Indian Self-Determination and Education Assistance Act Amendments of 1988
PL 100-472 (H.R.1223), enacted 10/05/1988

PUBLIC LAW 100-472—OCT. 5, 1988 
102 STAT. 2285 
Public Law 100-472 
100th Congress 
An Act 
Entitled the 'Indian Self-Determination Amendments of 1987". 
Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled, 
TITLE I—ADMINISTRATIVE PROVISIONS 
SEC. 101. SHORT TITLE AND TABLE OF CONTENTS. 
This Act may be cited as the "Indian Self-Determination and 
Education Assistance Act Amendments of 1988". 
Oct. 5, 1988 
[H.R. 1223] 
Indian Self-
Determination 
and Education 
Assistance Act 
Amendments of 
1988. 
Contracts. 
25 u s e 450 note. 
TABLE OF CONTENTS 
TITLE I—ADMINISTRATIVE PROVISIONS 
Sec. 101. Short title and table of contents. 
Sec. 102. Declaration of policy. 
Sec. 103. Definitions. 
Sec. 104. Reporting and audit requirements. 
Sec. 105. Carryover funding. 
TITLE n—INDIAN SELF-DETERMINATION ACT AMENDMENTS 
Sec. 201. Self-determination contracts. 
Sec. 202. Technical assistance and grants to tribal organizations. 
Sec. 203. Personnel. 
Sec. 204. Administrative provisions. 
Sec. 205. Contract funding and indirect costs. 
Sec. 206. Contract appeals. 
Sec. 207. Promulgation of rules and r^ulations. 
Sec. 208. Reports. 
Sec. 209. Tribal self-governance demonstration project. 
Sec. 210. Savings provisions. 
Sec. 211. SeverabUity. 
SEC. 102. DECLARATION OF POLICY. 
Section 3 of the Indian Self-Determination and Education Assist-
ance Act (88 Stat. 2203, 25 U.S.C. 450 et seq.) is amended by striking 25 USC 450a. 
subsection 0)) and inserting the following new subsection in lieu 
thereof: 
"(b) The CJongress declares its commitment to the maintenance of 
the Federal Government's unique and continuing relationship with, 
and responsibility to, individual Indian tribes and to the Indian 
people as a whole through the establishment of a meaningful Indian 
self-determination policy which will permit an orderly transition 
from the Federal domination of programs for, and services to, 
Indians to effective and meaningful participation by the Indian 
people in the planning, conduct, and administration of those pro-
grams and services. In accordance with this policy, the United 
States is committed to supporting and assisting Indian tribes in the 
development of strong and stable tribal governments, capable of 
102 STAT. 2286 
PUBLIC LAW 100-472—OCT. 5, 1988 
administering quality programs and developing the economies of 
their respective communities.". 
SEC 103. DEFmrnoNS. 
Section 4 of the Indian Self-Determination and Education Assist-
25 use 450b. 
ance Act is amended to read as follows— 
"SEC. 4. For purposes of this Act, the term— 
"(a) 'construction programs' means programs for the plan-
ning, design, construction, repair, improvement, and expansion 
of buildings or facilities, including, but not limited to, housing, 
law enforcement and detention facilities, sanitation and water 
systems, roads, schools, administration and health facilities, 
irrigation and agricultural work, and water conservation, flood 
control, or port facilities; 
"(b) 'contract funding base' means the base level from which 
contract funding needs are determined, including all contract 
costs; 
"(c) 'direct prc^am costs' means costs that can be identified 
specifically with a particular contract objective; 
"(d) 'Indian' means a person who is a member of an Indian 
tribe; 
"(e) 'Indian tribe' means any Indian tribe, band, nation, or 
other organized group or community, including any Alaska 
Native village or regional or village corporation as defined in or 
established pursuant to the Alaska Native Claims Settlement 
Act (85 Stat. 688) which is recognized as eligible for the special 
programs and services provided by the United States to Indians 
because of their status as Indians; 
"(f) 'indirect costs' means costs incurred for a common or joint 
purpose benefiting more than one contract objective, or which 
are not readily assignable to the contract objectives specifically 
benefited 
without 
effort 
disproportionate to the 
results 
achieved; 
"(g) 'indirect costs rate' means the rate arrived at through 
negotiation between an Indian tribe or tribal organization and 
the appropriate Federal agency; 
"(h) 'mature contract' means a self-determination contract 
that has been continuously operated by tribal organization for 
three or more years, and for which there are no significant and 
material audit exceptions in the annual financial audit of the 
tribal organization: Provided, That upon the request of a tribal 
organization or tribal governing body, a contract of the tribal 
organization in existence on the date of enactment of the Indian 
Self-Determination and Education Assistance Act Amendments 
of 1988 which meets this definition shall be considered to be a 
mature contract; 
"(i) 'Secretary', unless otherwise designated, means either the 
Secretary of Health and Human Services or the Secretary of the 
Interior or both; 
"(j) 'self-determination contract' means a contract entered 
into pursuant to this Act between a tribal organization and the 
appropriate Secretary the plamning, conduct and administration 
of programs or services which are otherwise provided to Indian 
tribes and their members pursuant to Federal law: Provided, 
That no contract entered into pursuant to this Act shall be 
construed to be a procurement contract; 
PUBLIC LAW 100-472—OCT. 5, 1988 
102 STAT. 2287 
"Gc) 'State education agency' means the State board of edu-
cation or other agency or officer primarily responsible for super-
vision by the State of public elementary and secondary schools, 
or, if there is no such officer or agency, an officer or agency 
designated by the Governor or by State law; and 
"fl) 'tribal organization' means the recognized governing body 
of any Indian tribe; any l^ally established organization of 
Indians which is controlled, sanctioned, or chartered by such 
governing body or which is democratically elected by the adult 
members of the Indian community to be served by such 
organization and which includes the maximum participation of 
Indians in all phases of its activities: Provided, That in any case 
where a contract is let or grant made to an organization to 
perform services benefiting more than one Indian tribe, the 
approval of each such Indian tribe shall be a prerequisite to the 
letting or making of such contract or grant.". 
SEC 104. REPORTING AND AUDIT REQUIREMENTS. 
(a) Subsection (a) of section 5 of the Indian Self-Determination and 
Education Assistance Act is amended to read as follows: 
"(aXD Each recipient of Federal financial assistance under this 
Act shall keep such records as the appropriate Secretary shall 
prescribe by r^ulation promulgated under sections 552 and 553 of 
title 5, United States Code, including records which fully disclose— 
"(A) the amount and disposition by such recipient of the 
proceeds of such assistance, 
"(B) the cost of the project or undertaking in connection with 
which such assistance is given or used, 
"(O the amount of that portion of the cost of the project or 
undertaking supplied by other sources, and 
"(D) such other information as will facilitate an effective 
audit. 
"(2) For the purposes of this subsection, such records for a mature 
contract shall consist of quarterly financial statements for the 
purpose of accounting for Federal funds, the annual single-agency 
audit required by the Single Audit Act of 1984 (98 Stat. 2327, 31 
U.S.C. 7501 et seq.), and a brief annual pn^fram report.". 
(b) Section 5 of the Indian Self-Determination and Education 
Assistance Act is further amended by adding the following new 
subsection: 
"(e) The Secretary shall report annually in writing to tribes 
r^arding projected and actual staffing levels, funding obligations, 
and expenditures for pn^ams operated directly by the Secretary 
serving that tribe.". 
SEC 105. CARRYOVER FUNDING. 
Section 8 of the Indian Self-Determination and Education Assist-
ance Act is amended to read as follows: 
25 u s e 450c. 
Records. 
Regulations. 
Public 
information. 
25 u s e 13a. 
CARRYOVER FUNDING 
"SEC. 8. Notwithstanding any other provision of law, any funds 
appropriated pursuant to the Act of November 2,1921 (42 Stat. 208), 
for any fiscal year which are not obligated or expended prior to the 
b^inning of the fiscal year succeeding the fiscal year for which such 
funds were appropriated shall remain available for obligation or 
expenditures during such succeeding fiscal year. In the case of 
102 STAT. 2288 
PUBLIC LAW 100-472—OCT. 5, 1988 
amounts made available to a tribal organization under a self-deter-
mination contract, if the funds are to be expended in the succeeding 
fiscal year for the purpose for which they were originally appro-
priated, contracted or granted, or for which they are authorized to 
be used pursuant to the provisions of section 106(aX3), no additional 
justification or documentation of such purposes need be provided by 
the tribal organization to the Secretary as a condition of receiving or 
expending such funds.". 
TITLE n—INDIAN SELF-DETERMINATION ACT 
AMENDMENTS 
SEC. 201, SELF-DETERMINATION CONTRACTS. 
25 use 450f. 
(a) Section 102 of the Indian Self-Determination Act is amended to 
read as follows: 
"SEC. 102. (aXD The Secretary is directed, upon the request of any 
Indian tribe by tribal resolution, to enter into a self-determination 
contract or contracts with a tribal organization to plan, conduct, and 
administer programs or portions thereof, including construction 
prc^rams— 
"(A) provided for in the Act of April 16,1934 (48 Stat 596), as 
amended; 
"(B) which the Secretary is authorized to administer for the 
benefit of Indians under the Act of November 2, 1921 (42 Stat. 
208), and any Act subsequent thereto; 
"(C) provided by the Secretary of Health and Human Services 
under the Act of August 5, 1954 (68 Stat. 674), as amended; 
"(D) administered by the Secretary for the benefit of Indians 
for which appropriations are made to agencies other than the 
Department of Health and Human Services or the Department 
of the Interior; and 
"(E) for the benefit of Indians because of their status as 
Indians without r ^ a r d to the agency or office of the Depart-
ment of Health and Human Services or the Department of the 
Interior within which it is performed. 
"(2) If so authorized by an Indian tribe under paragraph (1) of this 
subsection, a tribal organization may submit a proposal for a self-
determination contract to the Secretary for review. The Secretary 
shall, within ninety days after receipt of the proposal, approve the 
proposal unless, within sixty days of receipt of the proposal, a 
specific finding is made that— 
"(A) the service to be rendered to the Indian beneficiaries of 
the particidar program or function to be contracted will not be 
satisfactory; 
"(B) adequate protection of trust resources is not assured; or 
"(C) the prop<^ed project or function to be contracted for 
cannot be properly completed or maintained by the proposed 
contract. 
"(3) Upon the request of a tribal organization that operates two or 
more mature self-determination contracts, those contracts may be 
consolidated into one single contract. 
"(b) Whenever the Secretary declines to enter into a self-deter-
mination contract or contracts pursuant to subsection (a) of this 
section, the Secretary shall— 
"(1) state any objections in writing to the tribal organization. 
PUBLIC LAW 100-472—OCT. 5, 1988 
102 STAT. 2289 
"(2) provide assistance to the tribal organization to overcome 
the stated objections, and 
"(3) provide the tribal organization with a hearing on the 
record and the opportunity for appeal on the objections raised, 
under such rules and regulations as the Secretary may promul-
gate. 
"(cXD B^inning in 1990, the Secretary shall be responsible for 
obtaining or providing liability insurance or equivalent coverage, on 
the most cost-effective basis, for Indian tribes, tribal organizations, 
and tribal contractors canying out contracts, grant agreements and 
cooperative agreements pursuant to this Act. In obtaining or provid-
ing such coverage, the Secretary shall take into consideration the 
extent to which liability under such contracts or agreements are 
covered by the Federal Tort Claims Act. 
"(2) In obtaining or providing such coverage, the Secretary shall, 
to the greatest extent practicable, give a preference to coverage 
underwritten by Indian-owned economic enterprises as defined in 
section 1425, title 25, United States Code, except that, for the 
purposes of this subsection, such enterprises may include non-profit 
corporations. 
"(3XA) Any policy of insuremce obtained or provided by the Sec-
retary pursuant to this subsection shall contain a provision that the 
insurance carrier shall waive any right it may have to raise as a 
defense the sovereign immunity of an Indian tribe from suit, but 
that such waiver shall extend only to claims the amount and nature 
of which are within the coverage and limits of the policy and shall 
not authorize or empower such insurance carrier to waive or other-
wise limit the tribe's sovereign immunity outside or beyond the 
coverage or limits of the policy of insurance. 
"(B) No waiver of the sovereign immunity of an Indian tribe 
pursuant to this paragraph shsdl include a waiver to the extent of 
any potential liability for interest prior to judgment or for punitive 
damages or for any other limitation on liability imposed by the law 
of the State in which the alleged injury occurs. . 
(bXD Subsections (a) and Qo) and the first sentence of subsection (c) 
of section 103 of the Indian Self-Determination Act are hereby 
repealed. Subsection (c) of section 103 of the Indian Self-Determina-
tion Act is redesignated as subsection (d) of section 102 of that Act 
and is amended by striking out "103 and 104flt))" and inserting, in 
lieu thereof, "102 or 103". 
(2) Any reference to section 103(c) contained in an Act making 
appropriations for the Department of the Interior and Related 
Agencies for fiscal year 1989 shall be deemed to apply to section 
102(d) of such Act as amended by this Act, 
SEC. 202. TECHNICAL ASSISTANCE AND GRANTS TO TRIBAL ORGANIZA-
TIONS. 
Section 104 of the Indian Self-Determination Act is amended— 
(a) by redesignating such section as section 103; 
(b) by inserting the word "or" at the end of paragraph (2) of 
subsection (a) of such section, striking the semicolon and the 
word "or" at the end of paragraph (3) of such subsection and 
inserting, in lieu thereof, a period, and by striking all of para-
graph (4); 
(c) by striking the phrase "Health, Education, and Welfare" 
in subsection (b) of such section and inserting, in lieu thereof, 
the phrase "Health and Human Services"; and 
Records. 
Insurance. 
Grants. 
25 u s e 450f, 
450g. 
25 use 450f 
note. 
25 use 450f 
note. 
25 use 450h. 
102 STAT. 2290 
PUBLIC LAW 100-472—OCT. 5, 1988 
Government 
organization 
and employees. 
25 use 450i. 
42 u s e 2004b. 
25 u s e 450i. 
(d) by adding the following new subsections (d) and (e) at the 
end thereof: 
"(d) The Secretary is directed, upon the request of any tribeil 
organization and subject to the availability of appropriations, to 
provide technical assistance on a nonreimbursable basis to such 
tribal organization— 
"(1) to develop 
any 
new 
self-determination 
contract 
authorized pursuant to this Act; 
"(2) to provide for the assumption by such tribal organization 
of any prc^ram, or portion thereof, provided for in section 
102(aXl) of this Act; or 
"(3) to develop modifications to any proposal for a self-deter-
mination contract which the Secretary has declined to approve 
pursuant to section 102 of the Act. 
"(e) The Secretary is authorized, upon the request of an Indian 
tribe, to make a grant to any tribal organization for— 
"(1) obtaining technical assistance from providers designated 
by the tribal organization, including tribal organizations that 
operate mature contracts, for the purposes of program planning 
and evaluation, including the development of any management 
systems necessary for contract management, and the develop-
ment of cost allocation plans for indirect cost rates; and 
"(2) the planning, designing, monitoring, and evaluating of 
Federal programs serving the tribe, including Federal adminis-
trative functions.". 
SEC. 203. PERSONNEL. 
Section 105 of the Indian Self-Determination Act is amended by— 
(a) redesignating such section as section 104; 
(b) striking the phrase "section 4(c)" in subsection (a) of such 
section, amending section 3371(2) of title 5, United States (Ikxle, 
and inserting, in Ueu thereof, the phrase "section 4(m)"; 
(c) striking the phrase "sections 102, 103, and 104" in subsec-
tion (b) of such section, amending section 8 of the Act of August 
5, 1954 (68 Stat. 674), and inserting, in lieu thereof, the phrase 
"sections 102 and 103"; 
(d) deleting the words "on or before December 31, 1988" in 
subsection (e) of such section; 
(e) in paragraph (2) of subsection (e) of such section— 
(1) inserting "or chapter 84 ('Federal Employees Retire-
ment System')" after "chapter 83 ('Retirement')" and before 
"oftitle5";and 
(2) striking out "Notwithstanding any other law," and 
inserting in Ueu thereof "Notwithstanding the provisions of 
sections 8347(o), 8713, and 8914 of title 5, United States 
Code,"; and 
(f) by adding the following new subsections (k), 0), and (m). 
"(k) Section 3372(a) of title 5, United States Code, is further 
amended to add the following to the end thereof: 'If the assigned 
employee fails to complete the period of assignment and there is 
another employee willing and available to do so, the Secretary may 
assign the employee to complete the period of assignment and may 
execute an agreement with the tribal organization with respect to 
the replacement employee. That agreement may provide for a dif-
ferent period of assignment as may be agreed to by the Secretary 
and the tribal organization.'. 
PUBLIC LAW 100-472—OCT. 5, 1988 
102 STAT. 2291 
"(1) Section 3372 of title 5, United States Code, is further amended 
by adding a new subsection (d) as follows: 
*(d) Where the employee is assigned to a tribal organization, the 
employee shall be eligible for promotions, periodic step-increases, 
additional step-increases, merit pay, and cash awards, as defined in 
chapters 53 and 54 of this title, on the same basis as other Federal 
employees.'. 
(m) The status of an Indian appointed to the Federal service 
under an excepted appointment under the authority of section 12 of 
the Act of June 18,1934 (25 U.S.C. 472), or any other provision of law 
granting a preference to Indians in personnel actions, shall be 
converted to a career appointment in the competitive service after 
three years of continuous service and satisfactory performance. The 
conversion shall not alter the Indian's eligibility for preference in 
personnel actions.". 
SEC. 204. ADMINISTRATIVE PROVISIONS. 
Section 106 of the Indian Self-Determination Act is amended— 25 use 450j. 
(a) by redesignating such section as section 105; 
(b) by striking the phrase "sections 102 and 103" in subsection 
(a) of such section and inserting, in lieu thereof, the phrase 
"section 102"; 
(c) by changing the period at the end of subsection (a) of such 
section to a colon and adding the following new proviso at the 
end thereof: "Provided further. That, except for construction 
contracts (or sub-contracts in such cases where the tribal con-
tractor has sub-contracted the activity), the Office of Federal 
Procurement Policy Act (88 Stat. 796; 41 U.S.C. 401 et seq.) and 
Federal acquisition regulations promulgated thereunder shall 
not apply to self-determination contracts."; 
(d) by striking the phrase "sections 102, 103, and 104" in 
suteection (b) of such section and inserting, in lieu thereof, the 
phrase "sections 102 and 103"; 
(e) by striking subsections (c), (d), and (e) of such section and 
inserting, in lieu thereof, the following: 
"(cXl) A self-determination contract shall be— 
"(A) for a term not to exceed three years in the case of other 
than a mature contract, unless the appropriate Secretary £uid 
the tribe agree that a longer term would be advisable, and 
"(B) for an indefinite term in the case of a mature contract. 
The amounts of such contracts shall be subject to the availability of 
appropriations. 
'(2) The amounts of such contracts may be renegotiated annually 
to reflect changed circumstances and factors, including, but not 
limited to, cost increases beyond the control of the tribal organiza-
tion. 
"(dXD No later than fiscal year 1990, the Secretary shall begin 
using the calendar year as the basis for contracts and agreements 
under this Act except for instances where the Secretary and the 
Indian tribe or tribal organization agree on a different period. 
"(2) The Secretary shall submit a report to the Congress within Reports. 
ninety days of enactment of the Indian Self-Determination and 
Education Assistance Act Amendments of 1988 on the amounts of 
any additional obligational authority needed to implement this 
subsection in fiscal year 1989. 
"(e) Whenever an Indian tribe requests retrocession of the appro- 
Effective date. 
priate Secretary for any contract entered into pursuant to this Act, 
102 STAT. 2292 
PUBLIC LAW 100-472—OCT. 5, 1988 
Grants. 
Gifts and 
property. 
such retrocession shall become effective one year from the date of 
the request by the Indian tribe or at such date as may be mutually 
agreed by the Secretary and the Indian tribe. 
"(f) In connection with any self-determination contract or grant 
made pursuant to section 102 or 103 of this Act, the appropriate 
Secretary may— 
Public buildings 
"(1) permit an Indian tribe or tribal organization in carrying 
and grounds. 
out such Contract or grant, to utilize existing school buildings, 
hospitals, and other facilities and all equipment therein or 
appertaining thereto and other personal property owned by the 
Government within the Secretary's jurisdiction under such 
terms and conditions as may be agreed upon for their use and 
maintenance; 
"(2) donate to an Indian tribe or tribal organization the title 
to any personal property found to be excess to the needs of the 
Bureau of Indism Affairs, the Indian Health Service, or the 
General Services Administration, including property and equip-
ment purchased with funds under any self-determination con-
tract or grant agreement; and 
"(3) acquire excess or surplus Government personal property 
for donation to an Indian tribe or tribal organization if the 
Secretary determines the property is appropriate for use by the 
tribe or tribal organization for a purpose for which a self-
determination contract or grant agreement is authorized under 
this Act."; 
(f) by redesignating subsection (f) of such section as subsection 
(g) and by striking the phrase "sections 102 and 103 of this Act 
and grants pursuant to section 104 of this Act" in such subsec-
tion and by inserting, in lieu thereof, the phrase "section 102 of 
this Act and grants pursuant to section 103 of this Act"; 
(g) by redesignating subsection (g) of such section as subsec-
tion (h); by stiiMng the phrase "sections 102, 103, and 104" in 
such subsection and inserting, in lieu thereof, the phrase "sec-
tions 102 and 103"; and by striking the phrase "Health, Edu-
cation, and Welfare" and inserting, in lieu thereof, the phrase 
"Health and Human Services"; and 
(h) by striking all of the existing subsection Gi) of such section. 
25 use 450J-1. 
SEC. 205. CONTRACT FUNDING AND INDIRECT COSTS. 
Title I of the Indian Self-Determination and Education Assistance 
Act is further amended by adding the following new section 106: 
"SEC. 106. (aXD The amount of funds provided under the terms of 
self-determination contracts entered into pursuant to this Act shall 
not be less than the appropriate Secret£u*y would have otherwise 
provided for the operation of the prc^ams or portions thereof for 
the period covered by the contract. 
"(2) There shall be added to the amount required by paragraph (1) 
contract support costs which shall consist of the reasonable costs for 
activities which must be carried on by a tribal organization as a 
contractor to ensure compliance with the terms of the contract and 
prudent management, but which— 
"(A) normally are not carried on by the respective Secretary 
in his direct operation of the program; or 
"(B) are provided by the Secretary in support of the con-
tracted program from resources other than those under 
contract. 
PUBLIC LAW 100-472—OCT. 5, 1988 
102 STAT. 2293 
"(3) Any savings in operation under a self-determination contract 
shall be utilized to provide additioned services or benefits under the 
contract or be expended in the succeeding fiscal year as provided in 
section 8 of this Act. 
"(b) The amount of funds required by subsection (a)-;-
"(1) shall not be reduced to make funding available for con-
tract monitoring or administration by the Secretary; 
"(2) shall not be reduced by the Secretary in subsequent years 
except pursuant to— 
(A) a reduction in appropriations from the previous 
fiscal year for the program or function to be contracted; 
"(B) a directive in the statement of the managers accom-
panying a conference report on an appropriation bill or 
continuing resolution; 
"(C) a tribal authorization; 
"(D) a change in the amount of pass-through funds 
needed under a contract; or 
"(E) completion of a contracted project, activity, or pro-
gram; 
"(3) shall not be reduced by the Secretary to pay for Federal 
functions, including, but not limited to. Federal pay costs. Fed-
eral employee retirement benefits, automated data processing, 
contract technical assistance or contract monitoring; 
"(4) shall not be reduced by the Secretary to pay for the costs 
of Federal personnel displaced by a selfHdetermination contract; 
and 
"(5) may, at the request of the tribal organization, be in-
creased by the Secretary if necessary to carry out this Act or as 
provided in section 105(c). 
Notwithstanding any other provision in this Act, the provision of 
funds under this Act is subject to the availability of appropriations 
and the Secretary is not required to reduce funding for programs, 
projects, or activities serving a tribe to make funds available to 
another tribe or tribal organization under this Act. 
"(c) The Secretary shall provide an annual report in writing on or Reports. 
before March 15 of each year to the Congress on the implementation 
of this Act. Such report shall include— 
"(1) an accounting of the total amounts of funds provided for 
each program and budget activity for direct program costs and 
indirect costs of tribal organizations under self-determination 
contracts during the previous fiscal year; 
"(2) an accoimting of any deficiency of funds needed to pro-
vide required indirect costs to all contractors for the current 
fiscal year; 
"(3) the indirect costs rate and tjrpe of rate for each tribal 
organization negotiated with the appropriate Secretary; 
*(4) the direct cost base and type of base from which the 
indirect cost rate is determined for each tribal organization; and 
"(5) the indirect cost pool amounts and the types of costs 
included in the indirect cost pools. 
"(dXD Where a tribal organization's allowable indirect cost 
recoveries are below the level of indirect costs that the tribal 
organizations should have received for any given year pursuant to 
its approved indirect cost rate, and such shortfall is the result of 
lack of full indirect cost funding by any Federal, State, or other 
agency, such shortfall in recoveries shall not form the basis for any 
theoretical over-recovery or other adverse adjustment to any future 
102 STAT. 2294 
PUBLIC LAW 100-472—OCT. 5, 1988 
Government 
organization 
and employees. 
Reports. 
years' indirect cost rate or amount for such tribal organization, nor 
shall any agency seek to collect such shortfall from the tribal 
organization. 
"(2) Nothing in this subsection shall be construed to authorize the 
Secretary to fund less than the full amount of need for indirect costs 
associated with a self-determination contract. 
"(e) Indian tribes and tribal organizations shall not be held liable 
for amounts of indebtedness attributable to theoretical or actual 
under-recoveries or theoretical over-recoveries of indirect costs, as 
defined in Office of Management and Budget Circular A-87, in-
curred for fiscal years prior to fiscal year 1988. 
"(f) Any right of action or other remedy (other than those relating 
to a criminal offense) relating to any disallowance of costs shall be 
barred unless the Secretary has given notice of any such disallow-
ance within three hundred and sixty-five days of receiving any 
required annual single agency audit report or, for any period cov-
ered by law or regulation in force prior to enactment of the Single 
Agency Audit Act of 1984 (chapter 75 of title 31, United States 
Coide), any other required final audit report. Such notice shall set 
forth the right of appeal and hearing to the board of contract 
appeals pursuant to section 110. Nothing in this subsection shall be 
deemed to enlarge the rights of the Secretary with respect to section 
16 of the Indian Reorganization Act of June 18,1934 (48 Stat. 984; 25 
U.S.C. 476). 
"(g) Upon the approval of a self-determination contract and at the 
request of an Indian tribe or tribal organization, the Secretary shall 
add the indirect cost funding amount awarded for a self-determina-
tion contract to the amount awarded for direct program funding for 
the first year and, subject to adjustments in the amount of direct 
program costs for the contract, for each subsequent year that the 
program remains continuously under contract. 
"(h) In calculating the indirect costs associated with a self-deter-
mination contract for a construction program, the Secretary shall 
take into consideration only those costs associated with the adminis-
tration of the contract and shall not take into consideration those 
moneys actually passed on by the tribal organization to construction 
contractors and subcontractors. 
"(i) Within one month after enactment of this section, the Sec-
retary is mandated to establish a team in each area of the Bureau of 
Indian Affairs which consists of agency personnel and tribal rep-
resentatives for the purpose of analyzing the 'Indian Priority 
System' and other aspects of the budgeting and funding allocation 
process of the Bureau of Indian Affairs for the purpose of making a 
report to Congress with appropriate recommendations for changes 
and legislative actions to acMeve greater tribal decision-makmg 
authority over the use of funds appropriated for the benefit of the 
tribes and their members. The report along with the analysis, 
findings and recommendations of the area teams shall be submitted 
to Congress within six months of enactment of this provision. The 
Secretary may submit to Congress separate comments on the 
information and recommendations on the report.". 
SEC. 206. CONTRACT APPEALS. 
Title I of the Indian Self-Determination and Education Assistance 
Act is further amended— 
(a) by adding the following new section 110: 
PUBLIC LAW 100-472—OCT. 5, 1988 
102 STAT. 2295 
"SEC. 110. (a) The United States district courts shall have original 
Courts, U.S. 
jurisdiction over any civil action or claim against the appropriate 
S^^JSJ 4
5
A 1 
Secretary arising under this Act and, subject to the provisions of 
™
~ 
subsection (d) of this section and concurrent with the United States 
Court of Claims, over civil action or claim against the Secretary for 
money damages arising under contracts authorized by this Act. In 
an action brought under this paragraph, the district courts may 
order appropriate relief including money damages, injunctive relief 
against any action by an officer of the United States or any agency 
thereof contrary to this Act or regulations promulgated thereunder, 
or mandamus to compel an officer or employee of the United States, 
or any agency thereof, to perform a duty provided under this Act or 
regulations promulgated hereunder. 
(b) Unless otherwise agreed to by the resolution of an Indian 
tribe, the Secretary shall not revise or amend a self-determination 
contract with such tribe. 
"(c) The Equal Access to Justice Act (Public Law 96-481, Act of 
October 1, 1980; 94 Stat. 2325, as amended) shall apply to adminis-
trative appeals by tribal organizations regarding self-determination 
coiii/rd.cijs 
"(d) The Contract Disputes Act (Public Law 95-563, Act of Novem-
ber 1,1978; 92 Stat. 2383, as amended) shall apply to self-determina-
tion contracts. 
"(e) Subsection (d) of this section shall apply to any case pending 
Effective date. 
or commenced on or after March 17, 1986, before the Boards of 
(Contract Appeals of the Department of the Interior or the Depart-
ment of Health and Human Services except that in any such cases 
finally disposed of before the date of enactment of these amend-
ments, the thirty-day period referred to in section 504(aX2) of title 5, 
United States Code, shall be deemed to commence on the date of 
enactment of this subsection."; and 
(b) by redesignating existing section 110 as section 111. 
25 use 450n. 
SEC. 207. PROMULGATION OF RULES AND REGULATIONS. 
(a) Section 107(a) of the Indian Self-Determination Act is amended 
25 use 450k. 
b y -
(1) striking the phrase "Health, Education, and Welfare" and 
inserting, in lieu thereof, the phrase "Health and Human Serv-
ices"; and 
(2) striking the period at the end thereof and inserting, in lieu 
thereof, a colon and the following: "Provided, however, That all Grants. 
Federal requirements for self-determination contracts and 
grants under this Act shall be promulgated as regulations in 
conformity with sections 552 and 553 of title 5, United States 
Code.". 
(b) Section 107(b) of the Indian Self-Determination Act is amended 
to read as follows: 
"(bXD Within three months 
fi:x)m 
the date of enactment of the 
Indian Self-Determination and Education Assistance Act Amend-
ments of 1988, the Secretary shall consider and formulate appro-
priate r^ulations to implement the provisions of this Act, with the 
participation of Indian tribes. Such proposed regulations shall con- Grants. 
tain all Federal requirements applicable to self-determination con-
tracts and grants under this Act. 
"(2) Within six months from the date of enactment of the Indian 
Self-Determination and Education Assistance Act Amendments of 
1988, the Secretary shall present the proposed regulations to the 
102 STAT. 2296 
PUBLIC LAW 100-472-OCT. 5, 1988 
Federal 
Register, 
publication. 
25 use 450c, 
450Z. 
Research and 
development. 
25 u s e 450f 
note. 
Select Committee on Indian Affairs of the United States Senate and 
to the Committee on Interior and Insular Affairs of the United 
States House of Representatives. 
"(3) Within seven months fttjm the date of enactment of the 
Indian Self-Determination and Education Assistance Act Amend-
ments of 1988, the Secretary shall publish proposed regulations in 
the Federal Register for the purpose of receiving comments from 
tribes and other interested parties. 
"(4) Within ten months from the date of enactment of the Indian 
Self-Determination and Education Assistance Act Amendments of 
1988, the Secretary shall promulgate regulations to implement the 
provisions of such Act.". 
SEC. 208. REPORTS. 
Section 108 of the Indian Self-Determination Act is redesignated 
as subsection 5(0 of the Indian Self-Determination and Education 
Assistance Act and is amended by deleting the period at the end and 
inserting, in lieu thereof, the following: "through regulations 
promulgated under sections 552 and 553 of title 5, United States 
Code.". 
SEC. 209. TRIBAL SELF-GOVERNANCE DEMONSTRATION PROJECT. 
The Indian Self-Determination and Education Assistance Act is 
further amended by adding a new title III, as follows: 
"TITLE m—TRIBAL SELF-GOVERNANCE DEMONSTRATION 
PROJECT 
"SEC. 301. The Secretary of the Interior shall, for a period not to 
exceed five years following enactment of this title, conduct a re-
search and demonstration project to be known as the Tribal Self-
Governance Project according to the provisions of this title. 
"SEC. 302. (a) The Secretary shall select twenty tribes to partici-
pate in the demonstration project, as follows: 
"(1) a tribe that successfully completes a Self-Governance 
Planning Grant, authorized by Conference Report 100-498 to 
accompany H.J. Res. 395, One Hundredth Congress, first session 
shall be selected to participate in the demonstration project; 
and 
"(2) the Secretary shall select, in such a manner as to achieve 
geographic representation, the remaining tribal participants 
from the pool of qualified applicants. In order to be in the pool 
of qualified applicants— 
"(A) the governing body of the tribe shall request partici-
pation in the demonstration project; 
"(B) such tribe shall have operated two or more mature 
contracts; and 
"(C) such tribe shall have demonstrated, for the previous 
three fiscal years, financial stability and financial manage-
ment capability as evidenced by such tribe having no 
significant and material audit exceptions in the required 
annual audit of such tribe's self-determination contracts. 
"SEC. 303. (a) The Secretary is directed to negotiate, and to enter 
into, an annual written funding agreement with the governing body 
of a participating tribal government which— 
"(1) shall authorize the tribe to plan, conduct, consolidate, and 
administer programs, services and functions authorized under 
PUBLIC LAW 100-472—OCT. 5, 1988 
102 STAT. 2297 
the Act of April 16,1934 (48 Stat. 596), as amended, and the Act 
of November 2,1921 (42 Stat. 208); 
"(2) subject to the terms of the written £igreement authorized 
by this title, shall authorize the tribe to redesign programs, 
activities, functions or services and to reallocate funds for such 
programs, activities, functions or services; 
"(3) shall not include funds provided pursuant to the Tribally 
Controlled Community College Assistance Act (Public Law 95-
471), for elementary and secondary schools under the Indian 
School Equalization Formula pursuant to title XI of the Edu-
cation Amendments of 1978 (Public Law 95-561, as amended), or 
for either the Flathead Agency Irrigation Division or the Flat-
head Agency Power Division: Provided, That nothing in this 
section shall affect the contractability of such divisions under 
section 102 of this Act; 
"(4) shall specify the services to be provided, the functions to 
be performed, and the responsibilities of the tribe and the 
Secretary pursuant to this agreement; 
"(5) shall specify the authority of the tribe and the Secretary, 
and the procedures to be used, to reallocate funds or modify 
budget allocations within any project year; 
"(6) shall, except as provided in paragraphs (1) and (2), provide 
for pa)mient by the Secretary to the tribe of funds from one or 
more prc^ams, services, functions, or activities in an amount 
equal to that which the tribe would have been eligible to receive 
under contracts and grants under this Act, including direct 
program costs and indirect costs, and for any funds which are 
specifically related to the provision by the Secretary of services 
and benefits to the tribe and its members: Provided, however. 
That funds for trust services to individual Indians are available 
under this written agreement only to the extent that the same 
services which would have been provided by the Secretary are 
provided to individual Indians by the tribe; 
"(7) shall not allow the Secretary to waive, modify or diminish 
in any way the trust responsibility of the United States with 
respect to Indian tribes and individual Indians which exists 
under treaties, Executive orders, and Acts of CJongress; 
"(8) shall 21II0W for retrocession of programs or portions 
thereof pursuant to section 105(e) of this Act; and 
"(9) shall be submitted by the Secretary ninety days in ad-
vance of the proposed effective date of the agreement to each 
tribe which is served by the agency which is serving the tribe 
which is a party to the funding agreement and to the Congress 
for review by the Select Committee on Indian Affairs of the 
Senate and the Committee on Interior and Insular Affairs of the 
House of Representatives. 
"(b) For the year for which, and to the extent to which, funding is 
provided to a tribe pursuant to this title, such tribe— 
"(1) shall not be entitled to contract with the Secretary for 
such fiinds under section 102, except that such tribe shall be 
eligible for new programs on the same basis as other tribes; and 
"(2) shall be responsible for the administration of programs, 
services and activities pursuant to agreements under this title. 
"(c) At the request of the governing body of the tribe and under 
the terms of an agreement pursuant to subsection (a), the Secretary 
shall provide funding to such tribe to implement the agreement. 
102 STAT. 2298 
PUBLIC LAW 100-472—OCT. 5, 1988 
"(d) For the purpose of section 110 of this Act the term 'contract' 
shall also include agreements authorized by this title. 
"(e) To the extent feasible, the Secretary shall interpret Federal 
laws and regulations in a manner that will facilitate the agreements 
authorized by this title. 
"SEC. 304. The Secretary shall identify, in the President's annual 
budget request to the (Dongress, any funds proposed to be included in 
the Tribal Self-Governance Project. The use of funds pursuant to 
this title shall be subject to specific directives or limitations as may 
be included in applicable appropriations Acts. 
Reports. 
"SEC. 305. The Secretary shall submit to the Congress a written 
report on July 1 and January 1 of each of the five years following 
the date of enactment of this title on the relative costs and benefits 
of the Tribal Self-Governance Project. Such report shall be based on 
mutually determined baseline measurements jointly developed by 
the Secretary and participating tribes, and shadl separately include 
the views of the tribes. 
"SEC. 306. Nothing in this title shall be construed to limit or 
reduce in any way the services, contracts or funds that any other 
Indian tribe or tribal organization is eligible to receive under section 
102 or any other applicable Federal law and the provisions of section 
110 of this Act shall be available to any tribe or Indian organization 
which allies that a funding agreement is in violation of this 
section.". 
25 u s e 450 note. 
SEC. 210. SAVINGS PROVISIONS. 
Nothing in this Act shall be construed as— 
(1) affecting, modifying, diminishing, or otherwise impairing 
the sovereign immunity from suit enjoyed by an Indian tribe; or 
(2) authorizing or requiring the termination of any existing 
trust responsibility of the United States with respect to Indian 
people. 
25 u s e 450 note. 
SEC. 211. SEVERABILITY. 
If any provision of this Act or the application thereof to any 
Indian tribe, entity, person or circumstance is held invalid, neither 
the remainder of this Act, nor the application of any provisions 
herein to other Indian tribes, entities, persons, or circumstances, 
shall be affected thereby. 
Approved October 5, 1988. 
X 
LEGISLATIVE HISTORY—H.R. 1223 (S. 1703): 
HOUSE REPORTS: No. 100-393 (Comm. on Interior and Insular Affairs). 
SENATE REPORTS: No. 100-274 accompanying S. 1703 (Select eomm. on Indian 
Affairs). 
CONGRESSIONAL RECORD: 
Vol. 133 (1987): Oct. 27, considered and passed House. 
Vol. 134 (1988): May 27, H.R. 1223 considered and passed Senate, amended. 
Sept. 9, House concurred in Senate amendment with an 
amendment. 
Sept. 15, Senate concurred in House amendment. 
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 24 (1988): 
Oct. 5, Presidential statement.