Department of the Interior Tribal Self-Governance Act of 2004

        [Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 1715 Reported in Senate (RS)]

Calendar No. 804
108th CONGRESS
2d Session
S. 1715

[Report No. 108-413]

To amend the Indian Self-Determination and Education Assistance Act to
provide further self-governance by Indian tribes.

_______________________________________________________________________

IN THE SENATE OF THE UNITED STATES

October 3, 2003

Mr. Campbell (for himself and Mr. Inouye) introduced the following
bill; which was read twice and referred to the Committee on Indian
Affairs

November 16, 2004

Reported by Mr. Campbell, with amendments
[Omit the part struck through and insert the part printed in italic]

_______________________________________________________________________

A BILL

To amend the Indian Self-Determination and Education Assistance Act to
provide further self-governance by Indian tribes.

Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Department of the Interior Tribal
Self-Governance Act of  2004''.

SEC. 2. AMENDMENT.

The Indian Self-Determination and Education Assistance Act is
amended by striking title IV (25 U.S.C. 458aa et seq.) and inserting
the following:

``TITLE IV--TRIBAL SELF-GOVERNANCE

``SEC. 401. DEFINITIONS.

``In this title:
``(1) Compact.--The term `compact' means a compact under
section 404.
``(2) Construction program.--The term `construction
program' means a tribal undertaking to complete any or all
included programs relating to the administration, planning,
environmental determination, design, construction, repair,
improvement, or expansion of roads, bridges, buildings,
structures, systems, or other facilities for purposes of
housing, law enforcement, detention, sanitation, water supply,
education, administration, community health, irrigation,
agriculture, conservation, flood control, transportation, or
port facilities or for other tribal purposes.
``(3) Construction project.--The term `construction
project' means a tribal undertaking that constructs 1 or more
roads, bridges, buildings, structures, systems, or other
facilities for purposes of housing, law enforcement, detention,
sanitation, water supply, education, administration, community
health, irrigation, agriculture, conservation, flood control,
transportation, or port facilities or for other tribal
purposes.
``(4) Department.--The term `Department' means the
Department of the Interior.
``(5) Funding agreement.--The term `funding agreement'
means a funding agreement under section 405(b).
``(6) Gross mismanagement.--The term `gross mismanagement'
means a significant violation, shown by clear and convincing
evidence, of a compact, funding agreement, or statutory or
regulatory requirement applicable to Federal funds transferred
to an Indian tribe by a compact or funding agreement that
results in a significant reduction of funds being made
available for the included programs assumed by an Indian tribe.
``(7) Included program.--The term `included program' means
a program that is eligible for inclusion under a funding
agreement (including any portion of such a program and any
function, service, or activity performed under such a program).
``(8) Indian tribe.--The term `Indian tribe', in a case in
which an Indian tribe authorizes another Indian tribe, an
inter-tribal consortium, or a tribal organization to plan for
or carry out an included program on its behalf in accordance
with section 403(a)(3), includes the other authorized Indian
tribe, inter-tribal consortium, or tribal organization.
``(9) Inherent federal function.--The term `inherent
Federal function' means a Federal function that cannot legally
be delegated to an Indian tribe.
``(10) Inter-tribal consortium.--
``(A) In general.--The term `inter-tribal
consortium' means a coalition of 2 or more separate
Indian tribes that join together for the purpose of
participating in self-governance.
``(B) Inclusion.--The term `inter-tribal
organization' includes a tribal organization.
``(11) Secretary.--The term `Secretary' means the Secretary
of the Interior.
``(12) Self-governance.--The term `self-governance' means
the program of self-governance established under section 402.
``(13) Tribal share.--The term `tribal share' means an
Indian tribe's portion of all funds and resources that support
secretarial included programs that are not required by the
Secretary for the performance of inherent Federal functions.

``SEC. 402. ESTABLISHMENT.

``The Secretary shall carry out a program within the Department to
be known as the `Tribal Self-Governance Program'.

``SEC. 403. SELECTION OF PARTICIPATING INDIAN TRIBES.

``(a) In General.--
``(1) Continuing participation.--An Indian tribe that was
participating in the Tribal Self-Governance Demonstration
Project at the Department under title III on October 25, 1994,
may elect to participate in self-governance under this title.
``(2) Additional participants.--
``(A) In general.--In addition to Indian tribes
participating in self-governance under paragraph (1),
an Indian tribe that meets the eligibility criteria
specified in subsection (b) shall be entitled to
participate in self-governance.
``(B) No limitation.--The Secretary shall not limit
the number of additional Indian tribes to be selected
each year from among Indian tribes that are eligible
under subsection (b).
``(3) Other authorized indian tribe, inter-tribal
consortium, or tribal government.--If an Indian tribe
authorizes another Indian tribe, an inter-tribal consortium, or
a tribal organization to plan for or carry out an included program on
its behalf under this title, the authorized Indian tribe, inter-tribal
consortium, or tribal organization shall have the rights and
responsibilities of the authorizing Indian tribe (except as otherwise
provided in the authorizing resolution).
``(4) Joint participation.--Two or more Indian tribes that
are not otherwise eligible under subsection (b) may be treated
as a single Indian tribe for the purpose of participating in
self-governance as a consortium if--
``(A) if each Indian tribe so requests; and
``(B) the consortium itself is eligible under
subsection (b).
``(5) Tribal withdrawal from a consortium.--
``(A) In general.--An Indian tribe that withdraws
from participation in an inter-tribal consortium or
tribal organization, in whole or in part, shall be
entitled to participate in self-governance if the
Indian tribe is eligible under subsection (b).
``(B) Effect of withdrawal.--If an Indian tribe
withdraws from participation in an inter-tribal
consortium or tribal organization, the Indian tribe
shall be entitled to its tribal share of funds and
resources supporting the included programs that the
Indian tribe will be carrying out under the compact and
funding agreement of the Indian tribe.
``(C) Participation in self-governance.--The
withdrawal of an Indian tribe from an inter-tribal
consortium or tribal organization shall not affect the
eligibility of the inter-tribal consortium or tribal
organization to participate in self-governance on
behalf of 1 or more other Indian tribes.
``(D) Withdrawal process.--
``(i) In general.--An Indian tribe may
fully or partially withdraw from a
participating inter-tribal consortium or tribal
organization its tribal share of any included
program that is included in a compact or
funding agreement.
``(ii) Effective date.--
``(I) In general.--A withdrawal
under clause (i) shall become effective
on the date specified in the resolution
that authorizes transfer to the
participating tribal organization or
inter-tribal consortium.
``(II) No specified date.--In the
absence of a date specified in the
resolution, the withdrawal shall become
effective on--
``(aa) the earlier of--

``(AA) 1 year after
the date of submission
of the request; or

``(BB) the date on
which the funding
agreement expires; or

``(bb) such date as may be
agreed on by the Secretary, the
withdrawing Indian tribe, and
the tribal organization or
inter-tribal consortium that
signed the compact or funding
agreement on behalf of the
withdrawing Indian tribe,
inter-tribal consortium, or
tribal organization.
``(E) Distribution of funds.--If an Indian tribe or
tribal organization eligible to enter into a self-
determination contract under title I or a compact or
funding agreement under this title fully or partially
withdraws from a participating inter-tribal consortium
or tribal organization, the withdrawing Indian tribe--
``(i) may elect to enter into a self-
determination contract or compact, in which
case--
``(I) the withdrawing Indian tribe
or tribal organization shall be
entitled to its tribal share of funds
and resources supporting the included
programs that the Indian tribe will be
carrying out under its own self-
determination contract or compact and
funding agreement (calculated on the
same basis as the funds were initially
allocated to the funding agreement of
the inter-tribal consortium or tribal
organization); and
``(II) the funds referred to in
subclause (I) shall be withdrawn by the
Secretary from the funding agreement of
the inter-tribal consortium or tribal
organization and transferred to the
withdrawing Indian tribe, on the
condition that sections 102 and 105(i),
as appropriate, shall apply to the
withdrawing Indian tribe; or
``(ii) may elect not to enter into a self-
determination contract or compact, in which
case all funds not obligated by the inter-
tribal consortium associated with the
withdrawing Indian tribe's returned included
programs, less closeout costs, shall be
returned by the inter-tribal consortium to the
Secretary for operation of the included
programs included in the withdrawal.
``(F) Return to mature contract status.--If an
Indian tribe elects to operate all or some included
programs carried out under a compact or funding
agreement under this title through a self-determination
contract under title I, at the option of the Indian
tribe, the resulting self-determination contract shall
be a mature self-determination contract.
``(b) Eligibility.--To be eligible to participate in self-
governance, an Indian tribe shall--
``(1) complete the planning phase described in subsection
(c);
``(2) request participation in self-governance by
resolution or other official action by the tribal governing
body; and
``(3) demonstrate, for the 3 fiscal years preceding the
date on which the Indian tribe requests participation,
financial stability and financial management capability as
evidenced by the Indian tribe's having no uncorrected
significant and material audit exceptions in the required
annual audit of its self-determination or self-governance
agreements with any Federal agency.
``(c) Planning Phase.--
``(1) In general.--An Indian tribe seeking to participate
in self-governance shall complete a planning phase in
accordance with this subsection.
``(2) Activities.--The planning phase--
``(A) shall be conducted to the satisfaction of the
Indian tribe; and
``(B) shall include--
``(i) legal and budgetary research; and
``(ii) internal tribal government planning
and organizational preparation.
``(d) Grants.--
``(1) In general.--Subject to the availability of
appropriations, an Indian tribe that meets the requirements of
paragraphs (2) and (3) of subsection (b) shall be eligible for
grants--
``(A) to plan for participation in self-governance;
and
``(B) to negotiate the terms of participation by
the Indian tribe or tribal organization in self-
governance, as set forth in a compact and a funding
agreement.
``(2) Receipt of grant not required.--Receipt of a grant
under paragraph (1) shall not be a requirement of participation
in self-governance.

``SEC. 404. COMPACTS.

``(a) In General.--The Secretary shall negotiate and enter into a
written compact with an Indian tribe participating in self-governance
in a manner that is consistent with the trust responsibility of the
Federal Government, treaty obligations, and the government-to-
government relationship between Indian tribes and the United States.
``(b) Contents.--A compact under subsection (a) shall--
``(1) specify the general terms of the government-to-
government relationship between the Indian tribe and the
Secretary; and
``(2) include such terms as the parties intend shall
control year after year.
``(c) Amendment.--A compact under subsection (a) may be amended
only by agreement of the parties.
``(d) Effective Date.--The effective date of a compact under
subsection (a) shall be--
``(1) the date of the execution of the compact by the
Indian tribe; or
``(2) another date agreed to by the parties.
``(e) Duration.--A compact under subsection (a) shall remain in
effect for so long as permitted by Federal law or until terminated by
written agreement, retrocession, or reassumption.
``(f) Existing Compacts.--An Indian tribe participating in self-
governance under this title, as in effect on the date of enactment of
the Department of the Interior Tribal Self-Governance Act of
 2004, shall have the option at any time after
that date--
``(1) to retain its negotiated compact (in whole or in
part) to the extent that the provisions of the compact are not
directly contrary to any express provision of this title; or
``(2) to negotiate a new compact in a manner consistent
with this title.

``SEC. 405. FUNDING AGREEMENTS.

``(a) In General.--The Secretary shall negotiate and enter into a
written funding agreement with the governing body of an Indian tribe in
a manner that is consistent with the trust responsibility of the
Federal Government, treaty obligations, and the government-to-
government relationship between Indian tribes and the United States.
``(b) Included Programs.--
``(1) Bureau of indian affairs and office of special
trustee.--
``(A) In general.--A funding agreement shall, as
determined by the Indian tribe, authorize the Indian
tribe to plan, conduct, consolidate, administer, and
receive full tribal share funding for all programs
carried out by the Bureau of Indian Affairs and the
Office of Special Trustee, without regard to the agency
or office within which the program is performed
(including funding for agency, area, and central office
functions in accordance with section 409(c)), that--
``(i) are provided for in the Act of April
16, 1934 (25 U.S.C. 452 et seq.);
``(ii) the Secretary administers for the
benefit of Indians under the Act of November 2,
1921 (25 U.S.C. 13), or any subsequent Act;
``(iii) the Secretary administers for the
benefit of Indians with appropriations made to
agencies other than the Department of the
Interior; or
``(iv) are provided for the benefit of
Indians because of their status as Indians.
``(B) Inclusions.--Programs described in
subparagraph (A) shall include all programs with
respect to which Indian tribes or Indians are primary
or significant beneficiaries.
``(2) Other agencies.--A funding agreement under subsection
(a) shall, as determined by the Indian tribe, authorize the
Indian tribe to plan, conduct, consolidate, administer, and
receive full tribal share funding for all programs carried out
by the Secretary outside the Bureau of Indian Affairs, without
regard to the agency or office within which the program is
performed, including funding for agency, area, and central
office functions in accordance with subsection 409(c), to the
extent that the included programs are within the scope of
paragraph (1).
``(3) Discretionary programs.--A funding agreement under
subsection (a) may, in accordance with such additional terms as
the parties consider to be appropriate, include programs
administered by the Secretary, in addition to programs described in
paragraphs (1) and (2), that are of special geographical, historical,
or cultural significance to the Indian tribe.
``(4) Competitive bidding.--Nothing in this section--
``(A) supersedes any express statutory requirement
for competitive bidding; or
``(B) prohibits the inclusion in a funding
agreement of a program in which non-Indians have an
incidental or legally identifiable interest.
``(5) Excluded funding.--A funding agreement shall not
authorize an Indian tribe to plan, conduct, administer, or
receive tribal share funding under any program that--
``(A) is provided under the Tribally Controlled
Community College Assistance Act of 1978 (25 U.S.C.
1801 et seq.);
``(B) is provided for elementary and secondary
schools under the formula developed under section 1128
of the Education Amendments of 1978 (25 U.S.C. 2008);
and
``(C) is provided for the Flathead Agency
Irrigation Division or the Flathead Agency Power
Division (except that nothing in this section affects
the contract authority of the Flathead Agency
Irrigation Division or the Flathead Agency Power
Division under section 102).
``(6) Services, functions, and responsibilities.--A funding
agreement shall specify--
``(A) the services to be provided under the funding
agreement;
``(B) the functions to be performed under the
funding agreement; and
``(C) the responsibilities of the Indian tribe and
the Secretary under the funding agreement.
``(7) Base budget.--A funding agreement shall, at the
option of the Indian tribe, provide for a stable base budget
specifying the recurring funds (including funds available under
section 106(a)) to be transferred to the Indian tribe, for such
period as the Indian tribe specifies in the funding agreement,
subject to annual adjustment only to reflect changes in
congressional appropriations.
``(8) No waiver of trust responsibility.--A funding
agreement shall prohibit the Secretary from waiving, modifying,
or diminishing in any way the trust responsibility of the
United States with respect to Indian tribes and individual
Indians that exists under treaties, Executive orders, court
decisions, and other laws.
``(c) Amendment.--The Secretary shall not revise, amend, or require
additional terms in a new or subsequent funding agreement without the
consent of the Indian tribe.
``(d) Effective Date.--A funding agreement shall become effective
on the date specified in the funding agreement.
``(e) Existing and Subsequent Funding Agreements.--
``(1) Subsequent funding agreements.--Absent notification
from an Indian tribe that is withdrawing or retroceding the
operation of 1 or more included programs identified in a
funding agreement, or unless otherwise agreed to by the parties
to the funding agreement--
``(A) a funding agreement shall remain in effect
until a subsequent funding agreement is executed; and
``(B) the term of the subsequent funding agreement
shall be retroactive to the end of the term of the
preceding funding agreement.
``(2) Existing funding agreements.--An Indian tribe that
was participating in self-governance under this title on the
date of enactment of the Department of the Interior Tribal
Self-Governance Act of  2004 shall have
the option at any time after that date--
``(A) to retain its existing funding agreement (in
whole or in part) to the extent that the provisions of
that funding agreement are not directly contrary to any
express provision of this title; or
``(B) to negotiate a new funding agreement in a
manner consistent with this title.
``(3) Multiyear funding agreements.--An Indian tribe may,
at the discretion of the Indian tribe, negotiate with the
Secretary for a funding agreement with a term that exceeds 1
year.

``SEC. 406. GENERAL PROVISIONS.

``(a) Applicability.--An Indian tribe may include in any compact or
funding agreement provisions that reflect the requirements of this
title.
``(b) Conflicts of Interest.--An Indian tribe participating in
self-governance shall ensure that internal measures are in place to
address, pursuant to tribal law and procedures, conflicts of interest
in the administration of included programs.
``(c) Audits.--
``(1) Single agency audit act.--Chapter 75 of title 31,
United States Code, shall apply to a funding agreement under
this title.
``(2) Cost principles.--An Indian tribe shall apply cost
principles under the applicable Office of Management and Budget
circular, except as modified by--
``(A) section 106 of this Act or any other
provision of law; or
``(B) any exemptions to applicable Office of
Management and Budget circulars granted by the Office
of Management and Budget.
``(3) Federal claims.--Any claim by the Federal Government
against an Indian tribe relating to funds received under a
funding agreement based on an audit under this subsection shall
be subject to section 106(f).
``(d) Redesign and Consolidation.--An Indian tribe may redesign or
consolidate included programs or reallocate funds for included programs
in any manner that the Indian tribe determines to be in the best
interest of the Indian community being served, so long as the redesign
or consolidation does not have the effect of denying eligibility for
services to population groups otherwise eligible to be served under
applicable Federal law.
``(e) Retrocession.--
``(1) In general.--An Indian tribe may fully or partially
retrocede to the Secretary any included program under a compact
or funding agreement.
``(2) Effective date.--
``(A) Agreement.--Unless the Indian tribe rescinds
a request for retrocession, the retrocession shall
become effective on the date specified by the parties
in the compact or funding agreement.
``(B) No agreement.--In the absence of such a
specification, the retrocession shall become effective
on--
``(i) the earlier of--
``(I) the date that is 1 year after
the date of submission of the request;
or
``(II) the date on which the
funding agreement expires; or
``(ii) such date as may be agreed on by the
Secretary and the Indian tribe.
``(f) Nonduplication.--A funding agreement shall provide that, for
the period for which, and to the extent to which, funding is provided
to an Indian tribe under this title, the Indian tribe--
``(1) shall not be entitled to enter into a contract with
the Secretary for funds under section 102, except that the
Indian tribe shall be eligible for new included programs on the
same basis as other Indian tribes; and
``(2) shall be responsible for the administration of
included programs in accordance with the compact or funding
agreement.
``(g) Records.--
``(1) In general.--Unless an Indian tribe specifies
otherwise in the compact or funding agreement, records of an
Indian tribe shall not be treated as agency records for
purposes of chapter 5 of title 5, United States Code.
``(2) Recordkeeping system.--An Indian tribe shall--
``(A) maintain a recordkeeping system; and
``(B) on 30 days' notice, provide the Secretary
with reasonable access to the records to enable the
Department to meet the requirements of sections 3101
through 3106 of title 44, United States Code.

``SEC. 407. 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 an included
program and associated funding if there is a specific finding
relating to that included program of--
``(A) imminent jeopardy to a physical trust asset,
natural resource, or public health and safety that--
``(i) is caused by an act or omission of
the Indian tribe; and
``(ii) arises out of a failure to carry out
the compact or funding agreement; or
``(B) gross mismanagement with respect to funds
transferred to an Indian tribe by a compact or funding
agreement, as determined by the Secretary in
consultation with the Inspector General, as
appropriate.
``(2) Prohibition.--The Secretary shall not reassume
operation of an included program unless--
``(A) the Secretary first provides written notice
and a hearing on the record to the Indian tribe; and
``(B) the Indian tribe does not take corrective
action to remedy gross mismanagement or the imminent
jeopardy to a physical trust asset, natural resource,
or public health and safety.
``(3) Exception.--
``(A) In general.--Notwithstanding subparagraph
(2), the Secretary may, on written notice to the Indian
tribe, immediately reassume operation of an included
program if--
``(i) the Secretary makes a finding of
 imminent,
substantial, and irreparable harm to a
physical trust asset, a natural resource, or the public health and
safety caused by an act or omission of the Indian tribe; and
``(ii) the
imminent, substantial, and irreparable harm to
the physical trust asset, natural resource, or
public health and safety arises out of a
failure by the Indian tribe to carry out its
compact or funding agreement.
``(B) Reassumption.--If the Secretary reassumes
operation of an included program under subparagraph
(A), the Secretary shall provide the Indian tribe with
a hearing on the record not later than 10 days after
the date of reassumption.
``(c) Inability To Agree on Compact or Funding Agreement.--
``(1) Final offer.--If the Secretary and a participating
Indian tribe are unable to agree, in whole or in part, on the
terms of a compact or funding agreement (including funding
levels), the Indian tribe may submit a final offer to the
Secretary.
``(2) Determination.--Not more than 45 days after the date
of submission of a final offer, or as otherwise agreed to by
the Indian tribe, the Secretary shall review and make a
determination with respect to the final offer.
``(3) No timely determination.--If the Secretary fails to
make a determination with respect to a final offer within the
time specified in paragraph (2), the Secretary shall be deemed
to have agreed to the offer.
``(4) Rejection of final offer.--
``(A) In general.--If the Secretary rejects a final
offer (or 1 or more provisions or funding levels in a
final offer), the Secretary shall--
``(i) provide timely written notification
to the Indian tribe that contains a specific
finding that clearly demonstrates, or that is
supported by a controlling legal authority,
that--
``(I) the amount of funds proposed
in the final offer exceeds the
applicable funding level to which the
Indian tribe is entitled under this
title;
``(II) the included program that is
the subject of the final offer is an
inherent Federal function;
``(III) the Indian tribe cannot
carry out the included program in a
manner that would not result in
significant danger or risk to the
public health; or
``(IV) the Indian tribe is not
eligible to participate in self-
governance under section 403(b);
``(ii) provide technical assistance to
overcome the objections stated in the
notification required by clause (i);
``(iii) provide the Indian tribe a hearing
on the record with the right to engage in full
discovery relevant to any issue raised in the
matter and the opportunity for appeal on the
objections raised (except that the Indian tribe
may, in lieu of filing an appeal, directly
proceed to bring a civil action in United
States district court under section 110(a));
and
``(iv) provide the Indian tribe the option
of entering into the severable portions of a
final proposed compact or funding agreement
(including a lesser funding amount, if any),
that the Secretary did not reject, subject to
any additional alterations necessary to conform
the compact or funding agreement to the severed
provisions.
``(B) Effect of exercising certain option.--If an
Indian tribe exercises the option specified in
subparagraph (A)(iv)--
``(i) the Indian tribe shall retain the
right to appeal the rejection by the Secretary
under this section; and
``(ii) clauses (i), (ii), and (iii) of that
subparagraph shall apply only to the portion of
the proposed final compact or funding agreement
that was rejected by the Secretary.
``(d) Burden of Proof.--In any administrative hearing or appeal or
civil action brought under this section, the Secretary shall have the
burden of demonstrating by clear and convincing evidence the validity
of the grounds for rejecting a final offer made under subsection (c) or
the grounds for a reassumption under subsection (b).
``(e) Good Faith.--
``(1) In general.--In the negotiation of compacts and
funding agreements, the Secretary shall at all times negotiate
in good faith to maximize implementation of the self-governance
policy.
``(2) Policy.--The Secretary shall carry out this Act in a
manner that maximizes the policy of tribal self-governance.
``(f) Savings.--To the extent that included programs carried out by
Indian tribes under this title reduce the administrative or other
responsibilities of the Secretary with respect to the operation of
Indian programs and result in savings that have not otherwise been
included in the amount of tribal shares and other funds determined
under section 409(c), the Secretary shall make such savings available
to the Indian tribes, inter-tribal consortia, or tribal organizations
for the provision of additional services to program beneficiaries in a
manner equitable to directly served, contracted, and included programs.
``(g) Trust Responsibility.--The Secretary may not waive, modify,
or diminish in any way the trust responsibility of the United States
with respect to Indian tribes and individual Indians that exists under
treaties, Executive orders, other laws, or court decisions.
``(h) Decisionmaker.--A decision that constitutes final agency
action and relates to an appeal within the Department brought under
subsection (c)(4) may be made--
``(1) by an official of the Department who holds a position
at a higher organizational level within the Department than the
level of the departmental agency in which the decision that is the
subject of the appeal was made; or
``(2) by an administrative law judge.
``(i) Rule of Construction.--Each provision of this title and each
provision of a compact or funding agreement shall be liberally
construed for the benefit of the Indian tribe participating in self-
governance, and any ambiguity shall be resolved in favor of the Indian
tribe.

``SEC. 408. CONSTRUCTION PROGRAMS AND CONSTRUCTION PROJECTS.

``(a) In General.--An Indian tribe participating in self-governance
may carry out a construction program or construction project under this
title in the same manner as the Indian tribe carries out other included
programs under this title, consistent with the provisions of all
applicable Federal laws.
``(b) Federal Functions.--An Indian tribe participating in self-
governance may, in carrying out construction projects under this title,
elect to assume all Federal responsibilities under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), the National
Historic Preservation Act (16 U.S.C. 470 et seq.), and related
provisions of law that would apply if the Secretary were to carry out a
construction project, by adopting a resolution--
``(1) designating a certifying officer to represent the
Indian tribe and to assume the status of a responsible Federal
official under those laws; and
``(2) accepting the jurisdiction of the Federal courts for
the purpose of enforcement of the responsibilities of the
responsible Federal official under applicable environmental
law.
``(c) Negotiations.--
``(1) In general.--In accordance with all applicable
Federal laws, a construction program or construction project
shall be treated in the same manner and be subject to all
provisions of this Act as are all other tribal assumptions of
included programs under this Act.
``(2) Construction projects.--A provision shall be included
in the funding agreement that, for each construction project--
``(A) states the approximate start and completion
dates of the construction project, which may extend for
1 or more years;
``(B) provides a general description of the
construction project;
``(C) states the responsibilities of the Indian
tribe and the Secretary with respect to the
construction project;
``(D) describes--
``(i) the ways in which the Indian tribe
will address project-related environmental
considerations; and
``(ii) the standards by which the Indian
tribe will accomplish the construction project;
and
``(E) the amount of funds provided for the
construction project.
``(d) Codes and Standards; Tribal Assurances.--A funding agreement
shall contain a certification by the Indian tribe that the Indian tribe
will establish and enforce procedures designed to ensure that all
construction-related included programs carried out through the funding
agreement adhere to building codes and other codes and architectural
and engineering standards (including public health and safety
standards) identified by the Indian tribe in the funding agreement,
which codes and standards shall be in conformity with nationally
recognized standards for comparable projects in comparable locations.
``(e) Responsibility for Completion.--The Indian tribe shall assume
responsibility for the successful completion of a construction project
in accordance with the funding agreement.
``(f) Funding.--
``(1) In general.--At the option of an Indian tribe, full
funding for a construction program or construction project
carried out under this title shall be included in a funding
agreement as an annual advance payment.
``(2) Entitlement.--Notwithstanding the annual advance
payment provisions or any other provision of law, an Indian
tribe shall be entitled to receive in its initial funding
agreement all funds made available to the Secretary for
multiyear construction programs and projects carried out under
this title.
``(3) Contingency funds.--The Secretary shall include
associated project contingency funds in an advance payment
described in paragraph (1), and the Indian tribe shall be
responsible for the management of the contingency funds
included in the funding agreement.
``(4) Reallocation of savings.--
``(A) In general.--Notwithstanding any other
provision of an annual Act of appropriation or other
Federal law, an Indian tribe may reallocate any
financial savings realized by the Indian tribe arising
from efficiencies in the design, construction, or any
other aspect of a construction program or construction
project.
``(B) Purposes.--A reallocation under subparagraph
(A) shall be for construction-related activity purposes
generally similar to those for which the funds were
appropriated and distributed to the Indian tribe under
the funding agreement.
``(g) Approval.--
``(1) In general.--If the planning and design documents for
a construction project are prepared by an Indian tribe in a
manner that is consistent with the certification given by the
Indian tribe as required under subsection (d), approval by the
Secretary of a funding agreement providing for the assumption
of the construction project shall be deemed to be an approval
by the Secretary of the construction project planning and
design documents.
``(2) Reports.--The Indian tribe shall provide the
Secretary with construction project progress and financial
reports not less than semiannually.
``(3) Inspections.--The Secretary may conduct onsite
project inspections at a construction project semiannually or
on an alternate schedule agreed to by the Secretary and the
Indian tribe.
``(h) Wages.--
``(1) In general.--All laborers and mechanics employed by a
contractor or subcontractor in the construction, alteration, or
repair (including painting and decorating) of a building or
other facility in connection with a construction project funded
by the United States under this title shall be paid wages at
not less than the amounts of wages prevailing on similar
construction in the locality as determined by the Secretary of
Labor in accordance with subchapter IV of chapter 31 of title
40, United States Code.
``(2) Authority.--With respect to construction, alteration,
or repair work to which that subchapter is applicable under
this subsection, the Secretary of Labor shall have the
authority and functions specified in the Reorganization Plan
numbered 14, of 1950.
``(3) Applicability of subsection.--Notwithstanding any
other provision of law, this subsection does not apply to any
portion of a construction project carried out under this Act--
``(A) that is funded from a non-Federal source,
regardless of whether the non-Federal funds are
included with Federal funds for administrative
convenience; or
``(B) that is performed by a laborer or mechanic
employed directly by an Indian tribe or tribal
organization.
``(4) Applicability of tribal law.--This subsection does
not apply to a compact or funding agreement if the compact,
self-determination contract, or funding agreement is otherwise
covered by a law (including a regulation) adopted by an Indian
tribe that requires the payment of not less than prevailing
wages, as determined by the Indian tribe.
``(i) Applicability of Other Law.--Unless otherwise agreed to by
the Indian tribe, no provision of the Office of Federal Procurement
Policy Act (41 U.S.C. 401 et seq.), the Federal Acquisition Regulation,
or any other law or regulation pertaining to Federal procurement
(including Executive orders) shall apply to any construction program or
project conducted under this title.

``SEC. 409. PAYMENT.

``(a) In General.--At the request of the governing body of the
Indian tribe and under the terms of a funding agreement, the Secretary
shall provide funding to the Indian tribe to carry out the funding
agreement.
``(b) Advance Annual Payment.--At the option of the Indian tribe, a
funding agreement shall provide for an advance annual payment to an
Indian tribe.
``(c) Amount.--Subject to subsection (e) and sections 405 and 406
of this title, the Secretary shall provide funds to the Indian tribe
under a funding agreement for included programs in the amount that is
equal to the amount that the Indian tribe would have been entitled to
receive under contracts and grants under this Act (including amounts
for direct program and contract support costs and, in addition, any
funds that are specifically or functionally related to the provision by
the Secretary of services and benefits to the Indian tribe or its
members) without regard to the organization level within the Federal
agency in which the included programs are carried out.
``(d) Timing.--Unless the funding agreement provides otherwise, the
transfer of funds shall be made not later than 10 days after the
apportionment of funds by the Office of Management and Budget to the
Department.
``(e) Availability.--Funds for trust services to individual Indians
shall be available under a funding agreement only to the extent that
the same services that would have been provided by the Secretary are
provided to individual Indians by the Indian tribe.
``(f) Multiyear Funding.--A funding agreement may provide for
multiyear funding.
``(g) Limitation on Authority of the Secretary.--The Secretary
shall not--
``(1) fail to transfer to an Indian tribe its full share of
any central, headquarters, regional, area, or service unit
office or other funds due under this Act, except as required by
Federal law;
``(2) withhold any portion of such funds for transfer over
a period of years; or
``(3) reduce the amount of funds required under this Act--
``(A) to make funding available for self-governance
monitoring or administration by the Secretary;
``(B) in subsequent years, except as necessary as a
result of--
``(i) a reduction in appropriations from
the previous fiscal year for the program to be
included in a compact or funding agreement;
``(ii) a congressional directive in
legislation or an accompanying report;
``(iii) a tribal authorization;
``(iv) a change in the amount of pass-
through funds subject to the terms of the
funding agreement; or
``(v) completion of an activity under an
included program for which the funds were
provided;
``(C) to pay for Federal functions, including--
``(i) Federal pay costs;
``(ii) Federal employee retirement
benefits;
``(iii) automated data processing;
``(iv) technical assistance; and
``(v) monitoring of activities under this
Act; or
``(D) to pay for costs of Federal personnel
displaced by self-determination contracts under this
Act or self-governance.
``(h) Federal Resources.--If an Indian tribe elects to carry out a
compact or funding agreement with the use of Federal personnel, Federal
supplies (including supplies available from Federal warehouse
facilities), Federal supply sources (including lodging, airline
transportation, and other means of transportation including the use of
interagency motor pool vehicles), or other Federal resources (including
supplies, services, and resources available to the Secretary under any
procurement contracts in which the Department is eligible to
participate), the Secretary shall acquire and transfer such personnel,
supplies, or resources to the Indian tribe.
``(i) Prompt Payment Act.--Chapter 39 of title 31, United States
Code, shall apply to the transfer of funds due under a compact or
funding agreement authorized under this Act.
``(j) Interest or Other Income.--
``(1) In general.--An Indian tribe may retain interest or
income earned on any funds paid under a compact or funding
agreement to carry out governmental purposes.
``(2) No effect on other amounts.--The retention of
interest or income under paragraph (1) shall not diminish the
amount of funds that an Indian tribe is entitled to receive
under a funding agreement in the year in which the interest or
income is earned or in any subsequent fiscal year.
``(3) Investment standard.--Funds transferred under this
title shall be managed using the prudent investment standard.
``(k) Carryover of Funds.--
``(1) In general.--Notwithstanding any provision of an Act
of appropriation, all funds paid to an Indian tribe in
accordance with a compact or funding agreement shall remain
available until expended.
``(2) Effect of carryover.--If an Indian tribe elects to
carry over funding from 1 year to the next, the carryover shall
not diminish the amount of funds that the Indian tribe is
entitled to receive under a funding agreement in that fiscal
year or any subsequent fiscal year.
``(l) Limitation of Costs.--
``(1) In general.--An Indian tribe shall not be obligated
to continue performance that requires an expenditure of funds
in excess of the amount of funds transferred under a compact or
funding agreement.
``(2) Notice of insufficiency.--If at any time an Indian
tribe has reason to believe that the total amount provided for
a specific activity under a compact or funding agreement is
insufficient, the Indian tribe shall provide reasonable notice
of the insufficiency to the Secretary.
``(3) Suspension of performance.--If the Secretary does not
increase the amount of funds transferred under the funding
agreement, the Indian tribe may suspend performance of the
activity until such time as additional funds are transferred.

``SEC. 410. CIVIL ACTIONS.

``(a) Inclusion as Contract.--Except as provided in subsection (b),
for the purposes of section 110, the term `contract' shall include a
funding agreement.
``(b) Contracts With Professionals.--For the period during which a
funding agreement is in effect, section 2103 of the Revised Statutes
(25 U.S.C. 81), and section 16 of the Act of June 18, 1934 (25 U.S.C.
476) shall not apply to a contract between an attorney or other
professional and an Indian tribe.

``SEC. 411. FACILITATION.

``(a) In General.--Except as otherwise provided by law, the
Secretary shall interpret each Federal law (including a regulation) in
a manner that facilitates--
``(1) the inclusion of included programs in funding
agreements; and
``(2) the implementation of funding agreements.
``(b) Regulation Waiver.--
``(1) Request.--An Indian tribe may submit a written
request for a waiver to the Secretary identifying the specific
text in regulation sought to be waived and the basis for the
request.
``(2) Determination by the secretary.--Not later than 60
days after the date of receipt by the Secretary of a request
under paragraph (1), the Secretary shall approve or deny the
requested waiver in writing to the Indian tribe.
``(3) Ground for denial.--The Secretary may deny a request
for a waiver only on a specific finding by the Secretary that
the identified text in the regulation may not be waived because
such a waiver is prohibited by Federal law.
``(4) Failure to make determination.--If the Secretary
fails to approve or deny a waiver request within the time
required under paragraph (2), the Secretary shall be deemed to
have approved the request.
``(5) Finality.--The Secretary's decision shall be final
for the Department.

``SEC. 412. DISCLAIMERS.

``Nothing in this title expands or alters any statutory authority
of the Secretary so as to authorize the Secretary to enter into any
funding agreement under section 405(b)(2) or 415(c)(1)--
``(1) with respect to an inherent Federal function;
``(2) in a case in which the statute establishing a program
does not authorize the type of participation sought by the
Indian tribe (without regard to whether 1 or more Indian tribes
are identified in the authorizing statute); or
``(3) limits or reduces in any way the services, contracts,
or funds that any other Indian tribe or tribal organization is
eligible to receive under section 102 or any other applicable
Federal law.

``SEC. 413. APPLICABILITY OF OTHER PROVISIONS.

``(a) Mandatory Application.--Sections 5(d), 6, 102(c), 104,
105(f), 110, and 111 apply to compacts and funding agreements under
this title.
``(b) Discretionary Application.--
``(1) In general.--At the option of a participating Indian
tribe, any or all of the provisions of title I or title V shall
be incorporated in a compact or funding agreement.
``(2) Effect.--Each incorporated provision--
``(A) shall have the same effect as if the
provision were set out in full in this title; and
``(B) shall be deemed to supplement or replace any
related provision in this title and to apply to any
agency otherwise governed by this title.
``(3) Effective date.--If an Indian tribe requests
incorporation at the negotiation stage of a compact or funding
agreement, the incorporation--
``(A) shall be effective immediately; and
``(B) shall control the negotiation and resulting
compact and funding agreement.

``SEC. 414. BUDGET REQUEST.

``(a) Requirement of Annual Budget Request.--
``(1) In general.--The President shall identify in the
annual budget request submitted to Congress under section 1105
of title 31, United States Code, all funds necessary to fully
fund all funding agreements authorized under this title.
``(2) Duty of secretary.--The Secretary shall ensure that
there are included, in each budget request, requests for funds
in amounts that are sufficient for planning and negotiation
grants and sufficient to cover any shortfall in funding
identified under subsection (b).
``(3) Timing.--All funds included within funding agreements
shall be provided to the Office of Self-Governance not later
than 15 days after the date on which funds are apportioned to
the Department.
``(4) Distribution of funds.--The Office of Self-Governance
shall be responsible for distribution of all funds provided
under this title.
``(5) Rule of construction.--Nothing in this subsection
authorizes the Secretary to reduce the amount of funds that an
Indian tribe is otherwise entitled to receive under a funding
agreement or other applicable law.
``(b) Present Funding; Shortfalls.--In all budget requests, the
President shall identify the level of need presently funded and any
shortfall in funding (including direct program costs, tribal shares and
contract support costs) for each Indian tribe, either directly by the
Secretary of Interior, under self-determination contracts, or under
compacts and funding agreements.

``SEC. 415. REPORTS.

``(a) In General.--
``(1) Requirement.--On January 1 of each year, the
Secretary shall submit to Congress a report regarding the
administration of this title.
``(2) Analysis.--A report under paragraph (1) shall include
a detailed analysis of tribal unmet need for each Indian tribe,
either directly by the Secretary, under self-determination
contracts under title I, or under compacts and funding
agreements authorized under this subchapter.
``(3) No additional reporting requirements.--In preparing
reports under paragraph (1), the Secretary may not impose any
reporting requirement on participating Indian tribes not
otherwise provided for by this Act.
``(b) Contents.--A report under subsection (a) shall--
``(1) be compiled from information contained in funding
agreements, annual audit reports, and data of the Secretary
regarding the disposition of Federal funds;
``(2) identify--
``(A) the relative costs and benefits of self-
governance;
``(B) with particularity, all funds that are
specifically or functionally related to the provision
by the Secretary of services and benefits to self-
governance Indian tribes and members of Indian tribes;
``(C) the funds transferred to each Indian tribe
and the corresponding reduction in the Federal
bureaucracy;
``(D) the funding formula for individual tribal
shares of all Central Office funds, with the comments
of affected Indian tribes, developed under subsection
(d); and
``(E) amounts expended in the preceding fiscal year
to carry out inherent Federal functions, including an
identification of inherent Federal functions by type
and location;
``(3) contain a description of the methods used to
determine the individual tribal share of funds controlled by
all components of the Department (including funds assessed by
any other Federal agency) for inclusion in compacts or funding
agreements;
``(4) before being submitted to Congress, be distributed to
the Indian tribes for comment (with a comment period of not
less than 30 days); and
``(5) include the separate views and comments of each
Indian tribe or tribal organization.
``(c) Report on Non-BIA Programs.--
``(1) In general.--In order to optimize opportunities for
including non-Bureau of Indian Affairs included programs in
agreements with Indian tribes participating in self-governance
under this title, the Secretary shall--
``(A) review all included programs administered by
the Department, other than through the Bureau of Indian
Affairs, without regard to the agency or office
concerned;
``(B) not later than January 1,
2005, submit to Congress--
``(i) a list of all such included programs
that the Secretary determines, with the
concurrence of Indian tribes participating in
self-governance, are eligible to be included in
a funding agreement at the request of a
participating Indian tribe; and
``(ii) a list of all such included programs
for which Indian tribes have requested to
include in a funding agreement under section
405(b)(3) due to the special geographic,
historical, or cultural significance to the
Indian tribe, indicating whether each request
was granted or denied and stating the grounds
for any denial.
``(2) Programmatic targets.--The Secretary shall establish
programmatic targets, after consultation with Indian tribes
participating in self-governance, to encourage bureaus of the
Department to ensure that a significant portion of those
included programs are included in funding agreements.
``(3) Publication.--The lists and targets under paragraphs
(1) and (2) shall be published in the Federal Register and be
made available to any Indian tribe participating in self-
governance.
``(4) Annual review.--
``(A) In general.--The Secretary shall annually
review and publish in the Federal Register, after
consultation with Indian tribes participating in self-
governance, revised lists and programmatic targets.
``(B) Contents.--The revised lists and programmatic
targets shall include all included programs that were
eligible for contracting in the original list published
in the Federal Register in 1995, except for included
programs specifically determined not to be contractible
as a matter of law.
``(d) Report on Central Office Funds.--Not later than January 1,
 2005, the Secretary shall, in consultation with
Indian tribes, develop a funding formula to determine the individual
tribal share of funds controlled by the Central Office of the Bureau of
Indian Affairs for inclusion in the self-governance compacts.

``SEC. 416. REGULATIONS.

``(a) In General.--
``(1) Promulgation.--Not later than 90 days after the date
of the enactment of the Department of the Interior Tribal Self-
Governance Act of  2004, the Secretary
shall initiate procedures under subchapter III of chapter 5, of
title 5, United States Code, to negotiate and promulgate such
regulations as are necessary to carry out the amendments made
by that Act.
``(2) Publication of proposed regulations.--Proposed
regulations to implement the amendments shall be published in
the Federal Register not later than 1 year after the date of
enactment of that Act.
``(3) Expiration of authority.--The authority to promulgate
regulations under paragraph (1) shall expire on the date that
is 18 months after the date of enactment of that Act.
``(b) Committee.--
``(1) Membership.--A negotiated rulemaking committee
established under section 565 of title 5, United States Code,
to carry out this section shall have as its members only
Federal and tribal government representatives.
``(2) Lead agency.-- Among the Federal representatives, the
Office of Self-Governance shall be the lead agency for the
Department of the Interior.
``(c) Adaptation of Procedures.--The Secretary shall adapt the
negotiated rulemaking procedures to the unique context of self-
governance and the government-to-government relationship between the
United States and Indian tribes.
``(d) Effect.--
``(1) Repeal.--All regulatory provisions under part 1000 of
title 25, Code of Federal Regulations, are repealed on the date
of enactment of the Department of the Interior Tribal Self-
Governance Act of  2004.
``(2) Effectiveness without regard to regulations.--The
lack of promulgated regulations shall not limit the effect of
this Act.
``(3) Interim provision.--Notwithstanding this subsection,
any regulation under part 1000 of title 25, Code of Federal
Regulations, shall remain in effect, at an Indian tribe's
option, in implementing compacts until regulations are
promulgated.

``SEC. 417. EFFECT OF CIRCULARS, POLICIES, MANUALS, GUIDANCES, AND
RULES.

``Unless expressly agreed to by a participating Indian tribe in a
compact or funding agreement, the participating Indian tribe shall not
be subject to any agency circular, policy, manual, guidance, or rule
adopted by the Department, except for--
``(1) the eligibility provisions of section 105(g); and
``(2) regulations promulgated under section 416.

``SEC. 418. APPEALS.

``In any administrative appeal or civil action for judicial review
of any decision made by the Secretary under this title, the Secretary
shall have the burden of proof of demonstrating by clear and convincing
evidence--
``(1) the validity of the grounds for the decision; and
``(2) the consistency of the decision with the provisions
and policies of this title.

``SEC. 419. AUTHORIZATION OF APPROPRIATIONS.

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

Calendar No. 804

108th CONGRESS

2d Session

S. 1715

[Report No. 108-413]

_______________________________________________________________________

A BILL

To amend the Indian Self-Determination and Education Assistance Act to
provide further self-governance by Indian tribes.

_______________________________________________________________________

November 16, 2004

Reported with amendments