PROGRESS for Indian Tribes Act
PL 116-180 (S.209), enacted 10/21/2020

[116th Congress Public Law 180]
[From the U.S. Government Publishing Office]



[[Page 134 STAT. 857]]

Public Law 116-180
116th Congress

                                 An Act


 
 To amend the Indian Self-Determination and Education Assistance Act to 
    provide further self-governance by Indian Tribes, and for other 
             purposes. <<NOTE: Oct. 21, 2020 -  [S. 209]>> 

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled, <<NOTE: Practical 
Reforms and Other Goals To Reinforce the Effectiveness of Self-
Governance and Self-Determination for Indian Tribes Act of 2019.>> 
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) <<NOTE: 25 USC 5301 note.>>  Short Title.--This Act may be cited 
as the ``Practical Reforms and Other Goals To Reinforce the 
Effectiveness of Self-Governance and Self-Determination for Indian 
Tribes Act of 2019'' or the ``PROGRESS for Indian Tribes Act''.

    (b) Table of Contents.--The table of contents of this Act is as 
follows:

Sec. 1. Short title; table of contents.

                     TITLE I--TRIBAL SELF-GOVERNANCE

Sec. 101. Tribal self-governance.

                   TITLE II--INDIAN SELF-DETERMINATION

Sec. 201. Definitions; reporting and audit requirements; application of 
           provisions.
Sec. 202. Contracts by Secretary of the Interior.
Sec. 203. Administrative provisions.
Sec. 204. Contract funding and indirect costs.
Sec. 205. Contract or grant specifications.

                     TITLE I--TRIBAL SELF-GOVERNANCE

SEC. 101. <<NOTE: 25 USC 5361 note.>>  TRIBAL SELF-GOVERNANCE.

    (a) Effect of Provisions.--Nothing in this Act, or the amendments 
made by this Act, shall be construed--
            (1) to modify, limit, expand, or otherwise affect--
                    (A) the authority of the Secretary of the Interior, 
                as provided for under the Indian Self-Determination and 
                Education Assistance Act (as in effect on the day before 
                the date of enactment of this Act), regarding--
                          (i) the inclusion of any non-BIA program (as 
                      defined in section 401 of the Indian Self-
                      Determination and Education Assistance Act) in a 
                      self-determination contract or funding agreement 
                      under section 403(c) of such Act (as so in 
                      effect); or
                          (ii) the implementation of any contract or 
                      agreement described in clause (i) that is in 
                      effect on the day described in subparagraph (A);
                    (B) the meaning, application, or effect of any 
                Tribal water rights settlement, including the 
                performance

[[Page 134 STAT. 858]]

                required of a party thereto or any payment or funding 
                obligation thereunder;
                    (C) the authority, jurisdiction, or responsibility 
                of a State to manage, control, or regulate fish and 
                wildlife under State law (including regulations) on land 
                or water in the State, including Federal public land;
                    (D) except for the authority provided to the 
                Secretary as described in subparagraph (A), the 
                applicability or effect of any Federal law related to 
                the protection or management of fish or wildlife; or
                    (E) any treaty-reserved right or other right of any 
                Indian Tribe as recognized by any other means, including 
                treaties or agreements with the United States, Executive 
                orders, statutes, regulations, or case law; or
            (2) to authorize any provision of a contract or agreement 
        that is not consistent with the terms of a Tribal water rights 
        settlement.

    (b) Definitions.--Section 401 of the Indian Self-Determination and 
Education Assistance Act (25 U.S.C. 5361) is amended to read as follows:
``SEC. 401. DEFINITIONS.

    ``In this title:
            ``(1) Compact.--The term `compact' means a self-governance 
        compact entered into under section 404.
            ``(2) Construction program; construction project.--The term 
        `construction program' or `construction project' means a Tribal 
        undertaking relating to the administration, planning, 
        environmental determination, design, construction, repair, 
        improvement, or expansion of roads, bridges, buildings, 
        structures, systems, or other facilities for purposes of 
        housing, law enforcement, detention, sanitation, water supply, 
        education, administration, community, health, irrigation, 
        agriculture, conservation, flood control, transportation, or 
        port facilities, or for other Tribal purposes.
            ``(3) Department.--The term `Department' means the 
        Department of the Interior.
            ``(4) Funding agreement.--The term `funding agreement' means 
        a funding agreement entered into under section 403.
            ``(5) Gross mismanagement.--The term `gross mismanagement' 
        means a significant violation, shown by a preponderance of the 
        evidence, of a compact, funding agreement, or statutory or 
        regulatory requirement applicable to Federal funds for a program 
        administered by an Indian Tribe under a compact or funding 
        agreement.
            ``(6) Inherent federal function.--The term `inherent Federal 
        function' means a Federal function that may not legally be 
        delegated to an Indian Tribe.
            ``(7) Non-BIA program.--The term `non-BIA program' means all 
        or a portion of a program, function, service, or activity that 
        is administered by any bureau, service, office, or agency of the 
        Department of the Interior other than--
                    ``(A) the Bureau of Indian Affairs;
                    ``(B) the Office of the Assistant Secretary for 
                Indian Affairs; or
                    ``(C) the Office of the Special Trustee for American 
                Indians.

[[Page 134 STAT. 859]]

            ``(8) Program.--The term `program' means any program, 
        function, service, or activity (or portion thereof) within the 
        Department that is included in a funding agreement.
            ``(9) Secretary.--The term `Secretary' means the Secretary 
        of the Interior.
            ``(10) Self-determination contract.--The term `self-
        determination contract' means a self-determination contract 
        entered into under section 102.
            ``(11) Self-governance.--The term `self-governance' means 
        the Tribal Self-Governance Program established under section 
        402.
            ``(12) Tribal share.--The term `Tribal share' means the 
        portion of all funds and resources of an Indian Tribe that--
                    ``(A) support any program within the Bureau of 
                Indian Affairs, the Office of the Special Trustee for 
                American Indians, or the Office of the Assistant 
                Secretary for Indian Affairs; and
                    ``(B) are not required by the Secretary for the 
                performance of an inherent Federal function.
            ``(13) Tribal water rights settlement.--The term `Tribal 
        water rights settlement' means any settlement, compact, or other 
        agreement expressly ratified or approved by an Act of Congress 
        that--
                    ``(A) includes an Indian Tribe and the United States 
                as parties; and
                    ``(B) quantifies or otherwise defines any water 
                right of the Indian Tribe.''.

    (c) Establishment.--Section 402 of the Indian Self-Determination and 
Education Assistance Act (25 U.S.C. 5362) is amended to read as follows:
``SEC. 402. TRIBAL SELF-GOVERNANCE PROGRAM.

    ``(a) Establishment.--The Secretary shall establish and carry out a 
program within the Department to be known as the `Tribal Self-Governance 
Program'.
    ``(b) Selection of Participating Indian Tribes.--
            ``(1) In general.--
                    ``(A) Eligibility.--The Secretary, acting through 
                the Director of the Office of Self-Governance, may 
                select not more than 50 new Indian Tribes per year from 
                those tribes eligible under subsection (c) to 
                participate in self-governance.
                    ``(B) Joint participation.--On the request of each 
                participating Indian Tribe, 2 or more otherwise eligible 
                Indian Tribes may be treated as a single Indian Tribe 
                for the purpose of participating in self-governance.
            ``(2) Other authorized indian tribe or tribal 
        organization.--If an Indian Tribe authorizes another Indian 
        Tribe or a Tribal organization to plan for or carry out a 
        program on its behalf under this title, the authorized Indian 
        Tribe or Tribal organization shall have the rights and 
        responsibilities of the authorizing Indian Tribe (except as 
        otherwise provided in the authorizing resolution).
            ``(3) Joint participation as organization.--Two or more 
        Indian Tribes that are not otherwise eligible under subsection 
        (c) may be treated as a single Indian Tribe for the purpose

[[Page 134 STAT. 860]]

        of participating in self-governance as a Tribal organization 
        if--
                    ``(A) each Indian Tribe so requests; and
                    ``(B) the Tribal organization itself, or at least 
                one of the Indian Tribes participating in the Tribal 
                organization, is eligible under subsection (c).
            ``(4) Tribal withdrawal from a tribal organization.--
                    ``(A) In general.--An Indian Tribe that withdraws 
                from participation in a Tribal organization, in whole or 
                in part, shall be entitled to participate in self-
                governance if the Indian Tribe is eligible under 
                subsection (c).
                    ``(B) Effect of withdrawal.--If an Indian Tribe 
                withdraws from participation in a Tribal organization, 
                the Indian Tribe shall be entitled to its Tribal share 
                of funds and resources supporting the programs that the 
                Indian Tribe is entitled to carry out under the compact 
                and funding agreement of the Indian Tribe.
                    ``(C) Participation in self-governance.--The 
                withdrawal of an Indian Tribe from a Tribal organization 
                shall not affect the eligibility of the Tribal 
                organization to participate in self-governance on behalf 
                of one or more other Indian Tribes, if the Tribal 
                organization still qualifies under subsection (c).
                    ``(D) Withdrawal process.--
                          ``(i) In general.--An Indian Tribe may, by 
                      Tribal resolution, fully or partially withdraw its 
                      Tribal share of any program in a funding agreement 
                      from a participating Tribal organization.
                          ``(ii) <<NOTE: Records.>>  Notification.--The 
                      Indian Tribe shall provide a copy of the Tribal 
                      resolution described in clause (i) to the 
                      Secretary.
                          ``(iii) Effective date.--
                                    ``(I) In general.--A withdrawal 
                                under clause (i) shall become effective 
                                on the date that is specified in the 
                                Tribal resolution and mutually agreed 
                                upon by the Secretary, the withdrawing 
                                Indian Tribe, and the Tribal 
                                organization that signed the compact and 
                                funding agreement on behalf of the 
                                withdrawing Indian Tribe or Tribal 
                                organization.
                                    ``(II) No specified date.--In the 
                                absence of a date specified in the 
                                resolution, the withdrawal shall become 
                                effective on--
                                            ``(aa) the earlier of--
                                                ``(AA) 1 year after the 
                                            date of submission of the 
                                            request; and
                                                ``(BB) the date on which 
                                            the funding agreement 
                                            expires; or
                                            ``(bb) such date as may be 
                                        mutually agreed upon by the 
                                        Secretary, the withdrawing 
                                        Indian Tribe, and the Tribal 
                                        organization that signed the 
                                        compact and funding agreement on 
                                        behalf of the withdrawing Indian 
                                        Tribe or Tribal organization.
                    ``(E) <<NOTE: Contracts.>>  Distribution of funds.--
                If an Indian Tribe or Tribal organization eligible to 
                enter into a self-determination contract or a compact or 
                funding agreement fully or

[[Page 134 STAT. 861]]

                partially withdraws from a participating Tribal 
                organization, the withdrawing Indian Tribe--
                          ``(i) may elect to enter into a self-
                      determination contract or compact, in which case--
                                    ``(I) the withdrawing Indian Tribe 
                                or Tribal organization shall be entitled 
                                to its Tribal share of unexpended funds 
                                and resources supporting the programs 
                                that the Indian Tribe will be carrying 
                                out under its own self-determination 
                                contract or compact and funding 
                                agreement (calculated on the same basis 
                                as the funds were initially allocated to 
                                the funding agreement of the Tribal 
                                organization); and
                                    ``(II) <<NOTE: Applicability.>>  the 
                                funds referred to in subclause (I) shall 
                                be withdrawn by the Secretary from the 
                                funding agreement of the Tribal 
                                organization and transferred to the 
                                withdrawing Indian Tribe, on the 
                                condition that sections 102 and 105(i), 
                                as appropriate, shall apply to the 
                                withdrawing Indian Tribe; or
                          ``(ii) may elect not to enter into a self-
                      determination contract or compact, in which case 
                      all unexpended funds and resources associated with 
                      the withdrawing Indian Tribe's returned programs 
                      (calculated on the same basis as the funds were 
                      initially allocated to the funding agreement of 
                      the Tribal organization) shall be returned by the 
                      Tribal organization to the Secretary for operation 
                      of the programs included in the withdrawal.
                    ``(F) Return to mature contract status.--If an 
                Indian Tribe elects to operate all or some programs 
                carried out under a compact or funding agreement under 
                this title through a self-determination contract under 
                title I, at the option of the Indian Tribe, the 
                resulting self-determination contract shall be a mature 
                self-determination contract as long as the Indian Tribe 
                meets the requirements set forth in section 4(h).

    ``(c) Eligibility.--To be eligible to participate in self-
governance, an Indian Tribe shall--
            ``(1) successfully complete the planning phase described in 
        subsection (d);
            ``(2) request participation in self-governance by resolution 
        or other official action by the Tribal governing body; and
            ``(3) <<NOTE: Time period.>>  demonstrate, for the 3 fiscal 
        years preceding the date on which the Indian Tribe requests 
        participation, financial stability and financial management 
        capability as evidenced by the Indian Tribe having no 
        uncorrected significant and material audit exceptions in the 
        required annual audit of its self-determination or self-
        governance agreements with any Federal agency.

    ``(d) Planning Phase.--
            ``(1) In general.--An Indian Tribe seeking to begin 
        participation in self-governance shall complete a planning phase 
        as provided in this subsection.
            ``(2) Activities.--The planning phase shall--
                    ``(A) be conducted to the satisfaction of the Indian 
                Tribe; and

[[Page 134 STAT. 862]]

                    ``(B) include--
                          ``(i) legal and budgetary research; and
                          ``(ii) internal Tribal government planning, 
                      training, and organizational preparation.

    ``(e) Grants.--
            ``(1) In general.--Subject to the availability of 
        appropriations, an Indian Tribe or Tribal organization that 
        meets the requirements of paragraphs (2) and (3) of subsection 
        (c) shall be eligible for grants--
                    ``(A) to plan for participation in self-governance; 
                and
                    ``(B) to negotiate the terms of participation by the 
                Indian Tribe or Tribal organization in self-governance, 
                as set forth in a compact and a funding agreement.
            ``(2) Receipt of grant not required.--Receipt of a grant 
        under paragraph (1) shall not be a requirement of participation 
        in self-governance.''.

    (d) Funding Agreements.--Section 403 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 5363) is amended--
            (1) by striking subsection (a) and inserting the following:

    ``(a) Authorization.--The Secretary shall, on the request of any 
Indian Tribe or Tribal organization, negotiate and enter into a written 
funding agreement with the governing body of the Indian Tribe or the 
Tribal organization in a manner consistent with--
            ``(1) the trust responsibility of the Federal Government, 
        treaty obligations, and the government-to-government 
        relationship between Indian Tribes and the United States; and
            ``(2) subsection (b).'';
            (2) in subsection (b)--
                    (A) in paragraph (1)--
                          (i) in the matter preceding subparagraph (A), 
                      by striking ``without regard to the agency or 
                      office of the Bureau of Indian Affairs'' and 
                      inserting ``the Office of the Assistant Secretary 
                      for Indian Affairs, and the Office of the Special 
                      Trustee for American Indians, without regard to 
                      the agency or office of that Bureau or those 
                      Offices'';
                          (ii) by redesignating subparagraphs (A) and 
                      (B) as clauses (i) and (ii), respectively, and 
                      indenting the margins of such clauses accordingly;
                          (iii) by striking ``including any program'' 
                      and inserting the following: ``including--
                    ``(A) any program'';
                          (iv) in subparagraph (A)--
                                    (I) in clause (i), as redesignated 
                                by clause (ii), by striking the 
                                semicolon at the end and inserting ``; 
                                and''; and
                                    (II) in clause (ii), as so 
                                redesignated, by striking ``and'' after 
                                the semicolon;
                          (v) by redesignating subparagraph (C) as 
                      subparagraph (B);
                          (vi) in subparagraph (B), as redesignated by 
                      clause (v), by striking the semicolon and 
                      inserting ``; and''; and
                          (vii) by adding at the end the following:
                    ``(C) any other program, service, function, or 
                activity (or portion thereof) that is provided through 
                the Bureau

[[Page 134 STAT. 863]]

                of Indian Affairs, the Office of the Assistant Secretary 
                for Indian Affairs, or the Office of the Special Trustee 
                for American Indians with respect to which Indian Tribes 
                or Indians are primary or significant beneficiaries;'';
                    (B) in paragraph (2)--
                          (i) by striking ``section 405(c)'' and 
                      inserting ``section 412(c)''; and
                          (ii) by inserting ``and'' after the semicolon 
                      at the end;
                    (C) in paragraph (3), by striking the semicolon at 
                the end and inserting a period; and
                    (D) by striking paragraphs (4) through (9);
            (3) in subsection (f)--
                    (A) in the subsection heading, by striking ``for 
                Review'';
                    (B) by striking ``such agreement to--'' and all that 
                follows through ``Indian tribe'' and inserting ``such 
                agreement to each Indian Tribe'';
                    (C) by striking ``agreement;'' and inserting 
                ``agreement.''; and
                    (D) by striking paragraphs (2) and (3);
            (4) in subsection (k), by striking ``section 405(c)(1)'' and 
        inserting ``section 412(c)''; and
            (5) by adding at the end the following:

    ``(m) <<NOTE: Contracts.>>  Other Provisions.--
            ``(1) Excluded funding.--A funding agreement shall not 
        authorize an Indian Tribe to plan, conduct, administer, or 
        receive Tribal share funding under any program that--
                    ``(A) is provided under the Tribally Controlled 
                Colleges and Universities Assistance Act of 1978 (25 
                U.S.C. 1801 et seq.); or
                    ``(B) is provided for elementary and secondary 
                schools under the formula developed under section 1127 
                of the Education Amendments of 1978 (25 U.S.C. 2007).
            ``(2) Services, functions, and responsibilities.--A funding 
        agreement shall specify--
                    ``(A) the services to be provided under the funding 
                agreement;
                    ``(B) the functions to be performed under the 
                funding agreement; and
                    ``(C) the responsibilities of the Indian Tribe and 
                the Secretary under the funding agreement.
            ``(3) Base budget.--
                    ``(A) In general.--A funding agreement shall, at the 
                option of the Indian Tribe, provide for a stable base 
                budget specifying the recurring funds (which may include 
                funds available under section 106(a)) to be transferred 
                to the Indian Tribe, for such period as the Indian Tribe 
                specifies in the funding agreement, subject to annual 
                adjustment only to reflect changes in congressional 
                appropriations.
                    ``(B) Limitations.--Notwithstanding subparagraph 
                (A), a funding agreement shall not specify funding 
                associated with a program described in subsection (b)(2) 
                or (c) unless the Secretary agrees.
            ``(4) No waiver of trust responsibility.--A funding 
        agreement shall prohibit the Secretary from waiving, modifying, 
        or diminishing in any way the trust responsibility of the United

[[Page 134 STAT. 864]]

        States with respect to Indian Tribes and individual Indians that 
        exists under treaties, Executive orders, court decisions, and 
        other laws.

    ``(n) Amendment.--The Secretary shall not revise, amend, or require 
additional terms in a new or subsequent funding agreement without the 
consent of the Indian Tribe, unless such terms are required by Federal 
law.
    ``(o) Effective Date.--A funding agreement shall become effective on 
the date specified in the funding agreement.
    ``(p) Existing and Subsequent Funding Agreements.--
            ``(1) Subsequent funding agreements.--Absent notification 
        from an Indian Tribe that the Indian Tribe is withdrawing or 
        retroceding the operation of one or more programs identified in 
        a funding agreement, or unless otherwise agreed to by the 
        parties to the funding agreement or by the nature of any 
        noncontinuing program, service, function, or activity contained 
        in a funding agreement--
                    ``(A) a funding agreement shall remain in full force 
                and effect until a subsequent funding agreement is 
                executed, with funding paid annually for each fiscal 
                year the agreement is in effect; and
                    ``(B) the term of the subsequent funding agreement 
                shall be retroactive to the end of the term of the 
                preceding funding agreement for the purposes of 
                calculating the amount of funding to which the Indian 
                Tribe is entitled.
            ``(2) Disputes.--Disputes over the implementation of 
        paragraph (1)(A) shall be subject to section 406(c).
            ``(3) Existing funding agreements.--An Indian Tribe that was 
        participating in self-governance under this title on the date of 
        enactment of the PROGRESS for Indian Tribes Act shall have the 
        option at any time after that date--
                    ``(A) to retain its existing funding agreement (in 
                whole or in part) to the extent that the provisions of 
                that funding agreement are not directly contrary to any 
                express provision of this title; or
                    ``(B) to negotiate a new funding agreement in a 
                manner consistent with this title.
            ``(4) Multiyear funding agreements.--An Indian Tribe may, at 
        the discretion of the Indian Tribe, negotiate with the Secretary 
        for a funding agreement with a term that exceeds 1 year.''.

    (e) General Revisions.--Title IV of the Indian Self-Determination 
and Education Assistance Act (25 U.S.C. 5361 et seq.) is amended by 
striking sections 404 through 408 <<NOTE: 25 USC 5364-5368.>>  and 
inserting the following:
``SEC. 404. <<NOTE: 25 USC 5364.>>  COMPACTS.

    ``(a) In General.--The Secretary shall negotiate and enter into a 
written compact with each Indian Tribe participating in self-governance 
in a manner consistent with the trust responsibility of the Federal 
Government, treaty obligations, and the government-to-government 
relationship between Indian Tribes and the United States.
    ``(b) Contents.--A compact under subsection (a) shall--
            ``(1) specify and affirm the general terms of the 
        government-to-government relationship between the Indian Tribe 
        and the Secretary; and

[[Page 134 STAT. 865]]

            ``(2) include such terms as the parties intend shall control 
        during the term of the compact.

    ``(c) Amendment.--A compact under subsection (a) may be amended only 
by agreement of the parties.
    ``(d) Effective Date.--The effective date of a compact under 
subsection (a) shall be--
            ``(1) the date of the execution of the compact by the 
        parties; or
            ``(2) such date as is mutually agreed upon by the parties.

    ``(e) Duration.--A compact under subsection (a) shall remain in 
effect--
            ``(1) for so long as permitted by Federal law; or
            ``(2) until termination by written agreement, retrocession, 
        or reassumption.

    ``(f) Existing Compacts.--An Indian Tribe participating in self-
governance under this title, as in effect on the date of enactment of 
the PROGRESS for Indian Tribes Act, shall have the option at any time 
after that date--
            ``(1) to retain its negotiated compact (in whole or in part) 
        to the extent that the provisions of the compact are not 
        directly contrary to any express provision of this title; or
            ``(2) to negotiate a new compact in a manner consistent with 
        this title.
``SEC. 405. <<NOTE: 25 USC 5365.>>  GENERAL PROVISIONS.

    ``(a) Applicability.--An Indian Tribe and the Secretary shall 
include in any compact or funding agreement provisions that reflect the 
requirements of this title.
    ``(b) Conflicts of Interest.--An Indian Tribe participating in self-
governance shall ensure that internal measures are in place to address, 
pursuant to Tribal law and procedures, conflicts of interest in the 
administration of programs.
    ``(c) <<NOTE: Applicability.>>  Audits.--
            ``(1) Single agency audit act.--Chapter 75 of title 31, 
        United States Code, shall apply to a funding agreement 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--
                    ``(A) any provision of law, including section 106; 
                or
                    ``(B) any exemptions to applicable Office of 
                Management and Budget circulars subsequently granted by 
                the Office of Management and Budget.
            ``(3) Federal claims.--Any claim by the Federal Government 
        against an Indian Tribe relating to funds received under a 
        funding agreement based on any audit under this subsection shall 
        be subject to section 106(f).

    ``(d) Redesign and Consolidation.--Except as provided in section 
407, an Indian Tribe may redesign or consolidate programs, or reallocate 
funds for programs, in a compact or funding agreement in any manner that 
the Indian Tribe determines to be in the best interest of the Indian 
community being served--
            ``(1) so long as the redesign or consolidation does not have 
        the effect of denying eligibility for services to population 
        groups otherwise eligible to be served under applicable Federal 
        law; and

[[Page 134 STAT. 866]]

            ``(2) except that, with respect to the reallocation, 
        consolidation, and redesign of programs described in subsection 
        (b)(2) or (c) of section 403, a joint agreement between the 
        Secretary and the Indian Tribe shall be required.

    ``(e) Retrocession.--
            ``(1) In general.--An Indian Tribe may fully or partially 
        retrocede to the Secretary any program under a compact or 
        funding agreement.
            ``(2) Effective date.--
                    ``(A) Agreement.--Unless an Indian Tribe rescinds a 
                request for retrocession under paragraph (1), the 
                retrocession shall become effective on the date 
                specified by the parties in the compact or funding 
                agreement.
                    ``(B) No agreement.--In the absence of a 
                specification of an effective date in the compact or 
                funding agreement, the retrocession shall become 
                effective on--
                          ``(i) the earlier of--
                                    ``(I) 1 year after the date on which 
                                the request is submitted; and
                                    ``(II) the date on which the funding 
                                agreement expires; or
                          ``(ii) such date as may be mutually agreed 
                      upon by the Secretary and the Indian Tribe.

    ``(f) <<NOTE: Contracts.>>  Nonduplication.--A funding agreement 
shall provide that, for the period for which, and to the extent to 
which, funding is provided to an Indian Tribe under this title, the 
Indian Tribe--
            ``(1) shall not be entitled to contract with the Secretary 
        for funds under section 102, except that the Indian Tribe shall 
        be eligible for new programs on the same basis as other Indian 
        Tribes; and
            ``(2) shall be responsible for the administration of 
        programs in accordance with the compact or funding agreement.

    ``(g) Records.--
            ``(1) In general.--Unless an Indian Tribe specifies 
        otherwise in the compact or funding agreement, records of an 
        Indian Tribe shall not be considered to be Federal records for 
        purposes of chapter 5 of title 5, United States Code.
            ``(2) Recordkeeping system.--An Indian Tribe shall--
                    ``(A) maintain a recordkeeping system; and
                    ``(B) <<NOTE: Notice. Time period.>>  on a notice 
                period of not less than 30 days, provide the Secretary 
                with reasonable access to the records to enable the 
                Department to meet the requirements of sections 3101 
                through 3106 of title 44, United States Code.
``SEC. 406. <<NOTE: 25 USC 5366.>>  PROVISIONS RELATING TO THE 
                        SECRETARY.

    ``(a) <<NOTE: Contracts.>>  Trust Evaluations.--A funding agreement 
shall include a provision to monitor the performance of trust functions 
by the Indian Tribe through the annual trust evaluation.

    ``(b) Reassumption.--
            ``(1) <<NOTE: Compact. Contracts.>>  In general.--A compact 
        or funding agreement shall include provisions for the Secretary 
        to reassume a program and associated funding if there is a 
        specific finding relating to that program of--
                    ``(A) imminent jeopardy to a trust asset, a natural 
                resource, or public health and safety that--
                          ``(i) is caused by an act or omission of the 
                      Indian Tribe; and

[[Page 134 STAT. 867]]

                          ``(ii) arises out of a failure to carry out 
                      the compact or funding agreement; or
                    ``(B) <<NOTE: Determination. Consultation.>>  gross 
                mismanagement with respect to funds transferred to an 
                Indian Tribe under a compact or funding agreement, as 
                determined by the Secretary in consultation with the 
                Inspector General, as appropriate.
            ``(2) Prohibition.--The Secretary shall not reassume 
        operation of a program, in whole or part, unless--
                    ``(A) <<NOTE: Notice. Hearing.>>  the Secretary 
                first provides written notice and a hearing on the 
                record to the Indian Tribe; and
                    ``(B) the Indian Tribe does not take corrective 
                action to remedy the mismanagement of the funds or 
                programs, or the imminent jeopardy to a trust asset, 
                natural resource, or public health and safety.
            ``(3) Exception.--
                    ``(A) <<NOTE: Notice.>>  In general.--
                Notwithstanding paragraph (2), the Secretary may, on 
                written notice to the Indian Tribe, immediately reassume 
                operation of a program if--
                          ``(i) the Secretary makes a finding of 
                      imminent and substantial jeopardy and irreparable 
                      harm to a trust asset, a natural resource, or the 
                      public health and safety caused by an act or 
                      omission of the Indian Tribe; and
                          ``(ii) the imminent and substantial jeopardy 
                      and irreparable harm to the trust asset, natural 
                      resource, or public health and safety arises out 
                      of a failure by the Indian Tribe to carry out the 
                      terms of an applicable compact or funding 
                      agreement.
                    ``(B) <<NOTE: Hearing. Deadline.>>  Reassumption.--
                If the Secretary reassumes operation of a program under 
                subparagraph (A), the Secretary shall provide the Indian 
                Tribe with a hearing on the record not later than 10 
                days after the date of reassumption.

    ``(c) Inability To Agree on Compact or Funding Agreement.--
            ``(1) Final offer.--If 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.
            ``(2) <<NOTE: Deadline. Review. Time period. Extension.>>  
        Determination.--Not more than 60 days after the date of receipt 
        of a final offer by one or more of the officials designated 
        pursuant to paragraph (4), the Secretary shall review and make a 
        determination with respect to the final offer, except that the 
        60-day period may be extended for up to 30 days for 
        circumstances beyond the control of the Secretary, upon written 
        request by the Secretary to the Indian tribe.
            ``(3) Extensions.--The deadline described in paragraph (2) 
        may be extended for any length of time, as agreed upon by both 
        the Indian Tribe and the Secretary.
            ``(4) Designated officials.--
                    ``(A) In general.--The Secretary shall designate one 
                or more appropriate officials in the Department to 
                receive a copy of the final offer described in paragraph 
                (1).
                    ``(B) No designation.--If no official is designated, 
                the Director of the Office of the Executive Secretariat 
                and Regulatory Affairs shall be the designated official.

[[Page 134 STAT. 868]]

            ``(5) <<NOTE: Applicability.>>  No timely determination.--If 
        the Secretary fails to make a determination with respect to a 
        final offer within the period specified in paragraph (2), 
        including any extension agreed to under paragraph (3), the 
        Secretary shall be deemed to have agreed to the offer, except 
        that with respect to any compact or funding agreement provision 
        concerning a program described under section 403(c), the 
        Secretary shall be deemed to have rejected the offer with 
        respect to such provision and the terms of clauses (ii) through 
        (iv) of paragraphs (6)(A) shall apply.
            ``(6) Rejection of final offer.--
                    ``(A) In general.--If the Secretary rejects a final 
                offer (or one or more provisions or funding levels in a 
                final offer), the Secretary shall--
                          ``(i) <<NOTE: Notification.>>  provide 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--
                                    ``(I) the amount of funds proposed 
                                in the final offer exceeds the 
                                applicable funding level as determined 
                                under section 106(a)(1);
                                    ``(II) the program that is the 
                                subject of the final offer is an 
                                inherent Federal function or is subject 
                                to the discretion of the Secretary under 
                                section 403(c);
                                    ``(III) the Indian Tribe cannot 
                                carry out the program in a manner that 
                                would not result in significant danger 
                                or risk to the public health or safety, 
                                to natural resources, or to trust 
                                resources;
                                    ``(IV) the Indian Tribe is not 
                                eligible to participate in self-
                                governance under section 402(c);
                                    ``(V) the funding agreement would 
                                violate a Federal statute or regulation; 
                                or
                                    ``(VI) with respect to a program or 
                                portion of a program included in a final 
                                offer pursuant to section 403(b)(2), the 
                                program or the portion of the program is 
                                not otherwise available to Indian Tribes 
                                or Indians under section 102(a)(1)(E);
                          ``(ii) provide technical assistance to 
                      overcome the objections stated in the notification 
                      required by clause (i);
                          ``(iii) <<NOTE: Hearing.>>  provide the Indian 
                      Tribe with a hearing on the record with the right 
                      to engage in full discovery relevant to any issue 
                      raised in the matter, and the opportunity for 
                      appeal on the objections raised, except that the 
                      Indian Tribe may, in lieu of filing such appeal, 
                      directly proceed to initiate an action in a United 
                      States district court under section 110(a); and
                          ``(iv) provide the Indian Tribe the option of 
                      entering into the severable portions of a final 
                      proposed compact or funding agreement (including a 
                      lesser funding amount, if any), that the Secretary 
                      did not reject, subject to any additional 
                      alterations necessary to conform the compact or 
                      funding agreement to the severed provisions.

[[Page 134 STAT. 869]]

                    ``(B) Effect of exercising certain option.--If an 
                Indian Tribe exercises the option specified in 
                subparagraph (A)(iv)--
                          ``(i) the Indian Tribe shall retain the right 
                      to appeal the rejection by the Secretary under 
                      this section; and
                          ``(ii) <<NOTE: Applicability.>>  clauses (i), 
                      (ii), and (iii) of subparagraph (A) shall apply 
                      only to the portion of the proposed final compact 
                      or funding agreement that was rejected by the 
                      Secretary.

    ``(d) Burden of Proof.--In any administrative action, hearing, 
appeal, or civil action brought under this section, the Secretary shall 
have the burden of proof--
            ``(1) of demonstrating, by a preponderance of the evidence, 
        the validity of the grounds for a reassumption under subsection 
        (b); and
            ``(2) of clearly demonstrating the validity of the grounds 
        for rejecting a final offer made under subsection (c).

    ``(e) Good Faith.--
            ``(1) In general.--In the negotiation of compacts and 
        funding agreements, the Secretary shall at all times negotiate 
        in good faith to maximize implementation of the self-governance 
        policy.
            ``(2) Policy.--The Secretary shall carry out this title in a 
        manner that maximizes the policy of Tribal self-governance.

    ``(f) Savings.--
            ``(1) In general.--To the extent that programs carried out 
        for the benefit of Indian Tribes and Tribal organizations 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 408(c), except for funding agreements 
        entered into for programs under section 403(c), the Secretary 
        shall make such savings available to the Indian Tribes or Tribal 
        organizations for the provision of additional services to 
        program beneficiaries in a manner equitable to directly served, 
        contracted, and compacted programs.
            ``(2) Discretionary programs of special significance.--For 
        any savings generated as a result of the assumption of a program 
        by an Indian Tribe under section 403(c), such savings shall be 
        made available to that Indian Tribe.

    ``(g) Trust Responsibility.--The Secretary may not waive, modify, or 
diminish in any way the trust responsibility of the United States with 
respect to Indian Tribes and individual Indians that exists under 
treaties, Executive orders, other laws, or court decisions.
    ``(h) Decision Maker.--A decision that constitutes final agency 
action and relates to an appeal within the Department conducted under 
subsection (c)(6)(A)(iii) may be made by--
            ``(1) 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) an administrative law judge.

    ``(i) Rules of Construction.--Subject to section 101(a) of the 
PROGRESS for Indian Tribes Act, each provision of this title and each 
provision of a compact or funding agreement shall be liberally

[[Page 134 STAT. 870]]

construed for the benefit of the Indian Tribe participating in self-
governance, and any ambiguity shall be resolved in favor of the Indian 
Tribe.
``SEC. 407. <<NOTE: 25 USC 5367.>>  CONSTRUCTION PROGRAMS AND 
                        PROJECTS.

    ``(a) In General.--Indian Tribes participating in Tribal self-
governance may carry out any construction project included in a compact 
or funding agreement under this title.
    ``(b) Tribal Option To Carry Out Certain Federal Environmental 
Activities.--In carrying out a construction project under this title, an 
Indian Tribe may, subject to the agreement of the Secretary, elect to 
assume some Federal responsibilities under the National Environmental 
Policy Act of 1969 (42 U.S.C. 4321 et seq.), division A of subtitle III 
of title 54, United States Code, and related provisions of other law and 
regulations that would apply if the Secretary were to undertake a 
construction project, by adopting a resolution--
            ``(1) designating a certifying Tribal officer to represent 
        the Indian Tribe and to assume the status of a responsible 
        Federal official under those Acts, laws, or regulations; and
            ``(2) accepting the jurisdiction of the United States courts 
        for the purpose of enforcing the responsibilities of the 
        certifying Tribal officer assuming the status of a responsible 
        Federal official under those Acts, laws, or regulations.

    ``(c) Savings Clause.--Notwithstanding subsection (b), nothing in 
this section authorizes the Secretary to include in any compact or 
funding agreement duties of the Secretary under the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), division A of 
subtitle III of title 54, United States Code, and other related 
provisions of law that are inherent Federal functions.
    ``(d) Codes and Standards.--In carrying out a construction project 
under this title, an Indian Tribe shall--
            ``(1) adhere to applicable Federal, State, local, and Tribal 
        building codes, architectural and engineering standards, and 
        applicable Federal guidelines regarding design, space, and 
        operational standards, appropriate for the particular project; 
        and
            ``(2) use only architects and engineers who--
                    ``(A) are licensed to practice in the State in which 
                the facility will be built; and
                    ``(B) <<NOTE: Certification.>>  certify that--
                          ``(i) they are qualified to perform the work 
                      required by the specific construction involved; 
                      and
                          ``(ii) upon completion of design, the plans 
                      and specifications meet or exceed the applicable 
                      construction and safety codes.

    ``(e) Tribal Accountability.--
            ``(1) In general.--In carrying out a construction project 
        under this title, an Indian Tribe shall assume responsibility 
        for the successful completion of the construction project and of 
        a facility that is usable for the purpose for which the Indian 
        Tribe received funding.
            ``(2) Requirements.--For each construction project carried 
        out by an Indian Tribe under this title, the Indian Tribe and 
        the Secretary shall negotiate a provision to be included in the 
        funding agreement that identifies--

[[Page 134 STAT. 871]]

                    ``(A) the approximate start and completion dates for 
                the project, which may extend over a period of one or 
                more years;
                    ``(B) a general description of the project, 
                including the scope of work, references to design 
                criteria, and other terms and conditions;
                    ``(C) the responsibilities of the Indian Tribe and 
                the Secretary for the project;
                    ``(D) how project-related environmental 
                considerations will be addressed;
                    ``(E) the amount of funds provided for the project;
                    ``(F) the obligations of the Indian Tribe to comply 
                with the codes referenced in subsection (d)(1) and 
                applicable Federal laws and regulations;
                    ``(G) the agreement of the parties over who will 
                bear any additional costs necessary to meet changes in 
                scope, or errors or omissions in design and 
                construction; and
                    ``(H) the agreement of the Secretary to issue a 
                certificate of occupancy, if requested by the Indian 
                Tribe, based upon the review and verification by the 
                Secretary, to the satisfaction of the Secretary, that 
                the Indian Tribe has secured upon completion the review 
                and approval of the plans and specifications, 
                sufficiency of design, life safety, and code compliance 
                by qualified, licensed, and independent architects and 
                engineers.

    ``(f) Funding.--
            ``(1) <<NOTE: Contracts.>>  In general.--Funding 
        appropriated for construction projects carried out under this 
        title shall be included in funding agreements as annual or 
        semiannual advance payments at the option of the Indian Tribe.
            ``(2) Advance payments.--The Secretary shall include all 
        associated project contingency funds with each advance payment, 
        and the Indian Tribe shall be responsible for the management of 
        such contingency funds.

    ``(g) <<NOTE: Contracts.>>  Negotiations.--At the option of the 
Indian Tribe, construction project funding proposals shall be negotiated 
pursuant to the statutory process in section 105, and any resulting 
construction project agreement shall be incorporated into the funding 
agreement as addenda.

    ``(h) Federal Review and Verification.--
            ``(1) In general.--On a schedule negotiated by the Secretary 
        and the Indian Tribe--
                    ``(A) the Secretary shall review and verify, to the 
                satisfaction of the Secretary, that project planning and 
                design documents prepared by the Indian Tribe in advance 
                of initial construction are in conformity with the 
                obligations of the Indian Tribe under subsection (d); 
                and
                    ``(B) before the project planning and design 
                documents are implemented, the Secretary shall review 
                and verify to the satisfaction of the Secretary that 
                subsequent document amendments which result in a 
                significant change in construction are in conformity 
                with the obligations of the Indian Tribe under 
                subsection (d).
            ``(2) Reports.--The Indian Tribe shall provide the Secretary 
        with project progress and financial reports not less than 
        semiannually.

[[Page 134 STAT. 872]]

            ``(3) Oversight visits.--The Secretary may conduct onsite 
        project oversight visits semiannually or on an alternate 
        schedule agreed to by the Secretary and the Indian Tribe.

    ``(i) Application of Other Laws.--Unless otherwise agreed to by the 
Indian Tribe and except as otherwise provided in this Act, no provision 
of title 41, United States Code, the Federal Acquisition Regulation, or 
any other law or regulation pertaining to Federal procurement (including 
Executive orders) shall apply to any construction program or project 
carried out under this title.
    ``(j) Future Funding.--Upon completion of a facility constructed 
under this title, the Secretary shall include the facility among those 
eligible for annual operation and maintenance funding support comparable 
to that provided for similar facilities funded by the Department as 
annual appropriations are available and to the extent that the facility 
size and complexity and other factors do not exceed the funding formula 
criteria for comparable buildings.
``SEC. 408. <<NOTE: 25 USC 5368.>>  PAYMENT.

    ``(a) In General.--At the request of the governing body of an Indian 
Tribe and under the terms of an applicable funding agreement, the 
Secretary shall provide funding to the Indian Tribe to carry out the 
funding agreement.
    ``(b) <<NOTE: Contracts.>>  Advance Annual Payment.--At the option 
of the Indian Tribe, a funding agreement shall provide for an advance 
annual payment to an Indian Tribe.

    ``(c) Amount.--
            ``(1) In general.--Subject to subsection (e) and sections 
        403 and 405, the Secretary shall provide funds to the Indian 
        Tribe under a funding agreement for programs in an amount that 
        is equal to the amount that the Indian Tribe would have been 
        entitled to receive under contracts and grants under this Act 
        (including amounts for direct program and contract support costs 
        and, in addition, any funds that are specifically or 
        functionally related to the provision by the Secretary of 
        services and benefits to the Indian Tribe or its members) 
        without regard to the organization level within the Department 
        at which the programs are carried out.
            ``(2) Savings clause.--Nothing in this section reduces 
        programs, services, or funds of, or provided to, another Indian 
        Tribe.

    ``(d) Timing.--
            ``(1) <<NOTE: Transfer authority.>>  In general.--Pursuant 
        to the terms of any compact or funding agreement entered into 
        under this title, the Secretary shall transfer to the Indian 
        Tribe all funds provided for in the funding agreement, pursuant 
        to subsection (c), and provide funding for periods covered by 
        joint resolution adopted by Congress making continuing 
        appropriations, to the extent permitted by such resolution.
            ``(2) <<NOTE: Deadlines.>>  Transfers.--Not later than 1 
        year after the date of enactment of the PROGRESS for Indian 
        Tribes Act, in any instance in which 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

[[Page 134 STAT. 873]]

        of Management and Budget to the Department, unless the funding 
        agreement provides otherwise.

    ``(e) Availability.--Funds for trust services to individual Indians 
shall be available under a funding agreement only to the extent that the 
same services that would have been provided by the Secretary are 
provided to individual Indians by the Indian Tribe.
    ``(f) Multiyear Funding.--A funding agreement may provide for 
multiyear funding.
    ``(g) Limitations on Authority of the Secretary.--The Secretary 
shall not--
            ``(1) fail to transfer to an Indian Tribe its full share of 
        any central, headquarters, regional, area, or service unit 
        office or other funds due under this title for programs eligible 
        under paragraph (1) or (2) of section 403(b), except as required 
        by Federal law;
            ``(2) withhold any portion of such funds for transfer over a 
        period of years; or
            ``(3) reduce the amount of funds required under this title--
                    ``(A) to make funding available for self-governance 
                monitoring or administration by the Secretary;
                    ``(B) in subsequent years, except as necessary as a 
                result of--
                          ``(i) a reduction in appropriations from the 
                      previous fiscal year for the program to be 
                      included in a compact or funding agreement;
                          ``(ii) a congressional directive in 
                      legislation or an 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 an activity under a 
                      program for which the funds were provided;
                    ``(C) to pay for Federal functions, including--
                          ``(i) Federal pay costs;
                          ``(ii) Federal employee retirement benefits;
                          ``(iii) automated data processing;
                          ``(iv) technical assistance; and
                          ``(v) monitoring of activities under this 
                      title; or
                    ``(D) to pay for costs of Federal personnel 
                displaced by self-determination contracts under this Act 
                or self-governance under this title.

    ``(h) <<NOTE: Acquisitions. Transfer authority.>>  Federal 
Resources.--If an Indian Tribe elects to carry out a compact or funding 
agreement with the use of Federal personnel, Federal supplies (including 
supplies available from Federal warehouse facilities), Federal supply 
sources (including lodging, airline transportation, and other means of 
transportation, including the use of interagency motor pool vehicles), 
or other Federal resources (including supplies, services, and resources 
available to the Secretary under any procurement contracts in which the 
Department is eligible to participate), the Secretary shall, as soon as 
practicable, acquire and transfer such personnel, supplies, or resources 
to the Indian Tribe under this title.

    ``(i) <<NOTE: Applicability.>>  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.

    ``(j) Interest or Other Income.--

[[Page 134 STAT. 874]]

            ``(1) In general.--An Indian Tribe may retain interest or 
        income earned on any funds paid under a compact or funding 
        agreement to carry out governmental purposes.
            ``(2) No effect on other amounts.--The retention of interest 
        or income under paragraph (1) shall not diminish the amount of 
        funds an Indian Tribe is entitled to receive under a funding 
        agreement in the year the interest or income is earned or in any 
        subsequent fiscal year.
            ``(3) Investment standard.--Funds transferred under this 
        title shall be managed by the Indian Tribe using the prudent 
        investment standard, provided that the Secretary shall not be 
        liable for any investment losses of funds managed by the Indian 
        Tribe that are not otherwise guaranteed or insured by the 
        Federal Government.

    ``(k) Carryover of Funds.--
            ``(1) In general.--Notwithstanding any provision of an 
        appropriations Act, all funds paid to an Indian Tribe in 
        accordance with a compact or funding agreement shall remain 
        available until expended.
            ``(2) Effect of carryover.--If an Indian Tribe elects to 
        carry over funding from one year to the next, the carryover 
        shall not diminish the amount of funds the Indian Tribe is 
        entitled to receive under a funding agreement in that fiscal 
        year or any subsequent fiscal year.

    ``(l) Limitation of Costs.--
            ``(1) In general.--An Indian Tribe shall not be obligated to 
        continue performance that requires an expenditure of funds in 
        excess of the amount of funds transferred under a compact or 
        funding agreement.
            ``(2) Notice of insufficiency.--If at any time the Indian 
        Tribe has reason to believe that the total amount provided for a 
        specific activity under a compact or funding agreement is 
        insufficient, the Indian Tribe shall provide reasonable notice 
        of such insufficiency to the Secretary.
            ``(3) Suspension of performance.--If, after notice under 
        paragraph (2), 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.
            ``(4) Savings clause.--Nothing in this section reduces any 
        programs, services, or funds of, or provided to, another Indian 
        Tribe.

    ``(m) Distribution of Funds.--The Office of Self-Governance shall be 
responsible for distribution of all Bureau of Indian Affairs funds 
provided under this title unless otherwise agreed by the parties to an 
applicable funding agreement.
    ``(n) Applicability.--Notwithstanding any other provision of this 
section, section 101(a) of the PROGRESS for Indian Tribes Act applies to 
subsections (a) through (m).
``SEC. 409. <<NOTE: 25 USC 5369.>>  FACILITATION.

    ``(a) In General.--Except as otherwise provided by law (including 
section 101(a) of the PROGRESS for Indian Tribes Act), the Secretary 
shall interpret each Federal law and regulation in a manner that 
facilitates--
            ``(1) the inclusion of programs in funding agreements; and
            ``(2) the implementation of funding agreements.

[[Page 134 STAT. 875]]

    ``(b) Regulation Waiver.--
            ``(1) Request.--An Indian Tribe may submit to the Secretary 
        a written request for a waiver of applicability of a Federal 
        regulation, including--
                    ``(A) an identification of the specific text in the 
                regulation sought to be waived; and
                    ``(B) the basis for the request.
            ``(2) <<NOTE: Deadline.>>  Determination by the secretary.--
        Not later than 120 days after receipt by the Secretary and the 
        designated officials under paragraph (4) of a request under 
        paragraph (1), the Secretary shall approve or deny the requested 
        waiver in writing to the Indian Tribe.
            ``(3) Extensions.--The deadline described in paragraph (2) 
        may be extended for any length of time, as agreed upon by both 
        the Indian Tribe and the Secretary.
            ``(4) Designated officials.--The Secretary shall designate 
        one or more appropriate officials in the Department to receive a 
        copy of the waiver request described in paragraph (1).
            ``(5) Grounds for denial.--The Secretary may deny a request 
        under paragraph (1) upon a specific finding by the Secretary 
        that the identified text in the regulation may not be waived 
        because such a waiver is prohibited by Federal law.
            ``(6) Failure to make determination.--If the Secretary fails 
        to make a determination with respect to a waiver request within 
        the period specified in paragraph (2) (including any extension 
        agreed to under paragraph (3)), the Secretary shall be deemed to 
        have agreed to the request, except that for a waiver request 
        relating to programs eligible under section 403(b)(2) or section 
        403(c), the Secretary shall be deemed to have denied the 
        request.
            ``(7) Finality.--A decision of the Secretary under this 
        section shall be final for the Department.
``SEC. 410. <<NOTE: 25 USC 5370.>>  DISCRETIONARY APPLICATION OF 
                        OTHER SECTIONS.

    ``(a) In General.--Except as otherwise provided in section 201(d) of 
the PROGRESS for Indian Tribes Act, at the option of a participating 
Indian Tribe or Indian Tribes, any of the provisions of title I may be 
incorporated in any compact or funding agreement under this title. The 
inclusion of any such provision shall be subject to, and shall not 
conflict with, section 101(a) of such Act.
    ``(b) Effect.--Each incorporated provision under subsection (a) 
shall--
            ``(1) have the same force and effect as if set out in full 
        in this title;
            ``(2) supplement or replace any related provision in this 
        title; and
            ``(3) <<NOTE: Applicability.>>  apply to any agency 
        otherwise governed by this title.

    ``(c) Effective Date.--If an Indian Tribe requests incorporation at 
the negotiation stage of a compact or funding agreement, the 
incorporation shall--
            ``(1) be effective immediately; and
            ``(2) control the negotiation and resulting compact and 
        funding agreement.

[[Page 134 STAT. 876]]

``SEC. 411. <<NOTE: 25 USC 5371.>>  ANNUAL BUDGET LIST.

    ``The Secretary shall list, in the annual budget request submitted 
to Congress under section 1105 of title 31, United States Code, any 
funds proposed to be included in funding agreements authorized under 
this title.
``SEC. 412. <<NOTE: 25 USC 5372.>>  REPORTS.

    ``(a) In General.--
            ``(1) Requirement.--On January 1 of each year, the Secretary 
        shall submit to Congress a report regarding the administration 
        of this title.
            ``(2) Analysis.--Any Indian Tribe may submit to the Office 
        of Self-Governance and to the appropriate committees of Congress 
        a detailed annual analysis of unmet Tribal needs for funding 
        agreements under this title.

    ``(b) Contents.--The report under subsection (a)(1) shall--
            ``(1) be compiled from information contained in funding 
        agreements, annual audit reports, and data of the Secretary 
        regarding the disposition of Federal funds;
            ``(2) identify--
                    ``(A) the relative costs and benefits of self-
                governance;
                    ``(B) with particularity, all funds that are 
                specifically or functionally related to the provision by 
                the Secretary of services and benefits to self-
                governance Indian Tribes and members of Indian Tribes;
                    ``(C) the funds transferred to each Indian Tribe and 
                the corresponding reduction in the Federal employees and 
                workload; and
                    ``(D) the funding formula for individual Tribal 
                shares of all Central Office funds, together with the 
                comments of affected Indian Tribes, developed under 
                subsection (d);
            ``(3) <<NOTE: Comment period.>>  before being submitted to 
        Congress, be distributed to the Indian Tribes for comment (with 
        a comment period of not less than 30 days);
            ``(4) include the separate views and comments of each Indian 
        Tribe or Tribal organization; and
            ``(5) <<NOTE: Lists.>>  include a list of--
                    ``(A) <<NOTE: Determination. Consultation.>>  all 
                such programs that the Secretary determines, in 
                consultation with Indian Tribes participating in self-
                governance, are eligible for negotiation to be included 
                in a funding agreement at the request of a participating 
                Indian Tribe; and
                    ``(B) all such programs which Indian Tribes have 
                formally requested to include in a funding agreement 
                under section 403(c) due to the special geographic, 
                historical, or cultural significance of the program to 
                the Indian Tribe, indicating whether each request was 
                granted or denied, and stating the grounds for any 
                denial.

    ``(c) Report on Non-BIA Programs.--
            ``(1) In general.--In order to optimize opportunities for 
        including non-BIA programs in agreements with Indian Tribes 
        participating in self-governance under this title, the Secretary 
        shall review all programs administered by the Department, other 
        than through the Bureau of Indian Affairs, the Office of the 
        Assistant Secretary for Indian Affairs, or the Office of the 
        Special Trustee for American Indians, without regard to the 
        agency or office concerned.

[[Page 134 STAT. 877]]

            ``(2) <<NOTE: Consultation.>>  Programmatic targets.--The 
        Secretary shall establish programmatic targets, after 
        consultation with Indian Tribes participating in self-
        governance, to encourage bureaus of the Department to ensure 
        that an appropriate portion of those programs are available to 
        be included in funding agreements.
            ``(3) <<NOTE: Federal Register, publication.>>  
        Publication.--The lists under subsection (b)(5) and targets 
        under paragraph (2) shall be published in the Federal Register 
        and made available to any Indian Tribe participating in self-
        governance.
            ``(4) Annual review.--
                    ``(A) <<NOTE: Federal Register, 
                publication. Consultation.>>  In general.--The Secretary 
                shall annually review and publish in the Federal 
                Register, after consultation with Indian Tribes 
                participating in self-governance, revised lists and 
                programmatic targets.
                    ``(B) Contents.--In preparing the revised lists and 
                programmatic targets, the Secretary shall consider all 
                programs that were eligible for contracting in the 
                original list published in the Federal Register in 1995, 
                except for programs specifically determined not to be 
                contractible as a matter of law.

    ``(d) <<NOTE: Consultation.>>  Report on Central Office Funds.--Not 
later than January 1, 2020, the Secretary shall, in consultation with 
Indian Tribes, develop a funding formula to determine the individual 
Tribal share of funds controlled by the Central Office of the Bureau of 
Indian Affairs and the Office of the Special Trustee for inclusion in 
the compacts.
``SEC. 413. <<NOTE: 25 USC 5373.>>  REGULATIONS.

    ``(a) In General.--
            ``(1) <<NOTE: Deadline.>>  Promulgation.--Not later than 90 
        days after the date of enactment of the PROGRESS for Indian 
        Tribes Act, the Secretary shall initiate procedures under 
        subchapter III of chapter 5 of title 5, United States Code, to 
        negotiate and promulgate such regulations as are necessary to 
        carry out this title.
            ``(2) <<NOTE: Federal Register, publication. Deadline.>>  
        Publication of proposed regulations.--Proposed regulations to 
        implement this title shall be published in the Federal Register 
        not later than 21 months after the date of enactment of the 
        PROGRESS for Indian Tribes Act.
            ``(3) Expiration of authority.--The authority to promulgate 
        regulations under paragraph (1) shall expire on the date that is 
        30 months after the date of enactment of the PROGRESS for Indian 
        Tribes Act.

    ``(b) Committee.--
            ``(1) Membership.--A negotiated rulemaking committee 
        established pursuant to section 565 of title 5, United States 
        Code, to carry out this section shall have as its members only 
        representatives of the Federal Government and Tribal government.
            ``(2) Lead agency.--Among the Federal representatives 
        described in paragraph (1), the Office of Self-Governance shall 
        be the lead agency for the Department.

    ``(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 Indian Tribes.
    ``(d) Effect.--

[[Page 134 STAT. 878]]

            ``(1) Repeal.--The Secretary may repeal any regulation that 
        is inconsistent with this Act.
            ``(2) Conflicting provisions.--Subject to section 101(a) of 
        the PROGRESS for Indian Tribes Act and except with respect to 
        programs described under section 403(c), this title shall 
        supersede any conflicting provision of law (including any 
        conflicting regulations).
            ``(3) Effectiveness without regard to regulations.--The lack 
        of promulgated regulations on an issue shall not limit the 
        effect or implementation of this title.
``SEC. 414. <<NOTE: 25 USC 5374.>>  EFFECT OF CIRCULARS, POLICIES, 
                        MANUALS, GUIDANCE, AND RULES.

    ``Unless expressly agreed to by a participating Indian Tribe in a 
compact or funding agreement, the participating Indian Tribe shall not 
be subject to any agency circular, policy, manual, guidance, or rule 
adopted by the Department, except for--
            ``(1) the eligibility provisions of section 105(g); and
            ``(2) regulations promulgated pursuant to section 413.
``SEC. 415. <<NOTE: 25 USC 5375.>>  APPEALS.

    ``Except as provided in section 406(d), in any administrative 
action, appeal, or civil action for judicial review of any decision made 
by the Secretary under this title, the Secretary shall have the burden 
of proof of demonstrating by a preponderance of the evidence--
            ``(1) the validity of the grounds for the decision; and
            ``(2) the consistency of the decision with the requirements 
        and policies of this title.
``SEC. 416. <<NOTE: 25 USC 5376.>>  APPLICATION OF OTHER 
                        PROVISIONS.

    ``Section 314 of the Department of the Interior and Related Agencies 
Appropriations Act, 1991 (Public Law 101-512; 104 Stat. 1959), shall 
apply to compacts and funding agreements entered into under this title.
``SEC. 417. <<NOTE: 25 USC 5377.>>  AUTHORIZATION OF 
                        APPROPRIATIONS.

    ``There are authorized to be appropriated such sums as may be 
necessary to carry out this title.''.

                   TITLE II--INDIAN SELF-DETERMINATION

SEC. 201. DEFINITIONS; REPORTING AND AUDIT REQUIREMENTS; 
                        APPLICATION OF PROVISIONS.

    (a) Definitions.--
            (1) In general.--Section 4 of the Indian Self-Determination 
        and Education Assistance Act (25 U.S.C. 5304) is amended by 
        striking subsection (j) and inserting the following:

    ``(j) `self-determination contract' means a contract entered into 
under title I (or a grant or cooperative agreement used under section 9) 
between a Tribal organization and the appropriate Secretary for the 
planning, conduct, and administration of programs or services that are 
otherwise provided to Indian Tribes and members of Indian Tribes 
pursuant to Federal law, subject to the condition that, except as 
provided in section 105(a)(3), no contract entered

[[Page 134 STAT. 879]]

into under title I (or grant or cooperative agreement used under section 
9) shall be--
            ``(1) considered to be a procurement contract; or
            ``(2) except as provided in section 107(a)(1), subject to 
        any Federal procurement law (including regulations);''.
            (2) Technical amendments.--Section 4 of the Indian Self-
        Determination and Education Assistance Act (25 U.S.C. 5304), as 
        amended by paragraph (1), is further amended--
                    (A) in subsection (e), by striking `` `Indian tribe' 
                means'' and inserting `` `Indian tribe' or `Indian 
                Tribe' means''; and
                    (B) in subsection (l), by striking `` `tribal 
                organization' means'' and inserting `` `Tribal 
                organization' or `tribal organization' means''.

    (b) Reporting and Audit Requirements.--Section 5 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 5305) is amended--
            (1) in subsection (b)--
                    (A) by striking ``after completion of the project or 
                undertaking referred to in the preceding subsection of 
                this section'' and inserting ``after the retention 
                period for the report that is submitted to the Secretary 
                under subsection (a)''; and
                    (B) by adding at the end the following: ``The 
                retention period shall be defined in regulations 
                promulgated by the Secretary pursuant to section 413.''; 
                and
            (2) in subsection (f)(1), by inserting ``if the Indian 
        Tribal organization expends $500,000 or more in Federal awards 
        during such fiscal year'' after ``under this Act,''.

    (c) <<NOTE: 25 USC 5305 note.>>  Effective Date.--The amendment made 
by subsection (b)(2) shall not take effect until 14 months after the 
date of enactment of this Act.

    (d) <<NOTE: 25 USC 5361 note.>>  Application of Other Provisions.--
Sections 4, 5, 6, 7, 102(c), 104, 105(a)(1), 105(f), 110, and 111 of the 
Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304, 
5305, 5306, 5307, 5321(c), 5323, 5324(a)(1), 5324(f), 5331, and 5332) 
and section 314 of the Department of the Interior and Related Agencies 
Appropriations Act, 1991 (Public Law 101-512; 104 Stat. 1959), apply to 
compacts and funding agreements entered into under title IV of the 
Indian Self-Determination and Education Assistance Act (25 U.S.C. 5361 
et seq.).
SEC. 202. CONTRACTS BY SECRETARY OF THE INTERIOR.

    Section 102 of the Indian Self-Determination and Education 
Assistance Act (25 U.S.C. 5321) is amended--
            (1) in subsection (c)(2), by striking ``economic 
        enterprises'' and all that follows through ``except that'' and 
        inserting ``economic enterprises (as defined in section 3 of the 
        Indian Financing Act of 1974 (25 U.S.C. 1452)), except that''; 
        and
            (2) by adding at the end the following:

    ``(f) Good Faith Requirement.--In the negotiation of contracts and 
funding agreements, the Secretary shall--
            ``(1) at all times negotiate in good faith to maximize 
        implementation of the self-determination policy; and
            ``(2) carry out this Act in a manner that maximizes the 
        policy of Tribal self-determination, in a manner consistent 
        with--
                    ``(A) the purposes specified in section 3; and

[[Page 134 STAT. 880]]

                    ``(B) the PROGRESS for Indian Tribes Act.

    ``(g) Rule of Construction.--Subject to section 101(a) of the 
PROGRESS for Indian Tribes Act, each provision of this Act and each 
provision of a contract or funding agreement shall be liberally 
construed for the benefit of the Indian Tribe participating in self-
determination, and any ambiguity shall be resolved in favor of the 
Indian Tribe.''.
SEC. 203. ADMINISTRATIVE PROVISIONS.

    Section 105 of the Indian Self-Determination and Education 
Assistance Act (25 U.S.C. 5324) is amended--
            (1) in subsection (b), in the first sentence, by striking 
        ``pursuant to'' and all that follows through ``of this Act'' and 
        inserting ``pursuant to sections 102 and 103''; and
            (2) by adding at the end the following:

    ``(p) Interpretation by Secretary.--Except as otherwise provided by 
law, the Secretary shall interpret all Federal laws (including 
regulations) and Executive orders in a manner that facilitates, to the 
maximum extent practicable--
            ``(1) the inclusion in self-determination contracts and 
        funding agreements of--
                    ``(A) applicable programs, services, functions, and 
                activities (or portions thereof); and
                    ``(B) funds associated with those programs, 
                services, functions, and activities;
            ``(2) the implementation of self-determination contracts and 
        funding agreements; and
            ``(3) the achievement of Tribal health objectives.

    ``(q)(1) <<NOTE: Determination.>>  Technical Assistance for Internal 
Controls.--In considering proposals for, amendments to, or in the course 
of, a contract under this title and compacts under titles IV and V of 
this Act, if the Secretary determines that the Indian Tribe lacks 
adequate internal controls necessary to manage the contracted program or 
programs, the Secretary shall, as soon as practicable, provide the 
necessary technical assistance to assist the Indian Tribe in developing 
adequate internal controls. <<NOTE: Plan.>> As part of that technical 
assistance, the Secretary and the Tribe shall develop a plan for 
assessing the subsequent effectiveness of such technical assistance. The 
inability of the Secretary to provide technical assistance or lack of a 
plan under this subsection shall not result in the reassumption of an 
existing agreement, contract, or compact, or declination or rejection of 
a new agreement, contract, or compact.

    ``(2) <<NOTE: Reports.>>  The Secretary shall prepare a report to be 
included in the information required for the reports under sections 
412(b)(2)(A) and 514(b)(2)(A). The Secretary shall include in this 
report, in the aggregate, a description of the internal controls that 
were inadequate, the technical assistance provided, and a description of 
Secretarial actions taken to address any remaining inadequate internal 
controls after the provision of technical assistance and implementation 
of the plan required by paragraph (1).''.
SEC. 204. CONTRACT FUNDING AND INDIRECT COSTS.

    Section 106(a)(3) of the Indian Self-Determination and Education 
Assistance Act (25 U.S.C. 5325(a)(3)) is amended--
            (1) in subparagraph (A)--
                    (A) in clause (i), by striking ``, and'' and 
                inserting ``; and''; and

[[Page 134 STAT. 881]]

                    (B) in clause (ii), by striking ``expense related to 
                the overhead incurred'' and inserting ``expense incurred 
                by the governing body of the Indian Tribe or Tribal 
                organization and any overhead expense incurred'';
            (2) by redesignating subparagraph (B) as subparagraph (C); 
        and
            (3) by inserting after subparagraph (A) the following:
                    ``(B) In calculating the reimbursement rate for 
                expenses described in subparagraph (A)(ii), not less 
                than 50 percent of the expenses described in 
                subparagraph (A)(ii) that are incurred by the governing 
                body of an Indian Tribe or Tribal organization relating 
                to a Federal program, function, service, or activity 
                carried out pursuant to the contract shall be considered 
                to be reasonable and allowable.''.
SEC. 205. CONTRACT OR GRANT SPECIFICATIONS.

    Section 108 of the Indian Self-Determination and Education 
Assistance Act (25 U.S.C. 5329) is amended--
            (1) in subsection (a)(2), by inserting ``subject to 
        subsections (a) and (b) of section 102,'' before ``contain'';
            (2) in subsection (f)(2)(A)(ii) of the model agreement 
        contained in subsection (c), by inserting ``subject to 
        subsections (a) and (b) of section 102 of the Indian Self-
        Determination and Education Assistance Act (25 U.S.C. 5321),'' 
        before ``such other provisions''; and
            (3) in subsection (b)(7)(C) of the model agreement contained 
        in subsection (c), in the second sentence of the matter 
        preceding clause (i), by striking ``one performance monitoring 
        visit'' and inserting ``two performance monitoring visits''.

    Approved October 21, 2020.

LEGISLATIVE HISTORY--S. 209:
---------------------------------------------------------------------------

HOUSE REPORTS: No. 116-422 (Comm. on Natural Resources).
SENATE REPORTS: No. 116-34 (Comm. on Indian Affairs).
CONGRESSIONAL RECORD:
                                                        Vol. 165 (2019):
                                    June 27, considered and passed 
                                        Senate.
                                                        Vol. 166 (2020):
                                    Sept. 21, considered and passed 
                                        House.
DAILY COMPILATION OF PRESIDENTIAL DOCUMENTS (2020):
            Oct. 21, Presidential statement.

                                  <all>