[Senate Report 108-413]
[From the U.S. Government Publishing Office]
Calendar No. 804
108th Congress Report
SENATE
2d Session 108-413
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AMENDING THE INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACT TO
PROVIDE FURTHER SELF-GOVERNANCE BY INDIAN TRIBES
_______
November 16, 2004.--Ordered to be printed
_______
Mr. Campbell, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany S. 1715]
The Committee on Indian Affairs, to which was referred the
bill (S. 1715) to amend the Indian Self-Determination and
Education Assistance Act to provide for further self-governance
by Indian tribes, having considered the same, reports favorably
thereon with amendments and recommends that the bill as amended
do pass.
Purpose
The primary purpose of S. 1715, the Department of the
Interior Tribal Self-Governance Act of 2004, is to clarify and
expand the provisions of the Indian Self-Determination and
Education Assistance Act of 1975, Pub. L. 93-638 (the
``ISDEAA''), applicable to the Department of the Interior
(``DoI''). This legislation is necessary to make amendments to
the ISDEAA so that participating Indian tribes may better
govern themselves and serve their members.
Background
A. History of Tribal Self-Governance
In 1970 President Nixon issued his famous ``Special Message
to Congress on Indian Affairs'', July 8, 1970, and laid out the
rationales for a new, more enlightened Federal Indian policy:
Indian Self-Determination. He stated in part that:
This, then, must be the goal of any new national
policy toward the Indian people: to strengthen the
Indian's sense of autonomy without threatening his
sense of community. We must assure the Indian that he
can assume control of his own life without being
separated involuntarily from the tribal group. And we
must make it clear that Indians can become independent
of Federal control without being cut off from Federal
concern and Federal support. * * *
In my judgment, it should be up to the Indian tribe
to determine whether it is willing and able to assume
administrative responsibility for a service program
which is presently administered by a Federal agency.
With the passage of the ISDEAA in 1975, Congress reaffirmed
President Nixon's policy shift and began the transition from
the Federal domination of programs and services for the benefit
of Indians and for the first time authorized the Indian tribes
to design and implement these programs and services in a manner
that is more responsive to the specific needs of their members.
In the 30 years since the enactment of the ISDEAA, every
succeeding Congress and Administration have sought to
strengthen and expand Indian Self Determination.
In 1984 Congress significantly strengthened the ISDEAA when
it enacted Pub. L. 98-250, which provided, in part, for an
exemption from the Federal Grant and Cooperative Agreement Act
of 1977, Pub. L. 95-224, for contracts and cooperative
agreements under the ISDEAA. Significant amendments were made
again in 1988, when Congress enacted Pub. L. 100-472, which
amended the ISDEAA and created a Self-Governance Demonstration
Project within the Department of Health and Human Services.
In 1994 Congress enacted the Tribal Self-Governance Act,
Pub. L. 103-413, building on the success of the original ISDEAA
and made Self-Governance compacts permanent for the Department
of Interior. The Tribal Self-Governance Act provides compacting
tribes the flexibility to re-design programs and re-allocate
funds among the various DoI programs they choose to operate.
The hallmarks of Self Governance are tribal-specific
program design, implementation flexibility and expansion of
services by compacting tribes and the Act has enabled these
tribes to achieve significant benefits in terms of service
quality enhancement and development of administrative acumen.
B. S. 1715, The Department of Interior Tribal Self Governance Act of
2004
The Department of Interior Tribal Self Governance Act of
2004, (S. 1715) will expand the provisions of the Tribal Self
Governance Act that are applicable to the DoI. The legislation
is integral to the steady progress and success of Self
Governance for Indian tribes, as there are many Bureau of
Indian Affairs (``BIA'') and non-BIA programs within the DoI
that affect the ability of Indian tribes to better serve their
members.
It is the Committee's intention in amending the ISDEAA
through S. 1715 to address identified statutory obstacles
hindering the efforts of Self Governance tribes seeking to
compact programs and services provided by agencies other than
the BIA. It is also the Committee's intention to ensure that
the provisions of Title IV--including construction and
transportation projects--are comparable and consistent with the
provisions of Title V, as amended by Pub. L. 106-260.
The process of developing amendments to Title IV of the
ISDEAA began shortly after passage of Pub. L. 106-260 in 2000.
For over three years, a team of tribal leaders and technical
advisors developed and refined proposed amendments. The team
consulted with the BIA to the maximum extent possible to derive
solutions to existing problems acceptable to the agency, and
consistent with that agency's statutory and trust
responsibilities to Indian tribes. The product of these
discussions and consultations were presented to the Committee
for consideration to resolve existing statutory problems within
Title IV of the ISDEAA.
On October 3, 2003, Senator Campbell, for himself and for
Senator Inouye, introduced S. 1715 to address the identified
statutory problems in implementing Title IV of the ISDEAA. The
bill, as introduced, reflected in substantial part the multi-
year consultations between the BIA and tribes with regard to
ways to improve the ISDEAA as it applies to the DoI.
On May 12, 2004, the Committee held a legislative hearing
on S. 1715. Witnesses at the hearing included the Assistant
Secretary-Indian Affairs, on behalf of the DoI, various Indian
tribes and tribal organizations, and a recognized Indian Tribal
Self Governance expert.
All of the witnesses concurred that the basic purposes of
S. 1715 were desirable. The Assistant Secretary-Indian Affairs
indicated specific concerns of the DoI regarding re-assumption
standards, the definition of ``inherent Federal function'', and
limits placed on the Secretary's discretion to decide on the
eligibility of programs. These concerns prevented the DoI from
supporting the bill at the time of the hearing. The tribal
witnesses were uniformly supportive of the bill as introduced.
On June 16, at a business meeting duly noticed, the
Committee adopted amendments to S. 1715, and, as amended,
reported the bill to the full Senate, with a favorable
recommendation that the bill do pass.
Summary of Major Provisions
1. Overview
The purpose in amending Pub. L. 93-638 through S. 1715 is
to reaffirm the original intent of the ISDEAA, and strengthen
and expand the Federal policy of Tribal Self Governance. S.
1715 extends the benefits realized by tribes and the Federal
government from ``Indian-only'' programs and services to
include non-BIA programs within the DoI for which, in the
Secretary's discretion, a compacting or contracting tribe has a
special geographic, historical or cultural interest. The bill
also amends Title IV of the ISDEAA to make it more consistent
with current Title V of the ISDEAA. It is the Committee's
intent that S. 1715 be broadly interpreted to accomplish these
purposes.
2. Definitions
S. 1715 adds new definitions to the ISDEAA, such as
``construction project,'' ``tribal share,'' ``inherent Federal
functions,'' and ``gross mismanagement''.
Construction Project: S. 1715 adds a new definition of
``construction project'', which refers to a specific project or
undertaking pursuant to a construction program compacted under
Title IV.
Gross Mismanagement: The term ``gross mismanagement'' is
defined to provide a legal standard for re-assumption by the
Secretary under new Section 407(b). ``Gross mismanagewment'' is
defined as a significant, clear, and convincing violation of
compact, funding agreement, regulatory or statutory
requirements related to the transfer of Self-Governance funds
to the tribe that results in a significant reduction of funds
to the tribe's Self-Governance program.
The Committee believes that the inclusion of a definition
of ``gross mismanagement'' is an appropriate performance
standard, and failure to meet that standard is appropriate
ground for re-assumption. This definition is narrowly tailored
and is intended by the Committee to require a high degree of
proof by the Secretary. The Committee is well aware of tribal
concerns and agrees that the inclusion of this performance
standard must not be utilized by the Secretary in such a manner
as to needlessly impose monitoring and auditing requirements
that hinder the efficient operation of tribal programs.
Requiring intrusive and over-burdensome monitoring and auditing
activities are antithetical to the goals of Self-Governance and
the intent of the Committee.
Inherent Federal Function: S. 1715 adds a new definition
for ``inherent Federal function'', and defines such to be
functions which cannot be legally delegated to Indian tribes.
``Inherent Federal functions'' are those which the Executive
Branch cannot by law delegate to other branches of governments,
or non-governmental entities. The Committee's definition is
consistent with the Department of the Interior Solicitor's
Memorandum of May 17, 1996 entitled ``Inherently Federal
Functions under the Tribal Self-Governance Act of 1994.''
At the May 12 hearing, the DoI requested that the Committee
provide further clarification to the DoI and tribes by defining
exactly which Federal functions are ``inherent'' and thus
subject to the United States' ``trust responsibility.'' The
Committee declined to further specify what DoI functions and
responsibilities are inherent or trigger the trust
responsibility and, instead, the Committee's definition is
expressly intended to provide flexibility so as to allow the
Secretary and the tribes to come to agreement on which
functions are inherently Federal on a case-by-case basis.
Tribal Share: S. 1715 adds a new definition for ``Tribal
Share'', which are defined as residual funds ``that support
secretarial included programs that are not required by the
Secretary for the performance of inherent Federal functions.''
All funds appropriated under the Indian Self Determination and
Education Assistance Act are either tribal shares or agency
residual funds necessary for the performance of inherent
Federal functions.
3. Removal of Annual Cap on New Tribes Eligible for Compacts
One of the most important provisions in S. 1715 is
contained in new section 403 which removes the annual cap on
new tribes entering Self Governance compacts. Instead, any
tribe meeting the eligibility requirements can participate. It
the Committee's belief that this provision is both
substantively and symbolically important as a benchmark in the
Federal and tribal relationship. Removing artificial barriers,
such as annual caps on the number of new tribes that can enter
Self Governance compacts, is indicative of the joint maturation
and mutual capacity of the DoI and tribes to enter into
government-to-government agreements under the Act.
4. Funding Agreements Expanded
Current section 403 is renumbered section 405 and is
amended to expand authority for a tribe to include within
annual funding agreements programs within or outside of the BIA
or Office of Special Trustee that are provided for in the Act
of April 16, 1934, the Johnson-O'Malley Act (25 U.S.C. 452, et
seq.), the Act of November 2, 1921, the Snyder Act (25 U.S.C.
13), or that the Secretary administers for the benefit of
Indians with appropriations made to agencies other than the
DoI, or are provided for the benefit of Indians because of
their status as Indians.
These programs specifically include all programs with
respect to which Indians are the primary or significant
beneficiaries. The Committee believes, and expressly intends,
that the DoI should, in keeping with its trust
responsibilities, give special consideration to including these
programs within annual funding agreements.
New section 405 also contains new authority whereby a
funding agreement may, in the Secretary's discretion, contain
programs within any agency of DoI that are of a special
geographic, historical, or cultural significance to the Indian
tribes. It is the specific intent of the Committee that the DoI
give special consideration, appropriate under the
circumstances, including the Secretary's trust responsibility
and in keeping with the significance to the requesting tribe,
to including these programs within annual funding agreements.
These two provisions are central to S. 1715 and the
continued advancement of Tribal Self Governance. The Committee
believes that Federal programs of which Indians are the primary
or significant beneficiary, substantially impact the daily
lives of Indian tribes and Indian peoples, regardless of
whether the word ``Indian'' appears in the program title or
mission statement. Therefore, it is the intent of the Committee
that these provisions be broadly and liberally interpreted to
fully effectuate the policy of Tribal Self Governance. The
Committee further strongly urges the Secretary to work with the
tribes to develop funding agreements that fully implement this
policy.
To allay concerns that these new authorities given to the
DoI may conflict with other statutory provisions, section 405
contains a disclaimer which provides that nothing in the
section is to be construed as overriding any express statutory
requirement for competitive bidding, or as prohibiting the
inclusion in a funding agreement of a program in which non-
Indians have an incidental or legally identifiable interest. In
addition, certain programs are specifically ineligible for
inclusion in funding agreements.
The last provision in section 405 is intended to improve
the effectiveness of existing and subsequent funding agreements
by providing that funding agreements remain in full force and
effect until a new funding agreement is executed, and further
providing for the negotiation of multi-year funding agreements.
5. Expanded Accountability
Section 406 provides for expanded accountability
provisions, including development of measures for conflict of
interest, greater specificity in application of the Federal
Single Agency Audit Act, application of cost principles, and
maintenance of more detailed record-keeping systems. It is the
Committee's belief that the extraordinary success of the Tribal
Self Governance policy is largely based on principles of good
governance, and that these provisions are in keeping with those
principles. It is the intent of the Committee that these
provisions be interpreted by the DoI in a manner that continues
to encourage good governance practices by the tribes and the
Federal government, and that will continue to foster a mutually
respectful government to government relationship. The Committee
specifically disavows any intent or interpretation of these
provisions that would impose unnecessary bureaucratic burdens
on Self Governance tribes.
6. Duties of the Secretary Specified
Section 407 specifies the duties of the Secretary in more
detail than under the current law. Included within these duties
is an expansion of the procedures and standards for re-
assumption of a program by the Secretary. Important among those
procedures, is the inclusion of new language providing tribes
an opportunity to take corrective action and obviate the need
for re-assumption.
During the May 12, 2004, hearing, the Assistant Secretary-
Indian Affairs testified that the language of S. 1715, as
introduced, for ``immediate re-assumption'' placed too high a
hurdle for the DoI to fulfill its trust responsibilities.
Therefore, at the business meeting at which S. 1715 was
approved, an amendment was offered which provided that
``immediate re-assumption'' is appropriate in cases of
``imminent, substantial and irreparable harm'' to a physical
trust asset, natural resource or public health and safety. The
DoI also indicated at the May 12, 2004, hearing that such
amended language would satisfy the DoI's concerns regarding its
trust responsibilities.
Section 407 also contains new provisions detailing
procedures for resolution of non-agreement between a tribe and
the Secretary on compacts or funding agreements. The grounds
for denial of a compact or funding agreement are strictly
circumscribed to those listed in paragraph (c)(4) of section
407. Additionally, due to the significant impact of these
programs on the tribal communities served, strict time lines
are provided so that decisions can be made in a timely manner.
The role of the Secretary is central to the successful
implementation of the Tribal Self Governance policy. It is the
Committee's intent that all of the provisions of section 407 be
interpreted liberally by the Secretary, consistent with the
trust responsibility, to most effectively implement the overall
purposes of the Tribal Self Governance policy.
7. Compact Requirements Detailed
Construction projects are currently addressed in Section
403(e). New section 408 provides significantly greater detail
than the current provisions, as to the requirements of compacts
involving construction programs, and the constructions projects
developed pursuant to those programs. This section authorizes
construction programs, and the associated projects, to be
compacted similar to any other program or service eligible
under Title IV.
Section 408 elaborates and clarifies the responsibilities
and procedures for tribes undertaking construction projects
under Title IV. Specifically, provision is made for the
Secretary and a tribe to negotiate in detail the duties of the
tribe with regard to construction projects and the standards
and laws applicable to construction projects and agreements.
As part of the tribal construction program, Federal
responsibilities under the National Environmental Protection
Act, 42 U.S.C. 4321 et seq., and the National Historic
Preservation Act, 16 U.S.C. Sec. 470 et seq., except for
inherent Federal functions, are eligible for inclusion in
annual funding agreements.
8. Payment Procedures
New section 409 describes in more detail the payment
procedures for funding a compact or funding agreement, such as
new time limitations on apportionment of funds to tribes.
Limitations are also placed on the Secretary for transferring,
withholding, and reducing payment of funds, and for payment of
Federal functions.
Section 409 provides additional authority for the Secretary
to approve multi-year funding agreements. It also provides that
tribes may carry over unexpended funds into subsequent fiscal
years, without diminishing the entitlement for funding in that
or any subsequent year.
It is the Committee's intent that all of the provisions of
section 409 be interpreted liberally by the Secretary,
consistent with the trust responsibility, to most effectively
implement the overall purposes of the Tribal Self Governance
policy.
9. Amendments Made to S. 1715 as Introduced
During the business meeting at which S. 1715 was approved
by the Committee, several amendments to the bill as introduced
were adopted. The primary amendments are as follows:
1. Section 1, setting forth the name of the bill as
enacted, ``the Department of Interior Tribal Self Governance
Act of 2003'', was amended to read ``the Department of Interior
Tribal Self-Governance Act of 2004''. Further amendments were
made throughout the bill to conform to this change.
2. Subsection 415(c) provides for a report to be submitted
to Congress on ``January 1, 2004''. This date was amended to
read ``January 1, 2005''. Similarly, subsection 415(d) provides
for the development of a report by the Secretary not later than
``January 1, 2004''. That date was amended to read ``January 1,
2005''.
3. Subparagraph (3) of subsection 407(b), dealing with
standards for ``immediate re-assumption'' of programs or
services by the Secretary, originally required that the
Secretary find both ``imminent and substantial jeopardy'' and
``irreparable harm'' before ``immediate re-assumption''.
In the Secretary's opinion, this drafting error would not
have afforded the Department the ability to fulfill its trust
responsibility to protect tribal trust assets or the public
health and safety. The provision was amended to provide that
``immediate re-assumption'' is appropriate in cases of
``imminent, substantial and irreparable harm'' to a physical
trust asset, natural resource or public health and safety.
Legislative History
S. 1715 was introduced on October 3, 2003, by Senator
Campbell for himself and for Senator Inouye, and was referred
to the Committee on Indian Affairs.
On May 12, 2004, the Committee held a legislative hearing
on S. 1715. Witnesses at the hearing included the Assistant
Secretary-Indian Affairs, on behalf of the DoI, various Indian
tribes and tribal organizations, and a recognized Indian Tribal
Self Governance expert. All of the tribes and tribal
organizations, and the Self Governance expert testified
strongly in favor of S. 1715. The DoI expressed some minor
concerns with the bill, which prevented it from fully
supporting the bill at that time. These concerns were partially
addressed in amendments to the bill.
On June 16, at a business meeting duly noticed, the
Committee adopted amendments to S. 1715, and, as amended,
passed the bill for consideration by the full Senate, with a
favorable recommendation that the Senate pass the bill.
Section-by-Section Analysis
Sec. 401. Definitions
Definitions are added, such as ``construction project,''
``tribal share,'' ``inherent Federal functions,'' and ``gross
mismanagement''.
Sec. 402. Establishment
Authorizes the Secretary of the Interior (DoI) to establish
a ``Tribal Self Governance Program''.
Sec. 403. Selection of Participating Indian Tribes
Section 403 expands the number of tribes eligible to
participate in self-governance. Tribal withdrawal procedures
from a consortium have been added and tribes are made eligible
for planning grants.
Sec. 404. Compacts
Section 404 requires the Secretary to negotiate and enter
compacts with participating tribes, and authorizes tribes with
existing compacts to retain the current compact, in whole or in
part, or to negotiate a new compact.
Sec. 405. Funding Agreements
Section 405 expands the DoI programs which tribes may
include in Funding Agreements (FA) to encompass non-BIA
programs, services, functions and activities. The new authority
to compact does not override any statutory requirement for
competitive bidding. Each FA specifies the services, functions,
and responsibilities of each of the parties. Each FA may, at
the tribe's option, provide for a stable budget specifying
recurring funds. The section also provides tribes with existing
FAs more options with subsequent FAs, and allows for the
negotiation of multi-year FAs.
Sec. 406. General Provisions
This section would require compacting tribes to have
measures in place to avoid conflicts of interest, to have audit
reports and makes it easier for tribes to consolidate or
redesign programs and reallocate funds by eliminating the need
for joint agreement with Secretary for such reconfiguration.
Tribal records also would not be subject to the Freedom of
Information Act or the Administrative Procedures Act.
Sec. 407. Provisions Related to the Secretary
Section 407 would (1) provide tribes with notice and
opportunity to correct problems before the Secretary can
reassume a program, (2) limit the grounds on which the
Secretary can reject a tribe's final offer, (3) place the
burden of proof on the Secretary to show the validity of
rejecting an offer or re-assumption of a program, and (4)
require liberal interpretation of compacts and FAs for the
benefit of tribes.
Sec. 408. Construction Programs and Projects
This section clarifies responsibilities and procedures for
tribes undertaking construction projects under Title IV,
including compliance with building codes, reporting
requirements, prevailing wage laws, the National Environmental
Policy Act, and other applicable federal laws.
Sec. 409. Payment
Section 409 clarifies a number of payment issues,
authorizes multi-year FAs, and allows tribes to carry over
unexpended funds without reducing their entitlement in the next
year.
Sec. 410. Civil Actions
This section includes FAs within the definition of
``contract'', and provides that tribes do not have to obtain
Secretarial approval to hire attorneys or other professionals.
Sec. 411. Facilitation
This section requires the Secretary to interpret Federal
laws in a manner that facilitates inclusion of programs and
implementation of FAs. It also provides for waivers of
regulations, unless such a waiver would be prohibited by
statute.
Sec. 412. Disclaimers
Section 412 provides that nothing in Title IV will be
construed to authorize the Secretary to enter into a FA with
respect to inherent Federal functions, if a statute prohibits
participation in a program by a non-federal entity, or
negatively impacts another tribe.
Sec. 413. Application of Other Sections of the Act
Section 413 would provide tribes with the option of
incorporating into Title IV compacts any provisions of Title I
or V.
Sec. 414. Budget Request
This section would revise the budget request process so
that the President identifies all funds necessary to fully fund
FAs authorized by Title IV, and Secretary must ensure the
request includes funds for planning and negotiation grants and
identified shortfalls.
Sec. 415. Reports
This section makes more specific the required contents of
the Secretary's annual Title IV report, including unmet needs,
methodologies and amount spent on inherent federal functions,
and requires an annual report on non-BIA programs, services,
and funding agreements eligible for compacting. Reporting would
occur with tribal consultation.
Sec. 416. Regulations
This section repeals the current 25 C.F.R. Part 1000,
requires publication of proposed rules in Federal Register, and
specifies negotiated rule-making to be conducted by Federal and
tribal representatives. The Office of Self-Governance shall be
lead agency for DoI.
Sec. 417. Effect of Circulars, Policies, Manuals, Guidances, and Rules
This section provides that, unless expressly agreed to by
the tribe, it is not bound by any internal agency policies,
except for the eligibility provision of Sec. 105(g) and
regulations promulgated under Sec. 416.
Sec. 418. Appeals
This section provides that on any appeal, the Secretary
must show proof, by clear and convincing evidence, the validity
of the grounds for a decision made and to show that decision is
consistent with the policies of this title.
Sec. 419. Authorization of Appropriations
This section authorizes appropriations to carry out this
title.
Committee Recommendation and Tabulation of Vote
On June 16, 2004, the Committee, in an open business
session, considered S. 1715 and approved amendments to the
bill, and ordered S. 1715, as amended, favorably reported to
the full Senate with a recommendation that the bill do pass.
Cost and Budgetary Considerations
The cost estimate for S. 1715 as calculated by the
Congressional Budget Office, is set forth below:
U.S. Congress,
Congressional Budget Office,
Washington, DC, November 10, 2004.
Hon. Ben Nighthorse Campbell,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1715, the Department
of the Interior Tribal Self-Governance Act of 2004.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mike Waters.
Sincerely,
Elizabeth M. Robinson
(For Douglas Holtz-Eakin, Director).
Enclosure.
S. 1715--Department of the Interior Tribal Self-Governance Act of 2004
Summary: S. 1715 would amend title IV of the Indian Self-
Determination and Education Assistance Act (ISDEA) to make it
more consistent with the provisions of title V of the act.
Under ISDEA, tribes enter into agreements with federal agencies
to administer federal programs that benefit the tribes. Title
IV of ISDEA generally is concerned with agreements between
tribes and agencies of the Department of the Interior, while
title V of the act governs agreements between tribes and the
Department of Health and Human Services. Significant provisions
would:
Remove the current program participation
limit of 50 new tribes per year;
Expand self-governance funding agreements to
include non-BIA programs;
Clarify the circumstances under which the
Secretary of the Interior may resume administration of
programs; and
Establish a rulemaking committee of federal
and tribal representatives to replace existing
regulations implementing title IV.
Based on information from the Bureau of Indian Affairs
(BIA), CBO expects that implementing most provisions of the
bill would have no significant budgetary impact. One provision,
however, would require that funds retained by BIA for project
management and oversight of highway construction projects that
are carried out by tribes under self-governance agreements be
used for project costs. Based on information from BIA, CBO
estimates that the agency would need about $15 million a year
to continue its management responsibilities for the highway
program. Assuming appropriation of the necessary funds, CBO
estimates that implementing the bill would cost $73 million
over the 2005-2009 period. Enacting S. 1715 would not affect
direct spending or revenues.
S. 1715 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates reform Act (UMRA)
and would impose no costs on state, local, or tribal
governments. Many of the changes made by this legislation would
benefit tribes that participate in self-governance compacts
with the Department of the Interior.
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 1715 is shown in the following table.
The costs of this legislation fall within budget function 450
(community and regional development).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars
--------------------------------------------
2005 2006 2007 2008 2009
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Program Management & Oversight for Indian Reservation Roads
Program:
Estimated Authorization Level...................................... 14 15 15 15 16
Estimated Outlays.................................................. 13 15 15 15 16
----------------------------------------------------------------------------------------------------------------
Basis of estimate: CBO estimates that implementing S. 1715
would cost $73 million over the five-year period, subject to
the appropriation of the necessary amounts. For this estimate,
CBO assumes that S. 1715 will be enacted near the beginning of
fiscal year 2005 and that outlays will follow historical
patterns of similar programs.
Annual appropriation acts for the Department of the
Interior have authorized the BIA to withhold up to 6 percent of
the amounts available for road construction under the Indian
Reservation Roads (IRR) program for management and oversight
activities. Section 408 of S. 1715 would authorize all funds
available to the IRR program to be used for road projects.
Based on information from BIA, CBO estimates that the agency
would need about $15 million a year to continue its management
and oversight responsibilities under the bill to fill the gap
that would be created by devoting all IRR construction funds to
road projects.
Intergovernmental and private-section impact: S. 1715
contains no intergovernmental or private-sector mandates as
defined in UMRA and would impose no costs on state, local, or
tribal governments. Many of the changes made by this
legislation would benefit tribes that participate in self-
governance compacts with the Department of the Interior.
Estimate prepared by: Federal Costs: Mike Waters. Impact on
State, Local, and Tribal Governments: Marjorie Miller. Impact
on the Private Sector: Karen Raupp.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
Regulatory and Paperwork Impact Statement
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires that each report accompanying a bill to
evaluate the regulatory and paperwork impact that would be
incurred in carrying out the bill. The Committee has concluded
that S. 1715 will reduce regulatory or paperwork requirements
and impacts.
Executive Communications
The Committee has received no communications from the
Executive Branch regarding S. 1715.
Changes in Existing Law
In compliance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill S. 1715, as ordered reported, are shown as follows
(existing law proposed to be omitted is enclosed in black
brackets, new matter is printed in italic, existing law in
which no change is proposed is shown in roman):
Public Law 93-638
AN ACT To provide maximum Indian participation in the Government and
education of the Indian People; to provide for the full participation
of Indian Tribes in programs and services conducted by the Federal
Government for Indians and to encourage the development of human
resources of the Indian people; to establish a program of assistance to
upgrade Indian education; to support the right of Indian citizens to
control their own education activities; and for other purposes
Be it enacted by the Senate and House of Representatives of
the United States in Congress assembled,
* * * * * * *
TITLE IV--TRIBAL SELF-GOVERNANCE
SEC. 401. [ESTABLISHMENT] DEFINITIONS.
[The Secretary of the Interior (hereinafter in this title
referred to as the ``Secretary'') shall establish and carry out
a program within the Department of the Interior to be known as
Tribal Self-Governance (hereinafter in this title referred to
as ``Self-Governance'') in accordance with this title.]
In this title:
(1) Compact.--The term ``compact'' means a compact
under section 404.
(2) Construction program.--The term ``construction
program'' means a tribal undertaking to complete any or
all included programs 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) Construction project.--The term ``construction
project'' means a tribal undertaking that constructs 1
or more 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.
(4) Department.--The term ``Department'' means the
Department of the Interior.
(5) Funding agreement.--The term ``funding
agreement'' means a funding agreement under section
405(b).
(6) Gross mismanagement.--The term ``gross
mismanagement'' means a significant violation, shown by
clear and convincing evidence, of a compact, funding
agreement, or statutory or regulatory requirement
applicable to Federal funds transferred to an Indian
tribe by a compact or funding agreement that results in
a significant reduction of funds being made available
for the included programs assumed by an Indian tribe.
(7) Included program.--The term ``included program''
means a program that is eligible for inclusion under a
funding agreement (including any portion of such a
program and any function, service, or activity
performed under such a program).
(8) Indian tribe.--The term ``Indian tribe'', in a
case in which an Indian tribe authorizes another Indian
tribe, an inter-tribal consortium, or a tribal
organization to plan for or carry out an included
program on its behalf in accordance with section
403(a)(3), includes the other authorized Indian tribe,
inter-tribal consortium, or tribal organization.
(9) Inherent federal function.--The term ``inherent
Federal function'' means a Federal function that cannot
legally be delegated to an Indian tribe.
(10) Inter-tribal consortium.--
(A) In general.--The term ``inter-tribal
consortium'' means a coalition of 2 more
separate Indian tribes that join together for
the purpose of participating in self-
governance.
(B) Inclusion.--The term ``inter-tribal
organization'' includes a tribal organization.
(11) Secretary.--The term ``Secretary'' means the
Secretary of the Interior.
(12) Self-governance.--The term ``self-governance''
means the program of self-governance established under
section 402.
(13) Tribal share.--The term ``tribal share'' means
an Indian tribe's portion of all funds and resources
that support secretarial included programs that are not
required by the Secretary for the performance of
inherent Federal functions.
SEC. 402. [SELECTION OF PARTICIPATING INDIAN TRIBES] ESTABLISHMENT.
[(a) Continuing Participation.--Each Indian tribe that is
participating in the Tribal Self-Governance Demonstration
Project at the Department of the Interior under title III on
the date of enactment of this title shall thereafter
participate in Self-Governance under this title and cease
participation in the Tribal Self-Governance Demonstration
Project under title III with respect to the Department of the
Interior.
[(b) Additional Participants.--
[(1) In addition to those Indian tribes participating
in self-governance under subsection (a) of this
section, the Secretary, acting through the Director of
the Office of Self-Governance, may select up to 50 new
tribes per year from the applicant pool described in
subsection (c) of this section to participate in self-
governance.
[(2) If each tribe requests, two or more otherwise
eligible Indian tribes may be treated as a single
Indian tribe for the purpose of participating in Self-
Governance as a consortium.
[(c) Applicant Pool.--The qualified applicant pool for
Self-Governance shall consist of each tribe that--
[(1) successfully completes the planning phase
described in subsection (d);
[(2) has requested participation in Self-Governance
by resolution or other official action by the tribal
governing body; and
[(3) has demonstrated, for the previous three fiscal
years, financial stability and financial management
capability as evidenced by the tribe having no material
audit exceptions in the required annual audit of the
self-determination contracts of the tribe.
[(d) Planning Phase.--Each Indian tribe seeking to begin
participation in Self-Governance shall complete a planning
phase in accordance with this subsection. The tribe shall be
eligible for a grant to plan and negotiate participation in
Self-Governance. The planning phase shall include--
[(1) legal and budgetary research; and
[(2) internal tribal government planning and
organizational preparation.]
The Secretary shall carry out a program within the Department
to be known as the ``Tribal Self-Governance Program''.
SEC. 403. [FUNDING AGREEMENTS] SELECTION OF PARTICIPATING INDIAN
TRIBES.
[(a) Authorization.--The Secretary shall negotiate and
enter into an annual written funding agreement with the
governing body of each participating tribal government in a
manner consistent with the Federal Government's laws and trust
relationship to and responsibility for the Indian people.
[(b) Contents.--Each funding agreement shall--
[(1) authorize the tribe to plan, conduct,
consolidate, and administer programs, services,
functions, and activities, or portions thereof,
administered by the Department of the Interior through
the Bureau of Indian Affairs, without regard to the
agency or office of the Bureau of Indian Affairs within
which the program, service, function, and activity, or
portion thereof, is performed, including funding for
agency, area, and central office functions in
accordance with subsection (g)(3), and including any
program, service, function, and activity, or portion
thereof, administered under the authority of--
[(A) the Act of April 16, 1934 (25 U.S.C. 452
et seq.);
[(B) the Act of November 2, 1921 (25 U.S.C.
13); and
[(C) programs, services, functions, and
activities or portions thereof administered by
the Secretary of the Interior that are
otherwise available to Indian tribes or Indians
for which appropriations are made to agencies
other than the Department of the Interior;
[(2) subject to such terms as may be negotiated,
authorize the tribe to plan, conduct, consolidate, and
administer programs, services, functions, and
activities, or portions thereof, administered by the
Department of the Interior, other than through the
Bureau of Indian Affairs, that are otherwise available
to Indian tribes or Indians, as identified in section
405(c), except that nothing in this subsection may be
construed to provide any tribe with a preference with
respect to the opportunity of the tribe to administer
programs, services, functions, and activities, or
portions thereof, unless such preference is otherwise
provided for by law;
[(3) subject to the terms of the agreement, authorize
the tribe to redesign or consolidate programs,
services, functions, and activities, or portions
thereof, and reallocate funds for such programs,
services, functions, and activities, or portions
thereof, except that, with respect to the reallocation,
consolidation, and redesign of programs described in
paragraph (2), a joint agreement between the Secretary
and the tribe shall be required;
[(4) prohibit the inclusion of funds provided--
[(A) pursuant to the Tribally Controlled
Community College Assistance Act of 1978 1 (25
U.S.C. 1801 et seq.);
[(B) for elementary and secondary schools
under the formula developed pursuant to section
1128 of the Education Amendments of 1978 (25
U.S.C. 2008); and
[(C) the Flathead Agency Irrigation Division
or the Flathead Agency Power Division, except
that nothing in this section shall affect the
contract authority of such divisions under
section 102;
[(5) specify the services to be provided, the
functions to be performed, and the responsibilities of
the tribe and the Secretary pursuant to the agreement;
[(6) authorize the tribe and the Secretary to
reallocate funds or modify budget allocations within
any year, and specify the procedures to be used;
[(7) allow for retrocession of programs or portions
of programs pursuant to section 105(e);
[(8) provide that, for the year for which, and to the
extent to which, funding is provided to a tribe under
this section, the tribe--
[(A) shall not be entitled to contract with
the Secretary for such funds under section 102,
except that such tribe shall be eligible for
new programs on the same basis as other tribes;
and
[(B) shall be responsible for the
administration of programs, services,
functions, and activities pursuant to
agreements entered into under this section; and
[(9) prohibit the Secretary from waiving, modifying,
or diminishing in any way the trust responsibility of
the United States with respect to Indian tribes and
individual Indians that exists under treaties,
Executive orders, and other laws.
[(c) Additional Activities.--Each funding agreement
negotiated pursuant to subsections (a) and (b) may, in
accordance to such additional terms as the parties deem
appropriate, also include other programs, services, functions,
and activities, or portions thereof, administered by the
Secretary of the Interior which are of special geographic,
historical, or cultural significance to the participating
Indian tribe requesting a compact.
[(d) Provisions Relating to the Secretary.--Funding
agreements negotiated between the Secretary and an Indian tribe
shall include provisions--
[(1) to monitor the performance of trust functions by
the tribe through the annual trust evaluation, and
[(2) for the Secretary to reassume a program,
service, function, or activity, or portions thereof, if
there is a finding of imminent jeopardy to a physical
trust asset, natural resources, or public health and
safety.
[(e) Construction Projects.--(1) Regarding construction
programs or projects, the Secretary and Indian tribes may
negotiate for the inclusion of specific provisions of the
Office of Federal Procurement and Policy Act and Federal
acquisition regulations in any funding agreement entered into
under this Act. Absent a negotiated agreement, such provisions
and regulatory requirements shall not apply.
[(2) In all construction projects performed pursuant to
this title, the Secretary shall ensure that proper health and
safety standards are provided for in the funding agreements.
[(f) Submission for Review.--Not later than 90 days before
the proposed effective date of an agreement entered into under
this section, the Secretary shall submit a copy of such
agreement to--
[(1) each Indian tribe that is served by the Agency
that is serving the tribe that is a party to the
funding agreement;
[(2) the Committee on Indian Affairs of the Senate;
and
[(3) the Subcommittee on Native American Affairs of
the Committee on Natural Resources of the House of
Representatives.
[(g) Payment.--(1) At the request of the governing body of
the tribe and under the terms of an agreement entered into
under this section, the Secretary shall provide funding to the
tribe to carry out the agreement.
[(2) The funding agreements authorized by this title and
title III of this Act shall provide for advance payments to the
tribes in the form of annual or semi-annual installments at the
discretion of the tribes.
[(3) Subject to paragraph (4) of this subsection and
paragraphs (1) through (3) of subsection (b), the Secretary
shall provide funds to the tribe under an agreement under this
title for programs, services, functions, and activities, or
portions thereof, in an amount equal to the amount that the
tribe would have been eligible to receive under contracts and
grants under this Act, including 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 tribe or its members,
without regard to the organization level within the Department
where such functions are carried out.
[(4) Funds for trust services to individual Indians shall
be available under an agreement entered into under this section
only to the extent that the same services that would have been
provided by the Secretary are provided to individual Indians by
the tribe.
[(h) Civil Actions.--(1) Except as provided in paragraph
(2), for the purposes of section 110, the term ``contract''
shall include agreements entered into under this title.
[(2) For the period that an agreement entered into under
this title is in effect, the provisions of section 2103 of the
Revised Statutes of the United States (25 U.S.C. 81), and
section 16 of the Act of June 18, 1934 (25 U.S.C. 476), shall
not apply to attorney and other professional contracts by
Indian tribal governments participating in Self Governance
under this title.
[(i) Facilitation.--(1) Except as otherwise provided by
law, the Secretary shall interpret each Federal law and
regulation in a manner that will facilitate--
[(A) the inclusion of programs, services, functions,
and activities in the agreements entered into under
this section; and
[(B) the implementation of agreements entered into
under this section.
[(2)(A) A tribe may submit a written request for a waiver
to the Secretary identifying the regulation sought to be waived
and the basis for the request.
[(B) Not later than 60 days after receipt by the Secretary
of a written request by a tribe to waive application of a
Federal regulation for an agreement entered into under this
section, the Secretary shall either approve or deny the
requested waiver in writing to the tribe. A denial may be made
only upon a specific finding by the Secretary that identified
language in the regulation may not be waived because such
waiver is prohibited by Federal law. The Secretary's decision
shall be final for the Department.
[(j) Funds.--All funds provided under funding agreements
entered into pursuant to this Act, and all funds provided under
contracts or grants made pursuant to this Act, shall be treated
as non-Federal funds for purposes of meeting matching
requirements under any other Federal law.
[(k) Disclaimer.--Nothing in this section is intended or
shall be construed to expand or alter existing statutory
authorities in the Secretary so as to authorize the Secretary
to enter into any agreement under sections 403(b)(2) and
405(c)(1) with respect to functions that are inherently Federal
or where the statute establishing the existing program does not
authorize the type of participation sought by the tribe:
Provided, however an Indian tribe or tribes need not be
identified in the authorizing statute in order for a program or
element of a program to be included in a compact under section
403(b)(2).
[(l) Incorporate Self-Determination Provisions.--At the
option of a participating tribe or tribes, any or all
provisions of title I of this Act shall be made part of an
agreement entered into under title III of this Act or this
title. The Secretary is obligated to include such provisions at
the option of the participating tribe or tribes. If such
provision is incorporated it shall have the same force and
effect as if set out in full in title III or this title.]
[(a) In General.--
[(1) Continuing participation.--An Indian tribe that
was participating in the Tribal Self-Governance
Demonstration Project at the Department under title III
on October 25, 1994, may elect to participate in self-
governance under this title.
(2) Additional participants.--
(A) In general.--In addition to Indian tribes
participating in self-governance under
paragraph (1), an Indian tribe that meets the
eligibility criteria specified in subsection
(b) shall be entitled to participate in self-
governance.
(B) No limitation.--The Secretary shall not
limit the number of additional Indian tribes to
be selected each year from among Indian tribes
that are eligible under subsection 1(b).
(3) Other authorized indian tribe, inter-tribal
consortium, or tribal government.--If an Indian tribe
authorizes another Indian tribe, an inter-tribal
consortium, or a tribal organization to plan for or
carry out an included program on its behalf under this
title, the authorized Indian tribe, inter-tribal
consortium, or tribal organization shall have the
rights and responsibilities of the authorizing Indian
tribe (except as otherwise provided in the authorizing
resolution).
(4) Joint participation.--Two or more Indian tribes
that are not otherwise eligible under subsection (b)
may be treated as a single Indian tribe for the purpose
of participating in self-governance as a consortium
if--
(A) if each Indian tribe so requests; and
(B) the consortium itself is eligible under
subsection (b).
(5) Tribal withdrawal from a consortium.--
(A) In general.--An Indian tribe that
withdraws from participation in an inter-tribal
consortium or tribal organization, in whole or
in part, shall be entitled to participate in
self-governance if the Indian tribe is eligible
under subsection (b).
(B) Effect of withdrawal.--If an Indian tribe
withdraws from participation in an inter-tribal
consortium or tribal organization, the Indian
tribe shall be entitled to its tribal share of
funds and resources supporting the included
programs that the Indian tribe will be carrying
out under the compact and funding agreement of
the Indian tribe.
(C) Participation in self-governance.--The
withdrawal of an Indian tribe from an inter-
tribal consortium or tribal organization shall
not affect the eligibility of the inter-tribal
consortium or tribal organization to
participate in self-governance on behalf of 1
or more other Indian tribes.
(D) Withdrawal process.--
(i) In general.--An Indian tribe may
fully or partially withdraw from a
participating inter-tribal consortium
or tribal organization its tribal share
of any included program that is
included in a compact or funding
agreement.
(ii) Effective date.--
(I) In general.--A withdrawal
under clause (I) shall become
effective on the date specified
in the resolution that
authorizes transfer to the
participating tribal
organization or inter-tribal
consortium.
(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;
or
(BB) the date
on which the
funding
agreement
expires; or
(bb) such date as may
be agreed on by the
Secretary, the
withdrawing Indian
tribe, and the tribal
organization or inter-
tribal consortium that
signed the compact or
funding agreement on
behalf of the
withdrawing Indian
tribe, inter-tribal
consortium, or tribal
organization.
(E) Distribution of funds.--If an Indian
tribe or tribal organization eligible to enter
into a self-determination contract under title
I or a compact or funding agreement under this
title fully or partially withdraws from a
participating inter-tribal consortium or 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 funds and resources
supporting the included
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 inter-
tribal consortium or tribal
organization); and
(II) the funds referred to in
subclause (I) shall be
withdrawn by the Secretary from
the funding agreement of the
inter-tribal consortium or
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 funds not obligated
by the inter-tribal consortium
associated with the withdrawing Indian
tribe's returned included programs,
less closeout costs, shall be returned
by the inter-tribal consortium to the
Secretary for operation of the included
programs included in the withdrawal.
(F) Return to mature contract status.--If an
Indian tribe elects to operate all or some
included 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.
(b) Eligibility.--To be eligible to participate in self-
governance, an Indian tribe shall--
(1) complete the planning phase described in
subsection (c);
(2) request participation in self-governance by
resolution or other official action by the tribal
governing body; and
(3) 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's 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.
(c) Planning Phase.--
(1) In general.--An Indian tribe seeking to
participate in self-governance shall complete a
planning phase in accordance with this subsection.
(2) Activities.--The planning phase--
(A) shall be conducted to the satisfaction of
the Indian tribe; and
(B) shall include--
(i) legal and budgetary research; and
(ii) internal tribal government
planning and organizational
preparation.
(d) Grants.--
(1) In general.--Subject to the availability of
appropriations, an Indian tribe that meets the
requirements of paragraphs (2) and (3) of subsection
(b) 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.
SEC. 404. [BUDGET REQUEST] COMPACTS.
[The Secretary shall identify, in the annual budget request
of the President to the Congress under section 1105 of title
31, United States Code, any funds proposed to be included in
agreements authorized under this title.]
(a) In General.--The Secretary shall negotiate and enter
into a written compact with an Indian tribe participating in
self-governance in a manner that is 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 the general terms of the government-to-
government relationship between the Indian tribe and
the Secretary; and
(2) include such terms as the parties intend shall
control year after year.
(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
Indian tribe; or
(2) another date agreed to by the parties.
(e) Duration.--A compact under subsection (a) shall remain
in effect for so long as permitted by Federal law or until
terminated 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 Department of the Interior Tribal Self-
Governance Act of 2004, 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. [REPORTS] FUNDING AGREEMNTS.
[(a) Requirement.--The Secretary shall submit to Congress a
written report on January 1 of each year following the date of
enactment of this title regarding the administration of this
title.
[(b) Contents.--The report shall--
[(1) identify the relative costs and benefits of
Self-Governance;
[(2) identify, with particularity, all funds that are
specifically or functionally related to the provision
by the Secretary of services and benefits to Self-
Governance tribes and their members;
[(3) identify the funds transferred to each Self-
Governance tribe and the corresponding reduction in the
Federal bureaucracy;
[(4) include the separate views of the tribes; and
(5) include the funding formula for individual tribal
shares of Central Office funds, together with the
comments of affected Indian tribes, developed under
subsection (d).
[(c) Report on Non-BIA Programs.--(1) In order to optimize
opportunities for including non-Bureau of Indian Affairs
programs, services, functions, and activities, or portions
thereof, in agreements with tribes participating in Self-
Governance under this title, the Secretary shall
[(A) review all programs, services, functions, and
activities, or portions thereof, administered by the
Department of the Interior, other than through the
Bureau of Indian Affairs, without regard to the agency
or office concerned; and
[(B) not later than 90 days after the date of
enactment of this title, provide to the appropriate
committees of Congress a listing of all such programs,
services, functions, and activities, or portions
thereof, that the Secretary determines, with the
concurrence of tribes participating in Self-Governance
under this title, are eligible for inclusion in such
agreements at the request of a participating Indian
tribe.
[(2) The Secretary shall establish programmatic targets,
after consultation with tribes participating in Self-Governance
under this title, to encourage bureaus of the Department to
assure that a significant portion of such programs, services,
functions, and activities are actually included in the
agreements negotiated under section 403.
[(3) The listing and targets under paragraphs (1) and (2)
shall be published in the Federal Register and be made
available to any Indian tribe participating in Self-Governance
under this title. The list shall be published before January 1,
1995, and annually thereafter by January 1 preceding the fiscal
year in which the targets are to be met.
[(4) Thereafter, the Secretary shall annually review and
publish in the Federal Register, after consultation with tribes
participating in Self-Governance under this title, a revised
listing and programmatic targets.
[(d) Report on Central Office Funds.--Within 90 days after
the date of the enactment of this title, 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 ffairs for inclusion
in the Self-Governance compacts. The Secretary shall include
such formula in the annual report submitted to the Congress
under subsection (b), together with the views of the affected
Indian tribes.]
(a) In General.--The Secretary shall negotiate and enter
into a written funding agreement with the governing body of an
Indian tribe in a manner that is 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) Included Programs.--
(1) Bureau of indian affairs and office of special
trustee.--
(A) In general.--A funding agreement shall,
as determined by the Indian tribe, authorize
the Indian tribe to plan, conduct, consolidate,
administer, and receive full tribal share
funding for all programs carried out by the
Bureau of Indian Affairs and the Office of
Special Trustee, without regard to the agency
or office within which the program is performed
(including funding for agency, area, and
central office functions in accordance with
section 409(c)), that--
(i) are provided for in the Act of
April 16, 1934 (25 U.S.C. 452 et seq.);
(ii) the Secretary administers for
the benefit of Indians under the Act of
November 2, 1921 (25 U.S.C. 13), or any
subsequent Act;
(iii) the Secretary administers for
the benefit of Indians with
appropriations made to agencies other
than the Department of the Interior; or
(iv) are provided for the benefit of
Indians because of their status as
Indians.
(B) Inclusions.--Programs described in
subparagraph (A) shall include all programs
with respect to which Indian tribes or Indians
are primary or significant beneficiaries.
(2) Other agencies.--A funding agreement under
subsection (a) shall, as determined by the Indian
tribe, authorize the Indian tribe to plan, conduct,
consolidate, administer, and receive full tribal share
funding for all programs carried out by the Secretary
outside the Bureau of Indian Affairs, without regard to
the agency or office within which the program is
performed, including funding for agency, area, and
central office functions in accordance with subsection
409(c), to the extent that the included programs are
within the scope of paragraph (1).
(3) Discretionary programs.--A funding agreement
under subsection (a) may, in accordance with such
additional terms as the parties consider to be
appropriate, include programs administered by the
Secretary, in addition to programs described in
paragraphs (1) and (2), that are of special
geographical, historical, or cultural significance to
the Indian tribe.
(4) Competitive bidding.--Nothing in this section--
(A) supersedes any express statutory
requirement for competitive bidding; or
(B) prohibits the inclusion in a funding
agreement of a program in which non-Indians
have an incidental or legally identifiable
interest.
(5) 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
Community College Assistance Act of 1978 (25
U.S.C. 1801 et seq.);
(B) is provided for elementary and secondary
schools under the formula developed under
section 1128 of the Education Amendments of
1978 (25 U.S.C. 2008); and
(C) is provided for the Flathead Agency
Irrigation Division or the Flathead Agency
Power Division (except that nothing in this
section affects the contract authority of the
Flathead Agency Irrigation Division or the
Flathead Agency Power Division under section
102).
(6) 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.
(7) Base budget.--A funding agreement shall, at the
option of the Indian tribe, provide for a stable base
budget specifying the recurring funds (including 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.
(8) 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 States with respect to
Indian tribes and individual Indians that exists under
treaties, Executive orders, court decisions, and other
laws.
(c) 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.
(d) Effective Date.--A funding agreement shall become
effective on the date specified in the funding agreement.
(e) Existing and Subsequent Funding Agreements.--
(1) Subsequent funding agreements.--Absent
notification from an Indian tribe that is withdrawing
or retroceding the operation of 1 or more included
programs identified in a funding agreement, or unless
otherwise agreed to by the parties to the funding
agreement--
(A) a funding agreement shall remain in
effect until a subsequent funding agreement is
executed; and
(B) the term of the subsequent funding
agreement shall be retroactive to the end of
the term of the preceding funding agreement.
(2) Existing funding agreements.--An Indian tribe
that was participating in self-governance under this
title on the date of enactment of the Department of the
Interior Tribal Self-Governance Act of 2004 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.
(3) 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.
SEC. 406. [DISCLAIMERS] GENERAL PROVISIONS.
[(a) Other Services, Contracts, and Funds.--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.
[(b) Federal Trust Responsibilities.--Nothing in this Act
shall be construed to diminish the Federal trust responsibility
to Indian tribes, individual Indians, or Indians with trust
allotments.
[(c) Application of Other Sections of Act.--All provisions
of sections 1 6, 102(c), 104, 105(f), 110, and 111 of this Act
shall apply to agreements provided under this title.]
(a) Applicability.--An Indian tribe may 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 included
programs.
(c) 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) section 106 of this Act or any other
provision of law; or
(B) any exemptions to applicable Office of
Management and Budget circulars 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 an audit
under this subsection shall be subject to section
106(f).
(d) Redesign and Consolidation.--An Indian tribe may
redesign or consolidate included programs or reallocate funds
for included programs in any manner that the Indian tribe
determines to be in the best interest of the Indian community
being served, 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.
(e) Retrocession.--
(1) In general.--An Indian tribe may fully or
partially retrocede to the Secretary any included
program under a compact or funding agreement.
(2) Effective date.--
(A) Agreement.--Unless the Indian tribe
rescinds a request for retrocession, 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 such a
specification, the retrocession shall become
effective on--
(i) the earlier of--
(I) the date that is 1 year
after the date of submission of
the request; or
(II) the date on which the
funding agreement expires; or
(ii) such date as may be agreed on by
the Secretary and the Indian tribe.
(f) 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 enter into a contract
with the Secretary for funds under section 102, except
that the Indian tribe shall be eligible for new
included programs on the same basis as other Indian
tribes; and
(2) shall be responsible for the administration of
included 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 treated as agency
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) on 30 days' notice, 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. 407. [REGULATIONS] PROVISIONS RELATING TO THE SECRETARY.
[(a) In General.--Not later than 90 days after the date of
enactment of this title, at the request of a majority of the
Indian tribes with agreements under this title, 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.
[(b) Committee.--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
Federal and tribal government representatives, a majority of
whom shall be representatives of Indian tribes with agreements
under this title.
[(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 the Indian tribes.
[(d) Effect.--The lack of promulgated regulations shall not
limit the effect of this title.]
(a) 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) In general.--A compact or funding agreement shall
include provisions for the Secretary to reassume an
included program and associated funding if there is a
specific finding relating to that included program of--
(A) imminent jeopardy to a physical trust
asset, natural resource, or public health and
safety that--
(i) is caused by an act or omission
of the Indian tribe; and
(ii) arises out of a failure to carry
out the compact or funding agreement;
or
(B) gross mismanagement with respect to funds
transferred to an Indian tribe by 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 an included program unless--
(A) 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 gross mismanagement or the
imminent jeopardy to a physical trust asset,
natural resource, or public health and safety.
(3) Exception.--
(A) In general.--Notwithstanding subparagraph
(2), the Secretary may, on written notice to
the Indian tribe, immediately reassume
operation of an included program if--
(i) the Secretary makes a finding of
imminent, substantial, and irreparable
harm to a physical 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, substantial, and
irreparable harm to the physical trust
asset, natural resource, or public
health and safety arises out of a
failure by the Indian tribe to carry
out its compact or funding agreement.
(B) Reassumption.--If the Secretary reassumes
operation of an included 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) Determination.--Not more than 45 days after the
date of submission of a final offer, or as otherwise
agreed to by the Indian tribe, the Secretary shall
review and make a determination with respect to the
final offer.
(3) No timely determination.--If the Secretary fails
to make a determination with respect to a final offer
within the time specified in paragraph (2), the
Secretary shall be deemed to have agreed to the offer.
(4) Rejection of final offer.--
(A) In general.--If the Secretary rejects a
final offer (or 1 or more provisions or funding
levels in a final offer), the Secretary shall--
(i) 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 to which the Indian tribe
is entitled under this title;
(II) the included program
that is the subject of the
final offer is an inherent
Federal function;
(III) the Indian tribe cannot
carry out the included program
in a manner that would not
result in significant danger or
risk to the public health; or
(IV) the Indian tribe is not
eligible to participate in self
governance under section
403(b);
(ii) provide technical assistance to
overcome the objections stated in the
notification required by clause (I);
(iii) provide the Indian tribe 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 an
appeal, directly proceed to bring a
civil action in 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.
(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) clauses (1), (ii), and (iii) of
that subparagraph 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 hearing or
appeal or civil action brought under this section, the
Secretary shall have the burden of demonstrating by clear and
convincing evidence the validity of the grounds for rejecting a
final offer made under subsection (c) or the grounds for a
reassumption under subsection (b).
(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 Act
in a manner that maximizes the policy of tribal self-
governance.
(f) Savings.--To the extent that included programs carried
out by Indian tribes under this title reduce the administrative
or other responsibilities of the Secretary with respect to the
operation of Indian programs and result in savings that have
not otherwise been included in the amount of tribal shares and
other funds determined under section 409(c), the Secretary
shall make such savings available to the Indian tribes, inter-
tribal consortia, or tribal organizations for the provision of
additional services to program beneficiaries in a manner
equitable to directly served, contracted, and included
programs.
(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) Decisionmaker.--A decision that constitutes final
agency action and relates to an appeal within the Department
brought under subsection (c)(4) may be made--
(1) by an official of the Department who holds a
position at a higher organizational level within the
Department than the level of the departmental agency in
which the decision that is the subject of the appeal
was made; or
(2) by an administrative law judge.
(i) Rule of construction.--Each provision of this title and
each provision of a compact or funding agreement shall be
liberally 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. 408. [AUTHORIZATION OF APPROPRIATIONS] CONSTRUCTION PROGRAMS AND
CONSTRUCTION PROJECTS.
[There are authorized to be appropriated such sums as may
be necessary to carry out this title.]
(a) In General.--An Indian tribe participating in self-
governance may carry out a construction program or construction
project under this title in the same manner as the Indian tribe
carries out other included programs under this title,
consistent with the provisions of all applicable Federal laws.
(b) Federal Functions.--An Indian tribe participating in
self-governance may, in carrying out construction projects
under this title, elect to assume all Federal responsibilities
under the National Environmental Policy Act of 1969 (42 U.S.C.
4321 et seq.), the National Historic Preservation Act (16
U.S.C. 470 et seq.), and related provisions of law that would
apply if the Secretary were to carry out a construction
project, by adopting a resolution--
(1) designating a certifying officer to represent the
Indian tribe and to assume the status of a responsible
Federal official under those laws; and
(2) accepting the jurisdiction of the Federal courts
for the purpose of enforcement of the responsibilities
of the responsible Federal official under applicable
environmental law.
(c) Negotiations.--
(1) In general.--In accordance with all applicable
Federal laws, a construction program or construction
project shall be treated in the same manner and be
subject to all provisions of this Act as are all other
tribal assumptions of included programs under this Act.
(2) Construction projects.--A provision shall be
included in the funding agreement that, for each
construction project--
(A) states the approximate start and
completion dates of the construction project,
which may extend for 1 or more years;
(B) provides a general description of the
construction project;
(C) states the responsibilities of the Indian
tribe and the Secretary with respect to the
construction project;
(D) describes--
(i) the ways in which the Indian
tribe will address project-related
environmental considerations; and
(ii) the standards by which the
Indian tribe will accomplish the
construction project; and
(E) the amount of funds provided for the
construction project.
(d) Codes and Standards; Tribal Assurances.--A funding
agreement shall contain a certification by the Indian tribe
that the Indian tribe will establish and enforce procedures
designed to ensure that all construction-related included
programs carried out through the funding agreement adhere to
building codes and other codes and architectural and
engineering standards (including public health and safety
standards) identified by the Indian tribe in the funding
agreement, which codes and standards shall be in conformity
with nationally recognized standards for comparable projects in
comparable locations.
(e) Responsibility for Completion.--The Indian tribe shall
assume responsibility for the successful completion of a
construction project in accordance with the funding agreement.
(f) Funding.--
(1) In general.--At the option of an Indian tribe,
full funding for a construction program or construction
project carried out under this title shall be included
in a funding agreement as an annual advance payment.
(2) Entitlement.--Notwithstanding the annual advance
payment provisions or any other provision of law, an
Indian tribe shall be entitled to receive in its
initial funding agreement all funds made available to
the Secretary for multiyear construction programs and
projects carried out under this title.
(3) Contingency funds.--The Secretary shall include
associated project contingency funds in an advance
payment described in paragraph (1), and the Indian
tribe shall be responsible for the management of the
contingency funds included in the funding agreement.
(4) Reallocation of savings.--
(A) In general.--Notwithstanding any other
provision of an annual Act of appropriation or
other Federal law, an Indian tribe may
reallocate any financial savings realized by
the Indian tribe arising from efficiencies in
the design, construction, or any other aspect
of a construction program or construction
project.
(B) Purposes.--A reallocation under
subparagraph (A) shall be for construction-
related activity purposes generally similar to
those for which the funds were appropriated and
distributed to the Indian tribe under the
funding agreement.
(g) Approval.--
(1) In general.--If the planning and design documents
for a construction project are prepared by an Indian
tribe in a manner that is consistent with the
certification given by the Indian tribe as required
under subsection (d), approval by the Secretary of a
funding agreement providing for the assumption of the
construction project shall be deemed to be an approval
by the Secretary of the construction project planning
and design documents.
(2) Reports.--The Indian tribe shall provide the
Secretary with construction project progress and
financial reports not less than semiannually.
(3) Inspections.--The Secretary may conduct onsite
project inspections at a construction project
semiannually or on an alternate schedule agreed to by
the Secretary and the Indian tribe.
(h) Wages.--
(1) In general.--All laborers and mechanics employed
by a contractor or subcontractor in the construction,
alteration, or repair (including painting and
decorating) of a building or other facility in
connection with a construction project funded by the
United States under this title shall be paid wages at
not less than the amounts of wages prevailing on
similar construction in the locality as determined by
the Secretary of Labor in accordance with subchapter IV
of chapter 31 of title 40, United States Code.
(2) Authority.--With respect to construction,
alteration, or repair work to which that subchapter is
applicable under this subsection, the Secretary of
Labor shall have the authority and functions specified
in the Reorganization Plan numbered 14, of 1950.
(3) Applicability of subsection.--Notwithstanding any
other provision of law, this subsection does not apply
to any portion of a construction project carried out
under this Act--
(A) that is funded from a non-Federal source,
regardless of whether the non-Federal funds are
included with Federal funds for administrative
convenience; or
(B) that is performed by a laborer or
mechanic employed directly by an Indian tribe
or tribal organization.
(4) Applicability of tribal law.--This subsection
does not apply to a compact or funding agreement if the
compact, self-determination contract, or funding
agreement is otherwise covered by a law (including a
regulation) adopted by an Indian tribe that requires
the payment of not less than prevailing wages, as
determined by the Indian tribe.
(i) Applicability of Other Law.--Unless otherwise agreed to
by the Indian tribe, no provision of the Office of Federal
Procurement Policy Act (41 U.S.C. 401 21 et seq.), 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 conducted
under this title.
SEC. 409. PAYMENT.
(a) In General.--At the request of the governing body of
the Indian tribe and under the terms of a funding agreement,
the Secretary shall provide funding to the Indian tribe to
carry out the funding agreement.
(b) 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.--Subject to subsection (e) and sections 405 and
406 of this title, the Secretary shall provide funds to the
Indian tribe under a funding agreement for included programs in
the 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
Federal agency in which the included programs are carried out.
(d) Timing.--Unless the funding agreement provides
otherwise, the transfer of funds shall be made not later than
10 days after the apportionment of funds by the Office of
Management and Budget to the Department.
(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
mul tiyear funding.
(g) Limitation 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 Act,
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
Act--
(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
an included 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 Act; or
(D) to pay for costs of Federal personnel
displaced by self-determination contracts under
this Act or self-governance.
(h) 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 acquire and transfer such
personnel, supplies, or resources to the Indian tribe.
(i) 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 Act.
(j) Interest or Other Income.--
(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 that an Indian tribe is
entitled to receive under a funding agreement in the
year in which the interest or income is earned or in
any subsequent fiscal year.
(3) Investment standard.--Funds transferred under
this title shall be managed using the prudent
investment standard.
(k) Carryover of Funds.--
(1) In general.--Notwithstanding any provision of an
Act of appropriation, 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 1 year to the next, the
carryover shall not diminish the amount of funds that
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 an
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 the insufficiency to
the Secretary.
(3) Suspension of performance--If the Secretary does
not increase the amount of funds transferred under the
funding agreement, the Indian tribe may suspend
performance of the activity until such time as
additional funds are transferred.
SEC. 410. CIVIL ACTIONS.
(a) Inclusion as Contract.--Except as provided in subsection (b), for
the purposes of section 110, the term `contract' shall include a
funding agreement.
(b) Contracts With Professionals.--For the period during
which a funding agreement is in effect, section 2103 of the
Revised Statutes (25 U.S.C. 81), and section 16 of the Act of
June 18, 1934 (25 U.S.C. 476) shall not apply to a contract
between an attorney or other professional and an Indian tribe.
SEC. 411. FACILITATION.
(a) In General.--Except as otherwise provided by law, the
Secretary shall interpret each Federal law (including a
regulation) in a manner that facilitates--
(1) the inclusion of included programs in funding
agreements; and
(2) the implementation of funding agreements.
(b) Regulation Waiver.--
(1) Request.--An Indian tribe may submit a written
request for a waiver to the Secretary identifying the
specific text in regulation sought to be waived and the
basis for the request.
(2) Determination by the secretary.-- Not later than
60 days after the date of receipt by the Secretary of a
request under paragraph (1), the Secretary shall
approve or deny the requested waiver in writing to the
Indian tribe.
(3) Ground for denial.--The Secretary may deny a
request for a waiver only on 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.
(4) Failure to make determination.--If the Secretary
fails to approve or deny a waiver request within the
time required under paragraph (2), the Secretary shall
be deemed to have approved the request.
(5) Finality.--The Secretary's decision shall be
final for the Department.
SEC. 412. DISCLAIMERS.
Nothing in this title expands or alters any statutory
authority of the Secretary so as to authorize the Secretary to
enter into any funding agreement under section 405(b)(2) or 415
(c)(1)--
(1) with respect to an inherent Federal function;
(2) in a case in which the statute establishing a
program does not authorize the type of participation
sought by the Indian tribe (without regard to whether 1
or more Indian tribes are identified in the authorizing
statute); or
(3) limits or reduces 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.
SEC. 413. APPLICABILITY OF OTHER PROVISIONS.
(a) Mandatory Application.--Sections 5(d), 6, 102(c), 104,
105(f), 110, and 111 apply to compacts and funding agreements
under this title.
(b) Discretionary Application.--
(1) In general.--At the option of a participating
Indian tribe, any or all of the provisions of title I
or title V shall be incorporated in a compact or
funding agreement.
(2) Effect.--Each incorporated provision--
(A) shall have the same effect as if the
provision were set out in full in this title;
and
(B) shall be deemed to supplement or replace
any related provision in this title and to
apply to any agency otherwise governed by this
title.
(3) Effective date.--If an Indian tribe requests
incorporation at the negotiation stage of a compact or
funding agreement, the incorporation--
(A) shall be effective immediately; and
(B) shall control the negotiation and
resulting compact and funding agreement.
SEC. 414. BUDGET REQUEST.
(a) Requirement of Annual Budget Request.--
(1) In general--The President shall identify in the
annual budget request submitted to Congress under
section 1105 of title 31, United States Code, all funds
necessary to fully fund all funding agreements
authorized under this title.
(2) Duty of secretary.--The Secretary shall ensure
that there are included, in each budget request,
requests for funds in amounts that are sufficient for
planning and negotiation grants and sufficient to cover
any shortfall in funding identified under subsection
(b).
(3) Timing.--All funds included within funding
agreements shall be provided to the Office of Self-
Governance not later than 15 days after the date on
which funds are apportioned to the Department.
(4) Distribution of funds.--The Office of Self-
Governance shall be responsible for distribution of all
funds provided under this title.
(5) Rule of construction.--Nothing in this subsection
authorizes the Secretary to reduce the amount of funds
that an Indian tribe is otherwise entitled to receive
under a funding agreement or other applicable law.
(b) Present Funding; Shortfalls.--In all budget requests,
the President shall identify the level of need presently funded
and any shortfall in funding (including direct program costs,
tribal shares and contract support costs) for each Indian
tribe, either directly by the Secretary of Interior, under
self-determination contracts, or under compacts and funding
agreements.
SEC. 415. 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.--A report under paragraph (1) shall
include a detailed analysis of tribal unmet need for
each Indian tribe, either directly by the Secretary,
under self-determination contracts under title I, or
under compacts and funding agreements authorized under
this subchapter.
(3) No additional reporting requirements.--In
preparing reports under paragraph (1), the Secretary
may not impose any reporting requirement on
participating Indian tribes not otherwise provided for
by this Act.
(b) Contents.--A report under subsection (a) 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 bureaucracy;
(D) the funding formula for individual tribal
shares of all Central Office funds, with the
comments of affected Indian tribes, developed
under subsection (d); and
(E) amounts expended in the preceding fiscal
year to carry out inherent Federal functions,
including an identification of inherent Federal
functions by type and location;
(3) contain a description of the methods used to
determine the individual tribal share of funds
controlled by all components of the Department
(including funds assessed by any other Federal agency)
for inclusion in compacts or funding agreements;
(4) before being submitted to Congress, be
distributed to the Indian tribes for comment (with a
comment period of not less than 30 days); and
(5) include the separate views and Indian tribe or
tribal organization.
(c) Report on Non-BIA Programs.--
(1) In general.--In order to optimize comments of
each opportunities for -52 including non-Bureau of
Indian Affairs included programs in agreements with
Indian tribes participating in self governance under
this title, the Secretary shall--
(A) review all included programs administered
by the Department, other than through the
Bureau of Indian Affairs, without regard to the
agency or office concerned;
(B) not later than January 1, 2005, submit to
Congress--
(i) a list of all such included
programs that the Secretary determines,
with the concurrence of Indian tribes
participating in self-governance, are
eligible to be included in a funding
agreement at the request of a
participating Indian tribe; and
(ii) a list of all such included
programs for which Indian tribes have
requested to include in a funding
agreement under section 405(b)(3) due
to the special geographic, historical,
or cultural significance to the Indian
tribe, indicating whether each request
was granted or denied and stating the
grounds for any denial.
(2) 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 a
significant portion of those included programs are
included in funding agreements.
(3) Publication.--The lists and targets under
paragraphs (1) and (2) shall be published in the
Federal Register and be made available to any Indian
tribe participating in self governance.
(4) Annual review.--
(A) 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.--The revised lists and
programmatic targets shall include all included
programs that were eligible for contracting in
the original list published in the Federal
Register in 1995, except for included programs
specifically determined not to be contractible
as a matter of law.
(d) Report on Central Office Funds.--Not later than January
1, 2005, 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 for inclusion in the self-governance
compacts.
SEC. 416. REGULATIONS.
(a) In General.--
(1) Promulgation.--Not later than 90 days after the
date of the enactment of the Department of the Interior
Tribal Self-Governance Act of 2004, 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 the amendments made by that Act.
(2) Publication of proposed regulations.--Proposed
regulations to implement the amendments shall be
published in the Federal Register not later than 1 year
after the date of enactment of that Act.
(3) Expiration of authority.--The authority to
promulgate regulations under paragraph (1) shall expire
on the date that is 18 months after the date of
enactment of that Act.
(b) Committee.--
(1) Membership.--A negotiated rulemaking committee
established under section 565 of title 5, United States
Code, to carry out this section shall have as its
members only Federal and tribal government
representatives.
(2) Lead agency.--Among the Federal representatives,
the Office of Self-Governance shall be the lead agency
for the Department of the Interior.
(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.--
(1) Repeal.--All regulatory provisions under part
1000 of title 25, Code of Federal Regulations, are
repealed on the date of enactment of the Department of
the Interior Tribal Self-Governance Act of 2004.
(2) Effectiveness without regard to regulations.--The
lack of promulgated regulations shall not limit the
effect of this Act.
(3) Interim provision.-- Notwithstanding this
subsection, any regulation under part 1000 of title 25,
Code of Federal Regulations, shall remain in effect, at
an Indian tribe's option, in implementing compacts
until regulations are promulgated.
SEC. 417. EFFECT OF CIRCULARS, POLICIES, MANUALS, GUIDANCES, 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 under section 416.11.
SEC. 418. APPEALS.
In any administrative 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 clear and convincing evidence--
(1) the validity of the grounds for the decision; and
(2) the consistency of the decision with the
provisions and policies of this title.
SEC. 419. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as are
necessary to carry out this title.