Library / Laws / 113th / s / S. 919 / Reported in Senate
II
Calendar No. 533
113th CONGRESS
2d Session
S. 919
IN THE SENATE OF THE UNITED STATES
May 9, 2013Ms. Cantwell (for herself, Mr. Barrasso, Mrs. Murray, Mr. Baucus, Mr. Tester, Mr. Udall of New Mexico, Mr. Heinrich, Mr. Schatz, Mr. Wyden, Mr. Crapo, Ms. Murkowski, Mr. Begich, Ms. Warren, and Mr. Walsh) introduced the following bill; which was read twice and referred to the Committee on Indian Affairs
August 26, 2014Reported, under authority of the order of the Senate of August 5 (legislative day, August 1), 2014,
by Mr. Tester, with an amendmentStrike out all after the enacting clause and insert the part printed in italic
A BILL
To amend the Indian Self-Determination and Education
Assistance Act to provide further self-governance by Indian tribes, and for
other purposes.
1.
Short title; table of
contents
(a)
Short
title
This Act may be cited as the Department of the Interior Tribal Self-Governance Act of
2013.
(b)
Table of
contents
The table of contents of this Act is as follows:
Sec. 1. Short title; table of contents.TITLE I—INDIAN SELF-DETERMINATIONSec. 101. Definitions; reporting and audit requirements;
application of provisions.Sec. 102. Contracts by Secretary of the Interior.Sec. 103. Administrative provisions.Sec. 104. Contract funding and indirect costs.Sec. 105. Contract or grant specifications.TITLE II—TRIBAL SELF-GOVERNANCESec. 201. Tribal self-governance.Sec. 202. Effect of certain provisions.
I
INDIAN
SELF-DETERMINATION
101.
Definitions;
reporting and audit requirements; application of provisions
(a)
Definitions
Section
4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C.
450b) is amended by striking subsection (j) and inserting the following:
(j) self-determination
contract means a contract entered into under title I (or a grant or
cooperative agreement used under section 9) between a tribal
organization and
the appropriate Secretary for the planning, conduct, and
administration of
programs or services that are otherwise provided to Indian tribes
and members
of Indian tribes pursuant to Federal law, subject to the condition
that, except
as provided in section 105(a)(3), no contract entered into under
title I (or
grant or cooperative agreement used under section 9) shall be—
(1) considered to be a
procurement contract; or
(2) except as provided
in section 107(a)(1), subject to any Federal procurement law
(including
regulations);
.
(b)
Reporting and
audit requirements
Section 5(b) of the Indian Self-Determination
and Education Assistance Act (25 U.S.C. 450c(b)) is amended—
(1) by striking
after completion of the project or undertaking referred to in the
preceding subsection of this section and inserting after the
retention period for the report that is submitted to the Secretary under
subsection (a); and
(2) by adding at the
end the following: The retention period shall be defined in regulations
promulgated by the Secretary pursuant to section 414..
(c)
Application of
other provisions
Sections 4, 5, 6, 7, 102(c), 104, 105(a)(1),
105(f), 110, and 111 of the Indian Self-Determination and Education
Assistance
Act, as amended (25 U.S.C. 450 et seq.) (Public Law 93–638; 88 Stat. 2203)
and
section 314 of the Department of the Interior and Related Agencies
Appropriations Act, 1991 (Public Law 101–512; 104 Stat. 1959), apply to
compacts and funding agreements entered into under title IV.
102.
Contracts by
Secretary of the Interior
Section 102 of the Indian Self-Determination
and Education Assistance Act (25 U.S.C. 450f) is amended—
(1) in subsection
(c)(2), by striking economic enterprises and all that follows
through except that and inserting economic enterprises
(as defined in section 3 of the Indian Financing Act of 1974 (25 U.S.C.
1452)),
except that; and
(2) by adding at the
end the following:
(f)
Good faith
requirement
Subject to section 202 of the
Department of the Interior Tribal
Self-Governance Act of 2013, in the negotiation of contracts and
funding agreements, the Secretary shall—
(1) at all times
negotiate in good faith to maximize implementation of the
self-determination
policy; and
(2) carry out this Act
in a manner that maximizes the policy of tribal self-determination,
in a manner
consistent with the purposes specified in section 3.
(g)
Rule of
construction
Subject to section 202 of the
Department of the Interior Tribal
Self-Governance Act of 2013, each provision of this Act and each
provision of a contract or funding agreement shall be liberally
construed for
the benefit of the Indian tribe participating in
self-determination, and any
ambiguity shall be resolved in favor of the Indian
tribe.
.
103.
Administrative
provisions
Section 105 of the
Indian Self-Determination and Education Assistance Act (25 U.S.C. 450j) is
amended—
(1) in subsection (b),
in the first sentence, by striking pursuant to and all that
follows through of this Act and inserting pursuant to
sections 102 and 103; and
(2) by adding at the
end the following:
(p)
Interpretation
by secretary
Except as otherwise provided by law (including
section 202 of the Department of the Interior
Tribal Self-Governance Act of 2013), the Secretary shall
interpret all Federal laws (including regulations) and Executive
orders in a
manner that facilitates, to the maximum extent practicable—
(1) the inclusion in
self-determination contracts and funding agreements of—
(A) applicable
programs, services, functions, and activities (or portions
thereof); and
(B) funds associated
with those programs, services, functions, and activities;
(2) the implementation
of self-determination contracts and funding agreements; and
(3) the achievement of
tribal health
objectives.
.
104.
Contract
funding and indirect costs
Section 106(a)(3) of the Indian
Self-Determination and Education Assistance Act (25 U.S.C. 450j–1(a)(3))
is
amended—
(1) in subparagraph
(A)—
(A) in clause (i), by
striking , and and inserting ; and; and
(B) in clause (ii), by
striking expense related to the overhead incurred and inserting
expense incurred by the governing body of the Indian tribe or tribal
organization and any overhead expense incurred;
(2) by redesignating
subparagraph (B) as subparagraph (C); and
(3) by inserting after
subparagraph (A) the following:
(B) In calculating the
reimbursement rate for expenses described in subparagraph (A)(ii),
not less
than 50 percent of the expenses described in subparagraph (A)(ii)
that are
incurred by the governing body of an Indian tribe or tribal
organization
relating to a Federal program, function, service, or activity
carried out
pursuant to the contract shall be considered to be reasonable and
allowable.
.
105.
Contract or
grant specifications
Section
108 of the Indian Self-Determination and Education Assistance Act (25
U.S.C.
450l) is amended—
(1) in subsection
(a)(2), by inserting subject to subsections (a) and (b) of section
102, before contain; and
(2) in subsection
(f)(2)(A)(ii) of the model agreement contained in subsection (c), by
inserting
subject to subsections (a) and (b) of section 102 of the Indian
Self-Determination and Education Assistance Act (25 U.S.C. 450f),
before such other provisions.
II
TRIBAL
SELF-GOVERNANCE
201.
Tribal
self-governance
(a)
Definitions
Section
401 of the Indian Self-Determination and Education Assistance Act (25
U.S.C.
458aa) is amended to read as follows:
401.
Definitions
In this title:
(1)
Compact
The
term compact means a self-governance compact entered into under
section 404.
(2)
Construction
program; construction project
The term construction
program or construction project means a tribal undertaking
relating to the administration, planning, environmental
determination, design,
construction, repair, improvement, or expansion of roads, bridges,
buildings,
structures, systems, or other facilities for purposes of housing,
law
enforcement, detention, sanitation, water supply, education,
administration,
community, health, irrigation, agriculture, conservation, flood
control,
transportation, or port facilities, or for other tribal purposes.
(3)
Department
The
term Department means the Department of the Interior.
(4)
Funding
agreement
The term funding agreement means a funding
agreement entered into under section 403.
(5)
Gross
mismanagement
The term gross mismanagement means a
significant violation, shown by a preponderance of the evidence, of
a compact,
funding agreement, or statutory or regulatory requirement
applicable to Federal
funds—
(A) for a program
administered by an Indian tribe; or
(B) under a compact or
funding agreement that results in a significant reduction of funds
available
for the programs assumed by an Indian tribe.
(6)
Inherent federal
function
The term inherent Federal function means a
Federal function that may not legally be delegated to an Indian
tribe.
(7)
Program
The
term program means any program, function, service, or activity (or
portion thereof) within the Department that is included in a
funding
agreement.
(8)
Secretary
The
term Secretary means the Secretary of the Interior.
(9)
Self-governance
The
term self-governance means the Tribal Self-Governance Program
established under section 402.
(10)
Tribal
share
The term tribal share means the portion of all
funds and resources of an Indian tribe that—
(A) support any
program within the Bureau of Indian Affairs, the Office of Special
Trustee, or
the Office of the Assistant Secretary for Indian Affairs; and
(B) are not required
by the Secretary for the performance of an inherent Federal
function.
.
(b)
Establishment
Section
402 of the Indian Self-Determination and Education Assistance Act (25
U.S.C.
458bb) is amended to read as follows:
402.
Tribal
Self-Governance Program
(a)
Establishment
The Secretary shall establish and carry out
a program within the Department to be known as the Tribal Self-Governance
Program.
(b)
Selection of
Participating Indian Tribes
(1)
In
general
(A)
Eligibility
The
Secretary, acting through the Director of the Office of
Self-Governance, may
select up to 50 new Indian tribes per year from those eligible
under subsection
(c) to participate in self-governance.
(B)
Joint
participation
On the request of each participating Indian tribe,
two or more otherwise eligible Indian tribes may be treated as a
single Indian
tribe for the purpose of participating in self-governance.
(2)
Other authorized
Indian tribe or tribal organization
If an Indian tribe authorizes
another Indian tribe or a tribal organization to plan for or carry
out a
program on its behalf under this title, the authorized Indian tribe
or tribal
organization shall have the rights and responsibilities of the
authorizing
Indian tribe (except as otherwise provided in the authorizing
resolution).
(3)
Joint
participation
Two or more Indian tribes that are not otherwise
eligible under subsection (c) may be treated as a single Indian
tribe for the
purpose of participating in self-governance as a tribal
organization if—
(A) each Indian tribe
so requests; and
(B) the tribal
organization itself, or at least one of the Indian tribes
participating in the
tribal organization, is eligible under subsection (c).
(4)
Tribal
withdrawal from a tribal organization
(A)
In
general
An Indian tribe that withdraws from participation in a
tribal organization, in whole or in part, shall be entitled to
participate in
self-governance if the Indian tribe is eligible under subsection
(c).
(B)
Effect of
withdrawal
If an Indian tribe withdraws from participation in a
tribal organization, the Indian tribe shall be entitled to its
tribal share of
funds and resources supporting the programs that the Indian tribe
is entitled
to carry out under the compact and funding agreement of the Indian
tribe.
(C)
Participation in
self-governance
The withdrawal of an Indian tribe from a tribal
organization shall not affect the eligibility of the tribal
organization to
participate in self-governance on behalf of one or more other
Indian tribes, if
the tribal organization still qualifies under subsection (c).
(D)
Withdrawal
process
(i)
In
general
An Indian tribe may, by tribal resolution, fully or
partially withdraw its tribal share of any program in a funding
agreement from
a participating tribal organization.
(ii)
Notification
The
Indian tribe shall provide a copy of the tribal resolution
described in clause
(i) to the Secretary.
(iii)
Effective
date
(I)
In
general
A withdrawal under clause (i) shall become effective on
the date that is specified in the tribal resolution and mutually
agreed upon by
the Secretary, the withdrawing Indian tribe, and the tribal
organization that
signed the compact and funding agreement on behalf of the
withdrawing Indian
tribe or tribal organization.
(II)
No specified
date
In the absence of a date specified in the resolution, the
withdrawal shall become effective on—
(aa) the
earlier of— (AA) 1 year after the
date of submission of the request; and (BB) the date on which
the funding agreement expires; or
(bb) such date as may
be mutually agreed upon by the Secretary, the withdrawing Indian
tribe, and the
tribal organization that signed the compact and funding agreement
on behalf of
the withdrawing Indian tribe or tribal organization.
(E)
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
tribal organization, the withdrawing Indian tribe—
(i) may elect to enter
into a self-determination contract or compact, in which case—
(I) the withdrawing
Indian tribe or tribal organization shall be entitled to its tribal
share of
unexpended funds and resources supporting the programs that the
Indian tribe
will be carrying out under its own self-determination contract or
compact and
funding agreement (calculated on the same basis as the funds were
initially
allocated to the funding agreement of the tribal organization); and
(II) the funds
referred to in subclause (I) shall be withdrawn by the Secretary
from the
funding agreement of the tribal organization and transferred to the
withdrawing
Indian tribe, on the condition that sections 102 and 105(i), as
appropriate,
shall apply to the withdrawing Indian tribe; or
(ii) may elect not to
enter into a self-determination contract or compact, in which case
all
unexpended funds and resources associated with the withdrawing
Indian tribe’s
returned programs (calculated on the same basis as the funds were
initially
allocated to the funding agreement of the tribal organization)
shall be
returned by the tribal organization to the Secretary for operation
of the
programs included in the withdrawal.
(F)
Return to mature
contract status
If an Indian tribe elects to operate all or some
programs carried out under a compact or funding agreement under
this title
through a self-determination contract under title I, at the option
of the
Indian tribe, the resulting self-determination contract shall be a
mature
self-determination contract as long as the Indian tribe meets the
requirements
set forth in section 4(h).
(c)
Eligibility
To
be eligible to participate in self-governance, an Indian tribe
shall—
(1) successfully
complete the planning phase described in subsection (d);
(2) request
participation in self-governance by resolution or other official
action by the
tribal governing body; and
(3) demonstrate, for
the 3 fiscal years preceding the date on which the Indian tribe
requests
participation, financial stability and financial management
capability as
evidenced by the Indian tribe having no uncorrected significant and
material
audit exceptions in the required annual audit of its
self-determination or
self-governance agreements with any Federal agency.
(d)
Planning
phase
(1)
In
general
An Indian tribe seeking to begin participation in
self-governance shall complete a planning phase as provided in this
subsection.
(2)
Activities
The
planning phase shall—
(A) be conducted to
the satisfaction of the Indian tribe; and
(B) include—
(i) legal and
budgetary research; and
(ii) internal tribal
government planning, training, and organizational preparation.
(e)
Grants
(1)
In
general
Subject to the availability of appropriations, an Indian
tribe or tribal organization that meets the requirements of
paragraphs (2) and
(3) of subsection (c) shall be eligible for grants—
(A) to plan for
participation in self-governance; and
(B) to negotiate the
terms of participation by the Indian tribe or tribal organization
in
self-governance, as set forth in a compact and a funding agreement.
(2)
Receipt of grant
not required
Receipt of a grant under paragraph (1) shall not be
a requirement of participation in
self-governance.
.
(c)
Funding
agreements
Section 403 of the
Indian Self-Determination and Education Assistance Act (25 U.S.C. 458cc)
is
amended—
(1) by striking
subsection (a) and inserting the following:
(a)
Authorization
The
Secretary shall, on the request of any Indian tribe or tribal
organization,
enter into a written funding agreement with the governing body of
the Indian
tribe or the tribal organization in a manner consistent with—
(1) the trust
responsibility of the Federal Government, treaty obligations, and
the
government-to-government relationship between Indian tribes and the
United
States; and
(2) subsection
(b).
;
(2) in subsection
(b)—
(A) in paragraph
(1)—
(i) in
the matter preceding subparagraph (A), by striking without regard to the
agency or office of the Bureau of Indian Affairs and inserting
the Office of the Assistant Secretary for Indian Affairs, and the Office
of the Special Trustee, without regard to the agency or office of that
Bureau
or those Offices;
(ii) in
subparagraph (B), by striking and;
(iii) in subparagraph
(C), by inserting and after the semicolon at the end; and
(iv) by
adding at the end the following:
(D) any other
programs, services, functions, or activities (or portions thereof)
that are
provided through the Bureau of Indian Affairs, the Office of the
Assistant
Secretary for Indian Affairs, or the Office of the Special Trustee
with respect
to which Indian tribes or Indians are primary or significant
beneficiaries;
;
(B) in paragraph
(2)—
(i) by
striking section 405(c) and inserting section
413(c); and
(ii) by
inserting and after the semicolon at the end;
(C) in paragraph (3),
by striking the semicolon at the end and inserting a period; and
(D) by striking
paragraphs (4) through (9); and
(3) by adding at the
end the following:
(m)
Other
provisions
(1)
Excluded
funding
A funding agreement shall not authorize an Indian tribe
to plan, conduct, administer, or receive tribal share funding under
any program
that—
(A) is provided under
the Tribally Controlled Colleges and Universities Assistance Act of
1978 (25
U.S.C. 1801 et seq.); and
(B) is provided for
elementary and secondary schools under the formula developed under
section 1127
of the Education Amendments of 1978 (25 U.S.C. 2007).
(2)
Services,
functions, and responsibilities
A funding agreement shall
specify—
(A) the services to
be provided under the funding agreement;
(B) the functions to
be performed under the funding agreement; and
(C) the
responsibilities of the Indian tribe and the Secretary under the
funding
agreement.
(3)
Base
budget
A funding agreement shall, at the option of the Indian
tribe, provide for a stable base budget specifying the recurring
funds (which
may include funds available under section 106(a)) to be transferred
to the
Indian tribe, for such period as the Indian tribe specifies in the
funding
agreement, subject to annual adjustment only to reflect changes in
congressional appropriations.
(4)
No waiver of
trust responsibility
A funding agreement shall prohibit the
Secretary from waiving, modifying, or diminishing in any way the
trust
responsibility of the United States with respect to Indian tribes
and
individual Indians that exists under treaties, Executive orders,
court
decisions, and other laws.
(n)
Amendment
The
Secretary shall not revise, amend, or require additional terms in a
new or
subsequent funding agreement without the consent of the Indian
tribe, unless
such terms are required by Federal law.
(o)
Effective
date
A funding agreement shall become effective on the date
specified in the funding agreement.
(p)
Existing and
subsequent funding agreements
(1)
Subsequent
funding agreements
Absent notification from an Indian tribe that
the Indian tribe is withdrawing or retroceding the operation of one
or more
programs identified in a funding agreement, or unless otherwise
agreed to by
the parties to the funding agreement or by the nature of any
noncontinuing
program, service, function, or activity contained in a funding
agreement—
(A) a funding
agreement shall remain in full force and effect until a subsequent
funding
agreement is executed, with funding paid annually for each fiscal
year the
agreement is in effect; and
(B) the term of the
subsequent funding agreement shall be retroactive to the end of the
term of the
preceding funding agreement for the purposes of calculating the
amount of
funding to which the Indian tribe is entitled.
(2)
Disputes
Disputes
over the implementation of paragraph (1)(A) shall be subject to
section
406(c).
(3)
Existing
funding agreements
An Indian tribe that was participating in
self-governance under this title on the date of enactment of the
Department of the Interior Tribal
Self-Governance Act of 2013 shall have the option at any time
after that date—
(A) to retain its
existing funding agreement (in whole or in part) to the extent that
the
provisions of that funding agreement are not directly contrary to
any express
provision of this title; or
(B) to negotiate a
new funding agreement in a manner consistent with this title.
(4)
Multiyear
funding agreements
An Indian tribe may, at the discretion of the
Indian tribe, negotiate with the Secretary for a funding agreement
with a term
that exceeds 1
year.
.
(d)
General
revisions
Title IV of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450aa et seq.) is amended by striking sections
404
through 408 and inserting the following:
404.
Compacts
(a)
In
general
The Secretary shall negotiate and enter into a written
compact with each Indian tribe participating in self-governance in
a manner
consistent with the trust responsibility of the Federal Government,
treaty
obligations, and the government-to-government relationship between
Indian
tribes and the United States.
(b)
Contents
A
compact under subsection (a) shall—
(1) specify and affirm
the general terms of the government-to-government relationship
between the
Indian tribe and the Secretary; and
(2) include such terms
as the parties intend shall control during the term of the compact.
(c)
Amendment
A
compact under subsection (a) may be amended only by agreement of
the
parties.
(d)
Effective
date
The effective date of a compact under subsection (a) shall
be—
(1) the date of the
execution of the compact by the parties; or
(2) another date
agreed upon by the parties.
(e)
Duration
A
compact under subsection (a) shall remain in effect—
(1) for so long as
permitted by Federal law; or
(2) until termination
by written agreement, retrocession, or reassumption.
(f)
Existing
compacts
An Indian tribe participating in self-governance under
this title, as in effect on the date of enactment of the
Department of the Interior Tribal
Self-Governance Act of 2013, 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.
405.
General
provisions
(a)
Applicability
An
Indian tribe and the Secretary shall include in any compact or
funding
agreement provisions that reflect the requirements of this title.
(b)
Conflicts of
interest
An Indian tribe participating in self-governance shall
ensure that internal measures are in place to address, pursuant to
tribal law
and procedures, conflicts of interest in the administration of
programs.
(c)
Audits
(1)
Single agency
audit act
Chapter 75 of title 31, United States Code, shall apply
to a funding agreement under this title.
(2)
Cost
principles
An Indian tribe shall apply cost principles under the
applicable Office of Management and Budget circular, except as
modified
by—
(A) any provision of
law, including section 106; or
(B) any exemptions to
applicable Office of Management and Budget circulars subsequently
granted by
the Office of Management and Budget.
(3)
Federal
claims
Any claim by the Federal Government against an Indian
tribe relating to funds received under a funding agreement based on
any audit
under this subsection shall be subject to section 106(f).
(d)
Redesign and
consolidation
Except as provided in section 407, an Indian tribe
may redesign or consolidate programs or reallocate funds for
programs in any
manner that the Indian tribe determines to be in the best interest
of the
Indian community being served, so long as that 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, except
that, with respect to the reallocation, consolidation, and redesign
of programs
described in subsection (b)(2) or (c) of section 403, a joint
agreement between
the Secretary and the Indian tribe shall be required.
(e)
Retrocession
(1)
In
general
An Indian tribe may fully or partially retrocede to the
Secretary any program under a compact or funding agreement.
(2)
Effective
date
(A)
Agreement
Unless
an Indian tribe rescinds a request for retrocession under paragraph
(1), the
retrocession shall become effective on the date specified by the
parties in the
compact or funding agreement.
(B)
No
agreement
In the absence of a specification of an effective date
in the compact or funding agreement, the retrocession shall become
effective
on—
(i) the earlier
of—
(I) 1 year after the
date on which the request is submitted; and
(II) the date on which
the funding agreement expires; or
(ii) such date as may
be mutually agreed upon by the Secretary and the Indian tribe.
(f)
Nonduplication
A
funding agreement shall provide that, for the period for which, and
to the
extent to which, funding is provided to an Indian tribe under this
title, the
Indian tribe—
(1) shall not be
entitled to contract with the Secretary for funds under section
102, except
that the Indian tribe shall be eligible for new programs on the
same basis as
other Indian tribes; and
(2) shall be
responsible for the administration of programs in accordance with
the compact
or funding agreement.
(g)
Records
(1)
In
general
Unless an Indian tribe specifies otherwise in the compact
or funding agreement, records of an Indian tribe shall not be
considered to be
Federal records for purposes of chapter 5 of title 5, United States
Code.
(2)
Recordkeeping
system
An Indian tribe shall—
(A) maintain a
recordkeeping system; and
(B) on a notice period
of not less than 30 days, provide the Secretary with reasonable
access to the
records to enable the Department to meet the requirements of
sections 3101
through 3106 of title 44, United States Code.
406.
Provisions
relating to the secretary
(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 a program and associated funding if
there is a
specific finding relating to that program of—
(A) imminent jeopardy
to a trust asset, natural resources, 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
under a
compact or funding agreement, as determined by the Secretary in
consultation
with the Inspector General, as appropriate.
(2)
Prohibition
The
Secretary shall not reassume operation of a program, in whole or
part,
unless—
(A) the Secretary
first provides written notice and a hearing on the record to the
Indian tribe;
and
(B) the Indian tribe
does not take corrective action to remedy the mismanagement of the
funds or
programs, or the imminent jeopardy to a trust asset, natural
resource, or
public health and safety.
(3)
Exception
(A)
In
general
Notwithstanding paragraph (2), the Secretary may, on
written notice to the Indian tribe, immediately reassume operation
of a program
if—
(i) the Secretary
makes a finding of imminent and substantial jeopardy and
irreparable harm to a
trust asset, a natural resource, or the public health and safety
caused by an
act or omission of the Indian tribe; and
(ii) the imminent and
substantial jeopardy, and irreparable harm to the trust asset,
natural
resource, or public health and safety arises out of a failure by
the Indian
tribe to carry out the terms of an applicable compact or funding
agreement.
(B)
Reassumption
If
the Secretary reassumes operation of a program under subparagraph
(A), the
Secretary shall provide the Indian tribe with a hearing on the
record not later
than 10 days after the date of reassumption.
(c)
Inability To
agree on compact or funding agreement
(1)
Final
offer
If the Secretary and a participating Indian tribe are
unable to agree, in whole or in part, on the terms of a compact or
funding
agreement (including funding levels), the Indian tribe may submit a
final offer
to the Secretary.
(2)
Determination
Not
more than 60 days after the date of receipt of a final offer by the
one or more
officials designated pursuant to paragraph (4), the Secretary shall
review and
make a determination with respect to the final offer.
(3)
Extensions
The
deadline described in paragraph (2) may be extended for any length
of time, as
agreed upon by both the Indian tribe and the Secretary.
(4)
Designated
officials
(A)
In
general
The Secretary shall designate one or more appropriate
officials in the Department to receive a copy of the final offer
described in
paragraph (1).
(B)
No
designation
If no official is designated, the Executive
Secretariat of the Secretary shall be the designated official.
(5)
No timely
determination
Except as otherwise provided in section 202 of the
Department of the Interior Tribal
Self-Governance Act of 2013, if the Secretary fails to make a
determination with respect to a final offer within the period
specified in
paragraph (2), the Secretary shall be deemed to have agreed to the
offer.
(6)
Rejection of
final offer
(A)
In
general
If the Secretary rejects a final offer (or one or more
provisions or funding levels in a final offer), the Secretary
shall—
(i) provide timely
written notification to the Indian tribe that contains a specific
finding that
clearly demonstrates, or that is supported by a controlling legal
authority,
that—
(I) the amount of
funds proposed in the final offer exceeds the applicable funding
level as
determined under section 106(a)(1);
(II) the program that
is the subject of the final offer is an inherent Federal function
or is subject
to the discretion of the Secretary under section 403(c);
(III) the Indian tribe
cannot carry out the program in a manner that would not result in
significant
danger or risk to the public health or safety, to natural
resources, or to
trust resources;
(IV) the Indian tribe
is not eligible to participate in self-governance under section
402(c);
(V) the funding
agreement would violate a Federal statute or regulation; or
(VI) with respect to
a program or portion of a program included in a final offer
pursuant to section
403(b)(2), the program or the portion of the program is not
otherwise available
to Indian tribes or Indians under section 102(a)(1)(E);
(ii) provide technical
assistance to overcome the objections stated in the notification
required by
clause (i);
(iii) provide the
Indian tribe with—
(I) a hearing on the
record with the right to engage in full discovery relevant to any
issue raised
in the matter; and
(II) the opportunity
for appeal on the objections raised (except that the Indian tribe
may, in lieu
of filing such appeal, directly proceed to initiate an action in a
United
States district court under section 110(a)); and
(iv) provide the
Indian tribe the option of entering into the severable portions of
a final
proposed compact or funding agreement (including a lesser funding
amount, if
any), that the Secretary did not reject, subject to any additional
alterations
necessary to conform the compact or funding agreement to the
severed
provisions.
(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 (i),
(ii), and (iii) of subparagraph (A) shall apply only to the portion
of the
proposed final compact or funding agreement that was rejected by
the
Secretary.
(d)
Burden of
proof
In any administrative action, hearing, or appeal or civil
action brought under this section, the Secretary shall have the
burden of
proof—
(1) of demonstrating, by a preponderance of the
evidence, the validity of the grounds for a reassumption under
subsection (b);
and
(2) of clearly
demonstrating the validity of the grounds for rejecting a final
offer made
under subsection (c).
(e)
Good
faith
(1)
In
general
Subject to section 202 of the
Department of the Interior Tribal
Self-Governance Act of 2013, 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
Subject
to section 202 of the Department of the
Interior Tribal Self-Governance Act of 2013, the Secretary shall
carry out this title in a manner that maximizes the policy of
tribal
self-governance.
(f)
Savings
(1)
In
general
To the extent that programs carried out for the benefit
of Indian tribes and tribal organizations under this title reduce
the
administrative or other responsibilities of the Secretary with
respect to the
operation of Indian programs and result in savings that have not
otherwise been
included in the amount of tribal shares and other funds determined
under
section 408(c), except for funding agreements entered into for
programs under
section 403(c), the Secretary shall make such savings available to
the Indian
tribes or tribal organizations for the provision of additional
services to
program beneficiaries in a manner equitable to directly served,
contracted, and
compacted programs.
(2)
Discretionary
programs of special significance
For any savings generated as a
result of the assumption of a program by an Indian tribe under
section 403(c),
such savings shall be made available to that Indian tribe.
(g)
Trust
responsibility
The Secretary may not waive, modify, or diminish
in any way the trust responsibility of the United States with
respect to Indian
tribes and individual Indians that exists under treaties, Executive
orders,
other laws, or court decisions.
(h)
Decisionmaker
A
decision that constitutes final agency action and relates to an
appeal within
the Department conducted under subsection (c)(4) may be made by—
(1) an official of the
Department who holds a position at a higher organizational level
within the
Department than the level of the departmental agency in which the
decision that
is the subject of the appeal was made; or
(2) an administrative
law judge.
(i)
Rules of
construction
Subject to section 202 of the
Department of the Interior Tribal
Self-Governance Act of 2013, 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.
407.
Construction
programs and projects
(a)
In
general
Indian tribes participating in tribal self-governance may
carry out construction projects under this title.
(b)
Tribal option To
carry out certain federal environmental activities
In carrying
out a construction project under this title, an Indian tribe may,
subject to
the agreement of the Secretary, elect to assume some Federal
responsibilities
under the National Environmental Policy Act of 1969 (42 U.S.C. 4321
et seq.),
the National Historic Preservation Act (16 U.S.C. 470 et seq.), and
related
provisions of law and regulations that would apply if the Secretary
were to
undertake a construction project, by adopting a resolution—
(1) designating a
certifying tribal officer to represent the Indian tribe and to
assume the
status of a responsible Federal official under those Acts or
regulations;
and
(2) accepting the
jurisdiction of the United States courts for the purpose of
enforcing the
responsibilities of the certifying tribal officer assuming the
status of a
responsible Federal official under those Acts or regulations.
(c)
Savings
clause
Notwithstanding subsection (b), nothing in this section
authorizes the Secretary to include in any compact or funding
agreement duties
of the Secretary under the National Environmental Policy Act (42
U.S.C. 4321 et
seq.), the National Historic Preservation Act (16 U.S.C. 470 et
seq.), and
other related provisions of law that are inherent Federal
functions.
(d)
Codes and
standards
In carrying out a construction project under this
title, an Indian tribe shall—
(1) adhere to
applicable Federal, State, local, and tribal building codes,
architectural and
engineering standards, and applicable Federal guidelines regarding
design,
space, and operational standards, appropriate for the particular
project;
and
(2) use only
architects and engineers who—
(A) are licensed to
practice in the State in which the facility will be built; and
(B) certify
that—
(i) they are qualified
to perform the work required by the specific construction involved;
and
(ii) upon completion
of design, the plans and specifications meet or exceed the
applicable
construction and safety codes.
(e)
Tribal
accountability
(1)
In
general
In carrying out a construction project under this title,
an Indian tribe shall assume responsibility for the successful
completion of
the construction project and of a facility that is usable for the
purpose for
which the Indian tribe received funding.
(2)
Requirements
For
each construction project carried out by an Indian tribe under this
title, the
Indian tribe and the Secretary shall negotiate a provision to be
included in
the funding agreement that identifies—
(A) the approximate
start and completion dates for the project, which may extend over a
period of
one or more years;
(B) a general
description of the project, including the scope of work, references
to design
criteria, and other terms and conditions;
(C) the
responsibilities of the Indian tribe and the Secretary for the
project;
(D) how
project-related environmental considerations will be addressed;
(E) the amount of
funds provided for the project;
(F) the obligations of
the Indian tribe to comply with the codes referenced in subsection
(c)(1) and
applicable Federal laws and regulations;
(G) the agreement of
the parties over who will bear any additional costs necessary to
meet changes
in scope, or errors or omissions in design and construction; and
(H) the agreement of
the Secretary to issue a certificate of occupancy, if requested by
the Indian
tribe, based upon the review and verification by the Secretary, to
the
satisfaction of the Secretary, that the Indian tribe has secured
upon
completion the review and approval of the plans and specifications,
sufficiency
of design, life safety, and code compliance by qualified, licensed,
and
independent architects and engineers.
(f)
Funding
(1)
In
general
Subject to section 202 of the
Department of the Interior Tribal
Self-Governance Act of 2013, funding appropriated for
construction projects carried out under this title shall be
included in funding
agreements as annual or semiannual advance payments at the option
of the Indian
tribe.
(2)
Advance
payments
Subject to section 202 of the
Department of the Interior Tribal
Self-Governance Act of 2013, the Secretary shall include all
associated project contingency funds with each advance payment, and
the Indian
tribe shall be responsible for the management of such contingency
funds.
(g)
Negotiations
At
the option of the Indian tribe, construction project funding
proposals shall be
negotiated pursuant to the statutory process in section 105, and
any resulting
construction project agreement shall be incorporated into the
funding agreement
as addenda.
(h)
Federal review
and verification
(1)
In
general
On a schedule negotiated by the Secretary and the Indian
tribe—
(A) the Secretary
shall review and verify, to the satisfaction of the Secretary, that
project
planning and design documents prepared by the Indian tribe in
advance of
initial construction are in conformity with the obligations of the
Indian tribe
under subsection (c); and
(B) before the project
planning and design documents are implemented, the Secretary shall
review and
verify to the satisfaction of the Secretary that subsequent
document amendments
which result in a significant change in construction are in
conformity with the
obligations of the Indian tribe under subsection (c).
(2)
Reports
The
Indian tribe shall provide the Secretary with project progress and
financial
reports not less than semiannually.
(3)
Oversight
visits
The Secretary may conduct onsite project oversight visits
semiannually or on an alternate schedule agreed to by the Secretary
and the
Indian tribe.
(i)
Application of
other laws
Unless otherwise agreed to by the Indian tribe and
except as otherwise provided in this Act, no provision of the
Office of Federal
Procurement Policy Act (41 U.S.C. 401 et seq.), the Federal
Acquisition
Regulations issued pursuant to that Act, or any other law or
regulation
pertaining to Federal procurement (including Executive orders)
shall apply to
any construction program or project carried out under this title.
(j)
Future
funding
Subject to section 202 of the
Department of the Interior Tribal
Self-Governance Act of 2013, upon completion of a facility
constructed under this title, the Secretary shall include the
facility among
those eligible for annual operation and maintenance funding support
comparable
to that provided for similar facilities funded by the Department as
annual
appropriations are available and to the extent that the facility
size and
complexity and other factors do not exceed the funding formula
criteria for
comparable buildings.
408.
Payment
(a)
In
general
At the request of the governing body of an Indian tribe
and under the terms of an applicable funding agreement, the
Secretary shall
provide funding to the Indian tribe to carry out the funding
agreement.
(b)
Advance annual
payment
At the option of the Indian tribe, a funding agreement
shall provide for an advance annual payment to an Indian tribe.
(c)
Amount
(1)
In
general
Subject to subsection (e) and sections 403 and 405, the
Secretary shall provide funds to the Indian tribe under a funding
agreement for
programs in an amount that is equal to the amount that the Indian
tribe would
have been entitled to receive under contracts and grants under this
Act
(including amounts for direct program and contract support costs
and, in
addition, any funds that are specifically or functionally related
to the
provision by the Secretary of services and benefits to the Indian
tribe or its
members) without regard to the organization level within the
Department at
which the programs are carried out.
(2)
Savings
clause
Nothing in this section reduces programs, services, or
funds of, or provided to, another Indian tribe.
(d)
Timing
(1)
In
general
Pursuant to the terms of any compact or funding agreement
entered into under this title, the Secretary shall transfer to the
Indian tribe
all funds provided for in the funding agreement, pursuant to
subsection (c),
and provide funding for periods covered by joint resolution adopted
by Congress
making continuing appropriations, to the extent permitted by such
resolution.
(2)
Transfers
Not
later than 1 year after the date of enactment of the
Department of the Interior Tribal
Self-Governance Act of 2013, in any instance in which a funding
agreement requires an annual transfer of funding to be made at the
beginning of
a fiscal year or requires semiannual or other periodic transfers of
funding to
be made commencing at the beginning of a fiscal year, the first
such transfer
shall be made not later than 10 days after the apportionment of
such funds by
the Office of Management and Budget to the Department, unless the
funding
agreement provides otherwise.
(e)
Availability
Funds
for trust services to individual Indians shall be available under a
funding
agreement only to the extent that the same services that would have
been
provided by the Secretary are provided to individual Indians by the
Indian
tribe.
(f)
Multiyear
funding
A funding agreement may provide for multiyear
funding.
(g)
Limitations on
authority of the secretary
The Secretary shall not—
(1) fail to transfer
to an Indian tribe its full share of any central, headquarters,
regional, area,
or service unit office or other funds due under this title for
programs
eligible under paragraph (1) or (2) of section 403(b), except as
required by
Federal law;
(2) withhold any
portion of such funds for transfer over a period of years; or
(3) reduce the amount
of funds required under this title—
(A) to make funding
available for self-governance monitoring or administration by the
Secretary;
(B) in subsequent
years, except as necessary as a result of—
(i) a
reduction in appropriations from the previous fiscal year for the
program to be
included in a compact or funding agreement;
(ii) a
congressional directive in legislation or an accompanying report;
(iii) a tribal
authorization;
(iv) a
change in the amount of pass-through funds subject to the terms of
the funding
agreement; or
(v) completion of an
activity under a program for which the funds were provided;
(C) to pay for Federal
functions, including—
(i) Federal pay
costs;
(ii) Federal employee
retirement benefits;
(iii) automated data
processing;
(iv) technical
assistance; and
(v) monitoring of
activities under this title; or
(D) to pay for costs
of Federal personnel displaced by self-determination contracts
under this Act
or self-governance under this title.
(h)
Federal
resources
If an Indian tribe elects to carry out a compact or
funding agreement with the use of Federal personnel, Federal
supplies
(including supplies available from Federal warehouse facilities),
Federal
supply sources (including lodging, airline transportation, and
other means of
transportation, including the use of interagency motor pool
vehicles), or other
Federal resources (including supplies, services, and resources
available to the
Secretary under any procurement contracts in which the Department
is eligible
to participate), the Secretary shall, as soon as practicable,
acquire and
transfer such personnel, supplies, or resources to the Indian tribe
under this
title.
(i)
Prompt payment
act
Chapter 39 of title 31, United States Code, shall apply to
the transfer of funds due under a compact or funding agreement
authorized under
this title.
(j)
Interest or
other income
(1)
In
general
An Indian tribe may retain interest or income earned on
any funds paid under a compact or funding agreement to carry out
governmental
purposes.
(2)
No effect on
other amounts
The retention of interest or income under paragraph
(1) shall not diminish the amount of funds an Indian tribe is
entitled to
receive under a funding agreement in the year the interest or
income is earned
or in any subsequent fiscal year.
(3)
Investment
standard
Funds transferred under this title shall be managed by
the Indian tribe using the prudent investment standard, provided
that the
Secretary shall not be liable for any investment losses of funds
managed by the
Indian tribe that are not otherwise guaranteed or insured by the
Federal
Government.
(k)
Carryover of
funds
(1)
In
general
Notwithstanding any provision of an appropriations Act,
all funds paid to an Indian tribe in accordance with a compact or
funding
agreement shall remain available until expended.
(2)
Effect of
carryover
If an Indian tribe elects to carry over funding from 1
year to the next, the carryover shall not diminish the amount of
funds the
Indian tribe is entitled to receive under a funding agreement in
that fiscal
year or any subsequent fiscal year.
(l)
Limitation of
costs
(1)
In
general
An Indian tribe shall not be obligated to continue
performance that requires an expenditure of funds in excess of the
amount of
funds transferred under a compact or funding agreement.
(2)
Notice of
insufficiency
If at any time the Indian tribe has reason to
believe that the total amount provided for a specific activity
under a compact
or funding agreement is insufficient, the Indian tribe shall
provide reasonable
notice of such insufficiency to the Secretary.
(3)
Suspension of
performance
If, after notice under paragraph (2), the Secretary
does not increase the amount of funds transferred under the funding
agreement,
the Indian tribe may suspend performance of the activity until such
time as
additional funds are transferred.
(4)
Savings
clause
Nothing in this section reduces any programs, services, or
funds of, or provided to, another Indian tribe.
(m)
Distribution of
funds
The Office of Self-Governance shall be responsible for
distribution of all Bureau of Indian Affairs funds provided under
this title
unless otherwise agreed by the parties to an applicable funding
agreement.
(n)
Applicability
Section
202 of the Department of the Interior Tribal
Self-Governance Act of 2013 applies to subsections (a) through
(m).
409.
Facilitation
(a)
In
general
Except as otherwise provided by law (including section
202 of the Department of the Interior Tribal
Self-Governance Act of 2013), the Secretary shall interpret each
Federal law and regulation in a manner that facilitates—
(1) the inclusion of
programs in funding agreements; and
(2) the implementation
of funding agreements.
(b)
Regulation
waiver
(1)
Request
An
Indian tribe may submit to the Secretary a written request for a
waiver of
applicability of a Federal regulation, including—
(A) an identification
of the specific text in the regulation sought to be waived; and
(B) the basis for the
request.
(2)
Determination by
the secretary
Not later than 120 days after receipt by the
Secretary and the designated officials under paragraph (4) of a
request under
paragraph (1), the Secretary shall approve or deny the requested
waiver in
writing to the Indian tribe.
(3)
Extensions
The
deadline described in paragraph (2) may be extended for any length
of time, as
agreed upon by both the Indian tribe and the Secretary.
(4)
Designated
officials
The Secretary shall designate one or more appropriate
officials in the Department to receive a copy of the waiver request
described
in paragraph (1).
(5)
Grounds for
denial
The Secretary may deny a request under paragraph
(1)—
(A) for a program
eligible under paragraph (1) or (2) of section 403(b), only upon a
specific
finding by the Secretary that the identified text in the regulation
may not be
waived because such a waiver is prohibited by Federal law; and
(B) for a program
eligible under section 403(c), upon a specific finding by the
Secretary that
the waiver is prohibited by Federal law or is inconsistent with the
express
provisions of the funding agreement.
(6)
Failure to make
determination
If the Secretary fails to approve or deny a waiver
request within the period required under paragraph (2), the
Secretary shall be
deemed to have approved the request.
(7)
Finality
A
decision of the Secretary under this section shall be final for the
Department.
410.
Disclaimers
Nothing in this title expands or alters any
statutory authority of the Secretary in a manner that authorizes
the Secretary
to enter into any agreement under section 403—
(1) with respect to an
inherent Federal function;
(2) in a case in which
the law establishing a program explicitly prohibits the type of
participation
sought by the Indian tribe (without regard to whether one or more
Indian tribes
are identified in the authorizing law); or
(3) that 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.
411.
Discretionary
application of other sections
(a)
In
general
Except as otherwise provided in section 101(c), at the
option of a participating Indian tribe or Indian tribes, any of the
provisions
of title I may be incorporated in any compact or funding agreement
under this
title.
(b)
Effect
Each
incorporated provision under subsection (a) shall—
(1) have the same
force and effect as if set out in full in this title;
(2) supplement or
replace any related provision in this title; and
(3) apply to any
agency otherwise governed by this title.
(c)
Effective
date
If an Indian tribe requests incorporation at the negotiation
stage of a compact or funding agreement, the incorporation shall—
(1) be effective
immediately; and
(2) control the
negotiation and resulting compact and funding agreement.
412.
Annual Budget
list
The Secretary shall list,
in the annual budget request submitted to Congress under section
1105 of title
31, United States Code, any funds proposed to be included in
funding agreements
authorized under this Act.
413.
Reports
(a)
In
general
(1)
Requirement
On
January 1 of each year, the Secretary shall submit to Congress a
report
regarding the administration of this title.
(2)
Analysis
Any
Indian tribe may submit to the Office of Self-Governance and to the
appropriate
Committees of Congress a detailed annual analysis of unmet tribal
needs for
funding agreements under this title.
(b)
Contents
The
report under subsection (a)(1) shall—
(1) be compiled from
information contained in funding agreements, annual audit reports,
and data of
the Secretary regarding the disposition of Federal funds;
(2) identify—
(A) the relative costs
and benefits of self-governance;
(B) with
particularity, all funds that are specifically or functionally
related to the
provision by the Secretary of services and benefits to
self-governance Indian
tribes and members of Indian tribes;
(C) the funds
transferred to each Indian tribe and the corresponding reduction in
the Federal
employees and workload; and
(D) the funding
formula for individual tribal shares of all Central Office funds,
together with
the comments of affected Indian tribes, developed under subsection
(d);
(3) before being
submitted to Congress, be distributed to the Indian tribes for
comment (with a
comment period of no less than 30 days);
(4) include the
separate views and comments of each Indian tribe or tribal
organization;
and
(5) include a list
of—
(A) all such programs
that the Secretary determines, in consultation with Indian tribes
participating
in self-governance, are eligible for negotiation to be included in
a funding
agreement at the request of a participating Indian tribe; and
(B) all such programs
which Indian tribes have formally requested to include in a funding
agreement
under section 403(c) due to the special geographic, historical, or
cultural
significance of the program to the Indian tribe, indicating whether
each
request was granted or denied, and stating the grounds for any
denial.
(c)
Report on
non-BIA, non-OST programs
(1)
In
general
In order to optimize opportunities for including
non-Bureau of Indian Affairs and non-Office of Special Trustee
programs in
agreements with Indian tribes participating in self-governance
under this
title, the Secretary shall review all programs administered by the
Department,
other than through the Bureau of Indian Affairs or Office of the
Special
Trustee, without regard to the agency or office concerned.
(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 an appropriate portion of
those
programs are available to be included in funding agreements.
(3)
Publication
The
lists under subsection (b)(5) and targets under paragraph (2) shall
be
published in the Federal Register and made available to any Indian
tribe
participating in self-governance.
(4)
Annual
review
(A)
In
general
The Secretary shall annually review and publish in the
Federal Register, after consultation with Indian tribes
participating in
self-governance, revised lists and programmatic targets.
(B)
Contents
In
preparing the revised lists and programmatic targets, the Secretary
shall
consider all programs that were eligible for contracting in the
original list
published in the Federal Register in 1995, except for programs
specifically
determined not to be contractible as a matter of law.
(d)
Report on
central office funds
Not later than January 1, 2013, the
Secretary shall, in consultation with Indian tribes, develop a
funding formula
to determine the individual tribal share of funds controlled by the
Central
Office of the Bureau of Indian Affairs and the Office of the
Special Trustee
for inclusion in the compacts.
414.
Regulations
(a)
In
general
(1)
Promulgation
Not
later than 90 days after the date of enactment of the
Department of the Interior Tribal
Self-Governance Act of 2013, the Secretary shall initiate
procedures under subchapter III of chapter 5 of title 5, United
States Code, to
negotiate and promulgate such regulations as are necessary to carry
out this
title.
(2)
Publication of
proposed regulations
Proposed regulations to implement this title
shall be published in the Federal Register not later than 21 months
after the
date of enactment of the Department of the
Interior Tribal Self-Governance Act of 2013.
(3)
Expiration of
authority
The authority to promulgate regulations under paragraph
(1) shall expire on the date that is 30 months after the date of
enactment of
the Department of the Interior Tribal
Self-Governance Act of 2013.
(b)
Committee
(1)
Membership
A
negotiated rulemaking committee established pursuant to section 565
of title 5,
United States Code, to carry out this section shall have as its
members only
representatives of the Federal Government and tribal government.
(2)
Lead
agency
Among the Federal representatives described in paragraph
(1), the Office of Self-Governance shall be the lead agency for the
Department.
(c)
Adaptation of
procedures
The Secretary shall adapt the negotiated rulemaking
procedures to the unique context of self-governance and the
government-to-government relationship between the United States and
Indian
tribes.
(d)
Effect
(1)
Repeal
The
Secretary may repeal any regulation that is inconsistent with this
Act.
(2)
Conflicting
provisions
Subject to section 202 of the
Department of the Interior Tribal
Self-Governance Act of 2013, this title shall supersede any
conflicting provision of law (including any conflicting
regulations).
(3)
Effectiveness
without regard to regulations
The lack of promulgated regulations
on an issue shall not limit the effect or implementation of this
title.
415.
Effect of
circulars, policies, manuals, guidance, and rules
Unless expressly agreed to by a
participating Indian tribe in a compact or funding agreement, the
participating
Indian tribe shall not be subject to any agency circular, policy,
manual,
guidance, or rule adopted by the Department, except for—
(1) the eligibility
provisions of section 105(g); and
(2) regulations
promulgated pursuant to section 414.
416.
Appeals
Except as provided in section 406(d), in any
administrative action, appeal, or civil action for judicial review
of any
decision made by the Secretary under this title, the Secretary
shall have the
burden of proof of demonstrating by a preponderance of the
evidence—
(1) the validity of
the grounds for the decision; and
(2) the consistency of
the decision with the requirements and policies of this title.
417.
Application of
other provisions
Section 314
of the Department of the Interior and Related Agencies
Appropriations Act, 1991
(Public Law 101–512; 104 Stat. 1959), shall apply to compacts and
funding
agreements entered into under this title.
418.
Authorization
of appropriations
There are
authorized to be appropriated such sums as are necessary to carry
out this
title.
.
202.
Effect of
certain provisions
(a)
Definitions
In
this section:
(1)
Funding
agreement
The term funding agreement means a funding
agreement entered into under section 403 of the ISDEAA (25 U.S.C.
458cc).
(2)
ISDEAA
The
term ISDEAA means the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450 et seq.).
(3)
Non-BIA
program
The term non-BIA program means all or a
portion of a program, function, service, or activity that is administered
by
any bureau, service, office, or agency of the Department of the Interior
other
than through—
(A) the Bureau of
Indian Affairs;
(B) the Office of the
Assistant Secretary for Indian Affairs; or
(C) the Office of the
Special Trustee for American Indians.
(4)
Secretary
The
term Secretary means the Secretary of the Interior.
(5)
Self-determination
contract
The term self-determination contract means
a self-determination contract entered into under section 102 of the ISDEAA
(25
U.S.C. 450f).
(6)
Tribal water
settlement
The term tribal water settlement means
any settlement, compact, or other agreement entered into by an Indian
tribe and
the United States, or by an Indian tribe, the United States, and one or
more
parties that—
(A) settles or
quantifies any Federal reserved water rights or any claims relating to
those
rights of the Indian tribe; and
(B) has been
authorized by an Act of Congress.
(b)
Effect of
provisions
Nothing in this Act (including this section) or any
amendment made by this Act (including section 414 of the ISDEAA (relating
to
regulations), as added by section 201)—
(1) modifies or
affects the meaning, application, or effect of—
(A) section
102(a)(1)(E) of the ISDEAA (25 U.S.C. 450f(a)(1)(E)), as in effect on the
day
before the date of enactment of this Act; or
(B) paragraph (2) or
(3) of subsection (b) or subsection (c) of section 403 of the ISDEAA (25
U.S.C.
458cc), as in effect on the day before the date of enactment of this
Act;
(2) increases,
limits, modifies, or otherwise affects any authority of the Secretary that
the
Secretary held on the day before the date of enactment of this Act under
section 403(c) of the ISDEAA (25 U.S.C. 458cc(c));
(3) authorizes the
inclusion of any non-BIA program in—
(A) a
self-determination contract as a program under section 102(a)(1)(E) of the
ISDEAA (25 U.S.C. 450f(a)(1)(E)) if the inclusion of that non-BIA program
in a
self-determination contract as a program under that section would not have
been
authorized under the ISDEAA on the day before the date of enactment of
this
Act;
(B) a funding
agreement as a program under section 403(b)(2) of the ISDEAA (25 U.S.C.
458cc(b)(2)) if the inclusion of that non-BIA program in a funding
agreement as
a program under that section would not have been authorized on the day
before
the date of enactment of this Act; or
(C) a funding
agreement as a program under section 403(c) of the ISDEAA (25 U.S.C.
458cc(c))
if the inclusion of that non-BIA program in a funding agreement as a
program
under that section would not have been authorized under the ISDEAA on the
day
before the date of enactment of this Act;
(4) modifies or
otherwise affects the meaning, application, or effect of any provision of
law
that—
(A) is not contained
in the ISDEAA; and
(B) expressly
authorizes or prohibits contracting or compacting under title I or title
IV of
the ISDEAA with respect to a specific program or project that is
identified or
otherwise referred to in that provision of law;
(5) modifies or
otherwise affects the meaning, application, or effect of, or the
performance
required of a party, or any payment or funding under—
(A) a tribal water
settlement; or
(B) any Act of
Congress approving, authorizing, or ratifying a tribal water settlement;
or
(6) authorizes any
self-determination contract or funding agreement or approval of any
self-determination contract or funding agreement under the ISDEAA (as
amended
by section 201) that would authorize an Indian tribe to plan, conduct,
consolidate, administer, or receive funding for any program, project, or
activity that is required, authorized, or funded by a tribal water
settlement
or an Act of Congress approving, authorizing, or ratifying a tribal water
settlement in a manner that is inconsistent with the terms of that tribal
water
settlement or that Act of Congress.
1.
Short title; table of
contents
(a)
Short
title
This Act may be cited as the Department of the Interior Tribal Self-Governance Act of 2014.
(b)
Table of
contents
The table of contents of this Act is as follows:
Sec. 1. Short title; table of contents.TITLE I—INDIAN SELF-DETERMINATIONSec. 101. Definitions; reporting and audit requirements; application of provisions.Sec. 102. Contracts by Secretary of the Interior.Sec. 103. Administrative provisions.Sec. 104. Contract funding and indirect costs.Sec. 105. Contract or grant specifications.TITLE II—TRIBAL SELF-GOVERNANCESec. 201. Tribal self-governance.Sec. 202. Effect of certain provisions.
I
INDIAN
SELF-DETERMINATION
101.
Definitions;
reporting and audit requirements; application of provisions
(a)
Definitions
Section
4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C.
450b) is amended by striking subsection (j) and inserting the following:
(j) self-determination
contract means a contract entered into under title I (or a grant or
cooperative agreement used under section 9) between a tribal
organization and
the appropriate Secretary for the planning, conduct, and
administration of
programs or services that are otherwise provided to Indian tribes
and members
of Indian tribes pursuant to Federal law, subject to the condition
that, except
as provided in section 105(a)(3), no contract entered into under
title I (or
grant or cooperative agreement used under section 9) shall be—
(1) considered to be a
procurement contract; or
(2) except as provided
in section 107(a)(1), subject to any Federal procurement law
(including
regulations);
.
(b)
Reporting and
audit requirements
Section 5(b) of the Indian Self-Determination
and Education Assistance Act (25 U.S.C. 450c(b)) is amended—
(1) by striking
after completion of the project or undertaking referred to in the
preceding subsection of this section and inserting after the
retention period for the report that is submitted to the Secretary under
subsection (a); and
(2) by adding at the
end the following: The retention period shall be defined in regulations
promulgated by the Secretary pursuant to section 414..
(c)
Application of
other provisions
Sections 4, 5, 6, 7, 102(c), 104, 105(a)(1),
105(f), 110, and 111 of the Indian Self-Determination and Education
Assistance
Act, as amended (25 U.S.C. 450 et seq.) (Public Law 93–638; 88 Stat. 2203)
and
section 314 of the Department of the Interior and Related Agencies
Appropriations Act, 1991 (Public Law 101–512; 104 Stat. 1959), apply to
compacts and funding agreements entered into under title IV.
102.
Contracts by
Secretary of the Interior
Section 102 of the Indian Self-Determination
and Education Assistance Act (25 U.S.C. 450f) is amended—
(1) in subsection
(c)(2), by striking economic enterprises and all that follows
through except that and inserting economic enterprises
(as defined in section 3 of the Indian Financing Act of 1974 (25 U.S.C.
1452)),
except that; and
(2) by adding at the
end the following:
(f)
Good faith
requirement
In the negotiation of contracts and
funding agreements, the Secretary shall—
(1) at all times
negotiate in good faith to maximize implementation of the
self-determination
policy; and
(2) carry out this Act
in a manner that maximizes the policy of tribal self-determination,
in a manner
consistent with—
(A) the purposes specified in section 3; and
(B) the Department of the Interior Tribal Self-Governance Act of 2014.
(g)
Rule of
construction
Subject to section 202 of the
Department of the Interior Tribal Self-Governance Act of 2014, each provision of this Act and each
provision of a contract or funding agreement shall be liberally
construed for
the benefit of the Indian tribe participating in
self-determination, and any
ambiguity shall be resolved in favor of the Indian
tribe.
.
103.
Administrative
provisions
Section 105 of the
Indian Self-Determination and Education Assistance Act (25 U.S.C. 450j) is
amended—
(1) in subsection (b),
in the first sentence, by striking pursuant to and all that
follows through of this Act and inserting pursuant to
sections 102 and 103; and
(2) by adding at the
end the following:
(p)
Interpretation
by secretary
Except as otherwise provided by law (including
section 202 of the Department of the Interior Tribal Self-Governance Act of 2014), the Secretary shall
interpret all Federal laws (including regulations) and Executive
orders in a
manner that facilitates, to the maximum extent practicable—
(1) the inclusion in
self-determination contracts and funding agreements of—
(A) applicable
programs, services, functions, and activities (or portions
thereof); and
(B) funds associated
with those programs, services, functions, and activities;
(2) the implementation
of self-determination contracts and funding agreements; and
(3) the achievement of
tribal health
objectives.
.
104.
Contract
funding and indirect costs
Section 106(a)(3) of the Indian
Self-Determination and Education Assistance Act (25 U.S.C. 450j–1(a)(3))
is
amended—
(1) in subparagraph
(A)—
(A) in clause (i), by
striking , and and inserting ; and; and
(B) in clause (ii), by
striking expense related to the overhead incurred and inserting
expense incurred by the governing body of the Indian tribe or tribal
organization and any overhead expense incurred;
(2) by redesignating
subparagraph (B) as subparagraph (C); and
(3) by inserting after
subparagraph (A) the following:
(B) In calculating the
reimbursement rate for expenses described in subparagraph (A)(ii),
not less
than 50 percent of the expenses described in subparagraph (A)(ii)
that are
incurred by the governing body of an Indian tribe or tribal
organization
relating to a Federal program, function, service, or activity
carried out
pursuant to the contract shall be considered to be reasonable and
allowable.
.
105.
Contract or
grant specifications
Section
108 of the Indian Self-Determination and Education Assistance Act (25
U.S.C.
450l) is amended—
(1) in subsection
(a)(2), by inserting subject to subsections (a) and (b) of section
102, before contain; and
(2) in subsection
(f)(2)(A)(ii) of the model agreement contained in subsection (c), by
inserting
subject to subsections (a) and (b) of section 102 of the Indian
Self-Determination and Education Assistance Act (25 U.S.C. 450f),
before such other provisions.
II
TRIBAL
SELF-GOVERNANCE
201.
Tribal
self-governance
(a)
Definitions
Section
401 of the Indian Self-Determination and Education Assistance Act (25
U.S.C.
458aa) is amended to read as follows:
401.
Definitions
In this title:
(1)
Compact
The
term compact means a self-governance compact entered into under
section 404.
(2)
Construction
program; construction project
The term construction
program or construction project means a tribal undertaking
relating to the administration, planning, environmental
determination, design,
construction, repair, improvement, or expansion of roads, bridges,
buildings,
structures, systems, or other facilities for purposes of housing,
law
enforcement, detention, sanitation, water supply, education,
administration,
community, health, irrigation, agriculture, conservation, flood
control,
transportation, or port facilities, or for other tribal purposes.
(3)
Department
The
term Department means the Department of the Interior.
(4)
Funding
agreement
The term funding agreement means a funding
agreement entered into under section 403.
(5)
Gross
mismanagement
The term gross mismanagement means a
significant violation, shown by a preponderance of the evidence, of
a compact,
funding agreement, or statutory or regulatory requirement
applicable to Federal
funds—
(A) for a program
administered by an Indian tribe; or
(B) under a compact or
funding agreement that results in a significant reduction of funds
available
for the programs assumed by an Indian tribe.
(6)
Inherent federal
function
The term inherent Federal function means a
Federal function that may not legally be delegated to an Indian
tribe.
(7)
Program
The
term program means any program, function, service, or activity (or
portion thereof) within the Department that is included in a
funding
agreement.
(8)
Secretary
The
term Secretary means the Secretary of the Interior.
(9)
Self-governance
The
term self-governance means the Tribal Self-Governance Program
established under section 402.
(10)
Tribal
share
The term tribal share means the portion of all
funds and resources of an Indian tribe that—
(A) support any
program within the Bureau of Indian Affairs, the Office of the
Special Trustee, or
the Office of the Assistant Secretary for Indian Affairs; and
(B) are not required
by the Secretary for the performance of an inherent Federal
function.
.
(b)
Establishment
Section
402 of the Indian Self-Determination and Education Assistance Act (25
U.S.C.
458bb) is amended to read as follows:
402.
Tribal
Self-Governance Program
(a)
Establishment
The Secretary shall establish and carry out
a program within the Department to be known as the Tribal Self-Governance
Program.
(b)
Selection of
Participating Indian Tribes
(1)
In
general
(A)
Eligibility
The
Secretary, acting through the Director of the Office of
Self-Governance, may
select up to 50 new Indian tribes per year from those eligible
under subsection
(c) to participate in self-governance.
(B)
Joint
participation
On the request of each participating Indian tribe,
two or more otherwise eligible Indian tribes may be treated as a
single Indian
tribe for the purpose of participating in self-governance.
(2)
Other authorized
Indian tribe or tribal organization
If an Indian tribe authorizes
another Indian tribe or a tribal organization to plan for or carry
out a
program on its behalf under this title, the authorized Indian tribe
or tribal
organization shall have the rights and responsibilities of the
authorizing
Indian tribe (except as otherwise provided in the authorizing
resolution).
(3)
Joint
participation
Two or more Indian tribes that are not otherwise
eligible under subsection (c) may be treated as a single Indian
tribe for the
purpose of participating in self-governance as a tribal
organization if—
(A) each Indian tribe
so requests; and
(B) the tribal
organization itself, or at least one of the Indian tribes
participating in the
tribal organization, is eligible under subsection (c).
(4)
Tribal
withdrawal from a tribal organization
(A)
In
general
An Indian tribe that withdraws from participation in a
tribal organization, in whole or in part, shall be entitled to
participate in
self-governance if the Indian tribe is eligible under subsection
(c).
(B)
Effect of
withdrawal
If an Indian tribe withdraws from participation in a
tribal organization, the Indian tribe shall be entitled to its
tribal share of
funds and resources supporting the programs that the Indian tribe
is entitled
to carry out under the compact and funding agreement of the Indian
tribe.
(C)
Participation in
self-governance
The withdrawal of an Indian tribe from a tribal
organization shall not affect the eligibility of the tribal
organization to
participate in self-governance on behalf of one or more other
Indian tribes, if
the tribal organization still qualifies under subsection (c).
(D)
Withdrawal
process
(i)
In
general
An Indian tribe may, by tribal resolution, fully or
partially withdraw its tribal share of any program in a funding
agreement from
a participating tribal organization.
(ii)
Notification
The
Indian tribe shall provide a copy of the tribal resolution
described in clause
(i) to the Secretary.
(iii)
Effective
date
(I)
In
general
A withdrawal under clause (i) shall become effective on
the date that is specified in the tribal resolution and mutually
agreed upon by
the Secretary, the withdrawing Indian tribe, and the tribal
organization that
signed the compact and funding agreement on behalf of the
withdrawing Indian
tribe or tribal organization.
(II)
No specified
date
In the absence of a date specified in the resolution, the
withdrawal shall become effective on—
(aa) the
earlier of— (AA) 1 year after the
date of submission of the request; and (BB) the date on which
the funding agreement expires; or
(bb) such date as may
be mutually agreed upon by the Secretary, the withdrawing Indian
tribe, and the
tribal organization that signed the compact and funding agreement
on behalf of
the withdrawing Indian tribe or tribal organization.
(E)
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
tribal organization, the withdrawing Indian tribe—
(i) may elect to enter
into a self-determination contract or compact, in which case—
(I) the withdrawing
Indian tribe or tribal organization shall be entitled to its tribal
share of
unexpended funds and resources supporting the programs that the
Indian tribe
will be carrying out under its own self-determination contract or
compact and
funding agreement (calculated on the same basis as the funds were
initially
allocated to the funding agreement of the tribal organization); and
(II) the funds
referred to in subclause (I) shall be withdrawn by the Secretary
from the
funding agreement of the tribal organization and transferred to the
withdrawing
Indian tribe, on the condition that sections 102 and 105(i), as
appropriate,
shall apply to the withdrawing Indian tribe; or
(ii) may elect not to
enter into a self-determination contract or compact, in which case
all
unexpended funds and resources associated with the withdrawing
Indian tribe’s
returned programs (calculated on the same basis as the funds were
initially
allocated to the funding agreement of the tribal organization)
shall be
returned by the tribal organization to the Secretary for operation
of the
programs included in the withdrawal.
(F)
Return to mature
contract status
If an Indian tribe elects to operate all or some
programs carried out under a compact or funding agreement under
this title
through a self-determination contract under title I, at the option
of the
Indian tribe, the resulting self-determination contract shall be a
mature
self-determination contract as long as the Indian tribe meets the
requirements
set forth in section 4(h).
(c)
Eligibility
To
be eligible to participate in self-governance, an Indian tribe
shall—
(1) successfully
complete the planning phase described in subsection (d);
(2) request
participation in self-governance by resolution or other official
action by the
tribal governing body; and
(3) demonstrate, for
the 3 fiscal years preceding the date on which the Indian tribe
requests
participation, financial stability and financial management
capability as
evidenced by the Indian tribe having no uncorrected significant and
material
audit exceptions in the required annual audit of its
self-determination or
self-governance agreements with any Federal agency.
(d)
Planning
phase
(1)
In
general
An Indian tribe seeking to begin participation in
self-governance shall complete a planning phase as provided in this
subsection.
(2)
Activities
The
planning phase shall—
(A) be conducted to
the satisfaction of the Indian tribe; and
(B) include—
(i) legal and
budgetary research; and
(ii) internal tribal
government planning, training, and organizational preparation.
(e)
Grants
(1)
In
general
Subject to the availability of appropriations, an Indian
tribe or tribal organization that meets the requirements of
paragraphs (2) and
(3) of subsection (c) shall be eligible for grants—
(A) to plan for
participation in self-governance; and
(B) to negotiate the
terms of participation by the Indian tribe or tribal organization
in
self-governance, as set forth in a compact and a funding agreement.
(2)
Receipt of grant
not required
Receipt of a grant under paragraph (1) shall not be
a requirement of participation in
self-governance.
.
(c)
Funding
agreements
Section 403 of the
Indian Self-Determination and Education Assistance Act (25 U.S.C. 458cc)
is
amended—
(1) by striking
subsection (a) and inserting the following:
(a)
Authorization
The
Secretary shall, on the request of any Indian tribe or tribal
organization,
enter into a written funding agreement with the governing body of
the Indian
tribe or the tribal organization in a manner consistent with—
(1) the trust
responsibility of the Federal Government, treaty obligations, and
the
government-to-government relationship between Indian tribes and the
United
States; and
(2) subsection
(b).
;
(2) in subsection
(b)—
(A) in paragraph
(1)—
(i) in
the matter preceding subparagraph (A), by striking without regard to the
agency or office of the Bureau of Indian Affairs and inserting
the Office of the Assistant Secretary for Indian Affairs, and the Office
of the Special Trustee, without regard to the agency or office of that
Bureau
or those Offices;
(ii) in
subparagraph (B), by striking and;
(iii) in subparagraph
(C), by inserting and after the semicolon at the end; and
(iv) by
adding at the end the following:
(D) any other
programs, services, functions, or activities (or portions thereof)
that are
provided through the Bureau of Indian Affairs, the Office of the
Assistant
Secretary for Indian Affairs, or the Office of the Special Trustee
with respect
to which Indian tribes or Indians are primary or significant
beneficiaries;
;
(B) in paragraph
(2)—
(i) by
striking section 405(c) and inserting section
413(c); and
(ii) by
inserting and after the semicolon at the end;
(C) in paragraph (3),
by striking the semicolon at the end and inserting a period; and
(D) by striking
paragraphs (4) through (9); and
(3) by adding at the
end the following:
(m)
Other
provisions
(1)
Excluded
funding
A funding agreement shall not authorize an Indian tribe
to plan, conduct, administer, or receive tribal share funding under
any program
that—
(A) is provided under
the Tribally Controlled Colleges and Universities Assistance Act of
1978 (25
U.S.C. 1801 et seq.); or
(B) is provided for
elementary and secondary schools under the formula developed under
section 1127
of the Education Amendments of 1978 (25 U.S.C. 2007).
(2)
Services,
functions, and responsibilities
A funding agreement shall
specify—
(A) the services to
be provided under the funding agreement;
(B) the functions to
be performed under the funding agreement; and
(C) the
responsibilities of the Indian tribe and the Secretary under the
funding
agreement.
(3)
Base
budget
A funding agreement shall, at the option of the Indian
tribe, provide for a stable base budget specifying the recurring
funds (which
may include funds available under section 106(a)) to be transferred
to the
Indian tribe, for such period as the Indian tribe specifies in the
funding
agreement, subject to annual adjustment only to reflect changes in
congressional appropriations.
(4)
No waiver of
trust responsibility
A funding agreement shall prohibit the
Secretary from waiving, modifying, or diminishing in any way the
trust
responsibility of the United States with respect to Indian tribes
and
individual Indians that exists under treaties, Executive orders,
court
decisions, and other laws.
(n)
Amendment
The
Secretary shall not revise, amend, or require additional terms in a
new or
subsequent funding agreement without the consent of the Indian
tribe, unless
such terms are required by Federal law.
(o)
Effective
date
A funding agreement shall become effective on the date
specified in the funding agreement.
(p)
Existing and
subsequent funding agreements
(1)
Subsequent
funding agreements
Absent notification from an Indian tribe that
the Indian tribe is withdrawing or retroceding the operation of one
or more
programs identified in a funding agreement, or unless otherwise
agreed to by
the parties to the funding agreement or by the nature of any
noncontinuing
program, service, function, or activity contained in a funding
agreement—
(A) a funding
agreement shall remain in full force and effect until a subsequent
funding
agreement is executed, with funding paid annually for each fiscal
year the
agreement is in effect; and
(B) the term of the
subsequent funding agreement shall be retroactive to the end of the
term of the
preceding funding agreement for the purposes of calculating the
amount of
funding to which the Indian tribe is entitled.
(2)
Disputes
Disputes
over the implementation of paragraph (1)(A) shall be subject to
section
406(c).
(3)
Existing
funding agreements
An Indian tribe that was participating in
self-governance under this title on the date of enactment of the
Department of the Interior Tribal Self-Governance Act of 2014 shall have the option at any time
after that date—
(A) to retain its
existing funding agreement (in whole or in part) to the extent that
the
provisions of that funding agreement are not directly contrary to
any express
provision of this title; or
(B) to negotiate a
new funding agreement in a manner consistent with this title.
(4)
Multiyear
funding agreements
An Indian tribe may, at the discretion of the
Indian tribe, negotiate with the Secretary for a funding agreement
with a term
that exceeds 1
year.
.
(d)
General
revisions
Title IV of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 458aa et seq.) is amended by striking sections
404
through 408 and inserting the following:
404.
Compacts
(a)
In
general
The Secretary shall negotiate and enter into a written
compact with each Indian tribe participating in self-governance in
a manner
consistent with the trust responsibility of the Federal Government,
treaty
obligations, and the government-to-government relationship between
Indian
tribes and the United States.
(b)
Contents
A
compact under subsection (a) shall—
(1) specify and affirm
the general terms of the government-to-government relationship
between the
Indian tribe and the Secretary; and
(2) include such terms
as the parties intend shall control during the term of the compact.
(c)
Amendment
A
compact under subsection (a) may be amended only by agreement of
the
parties.
(d)
Effective
date
The effective date of a compact under subsection (a) shall
be—
(1) the date of the
execution of the compact by the parties; or
(2) such date as is mutually agreed upon by the parties.
(e)
Duration
A
compact under subsection (a) shall remain in effect—
(1) for so long as
permitted by Federal law; or
(2) until termination
by written agreement, retrocession, or reassumption.
(f)
Existing
compacts
An Indian tribe participating in self-governance under
this title, as in effect on the date of enactment of the
Department of the Interior Tribal Self-Governance Act of 2014, 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.
405.
General
provisions
(a)
Applicability
An
Indian tribe and the Secretary shall include in any compact or
funding
agreement provisions that reflect the requirements of this title.
(b)
Conflicts of
interest
An Indian tribe participating in self-governance shall
ensure that internal measures are in place to address, pursuant to
tribal law
and procedures, conflicts of interest in the administration of
programs.
(c)
Audits
(1)
Single agency
audit act
Chapter 75 of title 31, United States Code, shall apply
to a funding agreement under this title.
(2)
Cost
principles
An Indian tribe shall apply cost principles under the
applicable Office of Management and Budget circular, except as
modified
by—
(A) any provision of
law, including section 106; or
(B) any exemptions to
applicable Office of Management and Budget circulars subsequently
granted by
the Office of Management and Budget.
(3)
Federal
claims
Any claim by the Federal Government against an Indian
tribe relating to funds received under a funding agreement based on
any audit
under this subsection shall be subject to section 106(f).
(d)
Redesign and
consolidation
Except as provided in section 407, an Indian tribe
may redesign or consolidate programs or reallocate funds for
programs in any
manner that the Indian tribe determines to be in the best interest
of the
Indian community being served, so long as that 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, except
that, with respect to the reallocation, consolidation, and redesign
of programs
described in subsection (b)(2) or (c) of section 403, a joint
agreement between
the Secretary and the Indian tribe shall be required.
(e)
Retrocession
(1)
In
general
An Indian tribe may fully or partially retrocede to the
Secretary any program under a compact or funding agreement.
(2)
Effective
date
(A)
Agreement
Unless
an Indian tribe rescinds a request for retrocession under paragraph
(1), the
retrocession shall become effective on the date specified by the
parties in the
compact or funding agreement.
(B)
No
agreement
In the absence of a specification of an effective date
in the compact or funding agreement, the retrocession shall become
effective
on—
(i) the earlier
of—
(I) 1 year after the
date on which the request is submitted; and
(II) the date on which
the funding agreement expires; or
(ii) such date as may
be mutually agreed upon by the Secretary and the Indian tribe.
(f)
Nonduplication
A
funding agreement shall provide that, for the period for which, and
to the
extent to which, funding is provided to an Indian tribe under this
title, the
Indian tribe—
(1) shall not be
entitled to contract with the Secretary for funds under section
102, except
that the Indian tribe shall be eligible for new programs on the
same basis as
other Indian tribes; and
(2) shall be
responsible for the administration of programs in accordance with
the compact
or funding agreement.
(g)
Records
(1)
In
general
Unless an Indian tribe specifies otherwise in the compact
or funding agreement, records of an Indian tribe shall not be
considered to be
Federal records for purposes of chapter 5 of title 5, United States
Code.
(2)
Recordkeeping
system
An Indian tribe shall—
(A) maintain a
recordkeeping system; and
(B) on a notice period
of not less than 30 days, provide the Secretary with reasonable
access to the
records to enable the Department to meet the requirements of
sections 3101
through 3106 of title 44, United States Code.
406.
Provisions
relating to the secretary
(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 a program and associated funding if
there is a
specific finding relating to that program of—
(A) imminent jeopardy
to a trust asset, a natural resource, or public health and safety
that—
(i) is
caused by an act or omission of the Indian tribe; and
(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
under a
compact or funding agreement, as determined by the Secretary in
consultation
with the Inspector General, as appropriate.
(2)
Prohibition
The
Secretary shall not reassume operation of a program, in whole or
part,
unless—
(A) the Secretary
first provides written notice and a hearing on the record to the
Indian tribe;
and
(B) the Indian tribe
does not take corrective action to remedy the mismanagement of the
funds or
programs, or the imminent jeopardy to a trust asset, natural
resource, or
public health and safety.
(3)
Exception
(A)
In
general
Notwithstanding paragraph (2), the Secretary may, on
written notice to the Indian tribe, immediately reassume operation
of a program
if—
(i) the Secretary
makes a finding of imminent and substantial jeopardy and
irreparable harm to a
trust asset, a natural resource, or the public health and safety
caused by an
act or omission of the Indian tribe; and
(ii) the imminent and
substantial jeopardy, and irreparable harm to the trust asset,
natural
resource, or public health and safety arises out of a failure by
the Indian
tribe to carry out the terms of an applicable compact or funding
agreement.
(B)
Reassumption
If
the Secretary reassumes operation of a program under subparagraph
(A), the
Secretary shall provide the Indian tribe with a hearing on the
record not later
than 10 days after the date of reassumption.
(c)
Inability To
agree on compact or funding agreement
(1)
Final
offer
If the Secretary and a participating Indian tribe are
unable to agree, in whole or in part, on the terms of a compact or
funding
agreement (including funding levels), the Indian tribe may submit a
final offer
to the Secretary.
(2)
Determination
Not
more than 60 days after the date of receipt of a final offer by the
one or more
officials designated pursuant to paragraph (4), the Secretary shall
review and
make a determination with respect to the final offer.
(3)
Extensions
The
deadline described in paragraph (2) may be extended for any length
of time, as
agreed upon by both the Indian tribe and the Secretary.
(4)
Designated
officials
(A)
In
general
The Secretary shall designate one or more appropriate
officials in the Department to receive a copy of the final offer
described in
paragraph (1).
(B)
No
designation
If no official is designated, the Executive
Secretariat of the Secretary shall be the designated official.
(5)
No timely
determination
Except as otherwise provided in section 202 of the
Department of the Interior Tribal Self-Governance Act of 2014, if the Secretary fails to make a
determination with respect to a final offer within the period
specified in
paragraph (2), the Secretary shall be deemed to have agreed to the
offer.
(6)
Rejection of
final offer
(A)
In
general
If the Secretary rejects a final offer (or one or more
provisions or funding levels in a final offer), the Secretary
shall—
(i) provide timely
written notification to the Indian tribe that contains a specific
finding that
clearly demonstrates, or that is supported by a controlling legal
authority,
that—
(I) the amount of
funds proposed in the final offer exceeds the applicable funding
level as
determined under section 106(a)(1);
(II) the program that
is the subject of the final offer is an inherent Federal function
or is subject
to the discretion of the Secretary under section 403(c);
(III) the Indian tribe
cannot carry out the program in a manner that would not result in
significant
danger or risk to the public health or safety, to natural
resources, or to
trust resources;
(IV) the Indian tribe
is not eligible to participate in self-governance under section
402(c);
(V) the funding
agreement would violate a Federal statute or regulation; or
(VI) with respect to
a program or portion of a program included in a final offer
pursuant to section
403(b)(2), the program or the portion of the program is not
otherwise available
to Indian tribes or Indians under section 102(a)(1)(E);
(ii) provide technical
assistance to overcome the objections stated in the notification
required by
clause (i);
(iii) provide the
Indian tribe with—
(I) a hearing on the
record with the right to engage in full discovery relevant to any
issue raised
in the matter; and
(II) the opportunity
for appeal on the objections raised (except that the Indian tribe
may, in lieu
of filing such appeal, directly proceed to initiate an action in a
United
States district court under section 110(a)); and
(iv) provide the
Indian tribe the option of entering into the severable portions of
a final
proposed compact or funding agreement (including a lesser funding
amount, if
any), that the Secretary did not reject, subject to any additional
alterations
necessary to conform the compact or funding agreement to the
severed
provisions.
(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 (i),
(ii), and (iii) of subparagraph (A) shall apply only to the portion
of the
proposed final compact or funding agreement that was rejected by
the
Secretary.
(d)
Burden of
proof
In any administrative action, hearing, or appeal or civil
action brought under this section, the Secretary shall have the
burden of
proof—
(1) of demonstrating, by a preponderance of the
evidence, the validity of the grounds for a reassumption under
subsection (b);
and
(2) of clearly
demonstrating the validity of the grounds for rejecting a final
offer made
under subsection (c).
(e)
Good
faith
(1)
In
general
In the negotiation of compacts and
funding agreements, the Secretary shall at all times negotiate in
good faith to
maximize implementation of the self-governance policy.
(2)
Policy
The Secretary shall
carry out this title in a manner that maximizes the policy of
tribal
self-governance.
(f)
Savings
(1)
In
general
To the extent that programs carried out for the benefit
of Indian tribes and tribal organizations under this title reduce
the
administrative or other responsibilities of the Secretary with
respect to the
operation of Indian programs and result in savings that have not
otherwise been
included in the amount of tribal shares and other funds determined
under
section 408(c), except for funding agreements entered into for
programs under
section 403(c), the Secretary shall make such savings available to
the Indian
tribes or tribal organizations for the provision of additional
services to
program beneficiaries in a manner equitable to directly served,
contracted, and
compacted programs.
(2)
Discretionary
programs of special significance
For any savings generated as a
result of the assumption of a program by an Indian tribe under
section 403(c),
such savings shall be made available to that Indian tribe.
(g)
Trust
responsibility
The Secretary may not waive, modify, or diminish
in any way the trust responsibility of the United States with
respect to Indian
tribes and individual Indians that exists under treaties, Executive
orders,
other laws, or court decisions.
(h)
Decisionmaker
A
decision that constitutes final agency action and relates to an
appeal within
the Department conducted under subsection (c)(4) may be made by—
(1) an official of the
Department who holds a position at a higher organizational level
within the
Department than the level of the departmental agency in which the
decision that
is the subject of the appeal was made; or
(2) an administrative
law judge.
(i)
Rules of
construction
Subject to section 202 of the
Department of the Interior Tribal Self-Governance Act of 2014, 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.
407.
Construction
programs and projects
(a)
In
general
Indian tribes participating in tribal self-governance may
carry out construction projects under this title.
(b)
Tribal option To
carry out certain federal environmental activities
In carrying
out a construction project under this title, an Indian tribe may,
subject to
the agreement of the Secretary, elect to assume some Federal
responsibilities
under the National Environmental Policy Act of 1969 (42 U.S.C. 4321
et seq.),
the National Historic Preservation Act (16 U.S.C. 470 et seq.), and
related
provisions of law and regulations that would apply if the Secretary
were to
undertake a construction project, by adopting a resolution—
(1) designating a
certifying tribal officer to represent the Indian tribe and to
assume the
status of a responsible Federal official under those Acts or
regulations;
and
(2) accepting the
jurisdiction of the United States courts for the purpose of
enforcing the
responsibilities of the certifying tribal officer assuming the
status of a
responsible Federal official under those Acts or regulations.
(c)
Savings
clause
Notwithstanding subsection (b), nothing in this section
authorizes the Secretary to include in any compact or funding
agreement duties
of the Secretary under the National Environmental Policy Act (42
U.S.C. 4321 et
seq.), the National Historic Preservation Act (16 U.S.C. 470 et
seq.), and
other related provisions of law that are inherent Federal
functions.
(d)
Codes and
standards
In carrying out a construction project under this
title, an Indian tribe shall—
(1) adhere to
applicable Federal, State, local, and tribal building codes,
architectural and
engineering standards, and applicable Federal guidelines regarding
design,
space, and operational standards, appropriate for the particular
project;
and
(2) use only
architects and engineers who—
(A) are licensed to
practice in the State in which the facility will be built; and
(B) certify
that—
(i) they are qualified
to perform the work required by the specific construction involved;
and
(ii) upon completion
of design, the plans and specifications meet or exceed the
applicable
construction and safety codes.
(e)
Tribal
accountability
(1)
In
general
In carrying out a construction project under this title,
an Indian tribe shall assume responsibility for the successful
completion of
the construction project and of a facility that is usable for the
purpose for
which the Indian tribe received funding.
(2)
Requirements
For
each construction project carried out by an Indian tribe under this
title, the
Indian tribe and the Secretary shall negotiate a provision to be
included in
the funding agreement that identifies—
(A) the approximate
start and completion dates for the project, which may extend over a
period of
one or more years;
(B) a general
description of the project, including the scope of work, references
to design
criteria, and other terms and conditions;
(C) the
responsibilities of the Indian tribe and the Secretary for the
project;
(D) how
project-related environmental considerations will be addressed;
(E) the amount of
funds provided for the project;
(F) the obligations of
the Indian tribe to comply with the codes referenced in subsection
(d)(1) and
applicable Federal laws and regulations;
(G) the agreement of
the parties over who will bear any additional costs necessary to
meet changes
in scope, or errors or omissions in design and construction; and
(H) the agreement of
the Secretary to issue a certificate of occupancy, if requested by
the Indian
tribe, based upon the review and verification by the Secretary, to
the
satisfaction of the Secretary, that the Indian tribe has secured
upon
completion the review and approval of the plans and specifications,
sufficiency
of design, life safety, and code compliance by qualified, licensed,
and
independent architects and engineers.
(f)
Funding
(1)
In
general
Funding appropriated for
construction projects carried out under this title shall be
included in funding
agreements as annual or semiannual advance payments at the option
of the Indian
tribe.
(2)
Advance
payments
The Secretary shall include all
associated project contingency funds with each advance payment, and
the Indian
tribe shall be responsible for the management of such contingency
funds.
(g)
Negotiations
At
the option of the Indian tribe, construction project funding
proposals shall be
negotiated pursuant to the statutory process in section 105, and
any resulting
construction project agreement shall be incorporated into the
funding agreement
as addenda.
(h)
Federal review
and verification
(1)
In
general
On a schedule negotiated by the Secretary and the Indian
tribe—
(A) the Secretary
shall review and verify, to the satisfaction of the Secretary, that
project
planning and design documents prepared by the Indian tribe in
advance of
initial construction are in conformity with the obligations of the
Indian tribe
under subsection (d); and
(B) before the project
planning and design documents are implemented, the Secretary shall
review and
verify to the satisfaction of the Secretary that subsequent
document amendments
which result in a significant change in construction are in
conformity with the
obligations of the Indian tribe under subsection (d).
(2)
Reports
The
Indian tribe shall provide the Secretary with project progress and
financial
reports not less than semiannually.
(3)
Oversight
visits
The Secretary may conduct onsite project oversight visits
semiannually or on an alternate schedule agreed to by the Secretary
and the
Indian tribe.
(i)
Application of
other laws
Unless otherwise agreed to by the Indian tribe and
except as otherwise provided in this Act, no provision of the
Office of Federal
Procurement Policy Act (41 U.S.C. 401 et seq.), the Federal
Acquisition
Regulations issued pursuant to that Act, or any other law or
regulation
pertaining to Federal procurement (including Executive orders)
shall apply to
any construction program or project carried out under this title.
(j)
Future
funding
Upon completion of a facility
constructed under this title, the Secretary shall include the
facility among
those eligible for annual operation and maintenance funding support
comparable
to that provided for similar facilities funded by the Department as
annual
appropriations are available and to the extent that the facility
size and
complexity and other factors do not exceed the funding formula
criteria for
comparable buildings.
(k)
Applicability
Notwithstanding any other provision of this section, section 202 of the Department of the Interior Tribal Self-Governance Act of 2014 applies to subsections (a) through (j).
408.
Payment
(a)
In
general
At the request of the governing body of an Indian tribe
and under the terms of an applicable funding agreement, the
Secretary shall
provide funding to the Indian tribe to carry out the funding
agreement.
(b)
Advance annual
payment
At the option of the Indian tribe, a funding agreement
shall provide for an advance annual payment to an Indian tribe.
(c)
Amount
(1)
In
general
Subject to subsection (e) and sections 403 and 405, the
Secretary shall provide funds to the Indian tribe under a funding
agreement for
programs in an amount that is equal to the amount that the Indian
tribe would
have been entitled to receive under contracts and grants under this
Act
(including amounts for direct program and contract support costs
and, in
addition, any funds that are specifically or functionally related
to the
provision by the Secretary of services and benefits to the Indian
tribe or its
members) without regard to the organization level within the
Department at
which the programs are carried out.
(2)
Savings
clause
Nothing in this section reduces programs, services, or
funds of, or provided to, another Indian tribe.
(d)
Timing
(1)
In
general
Pursuant to the terms of any compact or funding agreement
entered into under this title, the Secretary shall transfer to the
Indian tribe
all funds provided for in the funding agreement, pursuant to
subsection (c),
and provide funding for periods covered by joint resolution adopted
by Congress
making continuing appropriations, to the extent permitted by such
resolution.
(2)
Transfers
Not
later than 1 year after the date of enactment of the
Department of the Interior Tribal Self-Governance Act of 2014, in any instance in which a funding
agreement requires an annual transfer of funding to be made at the
beginning of
a fiscal year or requires semiannual or other periodic transfers of
funding to
be made commencing at the beginning of a fiscal year, the first
such transfer
shall be made not later than 10 days after the apportionment of
such funds by
the Office of Management and Budget to the Department, unless the
funding
agreement provides otherwise.
(e)
Availability
Funds
for trust services to individual Indians shall be available under a
funding
agreement only to the extent that the same services that would have
been
provided by the Secretary are provided to individual Indians by the
Indian
tribe.
(f)
Multiyear
funding
A funding agreement may provide for multiyear
funding.
(g)
Limitations on
authority of the secretary
The Secretary shall not—
(1) fail to transfer
to an Indian tribe its full share of any central, headquarters,
regional, area,
or service unit office or other funds due under this title for
programs
eligible under paragraph (1) or (2) of section 403(b), except as
required by
Federal law;
(2) withhold any
portion of such funds for transfer over a period of years; or
(3) reduce the amount
of funds required under this title—
(A) to make funding
available for self-governance monitoring or administration by the
Secretary;
(B) in subsequent
years, except as necessary as a result of—
(i) a
reduction in appropriations from the previous fiscal year for the
program to be
included in a compact or funding agreement;
(ii) a
congressional directive in legislation or an accompanying report;
(iii) a tribal
authorization;
(iv) a
change in the amount of pass-through funds subject to the terms of
the funding
agreement; or
(v) completion of an
activity under a program for which the funds were provided;
(C) to pay for Federal
functions, including—
(i) Federal pay
costs;
(ii) Federal employee
retirement benefits;
(iii) automated data
processing;
(iv) technical
assistance; and
(v) monitoring of
activities under this title; or
(D) to pay for costs
of Federal personnel displaced by self-determination contracts
under this Act
or self-governance under this title.
(h)
Federal
resources
If an Indian tribe elects to carry out a compact or
funding agreement with the use of Federal personnel, Federal
supplies
(including supplies available from Federal warehouse facilities),
Federal
supply sources (including lodging, airline transportation, and
other means of
transportation, including the use of interagency motor pool
vehicles), or other
Federal resources (including supplies, services, and resources
available to the
Secretary under any procurement contracts in which the Department
is eligible
to participate), the Secretary shall, as soon as practicable,
acquire and
transfer such personnel, supplies, or resources to the Indian tribe
under this
title.
(i)
Prompt payment
act
Chapter 39 of title 31, United States Code, shall apply to
the transfer of funds due under a compact or funding agreement
authorized under
this title.
(j)
Interest or
other income
(1)
In
general
An Indian tribe may retain interest or income earned on
any funds paid under a compact or funding agreement to carry out
governmental
purposes.
(2)
No effect on
other amounts
The retention of interest or income under paragraph
(1) shall not diminish the amount of funds an Indian tribe is
entitled to
receive under a funding agreement in the year the interest or
income is earned
or in any subsequent fiscal year.
(3)
Investment
standard
Funds transferred under this title shall be managed by
the Indian tribe using the prudent investment standard, provided
that the
Secretary shall not be liable for any investment losses of funds
managed by the
Indian tribe that are not otherwise guaranteed or insured by the
Federal
Government.
(k)
Carryover of
funds
(1)
In
general
Notwithstanding any provision of an appropriations Act,
all funds paid to an Indian tribe in accordance with a compact or
funding
agreement shall remain available until expended.
(2)
Effect of
carryover
If an Indian tribe elects to carry over funding from 1
year to the next, the carryover shall not diminish the amount of
funds the
Indian tribe is entitled to receive under a funding agreement in
that fiscal
year or any subsequent fiscal year.
(l)
Limitation of
costs
(1)
In
general
An Indian tribe shall not be obligated to continue
performance that requires an expenditure of funds in excess of the
amount of
funds transferred under a compact or funding agreement.
(2)
Notice of
insufficiency
If at any time the Indian tribe has reason to
believe that the total amount provided for a specific activity
under a compact
or funding agreement is insufficient, the Indian tribe shall
provide reasonable
notice of such insufficiency to the Secretary.
(3)
Suspension of
performance
If, after notice under paragraph (2), the Secretary
does not increase the amount of funds transferred under the funding
agreement,
the Indian tribe may suspend performance of the activity until such
time as
additional funds are transferred.
(4)
Savings
clause
Nothing in this section reduces any programs, services, or
funds of, or provided to, another Indian tribe.
(m)
Distribution of
funds
The Office of Self-Governance shall be responsible for
distribution of all Bureau of Indian Affairs funds provided under
this title
unless otherwise agreed by the parties to an applicable funding
agreement.
(n)
Applicability
Notwithstanding any other provision of this section, section
202 of the Department of the Interior Tribal Self-Governance Act of 2014 applies to subsections (a) through
(m).
409.
Facilitation
(a)
In
general
Except as otherwise provided by law (including section
202 of the Department of the Interior Tribal Self-Governance Act of 2014), the Secretary shall interpret each
Federal law and regulation in a manner that facilitates—
(1) the inclusion of
programs in funding agreements; and
(2) the implementation
of funding agreements.
(b)
Regulation
waiver
(1)
Request
An
Indian tribe may submit to the Secretary a written request for a
waiver of
applicability of a Federal regulation, including—
(A) an identification
of the specific text in the regulation sought to be waived; and
(B) the basis for the
request.
(2)
Determination by
the secretary
Not later than 120 days after receipt by the
Secretary and the designated officials under paragraph (4) of a
request under
paragraph (1), the Secretary shall approve or deny the requested
waiver in
writing to the Indian tribe.
(3)
Extensions
The
deadline described in paragraph (2) may be extended for any length
of time, as
agreed upon by both the Indian tribe and the Secretary.
(4)
Designated
officials
The Secretary shall designate one or more appropriate
officials in the Department to receive a copy of the waiver request
described
in paragraph (1).
(5)
Grounds for
denial
The Secretary may deny a request under paragraph
(1)—
(A) for a program
eligible under paragraph (1) or (2) of section 403(b), only upon a
specific
finding by the Secretary that the identified text in the regulation
may not be
waived because such a waiver is prohibited by Federal law; and
(B) for a program
eligible under section 403(c), upon a specific finding by the
Secretary that
the waiver is prohibited by Federal law or is inconsistent with the
express
provisions of the funding agreement.
(6)
Failure to make
determination
If the Secretary fails to approve or deny a waiver
request within the period required under paragraph (2), the
Secretary shall be
deemed to have approved the request.
(7)
Finality
A
decision of the Secretary under this section shall be final for the
Department.
410.
Disclaimers
Nothing in this title expands or alters any
statutory authority of the Secretary in a manner that authorizes
the Secretary
to enter into any agreement under section 403—
(1) with respect to an
inherent Federal function;
(2) in a case in which
the law establishing a program explicitly prohibits the type of
participation
sought by the Indian tribe (without regard to whether one or more
Indian tribes
are identified in the authorizing law); or
(3) that 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.
411.
Discretionary
application of other sections
(a)
In
general
Except as otherwise provided in section 101(c), at the
option of a participating Indian tribe or Indian tribes, any of the
provisions
of title I may be incorporated in any compact or funding agreement
under this
title.
(b)
Effect
Each
incorporated provision under subsection (a) shall—
(1) have the same
force and effect as if set out in full in this title;
(2) supplement or
replace any related provision in this title; and
(3) apply to any
agency otherwise governed by this title.
(c)
Effective
date
If an Indian tribe requests incorporation at the negotiation
stage of a compact or funding agreement, the incorporation shall—
(1) be effective
immediately; and
(2) control the
negotiation and resulting compact and funding agreement.
412.
Annual Budget
list
The Secretary shall list,
in the annual budget request submitted to Congress under section
1105 of title
31, United States Code, any funds proposed to be included in
funding agreements
authorized under this Act.
413.
Reports
(a)
In
general
(1)
Requirement
On
January 1 of each year, the Secretary shall submit to Congress a
report
regarding the administration of this title.
(2)
Analysis
Any
Indian tribe may submit to the Office of Self-Governance and to the
appropriate
Committees of Congress a detailed annual analysis of unmet tribal
needs for
funding agreements under this title.
(b)
Contents
The
report under subsection (a)(1) shall—
(1) be compiled from
information contained in funding agreements, annual audit reports,
and data of
the Secretary regarding the disposition of Federal funds;
(2) identify—
(A) the relative costs
and benefits of self-governance;
(B) with
particularity, all funds that are specifically or functionally
related to the
provision by the Secretary of services and benefits to
self-governance Indian
tribes and members of Indian tribes;
(C) the funds
transferred to each Indian tribe and the corresponding reduction in
the Federal
employees and workload; and
(D) the funding
formula for individual tribal shares of all Central Office funds,
together with
the comments of affected Indian tribes, developed under subsection
(d);
(3) before being
submitted to Congress, be distributed to the Indian tribes for
comment (with a
comment period of no less than 30 days);
(4) include the
separate views and comments of each Indian tribe or tribal
organization;
and
(5) include a list
of—
(A) all such programs
that the Secretary determines, in consultation with Indian tribes
participating
in self-governance, are eligible for negotiation to be included in
a funding
agreement at the request of a participating Indian tribe; and
(B) all such programs
which Indian tribes have formally requested to include in a funding
agreement
under section 403(c) due to the special geographic, historical, or
cultural
significance of the program to the Indian tribe, indicating whether
each
request was granted or denied, and stating the grounds for any
denial.
(c)
Report on
non-BIA, non-OST programs
(1)
In
general
In order to optimize opportunities for including
non-Bureau of Indian Affairs and non-Office of Special Trustee
programs in
agreements with Indian tribes participating in self-governance
under this
title, the Secretary shall review all programs administered by the
Department,
other than through the Bureau of Indian Affairs or Office of the
Special
Trustee, without regard to the agency or office concerned.
(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 an appropriate portion of
those
programs are available to be included in funding agreements.
(3)
Publication
The
lists under subsection (b)(5) and targets under paragraph (2) shall
be
published in the Federal Register and made available to any Indian
tribe
participating in self-governance.
(4)
Annual
review
(A)
In
general
The Secretary shall annually review and publish in the
Federal Register, after consultation with Indian tribes
participating in
self-governance, revised lists and programmatic targets.
(B)
Contents
In
preparing the revised lists and programmatic targets, the Secretary
shall
consider all programs that were eligible for contracting in the
original list
published in the Federal Register in 1995, except for programs
specifically
determined not to be contractible as a matter of law.
(d)
Report on
central office funds
Not later than January 1, 2015, the
Secretary shall, in consultation with Indian tribes, develop a
funding formula
to determine the individual tribal share of funds controlled by the
Central
Office of the Bureau of Indian Affairs and the Office of the
Special Trustee
for inclusion in the compacts.
414.
Regulations
(a)
In
general
(1)
Promulgation
Not
later than 90 days after the date of enactment of the
Department of the Interior Tribal Self-Governance Act of 2014, the Secretary shall initiate
procedures under subchapter III of chapter 5 of title 5, United
States Code, to
negotiate and promulgate such regulations as are necessary to carry
out this
title.
(2)
Publication of
proposed regulations
Proposed regulations to implement this title
shall be published in the Federal Register not later than 21 months
after the
date of enactment of the Department of the Interior Tribal Self-Governance Act of 2014.
(3)
Expiration of
authority
The authority to promulgate regulations under paragraph
(1) shall expire on the date that is 30 months after the date of
enactment of
the Department of the Interior Tribal Self-Governance Act of 2014.
(b)
Committee
(1)
Membership
A
negotiated rulemaking committee established pursuant to section 565
of title 5,
United States Code, to carry out this section shall have as its
members only
representatives of the Federal Government and tribal government.
(2)
Lead
agency
Among the Federal representatives described in paragraph
(1), the Office of Self-Governance shall be the lead agency for the
Department.
(c)
Adaptation of
procedures
The Secretary shall adapt the negotiated rulemaking
procedures to the unique context of self-governance and the
government-to-government relationship between the United States and
Indian
tribes.
(d)
Effect
(1)
Repeal
The
Secretary may repeal any regulation that is inconsistent with this
Act.
(2)
Conflicting
provisions
Subject to section 202 of the
Department of the Interior Tribal Self-Governance Act of 2014, this title shall supersede any
conflicting provision of law (including any conflicting
regulations).
(3)
Effectiveness
without regard to regulations
The lack of promulgated regulations
on an issue shall not limit the effect or implementation of this
title.
415.
Effect of
circulars, policies, manuals, guidance, and rules
Unless expressly agreed to by a
participating Indian tribe in a compact or funding agreement, the
participating
Indian tribe shall not be subject to any agency circular, policy,
manual,
guidance, or rule adopted by the Department, except for—
(1) the eligibility
provisions of section 105(g); and
(2) regulations
promulgated pursuant to section 414.
416.
Appeals
Except as provided in section 406(d), in any
administrative action, appeal, or civil action for judicial review
of any
decision made by the Secretary under this title, the Secretary
shall have the
burden of proof of demonstrating by a preponderance of the
evidence—
(1) the validity of
the grounds for the decision; and
(2) the consistency of
the decision with the requirements and policies of this title.
417.
Application of
other provisions
Section 314
of the Department of the Interior and Related Agencies
Appropriations Act, 1991
(Public Law 101–512; 104 Stat. 1959), shall apply to compacts and
funding
agreements entered into under this title.
418.
Authorization
of appropriations
There are
authorized to be appropriated such sums as are necessary to carry
out this
title.
.
202.
Effect of
certain provisions
(a)
Definitions
In
this section:
(1)
Funding
agreement
The term funding agreement means a funding
agreement entered into under section 403 of the ISDEAA (25 U.S.C.
458cc).
(2)
ISDEAA
The
term ISDEAA means the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450 et seq.).
(3)
Non-BIA
program
The term non-BIA program means all or a
portion of a program, function, service, or activity that is administered
by
any bureau, service, office, or agency of the Department of the Interior
other
than through—
(A) the Bureau of
Indian Affairs;
(B) the Office of the
Assistant Secretary for Indian Affairs; or
(C) the Office of the
Special Trustee for American Indians.
(4)
Secretary
The
term Secretary means the Secretary of the Interior.
(5)
Self-determination
contract
The term self-determination contract means
a self-determination contract entered into under section 102 of the ISDEAA
(25
U.S.C. 450f).
(6)
Tribal water rights
settlement
The term tribal water rights settlement means
any settlement, compact, or other agreement expressly ratified or approved
by an Act of Congress that—
(A) includes an Indian tribe and the United States as parties; and
(B) quantifies or otherwise defines any water right of the Indian tribe.
(b)
Effect of
provisions
Nothing in this Act—
(1) modifies, limits, expands, or otherwise affects—
(A) the authority of the Secretary, as provided for under the ISDEAA on the day before the date of
enactment of this Act, to include any non-BIA program in a
self-determination contract under section
102(a)(1)(E) of the ISDEAA (25 U.S.C. 450f(a)(1)(E)) or a funding
agreement under section 403(b)(2) or 403(c) of the ISDEAA (25 U.S.C.
458cc(b)(2), 458cc(c)); or
(B) the implementation of any contract or agreement described in subparagraph (A) that is in effect on
the day before the date of enactment of this Act;
(2) modifies or
otherwise affects the meaning, application, or effect of any provision of
law
that—
(A) is not contained
in the ISDEAA; and
(B) expressly
authorizes or prohibits contracting or compacting under title I or title
IV of
the ISDEAA with respect to a specific program or project that is
identified or
otherwise referred to in that provision of law;
(3) modifies or
otherwise affects the meaning, application, or effect of, or the
performance
required of a party to, or any payment or funding under a tribal water
rights settlement; or
(4) authorizes any
self-determination contract or funding agreement that contains one or more
provisions that are inconsistent with the terms of a tribal water
rights settlement.
August 26, 2014Reported with an amendment