SUBCHAPTER IV—TRIBAL SELF-GOVERNANCE—DEPARTMENT OF THE INTERIOR

§5361. Definitions

In this subchapter:

(1) Compact

The term "compact" means a self-governance compact entered into under section 5364 of this title.

(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 5363 of this title.

(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 for a program administered by an Indian Tribe under a compact or funding agreement.

(6) Inherent Federal function

The term "inherent Federal function" means a Federal function that may not legally be delegated to an Indian Tribe.

(7) Non-BIA program

The term "non-BIA program" means all or a portion of a program, function, service, or activity that is administered by any bureau, service, office, or agency of the Department of the Interior other than—

(A) the Bureau of Indian Affairs;

(B) the Office of the Assistant Secretary for Indian Affairs; or

(C) the Office of the Special Trustee for American Indians.

(8) Program

The term "program" means any program, function, service, or activity (or portion thereof) within the Department that is included in a funding agreement.

(9) Secretary

The term "Secretary" means the Secretary of the Interior.

(10) Self-determination contract

The term "self-determination contract" means a self-determination contract entered into under section 5321 of this title.

(11) Self-governance

The term "self-governance" means the Tribal Self-Governance Program established under section 5362 of this title.

(12) 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 for American Indians, 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.

(13) Tribal water rights settlement

The term "Tribal water rights settlement" means any settlement, compact, or other agreement expressly ratified or approved by an Act of Congress that—

(A) includes an Indian Tribe and the United States as parties; and

(B) quantifies or otherwise defines any water right of the Indian Tribe.

(Pub. L. 93–638, title IV, §401, as added Pub. L. 103–413, title II, §204, Oct. 25, 1994, 108 Stat. 4271; Pub. L. 116–180, title I, §101(b), Oct. 21, 2020, 134 Stat. 858.)

Editorial Notes

Codification

Section was formerly classified to section 458aa of this title prior to editorial reclassification and renumbering as this section.

Amendments

2020—Pub. L. 116–180 amended section generally. Prior to amendment, section related to establishment of a Tribal Self-Governance program. See section 5362 of this title.

Statutory Notes and Related Subsidiaries

Short Title

For short title of this subchapter as the "Tribal Self-Governance Act of 1994", see section 201 of Pub. L. 103–413, set out as a Short Title of 1994 Amendment note under section 5301 of this title.

Construction of 2020 Amendment

Pub. L. 116–180, title I, §101(a), Oct. 21, 2020, 134 Stat. 857, provided that: "Nothing in this Act [see Short Title of 2020 Amendment note set out under section 5301 of this title], or the amendments made by this Act, shall be construed—

"(1) to modify, limit, expand, or otherwise affect—

"(A) the authority of the Secretary of the Interior, as provided for under the Indian Self-Determination and Education Assistance Act [25 U.S.C. 5301 et seq.] (as in effect on the day before the date of enactment of this Act [Oct. 21, 2020]), regarding—

"(i) the inclusion of any non-BIA program (as defined in section 401 of the Indian Self-Determination and Education Assistance Act [25 U.S.C. 5361]) in a self-determination contract or funding agreement under section 403(c) of such Act [25 U.S.C. 5363(c)] (as so in effect); or

"(ii) the implementation of any contract or agreement described in clause (i) that is in effect on the day described in subparagraph (A);

"(B) the meaning, application, or effect of any Tribal water rights settlement, including the performance required of a party thereto or any payment or funding obligation thereunder;

"(C) the authority, jurisdiction, or responsibility of a State to manage, control, or regulate fish and wildlife under State law (including regulations) on land or water in the State, including Federal public land;

"(D) except for the authority provided to the Secretary as described in subparagraph (A), the applicability or effect of any Federal law related to the protection or management of fish or wildlife; or

"(E) any treaty-reserved right or other right of any Indian Tribe as recognized by any other means, including treaties or agreements with the United States, Executive orders, statutes, regulations, or case law; or

"(2) to authorize any provision of a contract or agreement that is not consistent with the terms of a Tribal water rights settlement."

Application of Other Provisions

Pub. L. 116–180, title II, §201(d), Oct. 21, 2020, 134 Stat. 879, provided that: "Sections 4, 5, 6, 7, 102(c), 104, 105(a)(1), 105(f), 110, and 111 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304, 5305, 5306, 5307, 5321(c), 5323, 5324(a)(1), 5324(f), 5331, and 5332) and section 314 of the Department of the Interior and Related Agencies Appropriations Act, 1991 (Public Law 101–512; 104 Stat. 1959) [25 U.S.C. 5321 note], apply to compacts and funding agreements entered into under title IV of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5361 et seq.)."

Congressional Statement of Findings

Pub. L. 103–413, title II, §202, Oct. 25, 1994, 108 Stat. 4270, provided that: "Congress finds that—

"(1) the tribal right of self-government flows from the inherent sovereignty of Indian tribes and nations;

"(2) the United States recognizes a special government-to-government relationship with Indian tribes, including the right of the tribes to self-governance, as reflected in the Constitution, treaties, Federal statutes, and the course of dealings of the United States with Indian tribes;

"(3) although progress has been made, the Federal bureaucracy, with its centralized rules and regulations, has eroded tribal self-governance and dominates tribal affairs;

"(4) the Tribal Self-Governance Demonstration Project [see Pub. L. 93–638, title III, as added by Pub. L. 100–472, title II, §209, Oct. 5, 1988, 102 Stat. 2296, formerly set out as a note under former 25 U.S.C. 450f] was designed to improve and perpetuate the government-to-government relationship between Indian tribes and the United States and to strengthen tribal control over Federal funding and program management; and

"(5) Congress has reviewed the results of the Tribal Self-Governance Demonstration Project and finds that—

"(A) transferring control to tribal governments, upon tribal request, over funding and decisionmaking for Federal programs, services, functions, and activities, or portions thereof, is an effective way to implement the Federal policy of government-to-government relations with Indian tribes; and

"(B) transferring control to tribal governments, upon tribal request, over funding and decisionmaking for Federal programs, services, functions, and activities strengthens the Federal policy of Indian self-determination."

Congressional Declaration of Policy

Pub. L. 103–413, title II, §203, Oct. 25, 1994, 108 Stat. 4271, provided that: "It is the policy of this title [enacting this subchapter] to permanently establish and implement tribal self-governance—

"(1) to enable the United States to maintain and improve its unique and continuing relationship with, and responsibility to, Indian tribes;

"(2) to permit each Indian tribe to choose the extent of the participation of such tribe in self-governance;

"(3) to coexist with the provisions of the Indian Self-Determination Act [title I of Pub. L. 93–638, see Short Title note set out under section 5301 of this title] relating to the provision of Indian services by designated Federal agencies;

"(4) to ensure the continuation of the trust responsibility of the United States to Indian tribes and Indian individuals;

"(5) to permit an orderly transition from Federal domination of programs and services to provide Indian tribes with meaningful authority to plan, conduct, redesign, and administer programs, services, functions, and activities that meet the needs of the individual tribal communities; and

"(6) to provide for an orderly transition through a planned and measurable parallel reduction in the Federal bureaucracy."

§5362. 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 not more than 50 new Indian Tribes per year from those tribes eligible under subsection (c) to participate in self-governance.

(B) Joint participation

On the request of each participating Indian Tribe, 2 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 subchapter, 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 as organization

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 or a compact or funding agreement 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 5321 and 5324(i) of this title, 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 subchapter through a self-determination contract under subchapter 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 5304(h) of this title.

(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.

(Pub. L. 93–638, title IV, §402, as added Pub. L. 103–413, title II, §204, Oct. 25, 1994, 108 Stat. 4272; amended Pub. L. 104–208, div. A, title I, §101(d) [title I, §117], Sept. 30, 1996, 110 Stat. 3009–181, 3009-201; Pub. L. 116–180, title I, §101(c), Oct. 21, 2020, 134 Stat. 859.)

Editorial Notes

References in Text

Subchapter I, referred to in subsec. (b)(4)(F), was in the original "title I", meaning title I of Pub. L. 93–638, known as the Indian Self-Determination Act, which is classified principally to subchapter I (§5321 et seq.) of this chapter. For complete classification of title I to the Code, see Short Title note set out under section 5301 of this title and Tables.

Codification

Section was formerly classified to section 458bb of this title prior to editorial reclassification and renumbering as this section.

Amendments

2020—Pub. L. 116–180 amended section generally. Prior to amendment, section related to selection of Indian tribes to participate in Self-Governance.

1996—Subsec. (b)(1). Pub. L. 104–208 amended par. (1) generally. Prior to amendment, par. (1) read as follows: "In addition to those Indian tribes participating in Self-Governance under subsection (a) of this section, the Secretary, acting through the Director of the Office of Self-Governance, may select up to 20 new tribes per year from the applicant pool described in subsection (c) of this section to participate in Self-Governance."

§5363. Funding agreements

(a) Authorization

The Secretary shall, on the request of any Indian Tribe or Tribal organization, negotiate and 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, the Office of the Assistant Secretary for Indian Affairs, and the Office of the Special Trustee for American Indians, without regard to the agency or 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—

(A) any program, service, function, and activity, or portion thereof, administered under the authority of—

(i) the Act of April 16, 1934 (25 U.S.C. 452 et seq.); ¹ and

(ii) section 13 of this title;

(B) 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; and

(C) any other program, service, function, or activity (or portion thereof) that is provided through the Bureau of Indian Affairs, the Office of the Assistant Secretary for Indian Affairs, or the Office of the Special Trustee for American Indians 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 5372(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.

(c) Additional activities

Each funding agreement negotiated pursuant to subsections (a) and (b) of this section may, in accordance to such additional terms as the parties deem appropriate, also include other programs, services, functions, and activities, or portions thereof, administered by the Secretary of the Interior which are of special geographic, historical, or cultural significance to the participating Indian tribe requesting a compact.

(d) Provisions relating to Secretary

Funding agreements negotiated between the Secretary and an Indian tribe shall include provisions—

(1) to monitor the performance of trust functions by the tribe through the annual trust evaluation, and

(2) for the Secretary to reassume a program, service, function, or activity, or portions thereof, if there is a finding of imminent jeopardy to a physical trust asset, natural resources, or public health and safety.

(e) Construction projects

(1) Regarding construction programs or projects, the Secretary and Indian tribes may negotiate for the inclusion of specific provisions of division B (except sections 1123, 2303, 2304, and 2313) of subtitle I of title 41 and Federal acquisition regulations in any funding agreement entered into under this chapter. Absent a negotiated agreement, such provisions and regulatory requirements shall not apply.

(2) In all construction projects performed pursuant to this subchapter, the Secretary shall ensure that proper health and safety standards are provided for in the funding agreements.

(f) Submission

Not later than 90 days before the proposed effective date of an agreement entered into under this section, the Secretary shall submit a copy of such agreement to each Indian Tribe that is served by the Agency that is serving the tribe that is a party to the funding agreement.

(g) Payment

(1) At the request of the governing body of the tribe and under the terms of an agreement entered into under this section, the Secretary shall provide funding to the tribe to carry out the agreement.

(2) The funding agreements authorized by this subchapter and title III of this Act shall provide for advance payments to the tribes in the form of annual or semi-annual installments at the discretion of the tribes.

(3) Subject to paragraph (4) of this subsection and paragraphs (1) through (3) of subsection (b) of this section, the Secretary shall provide funds to the tribe under an agreement under this subchapter for programs, services, functions, and activities, or portions thereof, in an amount equal to the amount that the tribe would have been eligible to receive under contracts and grants under this chapter, including amounts for direct program and contract support costs and, in addition, any funds that are specifically or functionally related to the provision by the Secretary of services and benefits to the tribe or its members, without regard to the organization level within the Department where such functions are carried out.

(4) Funds for trust services to individual Indians shall be available under an agreement entered into under this section only to the extent that the same services that would have been provided by the Secretary are provided to individual Indians by the tribe.

(h) Civil actions

(1) Except as provided in paragraph (2), for the purposes of section 5331 of this title, the term "contract" shall include agreements entered into under this subchapter.

(2) For the period that an agreement entered into under this subchapter is in effect, the provisions of section 81 of this title, section 5123 of this title, and the Act of July 3, 1952 (25 U.S.C. 82a), shall not apply to attorney and other professional contracts by Indian tribal governments participating in Self-Governance under this subchapter.

(i) Facilitation

(1) Except as otherwise provided by law, the Secretary shall interpret each Federal law and regulation in a manner that will facilitate—

(A) the inclusion of programs, services, functions, and activities in the agreements entered into under this section; and

(B) the implementation of agreements entered into under this section.

(2)(A) A tribe may submit a written request for a waiver to the Secretary identifying the regulation sought to be waived and the basis for the request.

(B) Not later than 60 days after receipt by the Secretary of a written request by a tribe to waive application of a Federal regulation for an agreement entered into under this section, the Secretary shall either approve or deny the requested waiver in writing to the tribe. A denial may be made only upon a specific finding by the Secretary that identified language in the regulation may not be waived because such waiver is prohibited by Federal law. The Secretary's decision shall be final for the Department.

(j) Funds

All funds provided under funding agreements entered into pursuant to this chapter, and all funds provided under contracts or grants made pursuant to this chapter, shall be treated as non-Federal funds for purposes of meeting matching requirements under any other Federal law.

(k) Disclaimer

Nothing in this section is intended or shall be construed to expand or alter existing statutory authorities in the Secretary so as to authorize the Secretary to enter into any agreement under subsection (b)(2) of this section and section 5372(c) of this title with respect to functions that are inherently Federal or where the statute establishing the existing program does not authorize the type of participation sought by the tribe: Provided, however an Indian tribe or tribes need not be identified in the authorizing statute in order for a program or element of a program to be included in a compact under subsection (b)(2) of this section.

(l) Incorporate self-determination provisions

At the option of a participating tribe or tribes, any or all provisions of subchapter I of this chapter shall be made part of an agreement entered into under title III of this Act or this subchapter. The Secretary is obligated to include such provisions at the option of the participating tribe or tribes. If such provision is incorporated it shall have the same force and effect as if set out in full in title III or this subchapter.

(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 2007 of this title.

(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) In general

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 5325(a) of this title) 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.

(B) Limitations

Notwithstanding subparagraph (A), a funding agreement shall not specify funding associated with a program described in subsection (b)(2) or (c) unless the Secretary agrees.

(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 5366(c) of this title.

(3) Existing funding agreements

An Indian Tribe that was participating in self-governance under this subchapter on October 21, 2020, 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 subchapter; or

(B) to negotiate a new funding agreement in a manner consistent with this subchapter.

(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.

(Pub. L. 93–638, title IV, §403, as added Pub. L. 103–413, title II, §204, Oct. 25, 1994, 108 Stat. 4272; amended Pub. L. 104–109, §19, Feb. 12, 1996, 110 Stat. 766; Pub. L. 105–244, title IX, §901(d), Oct. 7, 1998, 112 Stat. 1828; Pub. L. 106–568, title VIII, §812(b), Dec. 27, 2000, 114 Stat. 2917; Pub. L. 110–315, title IX, §941(k)(2)(H), Aug. 14, 2008, 122 Stat. 3467; Pub. L. 116–180, title I, §101(d), Oct. 21, 2020, 134 Stat. 862; Pub. L. 116–260, div. DD, §13(a)(3), Dec. 27, 2020, 134 Stat. 3033.)

Editorial Notes

References in Text

Act of April 16, 1934 (25 U.S.C. 452 et seq.), referred to in subsec. (b)(1)(A)(i), is act Apr. 16, 1934, ch. 147, 48 Stat. 596, popularly known as the Johnson-O'Malley Act, which was classified generally to section 452 et seq. of this title prior to editorial reclassification as section 5342 et seq. of this title. For complete classification of this Act to the Code, see Short Title note set out under section 5301 of this title and Tables.

This chapter, referred to in subsecs. (e)(1), (g)(3), and (j), was in the original "this Act", meaning Pub. L. 93–638, Jan. 4, 1975, 88 Stat. 2203, known as the Indian Self-Determination and Education Assistance Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 5301 of this title and Tables.

Title III of this Act, referred to in subsecs. (g)(2) and (l), is title III of Pub. L. 93–638, as added by Pub. L. 100–472, title II, §209, Oct. 5, 1988, 102 Stat. 2296, which was set out as a note under former section 450f of this title prior to repeal by Pub. L. 106–260, §10, Aug. 18, 2000, 114 Stat. 734.

The Act of July 3, 1952, referred to in subsec. (h)(2), is act July 3, 1952, ch. 549, 66 Stat. 323, which enacted section 82a of this title and provisions set out as a note under section 82a of this title.

Subchapter I of this chapter, referred to in subsec. (l), was in the original "title I of this Act", meaning title I of Pub. L. 93–638, known as the Indian Self-Determination Act, which is classified principally to subchapter I (§5321 et seq.) of this chapter. For complete classification of title I to the Code, see Short Title note set out under section 5301 of this title and Tables.

The Tribally Controlled Colleges and Universities Assistance Act of 1978, referred to in subsec. (m)(1)(A), is Pub. L. 95–471, Oct. 17, 1978, 92 Stat. 1325, which is classified principally to chapter 20 (§1801 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.

Codification

Section was formerly classified to section 458cc of this title prior to editorial reclassification and renumbering as this section.

In subsec. (e)(1), "division B (except sections 1123, 2303, 2304, and 2313) of subtitle I of title 41" substituted for "the Office of Federal Procurement and Policy Act" on authority of Pub. L. 111–350, §6(c), Jan. 4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public Contracts.

Amendments

2020—Subsec. (a). Pub. L. 116–180, §101(d)(1), added subsec. (a) and struck out former subsec. (a). Prior to amendment, text read as follows: "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."

Subsec. (b)(1). Pub. L. 116–180, §101(d)(2)(A), in introductory provisions, substituted "the Office of the Assistant Secretary for Indian Affairs, and the Office of the Special Trustee for American Indians, without regard to the agency or office of that Bureau or those Offices" for "without regard to the agency or office of the Bureau of Indian Affairs" and "and including—" for "and including", inserted subpar. (A) designation before "any program", added subpar. (C), and redesignated former subpars. (A), (B), and (C) as subpars. (A)(i), (A)(ii), and (B), respectively, and realigned margins.

Subsec. (b)(2). Pub. L. 116–180, §101(d)(2)(B), substituted "section 5372(c) of this title" for "section 5365(c) of this title" and inserted "and" at end.

Subsec. (b)(3). Pub. L. 116–180, §101(d)(2)(C), substituted period for semicolon at end.

Subsec. (b)(4). Pub. L. 116–260, which directed amendment of par. (4) by adding "and" at end of subpar. (A), striking out "and" at end of subpar. (B), and striking out subpar. (C), could not be executed due to intervening amendment by Pub. 116–180, §101(d)(2)(D). See note below.

Pub. L. 116–180, §101(d)(2)(D), struck out par. (4) which read as follows: "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 5321 of this title;".

Subsec. (b)(5) to (9). Pub. L. 116–180, §101(d)(2)(D), struck out pars. (5) to (9) which set out various requirements and responsibilities related to funding agreements.

Subsec. (f). Pub. L. 116–180, §101(d)(3), struck out "for review" after "Submission" in heading, substituted "such agreement to" for "such agreement to—", struck out par. (1) designation before "each Indian tribe", substituted "agreement." for "agreement;", and struck out pars. (2) and (3) which read as follows:

"(2) the Committee on Indian Affairs of the Senate; and

"(3) the Subcommittee on Native American Affairs of the Committee on Natural Resources of the House of Representatives."

Subsec. (k). Pub. L. 116–180, §101(d)(4), substituted "section 5372(c) of this title" for "section 5365(c)(1) of this title".

Subsecs. (m) to (p). Pub. L. 116–180, §101(d)(5), added subsecs. (m) to (p).

2008—Subsec. (b)(4)(A). Pub. L. 110–315 substituted "the Tribally Controlled Colleges and Universities Assistance Act of 1978" for "the Tribally Controlled College or University Assistance Act of 1978".

2000—Subsec. (h)(2). Pub. L. 106–568 struck out "and" before "section 5123 of this title" and substituted "and the Act of July 3, 1952 (25 U.S.C. 82a), shall not apply" for "shall not apply".

1998—Subsec. (b)(4)(A). Pub. L. 105–244 substituted "Tribally Controlled College or University Assistance Act of 1978" for "Tribally Controlled Community College Assistance Act of 1978".

1996—Subsec. (l). Pub. L. 104–109 added subsec. (l).

Statutory Notes and Related Subsidiaries

Effective Date of 1998 Amendment

Amendment by Pub. L. 105–244 effective Oct. 1, 1998, except as otherwise provided in Pub. L. 105–244, see section 3 of Pub. L. 105–244, set out as a note under section 1001 of Title 20, Education.

¹ See References in Text note below.

§5364. 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 subchapter, as in effect on October 21, 2020, 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 subchapter; or

(2) to negotiate a new compact in a manner consistent with this subchapter.

(Pub. L. 93–638, title IV, §404, as added Pub. L. 116–180, title I, §101(e), Oct. 21, 2020, 134 Stat. 864.)

Editorial Notes

Prior Provisions

A prior section 5364, Pub. L. 93–638, title IV, §404, as added Pub. L. 103–413, title II, §204, Oct. 25, 1994, 108 Stat. 4275, related to identification of funds in annual budget request, prior to repeal by Pub. L. 116–180, title I, §101(e), Oct. 21, 2020, 134 Stat. 864. See section 5371 of this title. Such section was formerly classified to section 458dd of this title prior to editorial reclassification and renumbering as section 5364.

§5365. 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 subchapter.

(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 shall apply to a funding agreement under this subchapter.

(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 5325 of this title; 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 5325(f) of this title.

(d) Redesign and consolidation

Except as provided in section 5367 of this title, an Indian Tribe may redesign or consolidate programs, or reallocate funds for programs, in a compact or funding agreement in any manner that the Indian Tribe determines to be in the best interest of the Indian community being served—

(1) 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; and

(2) except that, with respect to the reallocation, consolidation, and redesign of programs described in subsection (b)(2) or (c) of section 5363 of this title, 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 subchapter, the Indian Tribe—

(1) shall not be entitled to contract with the Secretary for funds under section 5321 of this title, 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.

(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.

(Pub. L. 93–638, title IV, §405, as added Pub. L. 116–180, title I, §101(e), Oct. 21, 2020, 134 Stat. 865.)

Editorial Notes

Prior Provisions

A prior section 5365, Pub. L. 93–638, title IV, §405, as added Pub. L. 103–413, title II, §204, Oct. 25, 1994, 108 Stat. 4276, related to reports, prior to repeal by Pub. L. 116–180, title I, §101(e), Oct. 21, 2020, 134 Stat. 864. See section 5372 of this title. Such section was formerly classified to section 458ee of this title prior to editorial reclassification and renumbering as section 5365.

§5366. 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 one or more of the officials designated pursuant to paragraph (4), the Secretary shall review and make a determination with respect to the final offer, except that the 60-day period may be extended for up to 30 days for circumstances beyond the control of the Secretary, upon written request by the Secretary 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

(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 Director of the Office of the Executive Secretariat and Regulatory Affairs shall be the designated official.

(5) No timely determination

If the Secretary fails to make a determination with respect to a final offer within the period specified in paragraph (2), including any extension agreed to under paragraph (3), the Secretary shall be deemed to have agreed to the offer, except that with respect to any compact or funding agreement provision concerning a program described under section 5363(c) of this title, the Secretary shall be deemed to have rejected the offer with respect to such provision and the terms of clauses (ii) through (iv) of paragraphs ¹ (6)(A) shall apply.

(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 5325(a)(1) of this title;

(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 5363(c) of this title;

(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 5362(c) of this title;

(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 5363(b)(2) of this title, the program or the portion of the program is not otherwise available to Indian Tribes or Indians under section 5321(a)(1)(E) of this title;

(ii) provide technical assistance to overcome the objections stated in the notification required by clause (i);

(iii) provide the Indian Tribe with 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 such appeal, directly proceed to initiate an action in a United States district court under section 5331(a) of this title; 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, 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 subchapter 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 subchapter 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 5368(c) of this title, except for funding agreements entered into for programs under section 5363(c) of this title, 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 5363(c) of this title, 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) Decision maker

A decision that constitutes final agency action and relates to an appeal within the Department conducted under subsection (c)(6)(A)(iii) 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 101(a) of the PROGRESS for Indian Tribes Act, each provision of this subchapter 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.

(Pub. L. 93–638, title IV, §406, as added Pub. L. 116–180, title I, §101(e), Oct. 21, 2020, 134 Stat. 866.)

References in Text

Section 101(a) of the PROGRESS for Indian Tribes Act, referred to in subsec. (i), is section 101(a) of Pub. L. 116–180, which is set out as a note under section 5361 of this title.

Editorial Notes

Prior Provisions

A prior section 5366, Pub. L. 93–638, title IV, §406, as added Pub. L. 103–413, title II, §204, Oct. 25, 1994, 108 Stat. 4277; amended Pub. L. 105–277, div. A, §101(e) [title I, §133], Oct. 21, 1998, 112 Stat. 2681–231, 2681-264, set out disclaimers regarding construction of provisions of this chapter and subchapter. Such ection was formerly classified to section 458ff of this title prior to editorial reclassification and renumbering as section 5366.

¹ So in original. Probably should be "paragraph".

§5367. Construction programs and projects

(a) In general

Indian Tribes participating in Tribal self-governance may carry out any construction project included in a compact or funding agreement under this subchapter.

(b) Tribal option to carry out certain Federal environmental activities

In carrying out a construction project under this subchapter, 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.), division A of subtitle III of title 54, and related provisions of other 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, laws, 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, laws, 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 of 1969 (42 U.S.C. 4321 et seq.), division A of subtitle III of title 54, and other related provisions of law that are inherent Federal functions.

(d) Codes and standards

In carrying out a construction project under this subchapter, 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 subchapter, 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 subchapter, 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 subchapter 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 5324 of this title, 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 chapter, no provision of title 41, 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 carried out under this subchapter.

(j) Future funding

Upon completion of a facility constructed under this subchapter, 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.

(Pub. L. 93–638, title IV, §407, as added Pub. L. 116–180, title I, §101(e), Oct. 21, 2020, 134 Stat. 870.)

Editorial Notes

References in Text

The National Environmental Policy Act of 1969, referred to in subsecs. (b) and (c), is Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to chapter 55 (§4321 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 4321 of Title 42 and Tables.

This chapter, referred to in subsec. (i), was in the original "this Act", meaning Pub. L. 93–638, Jan. 4, 1975, 88 Stat. 2203, known as the Indian Self-Determination and Education Assistance Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 5301 of this title and Tables.

Prior Provisions

A prior section 5367, Pub. L. 93–638, title IV, §407, as added Pub. L. 103–413, title II, §204, Oct. 25, 1994, 108 Stat. 4277, related to regulations to carry out this subchapter, prior to repeal by Pub. L. 116–180, title I, §101(e), Oct. 21, 2020, 134 Stat. 864. See section 5373 of this title. Such section was formerly classified to section 458gg of this title prior to editorial reclassification and renumbering as section 5367.

§5368. 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 5363 and 5365 of this title, 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 chapter (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 subchapter, 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 October 21, 2020, 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 subchapter for programs eligible under paragraph (1) or (2) of section 5363(b) of this title, 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 subchapter—

(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 subchapter; or

(D) to pay for costs of Federal personnel displaced by self-determination contracts under this chapter or self-governance under this subchapter.

(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 subchapter.

(i) Prompt Payment Act

Chapter 39 of title 31 shall apply to the transfer of funds due under a compact or funding agreement authorized under this subchapter.

(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 subchapter 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 one 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 subchapter unless otherwise agreed by the parties to an applicable funding agreement.

(n) Applicability

Notwithstanding any other provision of this section, section 101(a) of the PROGRESS for Indian Tribes Act applies to subsections (a) through (m).

(Pub. L. 93–638, title IV, §408, as added Pub. L. 116–180, title I, §101(e), Oct. 21, 2020, 134 Stat. 872.)

Editorial Notes

References in Text

This chapter, referred to in subsecs. (c)(1) and (g)(3)(D), was in the original "this Act", meaning Pub. L. 93–638, Jan. 4, 1975, 88 Stat. 2203, known as the Indian Self-Determination and Education Assistance Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 5301 of this title and Tables.

Section 101(a) of the PROGRESS for Indian Tribes Act, referred to in subsec. (n), is section 101(a) of Pub. L. 116–180, which is set out as a note under section 5361 of this title.

Prior Provisions

A prior section 5368, Pub. L. 93–638, title IV, §408, as added Pub. L. 103–413, title II, §204, Oct. 25, 1994, 108 Stat. 4278, authorized appropriations, prior to repeal by Pub. L. 116–180, title I, §101(e), Oct. 21, 2020, 134 Stat. 864, 872. See section 5377 of this title. Such section was formerly classified to section 458hh of this title prior to editorial reclassification and renumbering as section 5368.

§5369. Facilitation

(a) In general

Except as otherwise provided by law (including section 101(a) of the PROGRESS for Indian Tribes Act), 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) 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.

(6) Failure to make determination

If the Secretary fails to make a determination with respect to a waiver request within the period specified in paragraph (2) (including any extension agreed to under paragraph (3)), the Secretary shall be deemed to have agreed to the request, except that for a waiver request relating to programs eligible under section 5363(b)(2) or section 5363(c) of this title, the Secretary shall be deemed to have denied the request.

(7) Finality

A decision of the Secretary under this section shall be final for the Department.

(Pub. L. 93–638, title IV, §409, as added Pub. L. 116–180, title I, §101(e), Oct. 21, 2020, 134 Stat. 874.)

Editorial Notes

References in Text

Section 101(a) of the PROGRESS for Indian Tribes Act, referred to in subsec. (a), is section 101(a) of Pub. L. 116–180, which is set out as a note under section 5361 of this title.

§5370. Discretionary application of other sections

(a) In general

Except as otherwise provided in section 201(d) of the PROGRESS for Indian Tribes Act, at the option of a participating Indian Tribe or Indian Tribes, any of the provisions of subchapter I may be incorporated in any compact or funding agreement under this subchapter. The inclusion of any such provision shall be subject to, and shall not conflict with, section 101(a) of such Act.

(b) Effect

Each incorporated provision under subsection (a) shall—

(1) have the same force and effect as if set out in full in this subchapter;

(2) supplement or replace any related provision in this subchapter; and

(3) apply to any agency otherwise governed by this subchapter.

(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.

(Pub. L. 93–638, title IV, §410, as added Pub. L. 116–180, title I, §101(e), Oct. 21, 2020, 134 Stat. 875.)

Editorial Notes

References in Text

Sections 101(a) and 201(d) of the PROGRESS for Indian Tribes Act, referred to in subsec. (a), are sections 101(a) and 201(d) of Pub. L. 116–180, which are set out as notes under section 5361 of this title.

Subchapter I, referred to in subsec. (a), was in the original "title I", meaning title I of Pub. L. 93–638, known as the Indian Self-Determination Act, which is classified principally to subchapter I (§5321 et seq.) of this chapter. For complete classification of title I to the Code, see Short Title note set out under section 5301 of this title and Tables.

§5371. Annual budget list

The Secretary shall list, in the annual budget request submitted to Congress under section 1105 of title 31, any funds proposed to be included in funding agreements authorized under this subchapter.

(Pub. L. 93–638, title IV, §411, as added Pub. L. 116–180, title I, §101(e), Oct. 21, 2020, 134 Stat. 876.)

Editorial Notes

Prior Provisions

Provisions similar to those in this section were contained in section 5364 of this title prior to repeal by Pub. L. 116–180.

§5372. 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 subchapter.

(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 subchapter.

(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 not 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 5363(c) of this title 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 programs

(1) In general

In order to optimize opportunities for including non-BIA programs in agreements with Indian Tribes participating in self-governance under this subchapter, the Secretary shall review all programs administered by the Department, other than through the Bureau of Indian Affairs, the Office of the Assistant Secretary for Indian Affairs, or the Office of the Special Trustee for American Indians, 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, 2020, 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.

(Pub. L. 93–638, title IV, §412, as added Pub. L. 116–180, title I, §101(e), Oct. 21, 2020, 134 Stat. 876.)

Editorial Notes

Prior Provisions

Provisions similar to those in this section were contained in section 5365 of this title prior to repeal by Pub. L. 116–180.

§5373. Regulations

(a) In general

(1) Promulgation

Not later than 90 days after October 21, 2020, the Secretary shall initiate procedures under subchapter III of chapter 5 of title 5 to negotiate and promulgate such regulations as are necessary to carry out this subchapter.

(2) Publication of proposed regulations

Proposed regulations to implement this subchapter shall be published in the Federal Register not later than 38 months after October 21, 2020.

(3) Expiration of authority

The authority to promulgate regulations under paragraph (1) shall expire on the date that is 50 months after October 21, 2020.

(b) Committee

(1) Membership

A negotiated rulemaking committee established pursuant to section 565 of title 5 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 chapter.

(2) Conflicting provisions

Subject to section 101(a) of the PROGRESS for Indian Tribes Act and except with respect to programs described under section 5363(c) of this title, this subchapter 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 subchapter.

(Pub. L. 93–638, title IV, §413, as added Pub. L. 116–180, title I, §101(e), Oct. 21, 2020, 134 Stat. 877; amended Pub. L. 118–15, div. B, title I, §2102, Sept. 30, 2023, 137 Stat. 82.)

Editorial Notes

References in Text

This chapter, referred to in subsec. (d)(1), was in the original "this Act", meaning Pub. L. 93–638, Jan. 4, 1975, 88 Stat. 2203, known as the Indian Self-Determination and Education Assistance Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 5301 of this title and Tables.

Section 101(a) of the PROGRESS for Indian Tribes Act, referred to in subsec. (d)(2), is section 101(a) of Pub. L. 116–180, which is set out as a note under section 5361 of this title.

Prior Provisions

Provisions similar to those in this section were contained in section 5367 of this title prior to repeal by Pub. L. 116–180.

Amendments

2023—Subsec. (a)(2). Pub. L. 118–15, §2102(1), substituted "38 months" for "21 months".

Subsec. (a)(3). Pub. L. 118–15, §2102(2), substituted "50 months" for "30 months".

§5374. 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 5324(g) of this title; and

(2) regulations promulgated pursuant to section 5373 of this title.

(Pub. L. 93–638, title IV, §414, as added Pub. L. 116–180, title I, §101(e), Oct. 21, 2020, 134 Stat. 878.)

§5375. Appeals

Except as provided in section 5366(d) of this title, in any administrative action, appeal, or civil action for judicial review of any decision made by the Secretary under this subchapter, 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 subchapter.

(Pub. L. 93–638, title IV, §415, as added Pub. L. 116–180, title I, §101(e), Oct. 21, 2020, 134 Stat. 878.)

§5376. 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 subchapter.

(Pub. L. 93–638, title IV, §416, as added Pub. L. 116–180, title I, §101(e), Oct. 21, 2020, 134 Stat. 878.)

Editorial Notes

References in Text

Section 314 of the Department of the Interior and Related Agencies Appropriations Act, 1991, referred to in text, is section 314 of Pub. L. 101–512, which is set out as a note under section 5321 of this title.

§5377. Authorization of appropriations

There are authorized to be appropriated such sums as may be necessary to carry out this subchapter.

(Pub. L. 93–638, title IV, §417, as added Pub. L. 116–180, title I, §101(e), Oct. 21, 2020, 134 Stat. 878.)

Editorial Notes

Prior Provisions

Provisions similar to those in this section were contained in section 5368 of this title prior to repeal by Pub. L. 116–180.