[Senate Report 114-60]
[From the U.S. Government Publishing Office]
Calendar No. 102
114th Congress } { Report
SENATE
1st Session } { 114-060
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AMENDING THE INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACT TO
PROVIDE FURTHER SELF-GOVERNANCE BY INDIAN TRIBES, AND FOR OTHER
PURPOSES
_______
May 22, 2015.--Ordered to be printed
_______
Mr. Barrasso, from the Committee on Indian Affairs,
submitted the following
R E P O R T
[To accompany S. 286]
The Committee on Indian Affairs, to which was referred the
bill (S. 286) to amend the Indian Self-Determination and
Education Assistance Act to provide further self-governance by
Indian tribes, and for other purposes, having considered the
same, reports favorably thereon without amendment and
recommends that the bill do pass.
Purpose
The purpose of S. 286 is to amend the Indian Self-
Determination and Education Assistance Act of 1975 (Act) to
streamline the Department of the Interior's process for
approving self-governance compacts and annual funding
agreements. The bill would align the process used by the
Department of the Interior to be similar to the processes used
by the Indian Health Service.
Need for Legislation
This legislation, S. 286, is needed to correct the
bureaucratic processes and procedures that the Department of
the Interior Self-Governance program has imposed which have
discouraged the further compacting of Indian programs within
the Department by Indian tribes or hindered negotiations
between the Department and Indian tribes for renewing compacts
or annual funding agreements. The provisions included in S. 286
also provide greater certainty and more guidance from Congress
on issues relating to decision-making timeframes, re-assumption
of programs by the Department, construction projects, and
timing of funding transfers.
Background
The Indian Self-Determination and Education Assistance Act
of 1975 (Act) is one of the most important legislative acts
affecting Indian country of the last four decades. This Act has
been a key driver in improving communities throughout Indian
country.
The Act originally authorized Indian tribes to enter into
contracts with the Bureau of Indian Affairs (BIA) within the
Department of the Interior, and the Indian Health Service (IHS)
within the Department of Health and Human Services, to receive
Federal funds and manage programs that would otherwise be
managed by the Federal agencies. These contracts are commonly
referred to as ``638 contracts'' after the Public Law Number
93-638 for the Act.
Expansion of this tribal administration approach has taken
separate paths at these agencies. The Act was amended in 1988
to establish the Department of the Interior Self-Governance
Demonstration Program. For the first time, tribes were
authorized to plan, administer, and consolidate multiple
programs and services that had always been administered by the
Department of the Interior.
Indian tribes could administer these programs through
compacts after demonstrating a higher level of accountability
and fiscal responsibility, including three years of
administering 638 contracts without material audit problems.
Each 638 contract or self-governance compact identifies
functions and activities to be carried out by the tribe, as
well as any administrative, reporting, or other requirements
that must be followed. However, these self-governance
agreements allow tribal management of programs pursuant to one
compact instead of requiring different contracts for each
individual program.
In 1992, the Act was amended to establish a self-governance
demonstration program within the IHS as well. In 1994, the Act
was again amended to make the Department of the Interior Self-
Governance Demonstration Program permanent. The 1994 amendments
also made certain non-BIA programs within the Department of the
Interior eligible for contracting or compacting.\1\
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\1\ Title IV of the Act mandates that all BIA programs are eligible
for inclusion in self-governance compacts, but allows certain non-BIA
programs in DOI to be subject to compacting under certain limited
circumstances.
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When Congress made the IHS self-governance program
permanent in 2000, several detailed improvements were enacted,
such as adding specific definitions and identifying mandatory
and prohibited terms and conditions of compacts, funding
agreements, and construction projects. Tribes wanted to
incorporate those improvements into the Department of the
Interior self-governance program, in part, to gain consistency
in the administration of their self-governance programs.
In addition, Indian tribes contend that the Department
bureaucracy has for many years resisted efforts by the tribes
to further streamline compacting processes, and that, without
additional reforms, the success of the Act's policy of tribal
self-determination may not reach the full potential.
Legislative History
In the 108th Congress, Senators Campbell and Inouye
introduced the ``Department of the Interior Tribal Self-
Governance Act of 2004'', S. 1715. The Committee held a hearing
on the bill on May 12, 2004. The Committee met to consider the
bill on June 16, 2014. The Committee favorably ordered the bill
to be reported, as amended, to the Senate. The bill did not
pass the Senate.
In the 109th and 110th Congresses, the Committee held
oversight hearings relative to tribal self-governance, but no
bill was introduced. In the 109th Congress on September 20,
2006, the Committee held an oversight hearing on ``Tribal Self
Governance''. During the 110th Congress, the Committee held an
oversight hearing on the ``Successes and Shortfalls of Title IV
of the Indian Self-Determination and Education Assistance Act:
Twenty Years of Self-Governance'' on May 13, 2008.
Even though no Senate bill was introduced in the 111th
Congress, the Committee held a hearing on November 18, 2010 on
a bill the House of Representatives passed, H.R. 4347, the
``Department of the Interior Tribal Self-Governance Act of
2010'' at which the Department of the Interior testified
against the bill. While considerable work to address the
Department's issues was undertaken by Congressional staff and
tribal representatives, no further Committee action was taken
on the bill.
In the 112th Congress, Representative Boren introduced H.R.
2444, the ``Department of the Interior Tribal Self-Governance
Act of 2011.'' This bill contained several revisions to prior
bills based on discussions between Congressional staff, the
Department officials, and tribal representatives. The
Subcommittee on Indian and Insular Affairs of the Committee on
Natural Resources of the House of Representatives held a
hearing on this bill on September 22, 2011. No further action
was taken on this bill.
Also in the 112th Congress, the Committee on Indian Affairs
held an oversight hearing, ``Advancing the Federal-Tribal
Relationship through Self-Governance and Self-Determination'',
on September 20, 2012. On December 17, 2012, Senators Akaka and
Barrasso introduced S. 3685, but no further action was taken by
the Committee on the bill.
In the 113th Congress, Senator Cantwell introduced S. 919,
the ``Department of the Interior Tribal Self-Governance Act of
2014'' on May 9, 2013. Senators Barrasso, Baucus, Crapo,
Heinrich, Murray, Schatz, Tester, Udall (NM) and Wyden were
original co-sponsors. Senators Murkowski, Begich, Warren and
Walsh were later added as cosponsors. The Committee held a
hearing on S. 919 on January 29, 2014. On June 11, 2014, the
Committee met to consider the bill. One substitute amendment
was offered and adopted, and the Committee then ordered the
bill, as amended, to be reported favorably to the Senate by
voice vote.
The House companion bill, H.R. 4546 was sponsored by
Representative DeFazio with six cosponsors. That bill was
referred to the Committee on Natural Resources for the House of
Representatives on May 1, 2014, with referrals to both
Subcommittees on Indian and Alaska Native Affairs and on Water
and Power. The Subcommittee on Indian and Alaska Native Affairs
held a hearing on the bill on July 15, 2014. No further action
was taken on this bill.
In the 114th Congress, Senator Barrasso introduced S. 286
on January 18, 2015. Senators Tester, Crapo, Franken,
Murkowski, and Schatz co-sponsored the bill. On February 4,
2015, the Committee met to consider the bill. The Committee
ordered the bill, without amendments, to be reported favorably
to the Senate by voice vote.
Overview of the Bill
This legislation, S. 286, would amend the Act to streamline
the Department of the Interior's process for approving self-
governance compacts and annual funding agreements for Indian
programs. The bill would also align the process used by the
Department of the Interior to be similar to the processes used
by the IHS. Currently each tribe seeking a new compact or
renewal of a compact (or annual funding agreement) must use two
different negotiation processes.
The bill, S. 286, contains two titles. The first title
would amend the Pub. L. No. 93-638 contract negotiation process
under Title I (i.e., the non-self-governance title) of the
Indian Self-Determination and Education Assistance Act of 1975
and add more flexibility in administering those contracts for
tribes that either have not qualified for self-governance or
have chosen to administer only a few BIA programs.
The second title includes amendments to the self-governance
provisions of Title IV of the Indian Self-Determination and
Education Assistance Act of 1975 that would clarify procedures
and limit the Secretary's ability to delay compacting or
release of funding. These changes are meant to mirror the
provisions that the tribes have found beneficial in the IHS
compacting process.
Section 202 of this legislation also makes clear that
nothing in the bill expands or limits which non-BIA programs
are eligible for inclusion in self-governance compacts beyond
those already authorized to be included by current law. The
section also clarifies that provisions of water settlements and
their authorizing legislation are not affected by the self-
governance amendments.
While the bill is not expanding the scope of Federal
programs eligible for inclusion in self-governance agreements,
current law does provide the Secretary with the discretion to
include certain non-BIA programs in self-governance agreements
as negotiated with tribes. These programs include those which
have a special geographic, historical, or cultural significance
to a petitioning tribe.
Even though it has been in the Act for over twenty years,
this authority has been used sparingly by the Secretary. The
Committee commends the Department for its past efforts to
include programs such as the National Bison Range Complex in
Montana and the Yukon Flats National Wildlife Refuge in Alaska,
both of which satisfy the requirements as eligible programs
under existing law.
Summary of Key Provisions of S. 286
This bill, S. 286, reflects the numerous changes that have
been made over time during the debate on prior bills. Most
notably, discussions between Congressional staff, tribal, and
Federal officials led to greater clarity in several provisions
for negotiating and renewing BIA compacts as well as the
``savings'' clause set forth in Section 202.
Title I. Other technical amendments were made in Title I of
the bill, including the movement of references to the savings
clause of the bill, changing dates, and clarifying the good
faith negotiations requirement provisions.
Section 101 clarifies that 638 contracts are subject to the
Act's procurement rules, but remain exempt from other Federal
procurement rules.
Section 102 requires the Secretary to negotiate 638
contracts in good faith.
Section 104 codifies current Office of Management and
Budget policy that not less than fifty percent of expenses of a
tribal governing body for administering these Indian programs
be deemed reasonable and allowable for determining ``indirect
cost rates.'' \2\
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\2\ The ``indirect cost rate'' means a negotiated rate for such
costs as utilities or administrative overhead, agreed to between an
Indian tribe or tribal organization and the appropriate Federal agency.
Indirect costs include reasonable and allowable costs of administrative
or other expense related to the overhead incurred in connection with
the operation of the Federal program (defined at 25 CFR 900.6).
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Title II. The second title of the bill is intended to
mirror the IHS program in several respects by codifying several
regulations, clarifying procedures, and minimizing
opportunities for the Secretary to delay compacting or funding.
Sections 404 and 405 set forth requirements and procedures
for amendments to compacts, retrocession of programs \3\ and
the types of programs that may be included in compacts. For the
most part, many of these provisions are merely codifying
existing regulations.
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\3\ Retrocession means to ``return'' a compacted program to the BIA
to resume Federal management of the program. This retrocession rarely
happens--but if it does, this section would provide certainty to that
process.
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Section 408 authorizes, for construction contracts for
buildings, roads, or infrastructure, tribes to assume some
Federal responsibilities under the National Environmental
Policy Act and National Historic Preservation Act. It further
requires tribes to adhere to certain codes (similar to what
tribes do under Indian housing laws).
Section 409 sets forth an expedited process for funding
transfers from the Secretary to the tribe and prohibit the
Secretary from failing to transfer funds or reducing funding
unless authorized by Federal law. Current law authorizes lump-
sum funding, but many tribes contend that the transfers have
been obstructed in various ways by the Secretary, contrary to
the Act. They further contend that the Secretary has been known
to hold back funding as leverage in compact negotiations.
Section 410 requires the Secretary to act on a compacting
tribe's regulatory waiver request within 120 days or the waiver
is deemed approved (current law provides no alternative for
tribes when the Secretary fails to act, except to sue for
performance).
Section 414 requires an annual report to Congress regarding
the needs of and funding to Indian tribes, funding formula
methodology, list of non-BIA programs eligible for compacting,
programmatic targets to encourage compacting, and views of
tribes on this information. This provision essentially codifies
existing regulations or imports IHS self-governance
requirements to the BIA self-governance.
Section 417 requires that, for judicial review of any
appeals or administrative actions, the Secretary have the
burden of proof demonstrating by a preponderance of the
evidence the validity of the grounds for the decision, except
for ``final offers'' to compact, which require a higher
standard of clear and convincing evidence.
Section 202 Amendments. One important change in S. 286
(also included in S. 919 from the 113th Congress) from prior
bills is a new section 202 that includes a ``savings clause.''
Section 202 states in this ``savings clause'' that nothing in
the bill expands or limits which programs are eligible for
inclusion in self-governance compacts beyond those already
authorized to be included by current law. The section also
clarifies that provisions of water settlements and their
authorizing legislation are not affected by the self-governance
amendments in the bill.
The principal intended purpose of section 202 is to clarify
and make more succinct that none of the amendments or
provisions of the bill will affect current law relating to (1)
contracting or compacting of non-BIA programs under the Act, or
(2) Congressionally approved water settlements. With respect to
contracting or compacting non-BIA programs, if a non-BIA
program or function could not be contracted or compacted under
the Act on the day before the enactment of the bill, that
program or function cannot be compacted after the enactment of
the bill. It also clarifies that the water settlements that are
relevant are only those which have been ``expressly ratified or
approved by an Act of Congress.''
Section-by-Section Analysis of Bill as Ordered Reported
Section 1--Short Title; Table of contents
Section 1 states that the Act may be cited as the
`Department of the Interior Tribal Self-Governance Act of
2015.'
TITLE I--INDIAN SELF-DETERMINATION
Section 101. Definitions; reporting and audit requirements; application
of provisions
Section 101(a) amends the Indian Self-Determination and
Education Assistance Act of 1975 (25 U.S.C. 450) by adding to
the definition of `self-determination contract.' This section
revises the definition to state that, except as provided in:
(1) section 105(a)(3) of the Act, no contract shall be
considered to be a procurement contract, and (2) section
107(a)(1), no contract shall be subject to any Federal
procurement law, including regulations (e.g., the Federal
Acquisition Regulations).
Section 105(a)(3) governs construction contracts and allows
the Secretary and respective tribe to agree to make certain
procurement provisions applicable to those contracts. Section
107(a)(1) authorizes the Secretary to promulgate regulations
governing procurement (and other matters) applicable to these
contracts under this Act in accordance the rulemaking
procedures under 5 U.S.C. 552, 553, and subchapter III.
Section 101(b) provides for the retention period of records
for auditing purposes to be defined in regulations promulgated
by the Secretary.
Section 101(c) provides that certain sections of Indian
Self-Determination and Education Assistance Act relating to the
definitions, reporting and auditing requirements, criminal
penalties, wage and labor standards, liability insurance,
retention of Federal employees, application of Federal
contracting laws, and the use and acquisition of Federal
property apply to compacts and funding agreements under Title
IV of this Act.
In addition, Section 314 of the Department of the Interior
and Related Agencies Appropriations Act, 1991 (Pub. L. No. 101-
512) relating to Federal Tort Claim Act coverage also applies
to compacts and funding agreements under Title IV of this Act.
Section 102. Contracts by the Secretary of Interior
Section 102(1) amends the Act to simplify a reference to
the Indian Financing Act of 1974. Section 102(2) provides that
the Secretary shall at all times negotiate in good faith and,
subject to section 202, that the provisions of contracts or
funding agreements should be liberally construed for the
benefit of the Indian tribe.
Section 103. Administrative provisions
Section 103 makes a minor technical correction to Section
105 of the Act by substituting a corrected reference to
sections 102 and 103 (instead of referencing sections 450f and
450h) of the Act. Further, this section would require, subject
to section 202, the Secretary to interpret all Federal laws and
Executive Orders in a manner that benefits tribes and
facilitates inclusion of programs, functions, services, and
activities in self-determination contracts and funding
agreements; implementation of self-determination contracts and
funding agreements; and achievement of tribal objectives.
Section 104. Contract funding and indirect costs
Section 104 adds a category of expenses that are eligible
costs for the purposes of receiving funding and would codify a
decision by the Office of Management and Budget and the
Department of the Interior regarding documentation
requirements. Under this section, eligible costs would include
not less than fifty percent of the expenses incurred by the
governing body of a tribe or tribal organization relating to a
program, function, service or activity pursuant to the
contract. Furthermore, such expenses of a tribal governing body
shall be treated as reasonable and allowable without burdensome
documentation requirements because these costs are presumed to
be related to the administration of Federal responsibilities
assumed by the tribal governing body.
Section 105. Contract or grant specifications
Section 105 clarifies that provisions in the model
statutory agreement allowing the parties to agree to additional
contract and funding agreement terms are subject to the
provisions in section 102 of the Act governing the negotiation
process and declinations.
TITLE II
Section 201. Tribal self-governance
Section 201 amends the Act by revising several provisions
of Title IV which govern the tribal self-governance program.
Section 201(a) provides definitions for key terms included
in Title IV which, in addition to those in Title I, include
`compact', `construction program and construction project',
`Department', `funding agreement', `program', `self-governance'
and `Secretary'.
Section 201(b) amends Section 402 of the Act to provide for
the establishment and eligibility requirements for the Tribal
Self-Governance Program. It also sets forth procedures for a
tribe to withdraw from a tribal organization, in whole or in
part, as well as provisions for distributing funds to a
withdrawing tribe. To be eligible to participate in self-
governance, a tribe must successfully complete a planning
phase; request participation in self-governance by resolution
or other official action by the tribal governing body; and
demonstrate, for the previous three fiscal years, financial
stability and financial management capability as evidenced by
the tribe having no uncorrected significant and material audit
exceptions in the required annual audit of its agreements with
any Federal agency. Tribes are eligible to receive grants for
planning to participate, or negotiating the terms of
participation, in the Program.
Section 201(c) amends Section 403 of the Indian Self-
Determination and Education Assistance Act and directs the
Secretary to negotiate and enter into a funding agreement with
the governing body of an Indian tribe or tribal organization.
It clarifies that a funding agreement authorizes a tribe, at
its option, to plan, conduct, consolidate, administer and
receive full tribal share funding for all programs, functions,
services or activities of the BIA, the Office of the Assistant
Secretary for Indian Affairs, and the Office of the Special
Trustee. A funding agreement may include programs, functions,
services or activities administered by the Secretary that are
of special geographic, historical, or cultural significance to
the tribe. However, for discretionary programs of special
significance, the Secretary has discretion with respect to
reallocation and consolidation, reassumption, terms and
conditions regarding construction, and applicable regulations.
In addition, this section provides the Secretary the discretion
to reassume any program and associated funding upon certain
findings.
The section also provides that a funding agreement shall
authorize a tribe, at its option, to plan, conduct,
consolidate, administer, and receive full tribal share funding
for any program administered by the Department of the Interior
other than through the BIA, Office of the Assistant-Secretary
for Indian Affairs, and the Office of the Special Trustee, that
is otherwise available to tribes or Indians under Section 102
of Indian Self-Determination and Education Assistance Act. A
tribe has discretion to include in its funding agreement, a
stable budget specifying the recurring funds to be transferred
to the tribe. Absent tribal consent, the Secretary cannot amend
the terms of a funding agreement. This section also provides
tribes with existing funding agreements more options with
respect to subsequent funding agreements and negotiating
multiyear funding agreements.
Section 201(d) amends Title IV of the Indian Self-
Determination and Education Assistance Act by mirroring for the
Department of the Interior those self-governance provisions
found in Title V--Tribal Self-Governance-Indian Health Service,
and clarifying any distinctions that are needed for Department
of the Interior differences.
The new ``Section 404'' of the Indian Self-Determination
and Education Assistance Act directs the Secretary to negotiate
and enter into a written compact with tribes participating in
the Program. Tribes may retain existing compacts, in whole or
in part, or negotiate new compacts.
``Section 405'' provides for certain provisions that must
be included in funding agreements. Conflicts of interest,
auditing principles, tribal redesign and consolidation
authority must be addressed. With respect to discretionary
programs of special significance, however, tribal reallocation,
consolidation, and redesign are only allowed when the Secretary
and the tribe enter into a joint agreement.
The section also provides that tribal records are not
subject to the Freedom of Information Act, unless a tribe
specifies otherwise in a funding agreement or a compact. A
tribe must provide the Secretary with reasonable access to its
records with at least 30 days' notice.
``Section 406'' provides that a funding agreement include a
provision to monitor the performance of trust functions by the
Indian tribe. A compact or a funding agreement shall include
provisions for the Secretary to reassume a program and
associated funding upon certain findings. It requires the
Secretary to provide notice, a hearing, and an opportunity for
a tribe to take corrective action before reassuming a program.
The Secretary must make a specific finding of imminent jeopardy
to a trust asset, natural resources, or public health and
safety; or gross mismanagement (under a preponderance of the
evidence standard), to reassume a program and associated
funding. However, the Secretary may, on written notice to the
tribe, immediately reassume operation of a program if there is
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 tribe.
This section further provides that if the Secretary and a
participating Indian tribe are unable to agree on the terms of
a compact or funding agreement, the Indian tribe may submit a
final offer to the Secretary. It further provides the
Secretary's criteria and procedures for considering a tribe's
final offer. The Secretary bears the burden to prove by a
preponderance of the evidence the validity of the grounds for
reassuming a program and by clearly demonstrating the validity
of the grounds for rejecting a final offer.
In addition, this section provides that the Secretary shall
negotiate in good faith and may not waive, modify, or diminish
the trust responsibility. Further, the Secretary must make
savings available to a tribe for the provision of additional
services to tribal beneficiaries. Finally, Section 406 requires
that Title IV compacts and funding agreements be construed for
the benefit of tribes and any ambiguities be resolved in favor
of tribes.
``Section 407'' provides that Indian tribes participating
in tribal self-governance may carry out construction projects
under Title IV and sets forth the responsibilities and
procedures of tribes undertaking these construction projects.
Tribes may, subject to the Secretary's agreement, choose to
carry out certain federal responsibilities under the National
Environmental Policy Act, the National Historic Preservation
Act, and related federal laws that are applicable if the
Secretary undertakes a construction project.
Further, tribes must adhere to building codes and standards
in carrying out a construction project, and must be accountable
for successful completion of a project. This section provides
that funding for construction projects must be included in
funding agreements as annual or semi-annual advance payments.
Section 407 provides the Secretary with at least one
opportunity to review and approve a tribe's project planning
and design documents. Finally, federal laws pertaining to
procurement do not apply to a construction program or project
absent tribal consent.
``Section 408'' authorizes multi-year funding agreements.
It directs the Secretary to transfer tribal shares and
resources to a tribe in a timely fashion. The Secretary may not
reduce funding from year to year unless one of five narrowly
defined exceptions applies. A tribe may carry over funding,
interest, or income from year to year without diminishing its
future entitlements. A tribe need not continue to perform a
compact or a funding agreement with insufficient funds and may
suspend its performance (after providing reasonable notice of
such insufficiency to the Secretary) until funds are adequate.
``Section 409'' requires the Secretary to interpret federal
laws in a manner that facilitates the implementation of, and
the inclusion of programs in, funding agreements. It provides
that an Indian tribe may submit a written request for a waiver
of federal regulations to the Secretary. The Secretary must
approve a tribe's request for a waiver if the waiver is not
prohibited by statute. In addition, if the request is not
approved or denied within 120 days, the waiver request is
deemed approved.
``Section 410'' provides that Title IV neither expands nor
alters the Secretary's statutory authority to enter into any
funding agreement with respect to an inherent federal function,
in instances where a statute prohibits a tribe's participation
in a program, or when the funding agreement would limit or
reduce services, contracts, or funds that any other tribe is
eligible to receive under federal law.
``Section 411'' provides a tribe with the discretion to
incorporate any provision of Title I into a compact or a
funding agreement.
``Section 412'' requires the President to identify in a
report to accompany the annual budget request submitted to
Congress all amounts necessary to fully fund all funding
agreements entered into under this Act.
``Section 413'' requires the Secretary to submit an annual
report to Congress regarding the administration of Title IV.
This report is to include an analysis of unmet tribal needs,
whether the tribe is served directly by the Secretary or under
compacts and funding agreements. In addition, the Secretary may
not impose any reporting requirements on participating tribes
other than those provided for in Title IV. It provides that the
reports be compiled from certain documents and identifies
particular areas of interest. It further requires that reports
include a description of methodologies used to determine
individual tribal shares. Reports must be distributed to tribes
for comment prior to submission.
This section also requires the Secretary to submit an
annual report to Congress on non-BIA and non-Office of Special
Trustee programs. Section 413 requires that the Secretary, in
consultation with tribes, develop a funding formula to
determine the individual tribal share of funds controlled by
the Central Office of the BIA, the Office of the Special
Trustee, and the Office of the Assistant Secretary for Indian
Affairs for inclusion in compacts.
``Section 414'' requires negotiated rulemaking and the
publication of proposed implementing regulations in the Federal
Register. It sets forth the membership criteria for the
negotiated rulemaking committee. This section further
authorizes the Secretary to repeal any regulation inconsistent
with the provisions of this Act. Finally, it provides that the
lack of promulgated regulations shall not limit the effect or
implementation of this title.
``Section 415'' provides that except for the eligibility
provisions of section 105(g) and regulations of section 414 of
the Indian Self-Determination and Education Assistance Act, a
tribe is not subject to any agency circular, policy, manual, or
guidance absent the tribe's consent.
``Section 416'' provides that, except as described in the
provisions in section 406, the Secretary has the burden to
prove by a preponderance of the evidence the validity of
grounds for his decisions, as well as their consistency with
Title IV requirements and policies.
``Section 417'' clarifies that ``Section 413 of the
Department of the Interior and Related Agencies Appropriations
Act, 1991'' shall apply to self-governance compacts and funding
agreements.
``Section 418'' authorizes the appropriation of such sums
as may be necessary to carry out Title IV--Tribal Self-
Governance.
Section 202. Effect of certain provisions
This section provides that nothing in the Department of the
Interior Tribal Self-Governance Act of 2015 increases, limits,
or modifies the Secretary's authority held the day before the
enactment of the Act. No program, function, service or activity
that was not eligible to be included in a compact or funding
agreement the day before the enactment of this Act becomes
eligible due to its enactment. Further, no tribal water
settlement or Congressional Act expressly ratifying or
approving such water settlement is affected by the enactment of
this Act.
Cost and Budgetary Considerations
The following cost estimate, as provided by the
Congressional Budget Office, dated February 10, 2015, was
prepared for S. 286:
February 10, 2015.
Hon. John Barrasso,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 286, the Department
of the Interior Tribal Self-Governance Act of 2015.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Martin von
Gnechten.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
S. 286--Department of the Interior Tribal Self-Governance Act of 2015
S. 286 would amend certain provisions of the Indian Self-
Determination and Education Assistance Act related to the
Tribal Self-Governance Program. That program authorizes Indian
tribes to assume responsibility for certain programs,
functions, and services or activities that would otherwise be
carried out by the federal government. The bill would amend how
contracts are negotiated between the tribes and the Department
of the Interior (DOI) and would establish new guidelines for
administering the program. Based on information provided by
DOI, CBO estimates that implementing the legislation would have
no significant effect on the federal budget over the 2015-2020
period. Enacting S. 286 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
S. 286 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
The CBO staff contact for this estimate is Martin von
Gnechten. The estimate was approved by Theresa Gullo, Deputy
Assistant Director for Budget Analysis.
Executive Communications
The Committee has received no communications from the
Executive Branch regarding S. 286.
Regulatory and Paperwork Impact Statement
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires each report accompanying a bill to evaluate the
regulatory and paperwork impact that would be incurred in
carrying out the bill. The Committee believes that S. 286 will
have a minimal impact on regulatory or paperwork requirements.
Changes in Existing Law
In accordance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
S. 286, as ordered reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic):
25 U.S.C. Sec. 450b (Indian Self-Determination and Education Assistance
Act)
SEC. 101. DEFINITIONS; REPORTING AND AUDIT REQUIREMENTS; APPLICATION OF
PROVISIONS.
[(j) ``self-determination contract'' means a contract (or
grant or cooperative agreement utilized under section 450e-1 of
this title) entered into under part A of this subchapter
between a tribal organization and the appropriate Secretary for
the planning, conduct and administration of programs or
services which are otherwise provided to Indian tribes and
their members pursuant to Federal law: Provided, That except as
provided [FN1] the last proviso in section 450j(a) of this
title, no contract (or grant or cooperative agreement utilized
under section 450e-1 of this title) entered into under part A
of this subchapter shall be construed to be a procurement
contract;]
(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);
25 U.S.C. 450c(b) (Indian Self-Determination and Education Assistance
Act)
SECTION 5(B). REPORTING AND AUDIT REQUIREMENTS FOR RECIPIENTS OF
FEDERAL FINANCIAL ASSISTANCE.
(b) Access to books, documents, papers, and records for
audit and examination by Comptroller General, etc.--
The Comptroller General and the appropriate Secretary, or
any of their duly authorized representatives, shall, until the
expiration of three years [after completion of the project or
undertaking referred to in the preceding subsection of this
section] after the retention period for the report that is
submitted to the Secretary under subsection (a), have access
(for the purpose of audit and examination) to any books,
documents, papers, and records of such recipients which in the
opinion of the Comptroller General or the appropriate Secretary
may be related or pertinent to the grants, contracts,
subcontracts, subgrants, or other arrangements referred to in
the preceding subsection. The retention period shall be defined
in regulations promulgated by the Secretary pursuant to section
414.
25 U.S.C. Sec. 450f (Indian Self-Determination and Education Assistance
Act)
SECTION 102. CONTRACTS BY SECRETARY OF THE INTERIOR.
(c) Liability insurance; waiver of defense.--
(2) In obtaining or providing such coverage, the
Secretary shall, to the greatest extent practicable,
give a preference to coverage underwritten by Indian-
owned [economic enterprises as defined in section 1452
of this title, except that] economic enterprises (as
defined in section 3 of the Indian Financing Act of
1974 (25 U.S.C. 1452)), except that, for the purposes
of this subsection, such enterprises may include non-
profit corporations.
(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 2015.
(g) Rule of Construction.--Subject to section 202 of the
Department of the Interior Tribal Self-Governance Act of 2015,
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.
25 U.S.C. Sec. 450j (Indian Self-Determination and Education Assistance
Act)
SECTION 103. ADMINISTRATIVE PROVISIONS.
(b) Payments; transfer of funds by Treasury for
disbursement by tribal organization; accountability for
interest accrued prior to disbursement Payments of any grants
or under any contracts [pursuant to sections 450f and 450h of
this title] pursuant to sections 102 and 103 may be made in
advance or by way of reimbursement and in such installments and
on such conditions as the appropriate Secretary deems necessary
to carry out the purposes of this part. The transfer of funds
shall be scheduled consistent with program requirements and
applicable Treasury regulations, so as to minimize the time
elapsing between the transfer of such funds from the United
States Treasury and the disbursement thereof by the tribal
organization, whether such disbursement occurs prior to or
subsequent to such transfer of funds. Tribal organizations
shall not be held accountable for interest earned on such
funds, pending their disbursement by such organization.
(p) Interpretation by Secretary.--Except as otherwise
provided by law (including section 202 of the Department of the
Interior Tribal Self-Governance Act of 2015), 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.
25 U.S.C. Sec. 450j-1 (Indian Self-Determination and Education
Assistance Act)
SECTION 104. CONTRACT FUNDING AND INDIRECT COSTS.
(3)(A) The contract support costs that are eligible
costs for the purposes of receiving funding under this
subchapter shall include the costs of reimbursing each
tribal contractor for reasonable and allowable costs
of--
(i) direct program expenses for the
operation of the Federal program that
is the subject of the contract[, and];
and
(ii) any additional administrative or
other [expense related to the overhead
incurred] expense incurred by the
governing body of the Indian tribe or
tribal organization and any overhead
expense incurred by the tribal
contractor in connection with the
operation of the Federal program,
function, service, or activity pursuant
to the contract, except that such
funding shall not duplicate any funding
provided under subsection (a)(1) of
this section.
(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.
[(B)](C) On an annual basis, during such
period as a tribe or tribal organization
operates a Federal program, function, service,
or activity pursuant to a contract entered into
under this subchapter, the tribe or tribal
organization shall have the option to negotiate
with the Secretary the amount of funds that the
tribe or tribal organization is entitled to
receive under such contract pursuant to this
paragraph.
25 U.S.C. Sec. 450l (Indian Self-Determination and Education Assistance
Act)
SECTION 105. CONTRACT OR GRANT SPECIFICATIONS.
(a) Terms.--Each self-determination contract entered into
under this subchapter shall--
(1) contain, or incorporate by reference, the
provisions of the model agreement described in
subsection (c) of this section (with modifications
where indicated and the blanks appropriately filled
in), and
(2) subject to subsections (a) and (b) of section
102, contain such other provisions as are agreed to by
the parties.
``(2) Annual funding agreement.--
``(A) In general.--The annual funding
agreement under this Contract shall only
contain--
``(i) terms that identify the
programs, services, functions, and
activities to be performed or
administered, the general budget
category assigned, the funds to be
provided, and the time and method of
payment; and
``(ii) subject to subsections (a) and
(b) of section 102 of the Indian Self-
Determination and Education Assistance
Act (25 U.S.C. 450f), such other
provisions, including a brief
description of the programs, services,
functions, and activities to be
performed (including those supported by
financial resources other than those
provided by the Secretary), to which
the parties agree.
25 U.S.C. Sec. 458aa (Indian Self-Determination and Education
Assistance Act)
SECTION 201. TRIBAL SELF-GOVERNANCE.
SEC. 401. DEFINITIONS.
In this title:
(1) Compact.--The term `compact' means a self-
governance compact entered into under section 404.
(2) Construction program; construction project.--The
term `construction program' or `construction project'
means a tribal undertaking relating to the
administration, planning, environmental determination,
design, construction, repair, improvement, or expansion
of roads, bridges, buildings, structures, systems, or
other facilities for purposes of housing, law
enforcement, detention, sanitation, water supply,
education, administration, community, health,
irrigation, agriculture, conservation, flood control,
transportation, or port facilities, or for other tribal
purposes.
(3) Department.--The term `Department' means the
Department of the Interior.
(4) Funding agreement.--The term `funding agreement'
means a funding agreement entered into under section
403.
(5) Gross mismanagement.--The term `gross
mismanagement' means a significant violation, shown by
a preponderance of the evidence, of a compact, funding
agreement, or statutory or regulatory requirement
applicable to Federal funds--
(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.
25 U.S.C. Sec. 458bb (Indian Self-Determination and Education
Assistance Act)
SEC. 402. TRIBAL SELF-GOVERNANCE PROGRAM.
(a) Establishment.--The Secretary shall establish and carry
out a program within the Department to be known as the ``Tribal
Self-Governance Program''.
(b) Selection of Participating Indian Tribes.--
(1) In general.--
(A) Eligibility.--The Secretary, acting
through the Director of the Office of Self-
Governance, may select 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.
25 U.S.C. Sec. 458cc (Indian Self-Determination and Education
Assistance Act)
SEC. 403. FUNDING AGREEMENTS.
[(a) Authorization.--The Secretary shall negotiate and
enter into an annual written funding agreement with the
governing body of each participating tribal government in a
manner consistent with the Federal Government's laws and trust
relationship to and responsibility for the Indian people.]
(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).
(b) Contents.--Each funding agreement shall--
(1) authorize the tribe to plan, conduct,
consolidate, and administer programs, services,
functions, and activities, or portions thereof,
administered by the Department of the Interior through
the Bureau of Indian Affairs, [without regard to the
agency or office of the Bureau of Indian Affairs] the
Office of Assistant Secretary for Indian Affairs, and
the Office of the Special Trustee without regard to the
agency or the office of that Bureau or those Offices
within which the program, service, function, and
activity, or portion thereof, is performed, including
funding for agency, area, and central office functions
in accordance with subsection (g)(3) of this section,
and including any program, service, function, and
activity, or portion thereof, administered under the
authority of--
(A) the Act of April 16, 1934 (25 U.S.C. 452
et seq.);
(B) section 13 of this title; [and]
(C) programs, services, functions, and
activities or portions thereof administered by
the Secretary of the Interior that are
otherwise available to Indian tribes or Indians
for which appropriations are made to agencies
other than the Department of the Interior T3;
and
(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;
(2) subject to such terms as may be negotiated,
authorize the tribe to plan, conduct, consolidate, and
administer programs, services, functions, and
activities, or portions thereof, administered by the
Department of the Interior, other than through the
Bureau of Indian Affairs, that are otherwise available
to Indian tribes or Indians, as identified in [section
405(c)] section 413 (c) of this title, except that
nothing in this subsection may be construed to provide
any tribe with a preference with respect to the
opportunity of the tribe to administer programs,
services, functions, and activities, or portions
thereof, unless such preference is otherwise provided
for by law; and
(3) subject to the terms of the agreement, authorize
the tribe to redesign or consolidate programs,
services, functions, and activities, or portions
thereof, and reallocate funds for such programs,
services, functions, and activities, or portions
thereof, except that, with respect to the reallocation,
consolidation, and redesign of programs described in
paragraph (2), a joint agreement between the Secretary
and the tribe shall be required[;].
[(4) prohibit the inclusion of funds provided--
(A) pursuant to the Tribally Controlled
Colleges and Universities Assistance Act of
1978 (25 U.S.C. 1801 et seq.);
(B) for elementary and secondary schools
under the formula developed pursuant to section
2008 of this title; and
(C) the Flathead Agency Irrigation Division
or the Flathead Agency Power Division, except
that nothing in this section shall affect the
contract authority of such divisions under
section 450f of this title;
(5) specify the services to be provided, the
functions to be performed, and the responsibilities of
the tribe and the Secretary pursuant to the agreement;
(6) authorize the tribe and the Secretary to
reallocate funds or modify budget allocations within
any year, and specify the procedures to be used;
(7) allow for retrocession of programs or portions of
programs pursuant to section 450j(e) of this title;
(8) provide that, for the year for which, and to the
extent to which, funding is provided to a tribe under
this section, the tribe--
(A) shall not be entitled to contract with
the Secretary for such funds under section 450f
of this title, except that such tribe shall be
eligible for new programs on the same basis as
other tribes; and
(B) shall be responsible for the
administration of programs, services,
functions, and activities pursuant to
agreements entered into under this section; and
(9) prohibit the Secretary from waiving, modifying,
or diminishing in any way the trust responsibility of
the United States with respect to Indian tribes and
individual Indians that exists under treaties,
Executive orders, and other laws.]
(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 2015 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.
25 U.S.C. 458aa et seq. (Title IV of the Indian Self-Determination and
Education Assistance Act)
[SEC. 404. BUDGET REQUEST.
The Secretary shall identify, in the annual budget request
of the President to the Congress under section 1105 of title
31, United States Code, any funds proposed to be included in
agreements authorized under this title.
SEC. 405. REPORTS.
(a) Requirement.--The Secretary shall submit to Congress a
written report on January 1 of each year following the date of
enactment of this title regarding the administration of this
title.
(b) Contents.--The report shall--
(1) identify the relative costs and benefits of Self-
Governance;
(2) identify, with particularity, all funds that are
specifically or functionally related to the provision
by the Secretary of services and benefits to Self-
Governance tribes and their members;
(3) identify the funds transferred to each Self-
Governance tribe and the corresponding reduction in the
Federal bureaucracy;
(4) include the separate views of the tribes; and
(5) include the funding formula for individual tribal
shares of Central Office funds, together with the
comments of affected Indian tribes, developed under
subsection (d).
(c) Report on Non-Bia Programs.--(1) In order to optimize
opportunities for including non-Bureau of Indian Affairs
programs, services, functions, and activities, or portions
thereof, in agreements with tribes participating in Self-
Governance under this title, the Secretary shall--
(A) review all programs, services, functions, and
activities, or portions thereof, administered by the
Department of the Interior, other than through the
Bureau of Indian Affairs, without regard to the agency
or office concerned; and
(B) not later than 90 days after the date of
enactment of this title, provide to the appropriate
committees of Congress a listing of all such programs,
services, functions, and activities, or portions
thereof, that the Secretary determines, with the
concurrence of tribes participating in Self-Governance
under this title, are eligible for inclusion in such
agreements at the request of a participating Indian
tribe.
(2) The Secretary shall establish programmatic
targets, after consultation with tribes participating
in Self-Governance under this title, to encourage
bureaus of the Department to assure that a significant
portion of such programs, services, functions, and
activities are actually included in the agreements
negotiated under section 403.
(3) The listing and targets under paragraphs (1) and
(2) shall be published in the Federal Register and be
made available to any Indian tribe participating in
Self-Governance under this title. The list shall be
published before January 1, 1995, and annually
thereafter by January 1 preceding the fiscal year in
which the targets are to be met.
(4) Thereafter, the Secretary shall annually review
and publish in the Federal Register, after consultation
with tribes participating in Self-Governance under this
title, a revised listing and programmatic targets.
(d) Report on Central Office Funds.--Within 90 days after
the date of the enactment of this title, the Secretary shall,
in consultation with Indian tribes, develop a funding formula
to determine the individual tribal share of funds controlled by
the Central Office of the Bureau of Indian Affairs for
inclusion in the Self-Governance compacts. The Secretary shall
include such formula in the annual report submitted to the
Congress under subsection (b), together with the views of the
affected Indian tribes.
SEC. 406. DISCLAIMERS.
(a) Other Services, Contracts, and Funds.--Nothing in this
title shall be construed to limit or reduce in any way the
services, contracts, or funds that any other Indian tribe or
tribal organization is eligible to receive under section 102 or
any other applicable Federal law.
(b) Federal Trust Responsibilities.--Nothing in this Act
shall be construed to diminish the Federal trust responsibility
to Indian tribes, individual Indians, or Indians with trust
allotments.
(c) Application of Other Sections of Act.--All provisions
of sections 6, 102(c), 104, 105(f), 110, and 111 of this Act
shall apply to agreements provided under this title.
SEC. 407. REGULATIONS.
(a) In General.--Not later than 90 days after the date of
enactment of this title, at the request of a majority of the
Indian tribes with agreements under this title, the Secretary
shall initiate procedures under subchapter III of chapter 5 of
title 5, United States Code, to negotiate and promulgate such
regulations as are necessary to carry out this title.
(b) Committee.--A negotiated rulemaking committee
established pursuant to section 565 of title 5, United States
Code, to carry out this section shall have as its members only
Federal and tribal government representatives, a majority of
whom shall be representatives of Indian tribes with agreements
under this title.
(c) Adaptation of Procedures.--The Secretary shall adapt
the negotiated rulemaking procedures to the unique context of
Self-Governance and the government-to-government relationship
between the United States and the Indian tribes.
(d) Effect.--The lack of promulgated regulations shall not
limit the effect of this title.
SEC. 408. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as may be
necessary to carry out this title.]
SEC. 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 2015, shall have the option at any time after
that date--
(1) to retain its negotiated compact (in whole or in
part) to the extent that the provisions of the compact
are not directly contrary to any express provision of
this title; or
(2) to negotiate a new compact in a manner consistent
with this title.
SEC. 405. 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.
SEC. 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 2015, 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 2015,
each provision of this title and each provision of a compact or
funding agreement shall be liberally construed for the benefit
of the Indian tribe participating in self-governance, and any
ambiguity shall be resolved in favor of the Indian tribe.
SEC. 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 2015 applies to subsections (a)
through (j).
SEC. 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 2015, 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 2015 applies to subsections (a)
through (m).
SEC. 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 2015), 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.
SEC. 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.
SEC. 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.
SEC. 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.
SEC. 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, 2016, the Secretary shall, in consultation with Indian
tribes, develop a funding formula to determine the individual
tribal share of funds controlled by the Central Office of the
Bureau of Indian Affairs and the Office of the Special Trustee
for inclusion in the compacts.
SEC. 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 2015, 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 2015.
(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 2015.
(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 2015, this title shall supersede any
conflicting provision of law (including any conflicting
regulations).
(3) Effectiveness without regard to regulations.--The
lack of promulgated regulations on an issue shall not
limit the effect or implementation of this title.
SEC. 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.
SEC. 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.
SEC. 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.
SEC. 418. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as are
necessary to carry out this title.
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