) all property referred to in subpara-
graph (A) shall remain eligible for replacement
on the same basis as if title to such property
were vested in the United States; and’’;
(13) by adding at the end of section 105 the
following new subsections:
‘‘(i)(1) If a self-determination contract requires the
Secretary to divide the administration of a program that
has previously been administered for the benefit of a
greater number of tribes than are represented by the tribal
organization that is a party to the contract, the Secretary
shall take such action as may be necessary to ensure that
services are provided to the tribes not served by a self-
determination contract, including program redesign in
consultation with the tribal organization and all affected
tribes.
‘‘(2) Nothing in this title shall be construed to limit
or reduce in any way the funding for any program, project,
or activity serving a tribe under this or other applicable
Federal law. Any tribe or tribal organization that alleges
that a self-determination contract is in violation of this
section may apply the provisions of section 110.
‘‘(j) Upon providing notice to the Secretary, a tribal
organization that carries out a nonconstruction self-deter-
mination contract may propose a redesign of a program,
activity, function, or service carried out by the tribal orga-
nization under the contract, including any nonstatutory
program standard, in such manner as to best meet the
local geographic, demographic, economic, cultural, health,
and institutional needs of the Indian people and tribes
served under the contract. The Secretary shall evaluate
any proposal to redesign any program, activity, function,
or service provided under the contract. With respect to de-
clining to approve a redesigned program, activity, func-
tion, or service under this subsection, the Secretary shall
apply the criteria and procedures set forth in section 102.
‘‘(k) For purposes of section 201(a) of the Federal
Property and Administrative Services Act of 1949 (40
U.S.C. 481(a)) (relating to Federal sources of supply, in-
cluding lodging providers, airlines and other transpor-
tation providers), a tribal organization carrying out a con-
tract, grant, or cooperative agreement under this Act shall
be deemed an executive agency when carrying out such
contract, grant, or agreement and the employees of the
tribal organization shall be eligible to have access to such
sources of supply on the same basis as employees of an
executive agency have such access.
‘‘(l)(1) Upon the request of an Indian tribe or tribal
organization, the Secretary shall enter into a lease with
the Indian tribe or tribal organization that holds title to,
a leasehold interest in, or a trust interest in, a facility
used by the Indian tribe or tribal organization for the ad-
ministration and delivery of services under this Act.
‘‘(2) The Secretary shall compensate each Indian
tribe or tribal organization that enters into a lease under
paragraph (1) for the use of the facility leased for the pur-
poses specified in such paragraph. Such compensation
may include rent, depreciation based on the useful life of
the facility, principal and interest paid or accrued, oper-
ation and maintenance expenses, and such other reason-
able expenses that the Secretary determines, by regula-
tion, to be allowable.
‘‘(m)(1) Each construction contract requested, ap-
proved, or awarded under this Act shall be subject to—
‘‘(A) except as otherwise provided in this Act,
the provisions of this Act, other than sections
102(a)(2), 106(l), 108 and 109; and
‘‘(B) section 314 of the Department of the In-
terior and Related Agencies Appropriations Act,
1991 (104 Stat. 1959).
‘‘(2) In providing technical assistance to tribes and
tribal organizations in the development of construction
contract proposals, the Secretary shall provide, not later
than 30 days after receiving a request from a tribe or trib-
al organization, all information available to the Secretary
regarding the construction project, including construction
drawings, maps, engineering reports, design reports, plans
of requirements, cost estimates, environmental assess-
ments or environmental impact reports, and archaeological
reports.
‘‘(3) Prior to finalizing a construction contract pro-
posal pursuant to section 102(a), and upon request of the
tribe or tribal organization that submits the proposal, the
Secretary shall provide for a precontract negotiation phase
in the development of a contract proposal. Such phase
shall include, at a minimum, the following elements:
‘‘(A) The provision of technical assistance pur-
suant to section 103 and paragraph (2).
‘‘(B) A joint scoping session between the Sec-
retary and the tribe or tribal organization to review
all plans, specifications, engineering reports, cost es-
timates, and other information available to the par-
ties, for the purpose of identifying all areas of agree-
ment and disagreement.
‘‘(C) An opportunity for the Secretary to revise
the plans, designs, or cost estimates of the Secretary
in response to concerns raised, or information pro-
vided by, the tribe or tribal organization.
‘‘(D) A negotiation session during which the
Secretary and the tribe or tribal organization shall
seek to develop a mutually agreeable contract pro-
posal.
‘‘(E) Upon the request of the tribe or tribal or-
ganization, the use of an alternative dispute resolu-
tion mechanism to seek resolution of all remaining
areas of disagreement pursuant to the dispute reso-
lution provisions under subchapter IV of chapter 5
of title 5, United States Code.
‘‘(F) The submission to the Secretary by the
tribe or tribal organization of a final contract pro-
posal pursuant to section 102(a).
‘‘(4)(A) Subject to subparagraph (B), in funding a
fixed-price construction contract pursuant to section
106(a), the Secretary shall provide for the following:
‘‘(i) The reasonable costs to the tribe or tribal
organization for general administration incurred in
connection with the project that is the subject of the
contract.
‘‘(ii) The ability of the contractor that carries
out the construction contract to make a reasonable
profit, taking into consideration the risks associated
with carrying out the contract and other relevant
considerations.
‘‘(B) In establishing a contract budget for a construc-
tion project, the Secretary shall not be required to sepa-
rately identify the components described in clauses (i) and
(ii) of subparagraph (A).
‘‘(C) The total amount awarded under a construction
contract shall reflect an overall fair and reasonable price
to the parties, including the following costs:
‘‘(i) The reasonable costs to the tribal organiza-
tion of performing the contract, taking into consider-
ation the terms of the contract and the requirements
of this Act and any other applicable law.
‘‘(ii) The costs of preparing the contract pro-
posal and supporting cost data.
‘‘(iii) The costs associated with auditing the
general and administrative costs of the tribal organi-
zation associated with the management of the con-
struction contract.
‘‘(iv) In the case of a fixed-price contract, a fair
profit determined by taking into consideration the
relevant risks and local market conditions.
‘‘(v) If the Secretary and the tribe or tribal or-
ganization are unable to develop a mutually agree-
able construction contract proposal pursuant to the
procedures set forth in this subsection, the tribe or
tribal organization may submit a final contract pro-
posal to the Secretary. Not later than 30 days after
receiving such final contract proposal, the Secretary
shall approve the contract proposal and award the
contract, unless, during such period the Secretary
declines the proposal pursuant to sections 102(a)(2)
and 102(b) of section 102 (including providing op-
portunity for an appeal pursuant to section 102(b)).
‘‘(n) Notwithstanding any other provision of law, the
rental rates for housing provided to an employee by the
Federal Government in Alaska pursuant to a self-deter-
mination contract shall be determined on the basis of—
‘‘(1) the reasonable value of the quarters and
facilities (as such terms are defined under section
5911 of title 5, United States Code) to such em-
ployee, and
‘‘(2) the circumstances under which such quar-
ters and facilities are provided to such employee,
as based on the cost of comparable private rental housing
in the nearest established community with a year-round
population of 1,500 or more individuals.’’;
(14) in section 106(a)—
(A) in paragraph (1), by inserting before
the period at the end the following: ‘‘, without
except that such funding shall not duplicate any funding
provided under section 106(a)(1).
‘‘(B) On an annual basis, during such period as a
tribe or tribal organization operates a Federal program,
function, service, or activity pursuant to a contract en-
tered into under this Act, the tribe or tribal organization
shall have the option to negotiate with the Secretary the
amount of funds that the tribe or tribal organization is
entitled to receive under such contract pursuant to this
paragraph.
‘‘(4) For each fiscal year during which a self-deter-
mination contract is in effect, any savings attributable to
the operation of a Federal program, function, service, or
activity under a self-determination contract by a tribe or
tribal organization (including a cost reimbursement con-
struction contract) shall—
‘‘(A) be used to provide additional services or
benefits under the contract; or
‘‘(B) be expended by the tribe or tribal organi-
zation in the succeeding fiscal year, as provided in
section 8.
‘‘(5) Subject to paragraph (6), during the initial year
that a self-determination contract is in effect, the amount
required to be paid under paragraph (2) shall include
startup costs consisting of the reasonable costs that have
been incurred or will be incurred on a one-time basis pur-
suant to the contract necessary—
‘‘(A) to plan, prepare for, and assume operation
of the program, function, service, or activity that is
the subject of the contract; and
‘‘(B) to ensure compliance with the terms of the
contract and prudent management.
‘‘(6) Costs incurred before the initial year that a self-
determination contract is in effect may not be included
in the amount required to be paid under paragraph (2)
if the Secretary does not receive a written notification of
the nature and extent of the costs prior to the date on
which such costs are incurred.’’;
(15) in section 106(c)—
(A) by striking ‘‘March 15’’ and inserting
‘‘May 15’’;
(B) in paragraphs (1) and (2), by striking
‘‘indirect costs’’ each place it appears and in-
serting ‘‘contract support costs’’;
(C) in paragraph (4), by striking ‘‘and’’ at
the end;
(D) in paragraph (5), by striking the pe-
riod at the end and inserting ‘‘; and’’; and
(E) by adding at the end the following new
paragraph:
‘‘(6) an accounting of any deficiency of funds
needed to maintain the preexisting level of services
to any tribes affected by contracting activities under
this Act, and a statement of the amount of funds
needed for transitional purposes to enable contrac-
tors to convert from a Federal fiscal year accounting
cycle to a different accounting cycle, as authorized
by section 105(d).’’;
(16) in section 106(f), by inserting immediately
after the second sentence the following new sentence:
‘‘For the purpose of determining the 365-day period
specified in this paragraph, an audit report shall be
deemed to have been received on the date of actual
receipt by the Secretary, if, within 60 days after re-
ceiving the report, the Secretary does not give notice
of a determination by the Secretary to reject the sin-
gle-agency report as insufficient due to noncompli-
ance with chapter 75 of title 31, United States
Code, or noncompliance with any other applicable
law.’’;
(17) by striking subsection (g) of section 106
and inserting the following new subsection:
‘‘(g) Upon the approval of a self-determination con-
tract, the Secretary shall add to the contract the full
amount of funds to which the contractor is entitled under
section 106(a), subject to adjustments for each subsequent
year that such tribe or tribal organization administers a
Federal program, function, service, or activity under such
contract.’’;
(18) by striking subsection (i) of section 106
and inserting the following new subsection:
‘‘(i) On an annual basis, the Secretary shall consult
with, and solicit the participation of, Indian tribes and
tribal organizations in the development of the budget for
the Indian Health Service and the Bureau of Indian Af-
fairs (including participation of Indian tribes and tribal
organizations in formulating annual budget requests that
the Secretary submits to the President for submission to
Congress pursuant to section 1105 of title 31, United
States Code).’’; and
(19) by adding at the end of section 106 the
following new subsections:
‘‘(j) Notwithstanding any other provision of law, a
tribal organization may use funds provided under a self-
determination contract to meet matching or cost participa-
tion requirements under other Federal and non-Federal
programs.
‘‘(k) Without intending any limitation, a tribal orga-
nization may, without the approval of the Secretary, ex-
pend funds provided under a self-determination contract
for the following purposes, to the extent that the expendi-
ture of the funds is supportive of a contracted program:
‘‘(1) Depreciation and use allowances not other-
wise specifically prohibited by law, including the de-
preciation of facilities owned by the tribe or tribal
organization.
‘‘(2) Publication and printing costs.
‘‘(3) Building, realty, and facilities costs, in-
cluding rental costs or mortgage expenses.
‘‘(4) Automated data processing and similar
equipment or services.
‘‘(5) Costs for capital assets and repairs.
‘‘(6) Management studies.
‘‘(7) Professional services, other than services
provided in connection with judicial proceedings by
or against the United States.
‘‘(8) Insurance and indemnification, including
insurance covering the risk of loss of or damage to
property used in connection with the contract with-
out regard to the ownership of such property.
‘‘(9) Costs incurred to raise funds or contribu-
tions from non-Federal sources for the purpose of
furthering the goals and objectives of the self-deter-
mination contract.
‘‘(10) Interest expenses paid on capital expendi-
tures such as buildings, building renovation, or ac-
quisition or fabrication of capital equipment, and in-
terest expenses on loans necessitated due to delays
by the Secretary in providing funds under a con-
tract.
‘‘(11) Expenses of a governing body of a tribal
organization that are attributable to the manage-
ment or operation of programs under this Act.
‘‘(12) Costs associated with the management of
pension funds, self-insurance funds, and other funds
of the tribal organization that provide for participa-
tion by the Federal Government.
‘‘(l) The Secretary may only suspend, withhold, or
delay the payment of funds for a period of 30 days begin-
ning on the date the Secretary makes a determination
under this paragraph to a tribal organization under a self-
determination contract, if the Secretary determines that
the tribal organization has failed to substantially carry out
the contract without good cause. In any such case, the
Secretary shall provide the tribal organization with rea-
sonable advance written notice, technical assistance (sub-
ject to available resources) to assist the tribal organiza-
tion, a hearing on the record not later than 10 days after
the date of such determination or such later date as the
tribal organization shall approve, and promptly release
any funds withheld upon subsequent compliance.
‘‘(2) With respect to any hearing or appeal conducted
pursuant to this subsection, the Secretary shall have the
burden of proof to establish by clearly demonstrating the
validity of the grounds for suspending, withholding, or de-
laying payment of funds.
‘‘(m) The program income earned by a tribal organi-
zation in the course of carrying out a self-determination
contract—
‘‘(1) shall be used by the tribal organization to
further the general purposes of the contract; and
‘‘(2) shall not be a basis for reducing the
amount of funds otherwise obligated to the contract.
‘‘(n) To the extent that programs, functions, services,
or activities carried out by tribal organizations pursuant
to contracts entered into under this Act reduce the admin-
istrative or other responsibilities of the Secretary with re-
spect to the operation of Indian programs and result in
savings that have not otherwise been included in the
amount of contract funds determined under subsection
(a), the Secretary shall make such savings available for
the provision of additional services to program bene-
ficiaries, either directly or through contractors, in a man-
ner equitable to both direct and contracted programs.
‘‘(o) Notwithstanding any other provision of law (in-
cluding any regulation), a tribal organization that carries
out a self-determination contract may, with respect to allo-
cations within the approved budget of the contract,
rebudget to meet contract requirements, if such
rebudgeting would not have an adverse effect on the per-
formance of the contract.’’.
SEC. 103. CONTRACT SPECIFICATIONS.
The Indian Self-Determination Education Assistance
Act (25 U.S.C. 450 et seq.) is amended by inserting after
section 107 the following new section:
‘‘SEC. 108. CONTRACT OR GRANT SPECIFICATIONS.
‘‘(a) Each self-determination contract entered into
under this Act shall—
‘‘(1) contain, or incorporate by reference, the
provisions of the model agreement described in sub-
section (c) (with modifications where indicated and
the blanks appropriately filled in), and
‘‘(2) contain such other provisions as are agreed
to by the parties.
‘‘(b) Notwithstanding any other provision of law, the
Secretary may make payments pursuant to section 1(b)(6)
of such model agreement. As provided in section 1(b)(7)
of the model agreement, the records of the tribal govern-
ment or tribal organization specified in such section shall
not be considered Federal records for purposes of chapter
5 of title 5, United States Code.
‘‘(c) The model agreement referred to in subsection
(a)(1) reads as follows:
‘‘ ‘SECTION 1. AGREEMENT BETWEEN THE SECRETARY AND
THE ll TRIBAL GOVERNMENT.
‘‘ ‘(a) AUTHORITY AND PURPOSE.—
‘‘ ‘(1) AUTHORITY.—This agreement, denoted a
Self-Determination Contract (referred to in this
agreement as the ‘‘Contract’’), is entered into by the
Secretary of the Interior or the Secretary of Health
and Human Services (referred to in this agreement
as the ‘‘Secretary’’), for and on behalf of the United
States pursuant to title I of the Indian Self-Deter-
mination and Education Assistance Act (25 U.S.C.
450 et seq.) and by the authority of the ll tribal
government or tribal organization (referred to in this
agreement as the ‘‘Contractor’’). The provisions of
title I of the Indian Self-Determination and Edu-
cation Assistance Act (25 U.S.C. 450 et seq.) are in-
corporated in this agreement.
‘‘ ‘(2) PURPOSE.—Each provision of the Indian
Self-Determination and Education Assistance Act
(25 U.S.C. 450 et seq.) and each provision of this
Contract shall be liberally construed for the benefit
of the Contractor to transfer the funding and the
following related functions, services, activities, and
programs (or portions thereof), that are otherwise
contractable under section 102(a) of such Act, in-
cluding all related administrative functions, from the
Federal Government to the Contractor: (List func-
tions, services, activities, and programs).
‘‘ ‘(b) TERMS, PROVISIONS, AND CONDITIONS.—
‘‘ ‘(1) TERM.—Pursuant to section 105(c)(1) of
the Indian Self-Determination and Education Assist-
ance Act (25 U.S.C. 450j(c)(1)), the term of this
contract shall be ll years. Pursuant to section
105(d)(1) of such Act (25 U.S.C. 450j(d)), upon the
election by the Contractor, the period of this Con-
tract shall be determined on the basis of a calendar
year, unless the Secretary and the Contractor agree
on a different period in the annual funding agree-
ment incorporated by reference in subsection (f)(2).
‘‘ ‘(2) EFFECTIVE DATE.—This Contract shall
become effective upon the date of the approval and
execution by the Contractor and the Secretary, un-
less the Contractor and the Secretary agree on an
effective date other than the date specified in this
paragraph.
‘‘ ‘(3) PROGRAM
STANDARD.—The Contractor
agrees to administer the program, services, functions
and activities (or portions thereof) listed in sub-
section (a)(2) of the Contract in conformity with the
following standards: (list standards).
‘‘ ‘(4) FUNDING AMOUNT.—Subject to the avail-
ability of appropriations, the Secretary shall make
available to the Contractor the total amount speci-
fied in the annual funding agreement incorporated
by reference in subsection (f)(2). Such amount shall
not be less than the applicable amount determined
pursuant to section 106(a) of the Indian Self-Deter-
mination and Education Assistance Act (25 U.S.C.
450j–1).
‘‘ ‘(5) LIMITATION OF COSTS.—The Contractor
shall not be obligated to continue performance that
requires an expenditure of funds in excess of the
amount of funds awarded under this Contract. If, at
any time, the Contractor has reason to believe that
the total amount required for performance of this
Contract or a specific activity conducted under this
Contract would be greater than the amount of funds
awarded under this Contract, the Contractor shall
provide reasonable notice to the appropriate Sec-
retary. If the appropriate Secretary does not take
such action as may be necessary to increase the
amount of funds awarded under this Contract, the
Contractor may suspend performance of the Con-
tract until such time as additional funds are award-
ed.
‘‘ ‘(6) PAYMENT.—
‘‘ ‘(A) IN
GENERAL.—Payments to the
Contractor under this Contract shall—
‘‘ ‘(i) be made as expeditiously as
practicable; and
‘‘ ‘(ii) include financial arrangements
to cover funding during periods covered by
joint resolutions adopted by Congress mak-
ing continuing appropriations, to the ex-
tent permitted by such resolutions.
‘‘ ‘(B) QUARTERLY, SEMIANNUAL, LUMP-
SUM, AND OTHER METHODS OF PAYMENT.—
‘‘ ‘(i) IN GENERAL.—Pursuant to sec-
tion 108(b) of the Indian Self-Determina-
tion and Education Assistance Act, and
notwithstanding any other provision of law,
for each fiscal year covered by this Con-
tract, the Secretary shall make available to
the Contractor the funds specified for the
fiscal year under the annual funding agree-
ment incorporated by reference pursuant
to subsection (f)(2) by paying to the Con-
tractor, on a quarterly basis, one-quarter
of the total amount provided for in the an-
nual funding agreement for that fiscal
year, in a lump-sum payment or as semi-
annual payments, or any other method of
payment authorized by law, in accordance
with such method as may be requested by
the Contractor and specified in the annual
funding agreement.
‘‘ ‘(ii) METHOD OF QUARTERLY PAY-
MENT.—If quarterly payments are speci-
fied in the annual funding agreement in-
corporated by reference pursuant to sub-
section (f)(2), each quarterly payment
made pursuant to clause (i) shall be made
on the first day of each quarter of the fis-
cal year, except that in any case in which
the contract year coincides with the Fed-
eral fiscal year, payment for the first quar-
ter shall be made not later than the date
that is 10 calendar days after the date on
which the Office of Management and
Budget apportions the appropriations for
the fiscal year for the programs, services,
functions, and activities subject to this
Contract.
‘‘ ‘(iii) APPLICABILITY.—Chapter 39
of title 31, United States Code, shall apply
to the payment of funds due under this
Contract and the annual funding agree-
ment referred to in clause (i).
‘‘ ‘(7) RECORDS AND MONITORING.—
‘‘ ‘(A) IN GENERAL.—Except for previously
provided copies of tribal records that the Sec-
retary demonstrates are clearly required to be
maintained as part of the recordkeeping system
of the Department of the Interior or the De-
partment of Health and Human Services (or
both), records of the Contractor shall not be
considered Federal records for purposes of
chapter 5 of title 5, United States Code.
‘‘ ‘(B) 
RECORDKEEPING
SYSTEM.—The
Contractor shall maintain a recordkeeping sys-
tem and, upon reasonable advance request, pro-
vide reasonable access to such records to the
Secretary.
‘‘ ‘(C) RESPONSIBILITIES
OF
CONTRAC-
TOR.—The Contractor shall be responsible for
managing the day-to-day operations conducted
under this Contract and for monitoring activi-
ties conducted under this Contract to ensure
compliance with the contract and applicable
Federal requirements. With respect to the mon-
itoring activities of the Secretary, the routine
monitoring visits shall be limited to not more
than one performance monitoring visit for this
Contract by the head of each operating division,
departmental bureau, or departmental agency,
or duly authorized representative of such head
unless—
‘‘ ‘(i) the Contractor agrees to one or
more additional visits; or
‘‘ ‘(ii) the appropriate official deter-
mines that there is reasonable cause to be-
lieve that grounds for reassumption of the
Contract, suspension of contract payments,
or other serious contract performance defi-
ciency may exist.
No additional visit referred to in clause (ii)
shall be made until such time as reasonable ad-
vance notice that includes a description of the
nature of the problem that requires the addi-
tional visit has been given to the Contractor.
‘‘ ‘(8) PROPERTY.—
‘‘ ‘(A) IN GENERAL.—As provided in sec-
tion 105(f) of the Indian Self-Determination
and Education Assistance Act (25 U.S.C.
450j(f)), at the request of the Contractor, the
Secretary may make available, or transfer to
the Contractor, all reasonably divisible real
property, facilities, equipment, and personal
property that the Secretary has used to provide
or administer the programs, services, functions,
and activities covered by this Contract. A mutu-
ally agreed upon list specifying the property, fa-
cilities, and equipment so furnished shall also
be prepared by the Secretary, with the concur-
rence of the Contractor, and periodically revised
by the Secretary, with the concurrence of the
Contractor.
‘‘ ‘(B) RECORDS.—The Contractor shall
maintain a record of all property referred to in
subparagraph (A) or other property acquired by
the Contractor under section 105(f)(2)(A) of
such Act for purposes of replacement.
‘‘ ‘(C) JOINT
USE
AGREEMENTS.—Upon
the request of the Contractor, the Secretary
and the Contractor shall enter into a separate
joint use agreement to address the shared use
by the parties of real or personal property that
is not reasonably divisible.
‘‘ ‘(D) ACQUISITION
OF
PROPERTY.—The
Contractor is granted the authority to acquire
such excess property as the Contractor may de-
termine to be appropriate in the judgment of
the Contractor to support the programs, serv-
ices, functions, and activities operated pursuant
to this Contract.
‘‘ ‘(E) CONFISCATED
OR
EXCESS
PROP-
ERTY.—The Secretary shall assist the Contrac-
tor in obtaining such confiscated or excess
property as may become available to tribes,
tribal organizations, or local governments.
‘‘ ‘(F) 
SCREENER
IDENTIFICATION
CARD.—A screener identification card (General
Services Administration form numbered 2946)
shall be issued to the Contractor not later than
the effective date of this Contract. The des-
ignated official shall, upon request, assist the
Contractor in securing the use of the card.
‘‘ ‘(G) CAPITAL
EQUIPMENT.—The Con-
tractor shall determine the capital equipment,
leases, rentals, property, or services the Con-
tractor requires to perform the obligations of
the Contractor under this subsection, and shall
acquire and maintain records of such capital
equipment, property rentals, leases, property, or
services through applicable procurement proce-
dures of the Contractor.
‘‘ ‘(9) 
AVAILABILITY
OF
FUNDS.—Notwith-
standing any other provision of law, any funds pro-
vided under this contract—
‘‘ ‘(A) shall remain available until ex-
pended; and
‘‘ ‘(B) with respect to such funds, no fur-
ther—
‘‘ ‘(i) approval by the Secretary, or
‘‘ ‘(ii) justifying documentation from
the Contractor, shall be required prior to
the expenditure of such funds.
‘‘ ‘(10) TRANSPORTATION.—Beginning on the
effective date of this Contract, the Secretary shall
authorize the Contractor to obtain interagency
motor pool vehicles and related services for perform-
ance of any activities carried out under this Con-
tract.
‘‘ ‘(11) FEDERAL PROGRAM GUIDELINES, MANU-
ALS, OR POLICY DIRECTIVES.—Except as specifically
provided in the Indian Self-Determination and Edu-
cation Assistance Act (25 U.S.C. 450 et seq.) the
Contractor is not required to abide by program
guidelines, manuals, or policy directives of the Sec-
retary, unless otherwise agreed to by the Contractor
and the Secretary, or otherwise required by law.
‘‘ ‘(12) DISPUTES.—
‘‘ ‘(A) 
THIRD-PARTY
MEDIATION
DE-
FINED.—For the purposes of this Contract, the
term ‘‘third-party mediation’’ means a form of
mediation whereby the Secretary and the Con-
tractor nominate a third party who is not em-
ployed by or significantly involved with the Sec-
retary of the Interior, the Secretary of Health
and Human Services, or the Contractor, to
serve as a third-party mediator to mediate dis-
putes under this Contract.
‘‘ ‘(B) 
ALTERNATIVE
PROCEDURES.—In
addition to, or as an alternative to, remedies
and procedures prescribed by section 110 of the
Indian Self-Determination and Education As-
sistance Act (25 U.S.C. 450m–1), the parties to
this Contract may jointly—
‘‘ ‘(i) submit disputes under this Con-
tract to third-party mediation;
‘‘ ‘(ii) submit the dispute to the adju-
dicatory body of the Contractor, including
the tribal court of the Contractor;
‘‘ ‘(iii) submit the dispute to mediation
processes provided for under the laws, poli-
cies, or procedures of the Contractor; or
‘‘ ‘(iv) use the administrative dispute
resolution processes authorized in sub-
chapter IV of chapter 5 of title 5, United
States Code.
‘‘ ‘(C) EFFECT OF DECISIONS.—The Sec-
retary shall be bound by decisions made pursu-
ant to the processes set forth in subparagraph
(B), except that the Secretary shall not be
bound by any decision that significantly con-
flicts with the interests of Indians or the United
States.
‘‘ ‘(13) ADMINISTRATIVE PROCEDURES OF CON-
TRACTOR.—Pursuant to the Indian Civil Rights Act
of 1968 (25 U.S.C. 1301 et seq.), the laws, policies,
and procedures of the Contractor shall provide for
administrative due process (or the equivalent of ad-
ministrative due process) with respect to programs,
services, functions, and activities that are provided
by the Contractor pursuant to this Contract.
‘‘ ‘(14) SUCCESSOR ANNUAL FUNDING AGREE-
MENT.—
‘‘ ‘(A) IN
GENERAL.—Negotiations for a
successor annual funding agreement, provided
for in subsection (f)(2), shall begin not later
than 120 days prior to the conclusion of the
preceding annual funding agreement. Except as
provided in section 105(c)(2) of the Indian Self-
Determination and Education Assistance Act
(25 U.S.C. 450j(c)(2)) the funding for each
such successor annual funding agreement shall
only be reduced pursuant to section 106(b) of
such Act (25 U.S.C. 450j–1(b)).
‘‘ ‘(B) INFORMATION.—The Secretary shall
prepare and supply relevant information, and
promptly comply with any request by the Con-
tractor for information that the Contractor rea-
sonably needs to determine the amount of funds
that may be available for a successor annual
funding agreement, as provided for in sub-
section (f)(2) of this Contract.
‘‘ ‘(15) CONTRACT
REQUIREMENTS; APPROVAL
BY SECRETARY.—
‘‘ ‘(A) IN GENERAL.—Except as provided
in subparagraph (B), for the term of the Con-
tract, section 2103 of the Revised Statutes (25
U.S.C. 81) and section 16 of the Act of June
18, 1934 (48 Stat. 987, chapter 576; 25 U.S.C.
476), shall not apply to any contract entered
into in connection with this Contract.
‘‘ ‘(B) REQUIREMENTS.—Each Contract
entered into by the Contractor with a third
party in connection with performing the obliga-
tions of the Contractor under this Contract
shall—
‘‘ ‘(i) be in writing;
‘‘ ‘(ii) identify the interested parties,
the authorities of such parties, and pur-
poses of the Contract;
‘‘ ‘(iii) state the work to be performed
under the Contract; and
‘‘ ‘(iv) state the process for making
any claim, the payments to be made, and
the terms of the Contract, which shall be
fixed.
‘‘ ‘(c) OBLIGATION OF THE CONTRACTOR.—
‘‘ ‘(1) CONTRACT
PERFORMANCE.—Except as
provided in subsection (d)(2), the Contractor shall
perform the programs, services, functions, and ac-
tivities as provided in the annual funding agreement
under subsection (f)(2) of this Contract.
‘‘ ‘(2) AMOUNT OF FUNDS.—The total amount
of funds to be paid under this Contract pursuant to
section 106(a) shall be determined in an annual
funding agreement entered into between the Sec-
retary and the Contractor, which shall be incor-
porated into this Contract.
‘‘ ‘(3) CONTRACTED PROGRAMS.—Subject to the
availability of appropriated funds, the Contractor
shall administer the programs, services, functions,
and activities identified in this Contract and funded
through the annual funding agreement under sub-
section (f)(2).
‘‘ ‘(4) TRUST SERVICES FOR INDIVIDUAL INDI-
ANS.—
‘‘ ‘(A) IN GENERAL.—To the extent that
the annual funding agreement provides funding
for the delivery of trust services to individual
Indians that have been provided by the Sec-
retary, the Contractor shall maintain at least
the same level of service as the Secretary pro-
vided for such individual Indians, subject to the
availability of appropriated funds for such serv-
ices.
‘‘ ‘(B) TRUST SERVICES TO INDIVIDUAL IN-
DIANS.—For the purposes of this paragraph
only, the term ‘‘trust services for individual In-
dians’’ means only those services that pertain to
land or financial management connected to in-
dividually held allotments.
‘‘ ‘(5) FAIR
AND
UNIFORM
SERVICES.—The
Contractor shall provide services under this Contract
in a fair and uniform manner and shall provide ac-
cess to an administrative or judicial body empowered
to adjudicate or otherwise resolve complaints, claims,
and grievances brought by program beneficiaries
against the Contractor arising out of the perform-
ance of the Contract.
‘‘ ‘(d) OBLIGATION OF THE UNITED STATES.—
‘‘ ‘(1) TRUST RESPONSIBILITY.—
‘‘ ‘(A) IN
GENERAL.—The United States
reaffirms the trust responsibility of the United
States to the ll Indian tribe(s) to protect
and conserve the trust resources of the Indian
tribe(s) and the trust resources of individual In-
dians.
‘‘ ‘(B) CONSTRUCTION
OF
CONTRACT.—
Nothing in this Contract may be construed to
terminate, waive, modify, or reduce the trust re-
sponsibility of the United States to the tribe(s)
or individual Indians. The Secretary shall act in
good faith in upholding such trust responsibil-
ity.
‘‘ ‘(2) GOOD FAITH.—To the extent that health
programs are included in this Contract, and within
available funds, the Secretary shall act in good faith
in cooperating with the Contractor to achieve the
goals set forth in the Indian Health Care Improve-
ment Act (25 U.S.C. 1601 et seq.).
‘‘ ‘(3) PROGRAMS
RETAINED.—As specified in
the annual funding agreement, the United States
hereby retains the programs, services, functions, and
activities with respect to the tribe(s) that are not
specifically assumed by the Contractor in the annual
funding agreement under subsection (f)(2).
‘‘ ‘(e) OTHER PROVISIONS.—
‘‘ ‘(1) DESIGNATED OFFICIALS.—Not later than
the effective date of this Contract, the United States
shall provide to the Contractor, and the Contractor
shall provide to the United States, a written des-
ignation of a senior official to serve as a representa-
tive for notices, proposed amendments to the Con-
tract, and other purposes for this Contract.
‘‘ ‘(2) CONTRACT
MODIFICATIONS
OR
AMEND-
MENT.—
‘‘ ‘(A) IN GENERAL.—Except as provided
in subparagraph (B), no modification to this
Contract shall take effect unless such modifica-
tion is made in the form of a written amend-
ment to the Contract, and the Contractor and
the Secretary provide written consent for the
modification.
‘‘ ‘(B) EXCEPTION.—The addition of sup-
plemental funds for programs, functions, and
activities (or portions thereof) already included
in the annual funding agreement under sub-
section (f)(2), and the reduction of funds pur-
suant to section 106(b)(2), shall not be subject
to subparagraph (A).
‘‘ ‘(3) OFFICIALS NOT TO BENEFIT.—No Mem-
ber of Congress, or resident commissioner, shall be
admitted to any share or part of any contract exe-
cuted pursuant to this Contract, or to any benefit
that may arise from such contract. This paragraph
may not be construed to apply to any contract with
a third party entered into under this Contract if
such contract is made with a corporation for the
general benefit of the corporation.
‘‘ ‘(4) 
COVENANT
AGAINST
CONTINGENT
FEES.—The parties warrant that no person or sell-
ing agency has been employed or retained to solicit
or secure any contract executed pursuant to this
Contract upon an agreement or understanding for a
commission, percentage, brokerage, or contingent
fee, excepting bona fide employees or bona fide es-
tablished commercial or selling agencies maintained
by the Contractor for the purpose of securing busi-
ness.
‘‘ ‘(f) ATTACHMENTS.—
‘‘ ‘(1) APPROVAL OF CONTRACT.—Unless pre-
viously furnished to the Secretary, the resolution of
the ll Indian tribe(s) authorizing the contracting
of the programs, services, functions, and activities
identified in this Contract is attached to this Con-
tract as attachment 1.
‘‘ ‘(2) ANNUAL FUNDING AGREEMENT.—
‘‘ ‘(A) IN GENERAL.—The annual funding
agreement under this Contract shall only con-
tain—
‘‘ ‘(i) terms that identify the pro-
grams, services, functions, and activities to
be performed or administered, the general
budget category assigned, the funds to be
provided, and the time and method of pay-
ment; and
‘‘ ‘(ii) such other provisions, including
a brief description of the programs, serv-
ices, functions, and activities to be per-
formed (including those supported by fi-
nancial resources other than those provided
by the Secretary), to which the parties
agree.
‘‘ ‘(B) INCORPORATION BY REFERENCE.—
The annual funding agreement is hereby incor-
porated in its entirety in this Contract and at-
tached to this Contract as attachment 2.’ ’’.
SEC. 104. ADDITIONAL AMENDMENTS.
The Indian Self-Determination and Education Assist-
ance Act (25 U.S.C. 450 et seq.), as amended by sections
102 and 103, is further amended—
(1) in section 109—
(A) by inserting after ‘‘pursuant to such
contract or grant agreement,’’ the following ‘‘or
in the management of trust fund, trust lands or
interests in such lands pursuant to such con-
tract or grant agreement,’’;
(B) by striking ‘‘action as prescribed by
him’’ and all that follows through ‘‘in such
cases, he’’ and inserting the following: ‘‘action
as prescribed by the Secretary to remedy the
contract deficiency, except that the appropriate
Secretary may, upon written notice to a tribal
organization, and the tribe served by the tribal
organization, immediately rescind a contract or
grant, in whole or in part, and resume control
or operation of a program, activity, function, or
service, if the Secretary finds that (i) there is
an immediate threat of imminent harm to the
safety of any person, or imminent substantial
and irreparable harm to trust funds, trust
lands, or interests in such lands, and (ii) such
threat arises from the failure of the contractor
to fulfill the requirements of the contract. In
such cases, the Secretary’’;
(C) by inserting after ‘‘rescind such con-
tract or grant agreement’’ the following: ‘‘, in
whole or in part,’’;
(D) by striking the second period after
‘‘the tribal organization may approve’’; and
(E) by inserting before the last sentence,
the following new sentence: ‘‘In any hearing or
appeal provided for under this section, the Sec-
retary shall have the burden of proof to estab-
lish, by clearly demonstrating the validity of the
grounds 
for 
rescinding, 
assuming, 
or
reassuming the contract that is the subject of
the hearing.’’;
(2) in section 110(a), by inserting immediately
before the period at the end the following: ‘‘(includ-
ing immediate injunctive relief to reverse a declina-
tion finding under section 102(a)(2) or to compel
the Secretary to award and fund an approved self-
determination contract)’’; and
(3) in section 110(d), by inserting immediately
before the period at the end the following: ‘‘, except
that all administrative appeals relating to such con-
tracts shall be heard by the Interior Board of Con-
tract Appeals established pursuant to section 8 of
such Act (41 U.S.C. 607)’’.
SEC. 105. REGULATIONS.
The Indian Self-Determination and Education Assist-
ance Act (25 U.S.C. 450 et seq.), as amended by sections
2 through 4, is further amended—
(1) by striking subsections (a) and (b) of sec-
tion 107 and inserting the following new subsections:
‘‘(a)(1) Except as may be specifically authorized in
this subsection, or in any other provision of this Act, the
Secretary of the Interior and the Secretary of Health and
Human Services may not promulgate any regulation, nor
impose any nonregulatory requirement, relating to self-de-
termination contracts or the approval, award, or declina-
tion of such contracts, except that the Secretary of the
Interior and the Secretary of Health and Human Services
may promulgate regulations under this Act relating to
chapter 171 of title 28, United States Code, commonly
known as the ‘Federal Tort Claims Act’, the Contract Dis-
putes Act of 1978 (41 U.S.C. 601 et seq.), declination and
waiver procedures, appeal procedures, reassumption proce-
dures, discretionary grant procedures for grants awarded
under section 103, property donation procedures arising
under section 105(f), internal agency procedures relating
to the implementation of this Act, retrocession and tribal
organization relinquishment procedures, contract proposal
contents, conflicts of interest, construction, programmatic
reports and data requirements, procurement standards,
property management standards, and financial manage-
ment standards.
‘‘(2)(A) The regulations promulgated under this Act,
including the regulations referred to in this subsection,
shall be promulgated—
‘‘(i) in conformance with sections 552 and 553
of title 5, United States Code and subsections (c),
(d), and (e) of this section; and
‘‘(ii) as a single set of regulations in title 25 of
the Code of Federal Regulations.
‘‘(B) The authority to promulgate regulations set
forth in this Act shall expire if final regulations are not
promulgated within 18 months after the date of enactment
of the Indian Self-Determination Contract Reform Act of
1994.
‘‘(b) The provisions of this Act shall supersede any
conflicting provisions of law (including any conflicting reg-
ulations) in effect on the day before the date of enactment
of the Indian Self-Determination Contract Reform Act of
1994, and the Secretary is authorized to repeal any regu-
lation inconsistent with the provisions of this Act.’’; and
(2) by adding at the end of section 107, the fol-
lowing new subsections:
‘‘(d)(1) In drafting and promulgating regulations as
provided in subsection (a) (including drafting and promul-
gating any revised regulations), the Secretary of the Inte-
rior and the Secretary of Health and Human Services
shall confer with, and allow for active participation by,
representatives of Indian tribes, tribal organizations, and
individual tribal members.
‘‘(2)(A) In carrying out rulemaking processes under
this Act, the Secretary of the Interior and the Secretary
of Health and Human Services shall follow the guidance
of—
‘‘(i) subchapter III of chapter 5 of title 5,
United States Code, commonly known as the ‘Nego-
tiated Rulemaking Act of 1990’; and
‘‘(ii) the recommendations of the Administrative
Conference of the United States numbered 82–4 and
85–5 entitled ‘Procedures for Negotiating Proposed
Regulations’ under sections 305.82–4 and 305.85–5
of title 1, Code of Federal Regulations, and any suc-
cessor recommendation or law (including any succes-
sor regulation).
‘‘(B) The tribal participants in the negotiation proc-
ess referred to in subparagraph (A) shall be nominated
by and shall represent the groups described in this para-
graph and shall include tribal representatives from all geo-
graphic regions.
‘‘(C) The negotiations referred to in subparagraph
(B) shall be conducted in a timely manner. Proposed regu-
lations to implement the amendments made by the Indian
Self-Determination Contract Reform Act of 1994 shall be
published in the Federal Register by the Secretary of the
Interior and the Secretary of Health and Human Services
not later than 180 days after the date of enactment of
such Act.
‘‘(D) Notwithstanding any other provision of law (in-
cluding any regulation), the Secretary of the Interior and
the Secretary of Health and Human Services are author-
ized to jointly establish and fund such interagency com-
mittees or other interagency bodies, including advisory
bodies comprised of tribal representatives, as may be nec-
essary or appropriate to carry out the provisions of this
Act.
‘‘(E) If the Secretary determines that an extension
of the deadlines under subsection (a)(2)(B) and subpara-
graph (C) of this paragraph is appropriate, the Secretary
may submit proposed legislation to Congress for the exten-
sion of such deadlines.
‘‘(e) The Secretary may, with respect to a contract
entered into under this Act, make exceptions in the regula-
tions promulgated to carry out this Act, or waive such reg-
ulations, if the Secretary finds that such exception or
waiver is in the best interest of the Indians served by the
contract or is consistent with the policies of this Act, and
is not contrary to statutory law. In reviewing each request,
the Secretary shall follow the timeline, findings, assist-
ance, hearing, and appeal procedures set forth in section
102.’’.
SEC. 106. CONFORMING AMENDMENTS.
Section 105(h) of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450j(h)) is amended
by striking ‘‘and the rules and regulations adopted by the
Secretaries of the Interior and Health and Human Serv-
ices pursuant to section 107 of this Act’’.
TITLE II—SELF-GOVERNANCE
SEC. 201. SHORT TITLE.
This title may be cited as the ‘‘Tribal Self-Govern-
ance Act of 1994’’.
SEC. 202. 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 tribes to self-gov-
ernance, 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 was designed to improve and perpetuate the
government-to-government relationship between In-
dian tribes and the United States and to strengthen
tribal control over Federal funding and program
management; and
(5) Congress has reviewed the results of the
Tribal Self-Governance Demonstration Project and
finds that—
(A) transferring control to tribal govern-
ments, upon tribal request, over funding and
decisionmaking for Federal programs, services,
functions, and activities, or portions thereof, is
an effective way to implement the Federal pol-
icy of government-to-government relations with
Indian tribes; and
(B) transferring control to tribal govern-
ments, upon tribal request, over funding and
decisionmaking for Federal programs, services,
functions, and activities strengthens the Fed-
eral policy of Indian self-determination.
SEC. 203. DECLARATION OF POLICY.
It is the policy of this title to permanently establish
and implement tribal self-governance—
(1) to enable the United States to maintain and
improve its unique and continuing relationship with,
and responsibility to, Indian tribes;
(2) to permit each Indian tribe to choose the
extent of the participation of such tribe in self-
governance;
(3) to coexist with the provisions of the Indian
Self-Determination Act relating to the provision of
Indian services by designated Federal agencies;
(4) to ensure the continuation of the trust re-
sponsibility of the United States to Indian tribes and
Indian individuals;
(5) to permit an orderly transition from Federal
domination of programs and services to provide In-
dian tribes with meaningful authority to plan, con-
duct, redesign, and administer programs, services,
functions, and activities that meet the needs of the
individual tribal communities; and
(6) to provide for an orderly transition through
a planned and measurable parallel reduction in the
Federal bureaucracy.
SEC. 204. TRIBAL SELF-GOVERNANCE.
The Indian Self-Determination and Education Assist-
ance Act is amended by adding at the end the following
new title:
‘‘TITLE IV—TRIBAL SELF-
GOVERNANCE
‘‘SEC. 401. ESTABLISHMENT.
‘‘The Secretary of the Interior (hereinafter in this
title referred to as the ‘Secretary’) shall establish and
carry out a program within the Department of the Interior
to be known as Tribal Self-Governance (hereinafter in this
title referred to as ‘Self-Governance’) in accordance with
this title.
‘‘SEC. 402. SELECTION OF PARTICIPATING INDIAN TRIBES.
‘‘(a) CONTINUING
PARTICIPATION.—Each Indian
tribe that is participating in the Tribal Self-Governance
Demonstration Project at the Department of the Interior
under title III on the date of enactment of this title shall
thereafter participate in Self-Governance under this title
and cease participation in the Tribal Self-Governance
Demonstration Project under title III with respect to the
Department of the Interior.
‘‘(b) ADDITIONAL PARTICIPANTS.—(1) In addition to
those Indian tribes participating in Self-Governance under
subsection (a), the Secretary, acting through the Director
of the Office of Self-Governance, may select up to 20 new
tribes per year from the applicant pool described in sub-
section (c) to participate in Self-Governance.
‘‘(2) If each tribe requests, two or more otherwise eli-
gible Indian tribes may be treated as a single Indian tribe
for the purpose of participating in Self-Governance as a
consortium.
‘‘(c) APPLICANT POOL.—The qualified applicant pool
for Self-Governance shall consist of each 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
tribal governing body; and
‘‘(3) has demonstrated, for the previous three
fiscal years, financial stability and financial manage-
ment capability as evidenced by the tribe having no
material audit exceptions in the required annual
audit of the self-determination contracts of the tribe.
‘‘(d) PLANNING PHASE.—Each Indian tribe seeking
to begin participation in Self-Governance shall complete
a planning phase in accordance with this subsection. The
tribe shall be eligible for a grant to plan and negotiate
participation in Self-Governance. The planning phase shall
include—
‘‘(1) legal and budgetary research; and
‘‘(2) internal tribal government planning and
organizational preparation.
‘‘SEC. 403. FUNDING AGREEMENTS.
‘‘(a) AUTHORIZATION.—The Secretary shall nego-
tiate and enter into an annual written funding agreement
with the governing body of each participating tribal gov-
ernment in a manner consistent with the Federal Govern-
ment’s laws and trust relationship to and responsibility
for the Indian people.
‘‘(b) CONTENTS.—Each funding agreement shall—
‘‘(1) authorize the tribe to plan, conduct, con-
solidate, and administer programs, services, func-
tions, and activities, or portions thereof, adminis-
tered by the Department of the Interior through the
Bureau of Indian Affairs, without regard to the
agency or office of the Bureau of Indian Affairs
within which the program, service, function, and ac-
tivity, or portion thereof, is performed, including
funding for agency, area, and central office func-
tions in accordance with subsection (g)(3), and in-
cluding any program, service, function, and activity,
or portion thereof, administered under the authority
of—
‘‘(A) the Act of April 16, 1934 (25 U.S.C.
452 et seq.);
‘‘(B) the Act of November 2, 1921 (25
U.S.C. 13); and
‘‘(C) programs, services, functions, and ac-
tivities or portions thereof administered by the
Secretary of the Interior that are otherwise
available to Indian tribes or Indians for which
appropriations are made to agencies other than
the Department of the Interior;
‘‘(2) subject to such terms as may be nego-
tiated, authorize the tribe to plan, conduct, consoli-
date, and administer programs, services, functions,
and activities, or portions thereof, administered by
the Department of the Interior, other than through
the Bureau of Indian Affairs, that are otherwise
available to Indian tribes or Indians, as identified in
section 405(c), except that nothing in this subsection
may be construed to provide any tribe with a pref-
erence with respect to the opportunity of the tribe
to administer programs, services, functions, and ac-
tivities, or portions thereof, unless such preference is
otherwise provided for by law;
‘‘(3) subject to the terms of the agreement, au-
thorize the tribe to redesign or consolidate pro-
grams, services, functions, and activities, or portions
thereof, and reallocate funds for such programs,
services, functions, and activities, or portions there-
of, except that, with respect to the reallocation, con-
solidation, and redesign of programs described in
paragraph (2), a joint agreement between the Sec-
retary and the tribe shall be required;
‘‘(4) prohibit the inclusion of funds provided—
‘‘(A) pursuant to the Tribally Controlled
Community College Assistance Act of 1978 (25
U.S.C. 1801 et seq.);
‘‘(B) for elementary and secondary schools
under the formula developed pursuant to sec-
tion 1128 of the Education Amendments of
1978 (25 U.S.C. 2008); and
‘‘(C) the Flathead Agency Irrigation Divi-
sion or the Flathead Agency Power Division,
except that nothing in this section shall affect
the contract authority of such divisions under
section 102;
‘‘(5) specify the services to be provided, the
functions to be performed, and the responsibilities of
the tribe and the Secretary pursuant to the agree-
ment;
‘‘(6) authorize the tribe and the Secretary to
reallocate funds or modify budget allocations within
any year, and specify the procedures to be used;
‘‘(7) allow for retrocession of programs or por-
tions of programs pursuant to section 105(e);
‘‘(8) provide that, for the year for which, and
to the extent to which, funding is provided to a tribe
under this section, the tribe—
‘‘(A) shall not be entitled to contract with
the Secretary for such funds under section 102,
except that such tribe shall be eligible for new
programs on the same basis as other tribes; and
‘‘(B) shall be responsible for the adminis-
tration of programs, services, functions, and ac-
tivities pursuant to agreements entered into
under this section; and
‘‘(9) prohibit the Secretary from waiving, modi-
fying, or diminishing in any way the trust respon-
sibility of the United States with respect to Indian
tribes and individual Indians that exists under trea-
ties, Executive orders, and other laws.
‘‘(c) ADDITIONAL ACTIVITIES.—Each funding agree-
ment negotiated pursuant to subsections (a) and (b) may,
in accordance to such additional terms as the parties deem
appropriate, also include other programs, services, func-
tions, and activities, or portions thereof, administered by
the Secretary of the Interior which are of special geo-
graphic, historical, or cultural significance to the partici-
pating Indian tribe requesting a compact.
‘‘(d) PROVISIONS RELATING TO THE SECRETARY.—
Funding agreements negotiated between the Secretary
and an Indian tribe shall include provisions—
‘‘(1) to monitor the performance of trust func-
tions by the tribe through the annual trust evalua-
tion, and
‘‘(2) for the Secretary to reassume a program,
service, function, or activity, or portions thereof, if
there is a finding of imminent jeopardy to a physical
trust asset, natural resources, or public health and
safety.
‘‘(e) CONSTRUCTION PROJECTS.—(1) Regarding con-
struction programs or projects, the Secretary and Indian
tribes may negotiate for the inclusion of specific provisions
of the Office of Federal Procurement and Policy Act and
Federal acquisition regulations in any funding agreement
entered into under this Act. Absent a negotiated agree-
ment, such provisions and regulatory requirements shall
not apply.
‘‘(2) In all construction projects performed pursuant
to this title, the Secretary shall ensure that proper health
and safety standards are provided for in the funding
agreements.
‘‘(f) SUBMISSION FOR REVIEW.—Not later than 90
days before the proposed effective date of an agreement
entered into under this section, the Secretary shall submit
a copy of such agreement to—
‘‘(1) each Indian tribe that is served by the
Agency that is serving the tribe that is a party to
the funding agreement;
‘‘(2) the Committee on Indian Affairs of the
Senate; and
‘‘(3) the Subcommittee on Native American Af-
fairs of the Committee on Natural Resources of the
House of Representatives.
‘‘(g) PAYMENT.—(1) At the request of the governing
body of the tribe and under the terms of an agreement
entered into under this section, the Secretary shall provide
funding to the tribe to carry out the agreement.
‘‘(2) The funding agreements authorized by this title
and title III of this Act shall provide for advance payments
to the tribes in the form of annual or semi-annual install-
ments at the discretion of the tribes.
‘‘(3) Subject to paragraph (4) of this subsection and
paragraphs (1) through (3) of subsection (b), the Sec-
retary shall provide funds to the tribe under an agreement
under this title for programs, services, functions, and ac-
tivities, or portions thereof, in an amount equal to the
amount that the tribe would have been eligible to receive
under contracts and grants under this Act, including