SUBCHAPTER V—TRIBAL SELF-GOVERNANCE—INDIAN HEALTH SERVICE
Editorial Notes
Codification
Subchapter is comprised of title V of
§5381. Definitions
(a) In general
In this subchapter:
(1) Construction project
The term "construction project"—
(A) means an organized noncontinuous undertaking to complete a specific set of predetermined objectives for the planning, environmental determination, design, construction, repair, improvement, or expansion of buildings or facilities, as described in a construction project agreement; and
(B) does not include construction program administration and activities described in paragraphs (1) through (3) of
(2) Construction project agreement
The term "construction project agreement" means a negotiated agreement between the Secretary and an Indian tribe, that at a minimum—
(A) establishes project phase start and completion dates;
(B) defines a specific scope of work and standards by which it will be accomplished;
(C) identifies the responsibilities of the Indian tribe and the Secretary;
(D) addresses environmental considerations;
(E) identifies the owner and operations and maintenance entity of the proposed work;
(F) provides a budget;
(G) provides a payment process; and
(H) establishes the duration of the agreement based on the time necessary to complete the specified scope of work, which may be 1 or more years.
(3) Gross mismanagement
The term "gross mismanagement" means a significant, clear, and convincing violation of a compact, funding agreement, or regulatory, or statutory requirements applicable to Federal funds transferred to an Indian tribe by a compact or funding agreement that results in a significant reduction of funds available for the programs, services, functions, or activities (or portions thereof) assumed by an Indian tribe.
(4) Inherent Federal functions
The term "inherent Federal functions" means those Federal functions which cannot legally be delegated to Indian tribes.
(5) Inter-tribal consortium
The term "inter-tribal consortium" means a coalition of two 1 more separate Indian tribes that join together for the purpose of participating in self-governance, including tribal organizations.
(6) Secretary
The term "Secretary" means the Secretary of Health and Human Services.
(7) Self-governance
The term "self-governance" means the program of self-governance established under
(8) Tribal share
The term "tribal share" means an Indian tribe's portion of all funds and resources that support secretarial programs, services, functions, and activities (or portions thereof) that are not required by the Secretary for performance of inherent Federal functions.
(b) Indian tribe
In any case in which an Indian tribe has authorized another Indian tribe, an inter-tribal consortium, or a tribal organization to plan for or carry out programs, services, functions, or activities (or portions thereof) on its behalf under this subchapter, 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 or in this subchapter). In such event, the term "Indian tribe" as used in this subchapter shall include such other authorized Indian tribe, inter-tribal consortium, or tribal organization.
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Editorial Notes
Codification
Section was formerly classified to
Another section 501 of
Statutory Notes and Related Subsidiaries
Effective Date
Findings
"(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 Indian 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, established under title III of the Indian Self-Determination and Education Assistance Act ([
"(5) although the Federal Government has made considerable strides in improving Indian health care, it has failed to fully meet its trust responsibilities and to satisfy its obligations to the Indian tribes under treaties and other laws; and
"(6) Congress has reviewed the results of the Tribal Self-Governance Demonstration Project and finds that transferring full control and funding to tribal governments, upon tribal request, over decision making for Federal programs, services, functions, and activities (or portions thereof)—
"(A) is an appropriate and effective means of implementing the Federal policy of government-to-government relations with Indian tribes; and
"(B) strengthens the Federal policy of Indian self-determination."
Declaration of Policy
"(1) to permanently establish and implement tribal self-governance within the Department of Health and Human Services;
"(2) to call for full cooperation from the Department of Health and Human Services and its constituent agencies in the implementation of tribal self-governance—
"(A) to enable the United States to maintain and improve its unique and continuing relationship with, and responsibility to, Indian tribes;
"(B) to permit each Indian tribe to choose the extent of its participation in self-governance in accordance with the provisions of the Indian Self-Determination and Education Assistance Act [
"(C) to ensure the continuation of the trust responsibility of the United States to Indian tribes and Indian individuals;
"(D) to affirm and enable the United States to fulfill its obligations to the Indian tribes under treaties and other laws;
"(E) to strengthen the government-to-government relationship between the United States and Indian tribes through direct and meaningful consultation with all tribes;
"(F) to permit an orderly transition from Federal domination of programs and services to provide Indian tribes with meaningful authority, control, funding, and discretion to plan, conduct, redesign, and administer programs, services, functions, and activities (or portions thereof) that meet the needs of the individual tribal communities;
"(G) to provide for a measurable parallel reduction in the Federal bureaucracy as programs, services, functions, and activities (or portion thereof) are assumed by Indian tribes;
"(H) to encourage the Secretary to identify all programs, services, functions, and activities (or portions thereof) of the Department of Health and Human Services that may be managed by an Indian tribe under this Act [see Short Title of 2000 Amendments note set out under
"(I) to provide Indian tribes with the earliest opportunity to administer programs, services, functions, and activities (or portions thereof) from throughout the Department of Health and Human Services."
1 So in original. Probably should be followed by "or".
§5382. Establishment
The Secretary shall establish and carry out a program within the Indian Health Service of the Department of Health and Human Services to be known as the "Tribal Self-Governance Program" in accordance with this subchapter.
(
Editorial Notes
Codification
Section was formerly classified to
Another section 502 of
§5383. Selection of participating Indian tribes
(a) Continuing participation
Each Indian tribe that is participating in the Tribal Self-Governance Demonstration Project under title III 1 on August 18, 2000, may elect to participate in self-governance under this subchapter under existing authority as reflected in tribal resolution.
(b) Additional participants
(1) In general
In addition to those Indian tribes participating in self-governance under subsection (a) of this section, each year an additional 50 Indian tribes that meet the eligibility criteria specified in subsection (c) of this section shall be entitled to participate in self-governance.
(2) Treatment of certain Indian tribes
(A) In general
An Indian tribe that has withdrawn from participation in an inter-tribal consortium or tribal organization, in whole or in part, shall be entitled to participate in self-governance provided the Indian tribe meets the eligibility criteria specified in subsection (c) of this section.
(B) Effect of withdrawal
If an Indian tribe has withdrawn from participation in an inter-tribal consortium or tribal organization, that Indian tribe shall be entitled to its tribal share of funds supporting those programs, services, functions, and activities (or portions thereof) that the Indian tribe will be carrying out under the compact and funding agreement of the Indian tribe.
(C) Participation in self-governance
In no event shall the withdrawal of an Indian tribe from an inter-tribal consortium or tribal organization affect the eligibility of the inter-tribal consortium or tribal organization to participate in self-governance.
(c) Applicant pool
(1) In general
The qualified applicant pool for self-governance shall consist of each Indian tribe that—
(A) successfully completes the planning phase described in subsection (d) of this section;
(B) has requested participation in self-governance by resolution or other official action by the governing body of each Indian tribe to be served; and
(C) has demonstrated, for 3 fiscal years, financial stability and financial management capability.
(2) Criteria for determining financial stability and financial management capacity
For purposes of this subsection, evidence that, during the 3-year period referred to in paragraph (1)(C), an Indian tribe had no uncorrected significant and material audit exceptions in the required annual audit of the Indian tribe's self-determination contracts or self-governance funding agreements with any Federal agency shall be conclusive evidence of the required stability and capability.
(d) Planning phase
Each Indian tribe seeking participation in self-governance shall complete a planning phase. The planning phase shall be conducted to the satisfaction of the Indian tribe and shall include—
(1) legal and budgetary research; and
(2) internal tribal government planning and organizational preparation relating to the administration of health care programs.
(e) Grants
Subject to the availability of appropriations, any Indian tribe meeting the requirements of paragraph (1)(B) and (C) of subsection (c) of this section shall be eligible for grants—
(1) to plan for participation in self-governance; and
(2) 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.
(f) Receipt of grant not required
Receipt of a grant under subsection (e) of this section shall not be a requirement of participation in self-governance.
(
Editorial Notes
References in Text
Title III, referred to in subsec. (a), means title III of
Codification
Section was formerly classified to
Another section 503 of
1 See References in Text note below.
§5384. Compacts
(a) Compact required
The Secretary shall negotiate and enter into a written compact with each Indian tribe participating in self-governance in a manner consistent with the Federal Government's trust responsibility, treaty obligations, and the government-to-government relationship between Indian tribes and the United States.
(b) Contents
Each compact required under subsection (a) of this section shall set forth the general terms of the government-to-government relationship between the Indian tribe and the Secretary, including such terms as the parties intend shall control year after year. Such compacts may only be amended by mutual agreement of the parties.
(c) Existing compacts
An Indian tribe participating in the Tribal Self-Governance Demonstration Project under title III 1 on August 18, 2000, shall have the option at any time after August 18, 2000, to—
(1) retain the Tribal Self-Governance Demonstration Project compact of that Indian tribe (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
(2) instead of retaining a compact or portion thereof under paragraph (1), negotiate a new compact in a manner consistent with the requirements of this subchapter.
(d) Term and effective date
The effective date of a compact shall be the date of the approval and execution by the Indian tribe or another date agreed upon by the parties, and shall remain in effect for so long as permitted by Federal law or until terminated by mutual written agreement, retrocession, or reassumption.
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Editorial Notes
References in Text
Title III, referred to in subsec. (c), means title III of
Codification
Section was formerly classified to
1 See References in Text note below.
§5385. Funding agreements
(a) Funding agreement required
The Secretary shall negotiate and enter into a written funding agreement with each Indian tribe participating in self-governance in a manner consistent with the Federal Government's trust responsibility, treaty obligations, and the government-to-government relationship between Indian tribes and the United States.
(b) Contents
(1) In general
Each funding agreement required under subsection (a) of this section shall, as determined by the Indian tribe, authorize the Indian tribe to plan, conduct, consolidate, administer, and receive full tribal share funding, including tribal shares of discretionary Indian Health Service competitive grants (excluding congressionally earmarked competitive grants), for all programs, services, functions, and activities (or portions thereof), that are carried out for the benefit of Indians because of their status as Indians without regard to the agency or office of the Indian Health Service within which the program, service, function, or activity (or portion thereof) is performed.
(2) Inclusion of certain programs, services, functions, and activities
Such programs, services, functions, or activities (or portions thereof) include all programs, services, functions, activities (or portions thereof), including grants (which may be added to a funding agreement after an award of such grants), with respect to which Indian tribes or Indians are primary or significant beneficiaries, administered by the Department of Health and Human Services through the Indian Health Service and all local, field, service unit, area, regional, and central headquarters or national office functions so administered under the authority of—
(A)
(B) the Act of April 16, 1934 (
(C) the Act of August 5, 1954 (
(D) the Indian Health Care Improvement Act (
(E) the Indian Alcohol and Substance Abuse Prevention and Treatment Act of 1986 (
(F) any other Act of Congress authorizing any agency of the Department of Health and Human Services to administer, carry out, or provide financial assistance to such a program, service, function or activity (or portions thereof) described in this section that is carried out for the benefit of Indians because of their status as Indians; or
(G) any other Act of Congress authorizing such a program, service, function, or activity (or portions thereof) carried out for the benefit of Indians under which appropriations are made available to any agency other than an agency within the Department of Health and Human Services, in any case in which the Secretary administers that program, service, function, or activity (or portion thereof).
(c) Inclusion in compact or funding agreement
It shall not be a requirement that an Indian tribe or Indians be identified in the authorizing statute for a program or element of a program to be eligible for inclusion in a compact or funding agreement under this subchapter.
(d) Funding agreement terms
Each funding agreement under this subchapter shall set forth—
(1) terms that generally identify the programs, services, functions, and activities (or portions thereof) to be performed or administered; and
(2) for the items identified in paragraph (1)—
(A) the general budget category assigned;
(B) the funds to be provided, including those funds to be provided on a recurring basis;
(C) the time and method of transfer of the funds;
(D) the responsibilities of the Secretary; and
(E) any other provision with respect to which the Indian tribe and the Secretary agree.
(e) Subsequent funding agreements
Absent notification from an Indian tribe that is withdrawing or retroceding the operation of one or more programs, services, functions, or activities (or portions thereof) identified in a funding agreement, or unless otherwise agreed to by the parties, each funding agreement shall remain in full force and effect until a subsequent funding agreement is executed, and the terms of the subsequent funding agreement shall be retroactive to the end of the term of the preceding funding agreement.
(f) Existing funding agreements
Each Indian tribe participating in the Tribal Self-Governance Demonstration Project established under title III 1 on August 18, 2000, shall have the option at any time thereafter to—
(1) retain the Tribal Self-Governance Demonstration Project funding agreement of that Indian tribe (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
(2) instead of retaining a funding agreement or portion thereof under paragraph (1), negotiate a new funding agreement in a manner consistent with the requirements of this subchapter.
(g) Stable base funding
At the option of an Indian tribe, a funding agreement may provide for a stable base budget specifying the recurring funds (including, for purposes of this provision, funds available under
(
Editorial Notes
References in Text
Act of April 16, 1934, referred to in subsec. (b)(2)(B), is act Apr. 16, 1934, ch. 147,
Act of August 5, 1954, referred to in subsec. (b)(2)(C), is act Aug. 5, 1954, ch. 658,
The Indian Health Care Improvement Act, referred to in subsec. (b)(2)(D), is
The Indian Alcohol and Substance Abuse Prevention and Treatment Act of 1986, referred to in subsec. (b)(2)(E), is subtitle C of title IV of
Title III, referred to in subsec. (f), means title III of
Codification
Section was formerly classified to
1 See References in Text note below.
§5386. General provisions
(a) Applicability
The provisions of this section shall apply to compacts and funding agreements negotiated under this subchapter and an Indian tribe may, at its option, include provisions that reflect such requirements in a compact or funding agreement.
(b) Conflicts of interest
Indian tribes participating in self-governance under this subchapter shall ensure that internal measures are in place to address conflicts of interest in the administration of self-governance programs, services, functions, or activities (or portions thereof).
(c) Audits
(1) Single Agency Audit Act
The provisions of
(2) Cost principles
An Indian tribe shall apply cost principles under the applicable Office of Management and Budget circular, except as modified by
(d) Records
(1) In general
Unless an Indian tribe specifies otherwise in the compact or funding agreement, records of the Indian tribe shall not be considered Federal records for purposes of
(2) Recordkeeping system
The Indian tribe shall maintain a recordkeeping system, and, after 30 days advance notice, provide the Secretary with reasonable access to such records to enable the Department of Health and Human Services to meet its minimum legal recordkeeping system requirements under
(e) Redesign and consolidation
An Indian tribe may redesign or consolidate programs, services, functions, and activities (or portions thereof) included in a funding agreement under
(f) Retrocession
An Indian tribe may retrocede, fully or partially, to the Secretary programs, services, functions, or activities (or portions thereof) included in the compact or funding agreement. Unless the Indian tribe rescinds the request for retrocession, such retrocession will become effective within the timeframe specified by the parties in the compact or funding agreement. In the absence of such a specification, such retrocession shall become effective on—
(1) the earlier of—
(A) 1 year after the date of submission of such request; or
(B) the date on which the funding agreement expires; or
(2) such date as may be mutually agreed upon by the Secretary and the Indian tribe.
(g) Withdrawal
(1) Process
(A) In general
An Indian tribe may fully or partially withdraw from a participating inter-tribal consortium or tribal organization its share of any program, function, service, or activity (or portions thereof) included in a compact or funding agreement.
(B) Effective date
The withdrawal referred to in subparagraph (A) shall become effective within the timeframe specified in the resolution which authorizes transfer to the participating tribal organization or inter-tribal consortium. In the absence of a specific timeframe set forth in the resolution, such withdrawal shall become effective on—
(i) the earlier of—
(I) 1 year after the date of submission of such request; or
(II) the date on which the funding agreement expires; or
(ii) such date as may be mutually agreed upon by the Secretary, the withdrawing Indian tribe, and the participating tribal organization or inter-tribal consortium that has signed the compact or funding agreement on behalf of the withdrawing Indian tribe, inter-tribal consortium, or tribal organization.
(2) Distribution of funds
When an Indian tribe or tribal organization eligible to enter into a self-determination contract under subchapter I of this chapter or a compact or funding agreement under this subchapter fully or partially withdraws from a participating inter-tribal consortium or tribal organization—
(A) the withdrawing Indian tribe or tribal organization shall be entitled to its tribal share of funds supporting those programs, services, functions, or activities (or portions thereof) 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 in the funding agreement of the inter-tribal consortium or tribal organization); and
(B) the funds referred to in subparagraph (A) shall be transferred from the funding agreement of the inter-tribal consortium or tribal organization, on the condition that the provisions of
(3) Regaining mature contract status
If an Indian tribe elects to operate all or some programs, services, functions, or activities (or portions thereof) carried out under a compact or funding agreement under this subchapter through a self-determination contract under subchapter I of this chapter, at the option of the Indian tribe, the resulting self-determination contract shall be a mature self-determination contract.
(h) Nonduplication
For the period for which, and to the extent to which, funding is provided under this subchapter or under the compact or funding agreement, the Indian tribe shall not be entitled to contract with the Secretary for such funds under
(
Editorial Notes
References in Text
Subchapter I of this chapter, referred to in subsec. (g)(2), (3), was in the original "title I", meaning title I of
Codification
Section was formerly classified to
§5387. Provisions relating to the Secretary
(a) Mandatory provisions
(1) Health status reports
Compacts or funding agreements negotiated between the Secretary and an Indian tribe shall include a provision that requires the Indian tribe to report on health status and service delivery—
(A) to the extent such data is not otherwise available to the Secretary and specific funds for this purpose are provided by the Secretary under the funding agreement; and
(B) if such reporting shall impose minimal burdens on the participating Indian tribe and such requirements are promulgated under
(2) Reassumption
(A) In general
Compacts or funding agreements negotiated between the Secretary and an Indian tribe shall include a provision authorizing the Secretary to reassume operation of a program, service, function, or activity (or portions thereof) and associated funding if there is a specific finding relative to that program, service, function, or activity (or portion thereof) of—
(i) imminent endangerment of the public health caused by an act or omission of the Indian tribe, and the imminent endangerment arises out of a failure to carry out the compact or funding agreement; or
(ii) gross mismanagement with respect to funds transferred to a tribe by a compact or funding agreement, as determined by the Secretary in consultation with the Inspector General, as appropriate.
(B) Prohibition
The Secretary shall not reassume operation of a program, service, function, or activity (or portions thereof) unless—
(i) the Secretary has first provided written notice and a hearing on the record to the Indian tribe; and
(ii) the Indian tribe has not taken corrective action to remedy the imminent endangerment to public health or gross mismanagement.
(C) Exception
(i) In general
Notwithstanding subparagraph (B), the Secretary may, upon written notification to the Indian tribe, immediately reassume operation of a program, service, function, or activity (or portion thereof) if—
(I) the Secretary makes a finding of imminent substantial and irreparable endangerment of the public health caused by an act or omission of the Indian tribe; and
(II) the endangerment arises out of a failure to carry out the compact or funding agreement.
(ii) Reassumption
If the Secretary reassumes operation of a program, service, function, or activity (or portion thereof) under this subparagraph, the Secretary shall provide the Indian tribe with a hearing on the record not later than 10 days after such reassumption.
(D) Hearings
In any hearing or appeal involving a decision to reassume operation of a program, service, function, or activity (or portion thereof), the Secretary shall have the burden of proof of demonstrating by clear and convincing evidence the validity of the grounds for the reassumption.
(b) Final offer
In the event 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. Not more than 45 days after such submission, or within a longer time agreed upon by the Indian tribe, the Secretary shall review and make a determination with respect to such offer. In the absence of a timely rejection of the offer, in whole or in part, made in compliance with subsection (c) of this section, the offer shall be deemed agreed to by the Secretary.
(c) Rejection of final offers
(1) In general
If the Secretary rejects an offer made under subsection (b) of this section (or one or more provisions or funding levels in such offer), the Secretary shall provide—
(A) a 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 subchapter;
(ii) the program, function, service, or activity (or portion thereof) that is the subject of the final offer is an inherent Federal function that cannot legally be delegated to an Indian tribe;
(iii) the Indian tribe cannot carry out the program, function, service, or activity (or portion thereof) 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
(B) technical assistance to overcome the objections stated in the notification required by subparagraph (A);
(C) 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 Federal district court pursuant to
(D) the Indian tribe with the option of entering into the severable portions of a final proposed compact or funding agreement, or provision thereof, (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.
(2) Effect of exercising certain option
If an Indian tribe exercises the option specified in paragraph (1)(D), that Indian tribe shall retain the right to appeal the Secretary's rejection under this section, and subparagraphs (A), (B), and (C) of that paragraph shall only apply to that portion of the proposed final compact, funding agreement, or provision thereof that was rejected by the Secretary.
(d) Burden of proof
With respect to any hearing or appeal or civil action conducted pursuant to this section, the Secretary shall have the burden of demonstrating by clear and convincing evidence the validity of the grounds for rejecting the offer (or a provision thereof) made under subsection (b) of this section.
(e) Good faith
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. The Secretary shall carry out this subchapter in a manner that maximizes the policy of tribal self-governance, in a manner consistent with the purposes specified in section 3 of the Tribal Self-Governance Amendments of 2000.
(f) Savings
To the extent that programs, functions, services, or activities (or portions thereof) carried out by Indian tribes 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
(g) Trust responsibility
The Secretary is prohibited 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, other laws, or court decisions.
(h) Decisionmaker
A decision that constitutes final agency action and relates to an appeal within the Department of Health and Human Services conducted under subsection (c) of this section shall be made either—
(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 judge.
(
Editorial Notes
References in Text
Section 3 of the Tribal Self-Governance Amendments of 2000, referred to in subsec. (e), is section 3 of
Codification
Section was formerly classified to
§5388. Transfer of funds
(a) 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) of this section, and provide funding for periods covered by joint resolution adopted by Congress making continuing appropriations, to the extent permitted by such resolutions. In any instance where 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.
(b) Multiyear funding
The Secretary is authorized to employ, upon tribal request, multiyear funding agreements. References in this subchapter to funding agreements shall include such multiyear funding agreements.
(c) Amount of funding
The Secretary shall provide funds under a funding agreement under this subchapter in an amount equal to the amount that the Indian tribe would have been entitled to receive under self-determination contracts under this chapter, including amounts for direct program costs specified under
(d) Prohibitions
(1) In general
Except as provided in paragraph (2), the Secretary is expressly prohibited from—
(A) failing or refusing 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 chapter, except as required by Federal law;
(B) withholding portions of such funds for transfer over a period of years; and
(C) reducing the amount of funds required under this chapter—
(i) to make funding available for self-governance monitoring or administration by the Secretary;
(ii) in subsequent years, except pursuant to—
(I) a reduction in appropriations from the previous fiscal year for the program or function to be included in a compact or funding agreement;
(II) a congressional directive in legislation or 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 a project, activity, or program for which such funds were provided;
(iii) to pay for Federal functions, including Federal pay costs, Federal employee retirement benefits, automated data processing, technical assistance, and monitoring of activities under this chapter; or
(iv) to pay for costs of Federal personnel displaced by self-determination contracts under this chapter or self-governance;
(2) Exception
The funds described in paragraph (1)(C) may be increased by the Secretary if necessary to carry out this chapter or as provided in
(e) Other resources
In the event 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.
(f) Reimbursement to Indian Health Service
With respect to functions transferred by the Indian Health Service to an Indian tribe, the Indian Health Service shall provide goods and services to the Indian tribe, on a reimbursable basis, including payment in advance with subsequent adjustment. The reimbursements received from those goods and services, along with the funds received from the Indian tribe pursuant to this subchapter, may be credited to the same or subsequent appropriation account which provided the funding, such amounts to remain available until expended.
(g) Prompt Payment Act
(h) Interest or other income on transfers
An Indian tribe is entitled to retain interest earned on any funds paid under a compact or funding agreement to carry out governmental or health purposes and such interest shall not diminish the amount of funds the Indian tribe is authorized to receive under its funding agreement in the year the interest is earned or in any subsequent fiscal year. Funds transferred under this subchapter shall be managed using the prudent investment standard.
(i) Carryover of funds
All funds paid to an Indian tribe in accordance with a compact or funding agreement shall remain available until expended. In the event that an Indian tribe elects to carry over funding from 1 year to the next, such carryover shall not diminish the amount of funds the Indian tribe is authorized to receive under its funding agreement in that or any subsequent fiscal year.
(j) Program income
All Medicare, Medicaid, or other program income earned by an Indian tribe shall be treated as supplemental funding to that negotiated in the funding agreement. The Indian tribe may retain all such income and expend such funds in the current year or in future years except to the extent that the Indian Health Care Improvement Act (
(k) Limitation of costs
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. If at any time the Indian tribe has reason to believe that the total amount provided for a specific activity in the compact or funding agreement is insufficient the Indian tribe shall provide reasonable notice of such insufficiency to the Secretary. 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.
(
Editorial Notes
References in Text
This chapter, referred to in subsecs. (c) and (d), was in the original "this Act", meaning
The Indian Health Care Improvement Act, referred to in subsec. (j), is
Codification
Section was formerly classified to
§5389. Construction projects
(a) In general
Indian tribes participating in tribal self-governance may carry out construction projects under this subchapter if they elect to assume all Federal responsibilities under the National Environmental Policy Act of 1969 (
(1) designating a certifying officer to represent the Indian tribe and to assume the status of a responsible Federal official under such laws; and
(2) accepting the jurisdiction of the Federal court for the purpose of enforcement of the responsibilities of the responsible Federal official under such environmental laws.
(b) Negotiations
Construction project proposals shall be negotiated pursuant to the statutory process in
(c) Codes and standards
The Indian tribe and the Secretary shall agree upon and specify appropriate building codes and architectural and engineering standards (including health and safety) which shall be in conformity with nationally recognized standards for comparable projects.
(d) Responsibility for completion
The Indian tribe shall assume responsibility for the successful completion of the construction project in accordance with the negotiated construction project agreement.
(e) Funding
Funding for construction projects carried out under this subchapter shall be included in funding agreements as annual advance payments, with semiannual payments at the option of the Indian tribe. Annual advance and semiannual payment amounts shall be determined based on mutually agreeable project schedules reflecting work to be accomplished within the advance payment period, work accomplished and funds expended in previous payment periods, and the total prior payments. The Secretary shall include associated project contingency funds with each advance payment installment. The Indian tribe shall be responsible for the management of the contingency funds included in funding agreements.
(f) Approval
The Secretary shall have at least one opportunity to approve project planning and design documents prepared by the Indian tribe in advance of construction of the facilities specified in the scope of work for each negotiated construction project agreement or amendment thereof which results in a significant change in the original scope of work. The Indian tribe shall provide the Secretary with project progress and financial reports not less than semiannually. The Secretary may conduct onsite project oversight visits semiannually or on an alternate schedule agreed to by the Secretary and the Indian tribe.
(g) Wages
All laborers and mechanics employed by contractors and subcontractors (excluding tribes and tribal organizations) in the construction, alteration, or repair, including painting or decorating of a building or other facilities in connection with construction projects funded by the United States under this chapter shall be paid wages at not less than those prevailing wages on similar construction in the locality as determined by the Secretary of Labor in accordance with
(h) Application of other laws
Unless otherwise agreed to by the Indian tribe, no provision of division B (except sections 1123, 2303, 2304, and 2313) of subtitle I of title 41, the Federal Acquisition Regulations issued pursuant thereto, or any other law or regulation pertaining to Federal procurement (including Executive orders) shall apply to any construction project conducted under this subchapter.
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Editorial Notes
References in Text
The National Environmental Policy Act of 1969, referred to in subsec. (a), is
This chapter, referred to in subsec. (g), was in the original "this Act", meaning
Reorganization Plan numbered 14, of 1950, referred to in subsec. (g), is set out in the Appendix to Title 5, Government Organization and Employees.
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Section was formerly classified to
In subsec. (g), "
In subsec. (h), "division B (except sections 1123, 2303, 2304, and 2313) of subtitle I of title 41" substituted for "the Office of Federal Procurement Policy Act" on authority of
Amendments
2014—Subsec. (a).
§5390. Federal procurement laws and regulations
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 subchapter. Absent a negotiated agreement, such provisions and regulatory requirements shall not apply.
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Section was formerly classified to
In text, "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 (
§5391. Civil actions
(a) Contract defined
For the purposes of
(b) Applicability of certain laws
(c) References
All references in this chapter to
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References in Text
This chapter, referred to in subsec. (c), was in the original "this Act", meaning
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Section was formerly classified to
§5392. Facilitation
(a) Secretarial interpretation
Except as otherwise provided by law, the Secretary shall interpret all Federal laws, Executive orders, and regulations in a manner that will facilitate—
(1) the inclusion of programs, services, functions, and activities (or portions thereof) and funds associated therewith, in the agreements entered into under this section;
(2) the implementation of compacts and funding agreements entered into under this subchapter; and
(3) the achievement of tribal health goals and objectives.
(b) Regulation waiver
(1) In general
An Indian tribe may submit a written request to waive application of a regulation promulgated under
(2) Approval
Not later than 90 days after receipt by the Secretary of a written request by an Indian tribe to waive application of a regulation for a compact or funding agreement entered into under this subchapter, the Secretary shall either approve or deny the requested waiver in writing. 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. A failure to approve or deny a waiver request not later than 90 days after receipt shall be deemed an approval of such request. The Secretary's decision shall be final for the Department.
(c) Access to Federal property
In connection with any compact or funding agreement executed pursuant to this subchapter or an agreement negotiated under the Tribal Self-Governance Demonstration Project established under title III,1 as in effect before August 18, 2000, upon the request of an Indian tribe, the Secretary—
(1) shall permit an Indian tribe to use existing school buildings, hospitals, and other facilities and all equipment therein or appertaining thereto and other personal property owned by the Government within the Secretary's jurisdiction under such terms and conditions as may be agreed upon by the Secretary and the Indian tribe for their use and maintenance;
(2) may donate to an Indian tribe title to any personal or real property found to be excess to the needs of any agency of the Department, or the General Services Administration, except that—
(A) subject to the provisions of subparagraph (B), title to property and equipment furnished by the Federal Government for use in the performance of the compact or funding agreement or purchased with funds under any compact or funding agreement shall, unless otherwise requested by the Indian tribe, vest in the appropriate Indian tribe;
(B) if property described in subparagraph (A) has a value in excess of $5,000 at the time of retrocession, withdrawal, or reassumption, at the option of the Secretary upon the retrocession, withdrawal, or reassumption, title to such property and equipment shall revert to the Department of Health and Human Services; and
(C) all property referred to in subparagraph (A) shall remain eligible for replacement, maintenance, and improvement on the same basis as if title to such property were vested in the United States; and
(3) shall acquire excess or surplus Government personal or real property for donation to an Indian tribe if the Secretary determines the property is appropriate for use by the Indian tribe for any purpose for which a compact or funding agreement is authorized under this subchapter.
(d) Matching or cost-participation requirement
All funds provided under compacts, funding agreements, or grants made pursuant to this chapter, shall be treated as non-Federal funds for purposes of meeting matching or cost participation requirements under any other Federal or non-Federal program.
(e) State facilitation
States are hereby authorized and encouraged to enact legislation, and to enter into agreements with Indian tribes to facilitate and supplement the initiatives, programs, and policies authorized by this subchapter and other Federal laws benefiting Indians and Indian tribes.
(f) Rules of construction
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.
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Editorial Notes
References in Text
Title III, referred to in subsec. (c), means title III of
This chapter, referred to in subsec. (d), was in the original "this Act", meaning
Codification
Section was formerly classified to
1 See References in Text note below.
§5393. Budget request
(a) Requirement of annual budget request
(1) In general
The President shall identify in the annual budget request submitted to Congress under
(2) Rule of construction
Nothing in this subsection shall be construed to authorize the Indian Health Service to reduce the amount of funds that a self-governance tribe is otherwise entitled to receive under its funding agreement or other applicable law, whether or not such funds are apportioned to the Office of Tribal Self-Governance under this section.
(b) Present funding; shortfalls
In such budget request, the President shall identify the level of need presently funded and any shortfall in funding (including direct program and contract support costs) for each Indian tribe, either directly by the Secretary of Health and Human Services, under self-determination contracts, or under compacts and funding agreements authorized under this subchapter.
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§5394. Reports
(a) Annual report
(1) In general
Not later than January 1 of each year after August 18, 2000, the Secretary shall submit to the Committee on Indian Affairs of the Senate and the Committee on Resources of the House of Representatives a written report regarding the administration of this subchapter.
(2) Analysis
The report under paragraph (1) shall include a detailed analysis of the level of need being presently funded or unfunded for each Indian tribe, either directly by the Secretary, under self-determination contracts under subchapter I of this chapter, or under compacts and funding agreements authorized under this chapter. In compiling reports pursuant to this section, the Secretary may not impose any reporting requirements on participating Indian tribes or tribal organizations, not otherwise provided in this chapter.
(b) Contents
The report under subsection (a) of this section shall—
(1) be compiled from information contained in funding agreements, annual audit reports, and data of the Secretary regarding the disposition of Federal funds; and
(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 their members;
(C) the funds transferred to each self-governance Indian tribe and the corresponding reduction in the Federal bureaucracy;
(D) the funding formula for individual tribal shares of all headquarters funds, together with the comments of affected Indian tribes or tribal organizations, developed under subsection (c) of this section; and
(E) amounts expended in the preceding fiscal year to carry out inherent Federal functions, including an identification of those functions by type and location;
(3) contain a description of the method or methods (or any revisions thereof) used to determine the individual tribal share of funds controlled by all components of the Indian Health Service (including funds assessed by any other Federal agency) for inclusion in self-governance compacts or funding agreements;
(4) before being submitted to Congress, be distributed to the Indian tribes for comment (with a comment period of no less than 30 days, beginning on the date of distribution); and
(5) include the separate views and comments of the Indian tribes or tribal organizations.
(c) Report on fund distribution method
Not later than 180 days after August 18, 2000, the Secretary shall, after consultation with Indian tribes, submit a written report to the Committee on Resources of the House of Representatives and the Committee on Indian Affairs of the Senate that describes the method or methods used to determine the individual tribal share of funds controlled by all components of the Indian Health Service (including funds assessed by any other Federal agency) for inclusion in self-governance compacts or funding agreements.
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Editorial Notes
References in Text
Subchapter I of this chapter, referred to in subsec. (a)(2), was in the original "title I", meaning title I of
This chapter, referred to in subsec. (a)(2), was in the original "this Act", meaning
Codification
Section was formerly classified to
Statutory Notes and Related Subsidiaries
Change of Name
Committee on Resources of House of Representatives changed to Committee on Natural Resources of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007.
§5395. Disclaimers
(a) No funding reduction
Nothing in this subchapter shall be construed to limit or reduce in any way the funding for any program, project, or activity serving an Indian tribe under this or other applicable Federal law. Any Indian tribe that alleges that a compact or funding agreement is in violation of this section may apply the provisions of
(b) Federal trust and treaty responsibilities
Nothing in this chapter shall be construed to diminish in any way the trust responsibility of the United States to Indian tribes and individual Indians that exists under treaties, Executive orders, or other laws and court decisions.
(c) Obligations of the United States
The Indian Health Service under this chapter shall neither bill nor charge those Indians who may have the economic means to pay for services, nor require any Indian tribe to do so.
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Editorial Notes
References in Text
This chapter, referred to in subsecs. (b) and (c), was in the original "this Act", meaning
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Section was formerly classified to
§5396. Application of other sections of this chapter
(a) Mandatory application
All provisions of sections 5305(b), 5306, 5307, 5321(c) and (d), 5323, 5324(k) and (l), 5325(a) through (k), and 5332 of this title and section 314 of
(b) Discretionary application
At the request of a participating Indian tribe, any other provision of subchapter I of this chapter, to the extent such provision is not in conflict with this subchapter, shall be made a part of a funding agreement or compact entered into under this subchapter. The Secretary is obligated to include such provision at the option of the participating Indian tribe or tribes. If such provision is incorporated it shall have the same force and effect as if it were set out in full in this subchapter. In the event an Indian tribe requests such incorporation at the negotiation stage of a compact or funding agreement, such incorporation shall be deemed effective immediately and shall control the negotiation and resulting compact and funding agreement.
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Editorial Notes
References in Text
Section 314 of
Subchapter I of this chapter, referred to in subsec. (b), was in the original "title I", meaning title I of
Codification
Section was formerly classified to
§5397. Regulations
(a) In general
(1) Promulgation
Not later than 90 days after August 18, 2000, the Secretary shall initiate procedures under subchapter III of
(2) Publication of proposed regulations
Proposed regulations to implement this subchapter shall be published in the Federal Register by the Secretary no later than 1 year after August 18, 2000.
(3) Expiration of authority
The authority to promulgate regulations under paragraph (1) shall expire 21 months after August 18, 2000.
(b) Committee
(1) In general
A negotiated rulemaking committee established pursuant to
(2) Requirements
The committee shall confer with, and accommodate participation by, representatives of Indian tribes, inter-tribal consortia, tribal organizations, and individual tribal members.
(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
The lack of promulgated regulations shall not limit the effect of this subchapter.
(e) Effect of circulars, policies, manuals, guidances, and rules
Unless expressly agreed to by the participating Indian tribe in the compact or funding agreement, the participating Indian tribe shall not be subject to any agency circular, policy, manual, guidance, or rule adopted by the Indian Health Service, except for the eligibility provisions of
(
Editorial Notes
References in Text
This chapter, referred to in subsec. (b)(1), was in the original "this Act", meaning
Codification
Section was formerly classified to
§5398. Appeals
In any appeal (including civil actions) involving decisions made by the Secretary under this subchapter, the Secretary shall have the burden of proof of demonstrating by clear and convincing evidence—
(1) the validity of the grounds for the decision made; and
(2) that the decision is fully consistent with provisions and policies of this subchapter.
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§5399. Authorization of appropriations
(a) In general
There are authorized to be appropriated such sums as may be necessary to carry out this subchapter.
(b) Availability of appropriations
Notwithstanding any other provision of this chapter, the provision of funds under this chapter shall be subject to the availability of appropriations and the Secretary is not required to reduce funding for programs, projects, or activities serving a tribe in order to make funds available to another tribe or tribal organization under this chapter.
(
Editorial Notes
References in Text
This chapter, referred to in subsec. (b), was in the original "this Act", meaning
Codification
Section was formerly classified to