CHAPTER 46 —INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE
SUBCHAPTER I—INDIAN SELF-DETERMINATION
SUBCHAPTER II—CONTRACTS WITH STATES
SUBCHAPTER III—INDIAN EDUCATION ASSISTANCE
SUBCHAPTER IV—TRIBAL SELF-GOVERNANCE—DEPARTMENT OF THE INTERIOR
SUBCHAPTER V—TRIBAL SELF-GOVERNANCE—INDIAN HEALTH SERVICE
SUBCHAPTER VI—INDIAN LAW ENFORCEMENT FOUNDATION
SUBCHAPTER VII—NATIONAL FUND FOR EXCELLENCE IN AMERICAN INDIAN EDUCATION
§5301. Congressional statement of findings
(a) Findings respecting historical and special legal relationship, and resultant responsibilities
The Congress, after careful review of the Federal Government's historical and special legal relationship with, and resulting responsibilities to, American Indian people, finds that—
(1) the prolonged Federal domination of Indian service programs has served to retard rather than enhance the progress of Indian people and their communities by depriving Indians of the full opportunity to develop leadership skills crucial to the realization of self-government, and has denied to the Indian people an effective voice in the planning and implementation of programs for the benefit of Indians which are responsive to the true needs of Indian communities; and
(2) the Indian people will never surrender their desire to control their relationships both among themselves and with non-Indian governments, organizations, and persons.
(b) Further findings
The Congress further finds that—
(1) true self-determination in any society of people is dependent upon an educational process which will insure the development of qualified people to fulfill meaningful leadership roles;
(2) the Federal responsibility for and assistance to education of Indian children has not effected the desired level of educational achievement or created the diverse opportunities and personal satisfaction which education can and should provide; and
(3) parental and community control of the educational process is of crucial importance to the Indian people.
(
Editorial Notes
Codification
Section was formerly classified to
Statutory Notes and Related Subsidiaries
Short Title of 2020 Amendment
Short Title of 2018 Amendment
Short Title of 2000 Amendment
Short Title of 1994 Amendment
Short Title of 1990 Amendment
Short Title of 1988 Amendment
Short Title
Act April 16, 1934, ch. 147,
Savings Provisions
"(1) affecting, modifying, diminishing, or otherwise impairing the sovereign immunity from suit enjoyed by an Indian tribe; or
"(2) authorizing or requiring the termination of any existing trust responsibility of the United States with respect to Indian people."
Severability
Consultation With Alaska Native Corporations
Executive Documents
Ex. Ord. No. 13175. Consultation and Coordination With Indian Tribal Governments
Ex. Ord. No. 13175, Nov. 6, 2000, 65 F.R. 67249, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to establish regular and meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications, to strengthen the United States government-to-government relationships with Indian tribes, and to reduce the imposition of unfunded mandates upon Indian tribes; it is hereby ordered as follows:
(a) "Policies that have tribal implications" refers to regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
(b) "Indian tribe" means an Indian or Alaska Native tribe, band, nation, pueblo, village, or community that the Secretary of the Interior acknowledges to exist as an Indian tribe pursuant to the Federally Recognized Indian Tribe List Act of 1994,
(c) "Agency" means any authority of the United States that is an "agency" under
(d) "Tribal officials" means elected or duly appointed officials of Indian tribal governments or authorized intertribal organizations.
(a) The United States has a unique legal relationship with Indian tribal governments as set forth in the Constitution of the United States, treaties, statutes, Executive Orders, and court decisions. Since the formation of the Union, the United States has recognized Indian tribes as domestic dependent nations under its protection. The Federal Government has enacted numerous statutes and promulgated numerous regulations that establish and define a trust relationship with Indian tribes.
(b) Our Nation, under the law of the United States, in accordance with treaties, statutes, Executive Orders, and judicial decisions, has recognized the right of Indian tribes to self-government. As domestic dependent nations, Indian tribes exercise inherent sovereign powers over their members and territory. The United States continues to work with Indian tribes on a government-to-government basis to address issues concerning Indian tribal self-government, tribal trust resources, and Indian tribal treaty and other rights.
(c) The United States recognizes the right of Indian tribes to self-government and supports tribal sovereignty and self-determination.
(a) Agencies shall respect Indian tribal self-government and sovereignty, honor tribal treaty and other rights, and strive to meet the responsibilities that arise from the unique legal relationship between the Federal Government and Indian tribal governments.
(b) With respect to Federal statutes and regulations administered by Indian tribal governments, the Federal Government shall grant Indian tribal governments the maximum administrative discretion possible.
(c) When undertaking to formulate and implement policies that have tribal implications, agencies shall:
(1) encourage Indian tribes to develop their own policies to achieve program objectives;
(2) where possible, defer to Indian tribes to establish standards; and
(3) in determining whether to establish Federal standards, consult with tribal officials as to the need for Federal standards and any alternatives that would limit the scope of Federal standards or otherwise preserve the prerogatives and authority of Indian tribes.
(b) To the extent practicable and permitted by law, no agency shall promulgate any regulation that has tribal implications, that imposes substantial direct compliance costs on Indian tribal governments, and that is not required by statute, unless:
(1) funds necessary to pay the direct costs incurred by the Indian tribal government or the tribe in complying with the regulation are provided by the Federal Government; or
(2) the agency, prior to the formal promulgation of the regulation,
(A) consulted with tribal officials early in the process of developing the proposed regulation;
(B) in a separately identified portion of the preamble to the regulation as it is to be issued in the Federal Register, provides to the Director of OMB a tribal summary impact statement, which consists of a description of the extent of the agency's prior consultation with tribal officials, a summary of the nature of their concerns and the agency's position supporting the need to issue the regulation, and a statement of the extent to which the concerns of tribal officials have been met; and
(C) makes available to the Director of OMB any written communications submitted to the agency by tribal officials.
(c) To the extent practicable and permitted by law, no agency shall promulgate any regulation that has tribal implications and that preempts tribal law unless the agency, prior to the formal promulgation of the regulation,
(1) consulted with tribal officials early in the process of developing the proposed regulation;
(2) in a separately identified portion of the preamble to the regulation as it is to be issued in the Federal Register, provides to the Director of OMB a tribal summary impact statement, which consists of a description of the extent of the agency's prior consultation with tribal officials, a summary of the nature of their concerns and the agency's position supporting the need to issue the regulation, and a statement of the extent to which the concerns of tribal officials have been met; and
(3) makes available to the Director of OMB any written communications submitted to the agency by tribal officials.
(d) On issues relating to tribal self-government, tribal trust resources, or Indian tribal treaty and other rights, each agency should explore and, where appropriate, use consensual mechanisms for developing regulations, including negotiated rulemaking.
(a) Agencies shall review the processes under which Indian tribes apply for waivers of statutory and regulatory requirements and take appropriate steps to streamline those processes.
(b) Each agency shall, to the extent practicable and permitted by law, consider any application by an Indian tribe for a waiver of statutory or regulatory requirements in connection with any program administered by the agency with a general view toward increasing opportunities for utilizing flexible policy approaches at the Indian tribal level in cases in which the proposed waiver is consistent with the applicable Federal policy objectives and is otherwise appropriate.
(c) Each agency shall, to the extent practicable and permitted by law, render a decision upon a complete application for a waiver within 120 days of receipt of such application by the agency, or as otherwise provided by law or regulation. If the application for waiver is not granted, the agency shall provide the applicant with timely written notice of the decision and the reasons therefor.
(d) This section applies only to statutory or regulatory requirements that are discretionary and subject to waiver by the agency.
(a) In transmitting any draft final regulation that has tribal implications to OMB pursuant to Executive Order 12866 of September 30, 1993 [
(b) In transmitting proposed legislation that has tribal implications to OMB, each agency shall include a certification from the official designated to ensure compliance with this order that all relevant requirements of this order have been met.
(c) Within 180 days after the effective date of this order the Director of OMB and the Assistant to the President for Intergovernmental Affairs shall confer with tribal officials to ensure that this order is being properly and effectively implemented.
(b) This order shall complement the consultation and waiver provisions in sections 6 and 7 of Executive Order 13132 (Federalism) [
(c) Executive Order 13084 (Consultation and Coordination with Indian Tribal Governments) [former
(d) This order shall be effective 60 days after the date of this order.
William J. Clinton.
Ex. Ord. No. 13647. Establishing the White House Council on Native American Affairs
Ex. Ord. No. 13647, June 26, 2013, 78 F.R. 39539, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to promote and sustain prosperous and resilient Native American tribal governments, it is hereby ordered as follows:
As we work together to forge a brighter future for all Americans, we cannot ignore a history of mistreatment and destructive policies that have hurt tribal communities. The United States seeks to continue restoring and healing relations with Native Americans and to strengthen its partnership with tribal governments, for our more recent history demonstrates that tribal self-determination—the ability of tribal governments to determine how to build and sustain their own communities—is necessary for successful and prospering communities. We further recognize that restoring tribal lands through appropriate means helps foster tribal self-determination.
This order establishes a national policy to ensure that the Federal Government engages in a true and lasting government-to-government relationship with federally recognized tribes in a more coordinated and effective manner, including by better carrying out its trust responsibilities. This policy is established as a means of promoting and sustaining prosperous and resilient tribal communities. Greater engagement and meaningful consultation with tribes is of paramount importance in developing any policies affecting tribal nations.
To honor treaties and recognize tribes' inherent sovereignty and right to self-government under U.S. law, it is the policy of the United States to promote the development of prosperous and resilient tribal communities, including by:
(a) promoting sustainable economic development, particularly energy, transportation, housing, other infrastructure, entrepreneurial, and workforce development to drive future economic growth and security;
(b) supporting greater access to, and control over, nutrition and healthcare, including special efforts to confront historic health disparities and chronic diseases;
(c) supporting efforts to improve the effectiveness and efficiency of tribal justice systems and protect tribal communities;
(d) expanding and improving lifelong educational opportunities for American Indians and Alaska Natives, while respecting demands for greater tribal control over tribal education, consistent with Executive Order 13592 of December 2, 2011 (Improving American Indian and Alaska Native Educational Opportunities and Strengthening Tribal Colleges and Universities); and
(e) protecting tribal lands, environments, and natural resources, and promoting respect for tribal cultures.
(i) the Department of State;
(ii) the Department of the Treasury;
(iii) the Department of Defense;
(iv) the Department of Justice;
(v) the Department of Agriculture;
(vi) the Department of Commerce;
(vii) the Department of Labor;
(viii) the Department of Health and Human Services;
(ix) the Department of Housing and Urban Development;
(x) the Department of Transportation;
(xi) the Department of Energy;
(xii) the Department of Education;
(xiii) the Department of Veterans Affairs;
(xiv) the Department of Homeland Security;
(xv) the Social Security Administration;
(xvi) the Office of Personnel Management;
(xvii) the Office of the United States Trade Representative;
(xviii) the Office of Management and Budget;
(xix) the Environmental Protection Agency;
(xx) the Small Business Administration;
(xxi) the Council of Economic Advisers;
(xxii) the Office of National Drug Control Policy;
(xxiii) the Domestic Policy Council;
(xxiv) the National Economic Council;
(xxv) the Office of Science and Technology Policy;
(xxvi) the Council on Environmental Quality;
(xxvii) the White House Office of Public Engagement and Intergovernmental Affairs;
(xxviii) the Advisory Council on Historic Preservation;
(xxix) the Denali Commission;
(xxx) the White House Office of Cabinet Affairs; and
(xxxi) such other executive departments, agencies, and offices as the Chair may, from time to time, designate.
(b) A member of the Council may designate a senior-level official, who is a full-time officer or employee of the Federal Government, to perform his or her functions.
(c) The Department of the Interior shall provide funding and administrative support for the Council to the extent permitted by law and within existing appropriations.
(d) The Council shall coordinate its policy development through the Domestic Policy Council.
(e) The Council shall coordinate its outreach to federally recognized tribes through the White House Office of Public Engagement and Intergovernmental Affairs.
(f) The Council shall meet three times a year, with any additional meetings convened as deemed necessary by the Chair.
The Chair may invite other interested agencies and offices to attend meetings as appropriate.
(a) make recommendations to the President, through the Director of the Domestic Policy Council, concerning policy priorities, including improving the effectiveness of Federal investments in Native American communities, where appropriate, to increase the impact of Federal resources and create greater opportunities to help improve the quality of life for Native Americans;
(b) coordinate, through the Director of the Office of Public Engagement and Intergovernmental Affairs, Federal engagement with tribal governments and Native American stakeholders regarding issues important to Native Americans, including with tribal consortia, small businesses, education and training institutions including tribal colleges and universities, health-care providers, trade associations, research and grant institutions, law enforcement, State and local governments, and community and non-profit organizations;
(c) coordinate a more effective and efficient process for executive departments, agencies, and offices to honor the United States commitment to tribal consultation as set forth in Executive Order 13175 of November 6, 2000 (Consultation and Coordination With Indian Tribal Governments), and my memorandum of November 5, 2009 (Tribal Consultation); and
(d) assist the White House Office of Public Engagement and Intergovernmental Affairs in organizing the White House Tribal Nations Conference each year by bringing together leaders invited from all federally recognized Indian tribes and senior officials from the Federal Government to provide for direct government-to-government discussion of the Federal Government's Indian country policy priorities.
(b) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department, agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(c) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(d) For purposes of this order, "federally recognized tribe" means an Indian or Alaska Native tribe, band, nation, pueblo, village, or community that the Secretary of the Interior acknowledges to exist as an Indian tribe pursuant to the Federally Recognized Indian Tribe List Act of 1994,
(e) For purposes of this order, "American Indian and Alaska Native" means a member of an Indian tribe, as membership is defined by the tribe.
(f) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Barack Obama.
Government-to-Government Relations With Native American Tribal Governments
Memorandum of President of the United States, Apr. 29, 1994, 59 F.R. 22951, provided:
Memorandum for the Heads of Executive Departments and Agencies
The United States Government has a unique legal relationship with Native American tribal governments as set forth in the Constitution of the United States, treaties, statutes, and court decisions. As executive departments and agencies undertake activities affecting Native American tribal rights or trust resources, such activities should be implemented in a knowledgeable, sensitive manner respectful of tribal sovereignty. Today, as part of an historic meeting, I am outlining principles that executive departments and agencies, including every component bureau and office, are to follow in their interactions with Native American tribal governments. The purpose of these principles is to clarify our responsibility to ensure that the Federal Government operates within a government-to-government relationship with federally recognized Native American tribes. I am strongly committed to building a more effective day-to-day working relationship reflecting respect for the rights of self-government due the sovereign tribal governments.
In order to ensure that the rights of sovereign tribal governments are fully respected, executive branch activities shall be guided by the following:
(a) The head of each executive department and agency shall be responsible for ensuring that the department or agency operates within a government-to-government relationship with federally recognized tribal governments.
(b) Each executive department and agency shall consult, to the greatest extent practicable and to the extent permitted by law, with tribal governments prior to taking actions that affect federally recognized tribal governments. All such consultations are to be open and candid so that all interested parties may evaluate for themselves the potential impact of relevant proposals.
(c) Each executive department and agency shall assess the impact of Federal Government plans, projects, programs, and activities on tribal trust resources and assure that tribal government rights and concerns are considered during the development of such plans, projects, programs, and activities.
(d) Each executive department and agency shall take appropriate steps to remove any procedural impediments to working directly and effectively with tribal governments on activities that affect the trust property and/or governmental rights of the tribes.
(e) Each executive department and agency shall work cooperatively with other Federal departments and agencies to enlist their interest and support in cooperative efforts, where appropriate, to accomplish the goals of this memorandum.
(f) Each executive department and agency shall apply the requirements of Executive Orders Nos. 12875 ("Enhancing the Intergovernmental Partnership") [former
The head of each executive department and agency shall ensure that the department or agency's bureaus and components are fully aware of this memorandum, through publication or other means, and that they are in compliance with its requirements.
This memorandum is intended only to improve the internal management of the executive branch and is not intended to, and does not, create any right to administrative or judicial review, or any other right or benefit or trust responsibility, substantive or procedural, enforceable by a party against the United States, its agencies or instrumentalities, its officers or employees, or any other person.
The Director of the Office of Management and Budget is authorized and directed to publish this memorandum in the Federal Register.
William J. Clinton.
Tribal Consultation
Memorandum of President of the United States, Nov. 5, 2009, 74 F.R. 57881, provided:
Memorandum for the Heads of Executive Departments And Agencies
The United States has a unique legal and political relationship with Indian tribal governments, established through and confirmed by the Constitution of the United States, treaties, statutes, executive orders, and judicial decisions. In recognition of that special relationship, pursuant to Executive Order 13175 of November 6, 2000, executive departments and agencies (agencies) are charged with engaging in regular and meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications, and are responsible for strengthening the government-to-government relationship between the United States and Indian tribes.
History has shown that failure to include the voices of tribal officials in formulating policy affecting their communities has all too often led to undesirable and, at times, devastating and tragic results. By contrast, meaningful dialogue between Federal officials and tribal officials has greatly improved Federal policy toward Indian tribes. Consultation is a critical ingredient of a sound and productive Federal-tribal relationship.
My Administration is committed to regular and meaningful consultation and collaboration with tribal officials in policy decisions that have tribal implications including, as an initial step, through complete and consistent implementation of Executive Order 13175. Accordingly, I hereby direct each agency head to submit to the Director of the Office of Management and Budget (OMB), within 90 days after the date of this memorandum, a detailed plan of actions the agency will take to implement the policies and directives of Executive Order 13175. This plan shall be developed after consultation by the agency with Indian tribes and tribal officials as defined in Executive Order 13175. I also direct each agency head to submit to the Director of the OMB, within 270 days after the date of this memorandum, and annually thereafter, a progress report on the status of each action included in its plan together with any proposed updates to its plan.
Each agency's plan and subsequent reports shall designate an appropriate official to coordinate implementation of the plan and preparation of progress reports required by this memorandum. The Assistant to the President for Domestic Policy and the Director of the OMB shall review agency plans and subsequent reports for consistency with the policies and directives of Executive Order 13175.
In addition, the Director of the OMB, in coordination with the Assistant to the President for Domestic Policy, shall submit to me, within 1 year from the date of this memorandum, a report on the implementation of Executive Order 13175 across the executive branch based on the review of agency plans and progress reports. Recommendations for improving the plans and making the tribal consultation process more effective, if any, should be included in this report.
The terms "Indian tribe," "tribal officials," and "policies that have tribal implications" as used in this memorandum are as defined in Executive Order 13175.
The Director of the OMB is hereby authorized and directed to publish this memorandum in the Federal Register.
This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. Executive departments and agencies shall carry out the provisions of this memorandum to the extent permitted by law and consistent with their statutory and regulatory authorities and their enforcement mechanisms.
Barack Obama.
§5302. Congressional declaration of policy
(a) Recognition of obligation of United States
The Congress hereby recognizes the obligation of the United States to respond to the strong expression of the Indian people for self-determination by assuring maximum Indian participation in the direction of educational as well as other Federal services to Indian communities so as to render such services more responsive to the needs and desires of those communities.
(b) Declaration of commitment
The Congress declares its commitment to the maintenance of the Federal Government's unique and continuing relationship with, and responsibility to, individual Indian tribes and to the Indian people as a whole through the establishment of a meaningful Indian self-determination policy which will permit an orderly transition from the Federal domination of programs for, and services to, Indians to effective and meaningful participation by the Indian people in the planning, conduct, and administration of those programs and services. In accordance with this policy, the United States is committed to supporting and assisting Indian tribes in the development of strong and stable tribal governments, capable of administering quality programs and developing the economies of their respective communities.
(c) Declaration of national goal
The Congress declares that a major national goal of the United States is to provide the quantity and quality of educational services and opportunities which will permit Indian children to compete and excel in the life areas of their choice, and to achieve the measure of self-determination essential to their social and economic well-being.
(
Editorial Notes
Codification
Section was formerly classified to
Amendments
1988—Subsec. (b).
§5303. Tribal and Federal advisory committees
Notwithstanding any other provision of law (including any regulation), the Secretary of the Interior and the Secretary of Health and Human Services are authorized to jointly establish and fund advisory committees or other advisory bodies composed of members of Indian tribes or members of Indian tribes and representatives of the Federal Government to ensure tribal participation in the implementation of the Indian Self-Determination and Education Assistance Act (
(
Editorial Notes
References in Text
The Indian Self-Determination and Education Assistance Act, referred to in text, is
Codification
Section was enacted as part of the Indian Self-Determination and Education Assistance Act Amendments of 1990, and not as part of the Indian Self-Determination and Education Assistance Act which comprises this chapter.
Section was formerly classified to
§5304. Definitions
For purposes of this chapter, the term—
(a) "construction programs" means programs for the planning, design, construction, repair, improvement, and expansion of buildings or facilities, including, but not limited to, housing, law enforcement and detention facilities, sanitation and water systems, roads, schools, administration and health facilities, irrigation and agricultural work, and water conservation, flood control, or port facilities;
(b) "contract funding base" means the base level from which contract funding needs are determined, including all contract costs;
(c) "direct program costs" means costs that can be identified specifically with a particular contract objective;
(d) "Indian" means a person who is a member of an Indian tribe;
(e) "Indian tribe" or "Indian Tribe" means any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (
(f) "indirect costs" means costs incurred for a common or joint purpose benefiting more than one contract objective, or which are not readily assignable to the contract objectives specifically benefited without effort disproportionate to the results achieved;
(g) "indirect cost rate" means the rate arrived at through negotiation between an Indian tribe or tribal organization and the appropriate Federal agency;
(h) "mature contract" means a self-determination contract that has been continuously operated by a tribal organization for three or more years, and for which there are no significant and material audit exceptions in the annual financial audit of the tribal organization: Provided, That upon the request of a tribal organization or the tribal organization's Indian tribe for purposes of
(i) "Secretary", unless otherwise designated, means either the Secretary of Health and Human Services or the Secretary of the Interior or both;
(j) "self-determination contract" means a contract entered into under subchapter I (or a grant or cooperative agreement used under
(1) considered to be a procurement contract; or
(2) except as provided in
(k) "State education agency" means the State board of education or other agency or officer primarily responsible for supervision by the State of public elementary and secondary schools, or, if there is no such officer or agency, an officer or agency designated by the Governor or by State law;
(l) "Tribal organization" or "tribal organization" means the recognized governing body of any Indian tribe; any legally established organization of Indians which is controlled, sanctioned, or chartered by such governing body or which is democratically elected by the adult members of the Indian community to be served by such organization and which includes the maximum participation of Indians in all phases of its activities: Provided, That in any case where a contract is let or grant made to an organization to perform services benefiting more than one Indian tribe, the approval of each such Indian tribe shall be a prerequisite to the letting or making of such contract or grant; and
(m) "construction contract" means a fixed-price or cost-reimbursement self-determination contract for a construction project, except that such term does not include any contract—
(1) that is limited to providing planning services and construction management services (or a combination of such services);
(2) for the Housing Improvement Program or roads maintenance program of the Bureau of Indian Affairs administered by the Secretary of the Interior; or
(3) for the health facility maintenance and improvement program administered by the Secretary of Health and Human Services.
(
Editorial Notes
References in Text
This chapter, referred to in text, was in the original "this Act", meaning
The Alaska Native Claims Settlement Act, referred to in subsec. (e), is
Subchapter I, referred to in subsec. (j), was in the original "title I", meaning title I of
Codification
Section was formerly classified to
Amendments
2020—Subsec. (e).
Subsec. (j).
Subsec. (l).
1994—Subsec. (g).
Subsec. (m).
1990—Subsec. (e).
Subsec. (h).
Subsec. (j).
1988—
Subsec. (h).
Subsec. (j).
§5305. Reporting and audit requirements for recipients of Federal financial assistance
(a) Maintenance of records
(1) Each recipient of Federal financial assistance under this chapter shall keep such records as the appropriate Secretary shall prescribe by regulation promulgated under
(A) the amount and disposition by such recipient of the proceeds of such assistance,
(B) the cost of the project or undertaking in connection with which such assistance is given or used,
(C) the amount of that portion of the cost of the project or undertaking supplied by other sources, and
(D) such other information as will facilitate an effective audit.
(2) For the purposes of this subsection, such records for a mature contract shall consist of quarterly financial statements for the purpose of accounting for Federal funds, the annual single-agency audit required by
(b) Access to books, documents, papers, and records for audit and examination by Comptroller General, etc.
The Comptroller General and the appropriate Secretary, or any of their duly authorized representatives, shall, until the expiration of three years after the retention period for the report that is submitted to the Secretary under subsection (a), have access (for the purpose of audit and examination) to any books, documents, papers, and records of such recipients which in the opinion of the Comptroller General or the appropriate Secretary may be related or pertinent to the grants, contracts, subcontracts, subgrants, or other arrangements referred to in the preceding subsection. The retention period shall be defined in regulations promulgated by the Secretary pursuant to
(c) Availability by recipient of required reports and information to Indian people served or represented
Each recipient of Federal financial assistance referred to in subsection (a) of this section shall make such reports and information available to the Indian people served or represented by such recipient as and in a manner determined to be adequate by the appropriate Secretary.
(d) Repayment to Treasury by recipient of unexpended or unused funds
Except as provided in section 13a or 5325(a)(3) 2 of this title, funds paid to a financial assistance recipient referred to in subsection (a) of this section and not expended or used for the purposes for which paid shall be repaid to the Treasury of the United States through the respective Secretary.
(e) Annual report to tribes
The Secretary shall report annually in writing to each tribe regarding projected and actual staffing levels, funding obligations, and expenditures for programs operated directly by the Secretary serving that tribe.
(f) Single-agency audit report; additional information; declination criteria and procedures
(1) For each fiscal year during which an Indian tribal organization receives or expends funds pursuant to a contract entered into, or grant made, under this chapter, the tribal organization that requested such contract or grant shall submit to the appropriate Secretary a single-agency audit report required by
(2) In addition to submitting a single-agency audit report pursuant to paragraph (1), a tribal organization referred to in such paragraph shall submit such additional information concerning the conduct of the program, function, service, or activity carried out pursuant to the contract or grant that is the subject of the report as the tribal organization may negotiate with the Secretary.
(3) Any disagreement over reporting requirements shall be subject to the declination criteria and procedures set forth in
(
Amendment of Subsection (f)(1)
Editorial Notes
References in Text
This chapter, referred to in subsecs. (a)(1) and (f)(1), was in the original "this Act", meaning
Codification
Section was formerly classified to
Amendments
2020—Subsec. (b).
Subsec. (f)(1).
1994—Subsec. (f).
1990—Subsec. (a)(2).
Subsec. (d).
1988—Subsec. (a).
Subsec. (e).
Subsec. (f).
Statutory Notes and Related Subsidiaries
Effective Date of 2020 Amendment
1 So in original. Probably should be followed by a comma.
2 See References in Text note below.
§5306. Criminal activities involving grants, contracts, etc.; penalties
Whoever, being an officer, director, agent, or employee of, or connected in any capacity with, any recipient of a contract, subcontract, grant, or subgrant pursuant to this chapter or the Act of April 16, 1934 (
(
Editorial Notes
References in Text
This chapter, referred to in text, was in the original "this Act", meaning
Act of April 16, 1934, referred to in text, is act Apr. 16, 1934, ch. 147,
Codification
Section was formerly classified to
§5307. Wage and labor standards
(a) Similar construction in locality
All laborers and mechanics employed by contractors or subcontractors (excluding tribes and tribal organizations) in the construction, alteration, or repair, including painting or decorating of buildings or other facilities in connection with contracts or grants entered into pursuant to this chapter, shall be paid wages at not less than those prevailing on similar construction in the locality, as determined by the Secretary of Labor in accordance with
(b) Preference requirements for wages and grants
Any contract, subcontract, grant, or subgrant pursuant to this chapter, the Act of April 16, 1934 (
(1) preferences and opportunities for training and employment in connection with the administration of such contracts or grants shall be given to Indians; and
(2) preference in the award of subcontracts and subgrants in connection with the administration of such contracts or grants shall be given to Indian organizations and to Indian-owned economic enterprises as defined in
(c) Self-determination contracts
Notwithstanding subsections (a) and (b) of this section, with respect to any self-determination contract, or portion of a self-determination contract, that is intended to benefit one tribe, the tribal employment or contract preference laws adopted by such tribe shall govern with respect to the administration of the contract or portion of the contract.
(
Editorial Notes
References in Text
This chapter, referred to in subsecs. (a) and (b), was in the original "this Act", meaning
Act of March 3, 1921, referred to in subsec. (a), probably means the act of March 3, 1931, ch. 411,
Reorganization Plan Numbered 14 of 1950, referred to in subsec. (a), is set out in the Appendix to Title 5, Government Organization and Employees.
Act of April 16, 1934, referred to in subsec. (b), is act Apr. 16, 1934, ch. 147,
Codification
Section was formerly classified to
In subsec. (a), "
Amendments
1994—Subsec. (a).
Subsec. (c).
1 See References in Text note below.
§5308. Grant and cooperative agreements
The provisions of this chapter shall not be subject to the requirements of
(
Editorial Notes
References in Text
This chapter, referred to in text, was in the original "this Act", meaning
Codification
Section was formerly classified to
Amendments
1990—
1 See Codification note below.
§5309. Use of excess funds
Beginning in fiscal year 1998 and thereafter, where the actual costs of construction projects under self-determination contracts, compacts, or grants, pursuant to Public Laws
(
Editorial Notes
References in Text
Codification
Section was enacted as part of the Department of the Interior and Related Agencies Appropriations Act, 1998, and not as part of the Indian Self-Determination and Education Assistance Act which comprises this chapter.
Section was formerly classified to
Prior Provisions
Provisions similar to those in this section were contained in the following prior appropriation acts:
§5310. Investment of advance payments; restrictions
Advance payments made by the Department of the Interior to Indian tribes, tribal organizations, and tribal consortia pursuant to the Indian Self-Determination and Education Assistance Act (
(1) invested by the Indian tribe, tribal organization, or consortium only in obligations of the United States, or in obligations or securities that are guaranteed or insured by the United States, or mutual (or other) funds registered with the Securities and Exchange Commission and which only invest in obligations of the United States or securities that are guaranteed or insured by the United States; or
(2) deposited only into accounts that are insured by an agency or instrumentality of the United States, or are fully collateralized to ensure protection of the funds, even in the event of a bank failure.
(
Editorial Notes
References in Text
The Indian Self-Determination and Education Assistance Act (
The Tribally Controlled Schools Act of 1988, referred to in text, is part B (§§5201–5212) of title V of
Codification
Section was enacted as part of the Department of the Interior and Related Agencies Appropriations Act, 2005, and also as part of the Consolidated Appropriations Act, 2005, and not as part of the Indian Self-Determination and Education Assistance Act which comprises this chapter.
Section was formerly classified to
Prior Provisions
Provisions similar to those in this section were contained in the following prior appropriation acts:
1 See References in Text note below.
SUBCHAPTER I—INDIAN SELF-DETERMINATION
§5321. Self-determination contracts
(a) Request by tribe; authorized programs
(1) The Secretary is directed, upon the request of any Indian tribe by tribal resolution, to enter into a self-determination contract or contracts with a tribal organization to plan, conduct, and administer programs or portions thereof, including construction programs—
(A) provided for in the Act of April 16, 1934 (
(B) which the Secretary is authorized to administer for the benefit of Indians under the Act of November 2, 1921 (
(C) provided by the Secretary of Health and Human Services under the Act of August 5, 1954 (
(D) administered by the Secretary for the benefit of Indians for which appropriations are made to agencies other than the Department of Health and Human Services or the Department of the Interior; and
(E) for the benefit of Indians because of their status as Indians without regard to the agency or office of the Department of Health and Human Services or the Department of the Interior within which it is performed.
The programs, functions, services, or activities that are contracted under this paragraph shall include administrative functions of the Department of the Interior and the Department of Health and Human Services (whichever is applicable) that support the delivery of services to Indians, including those administrative activities supportive of, but not included as part of, the service delivery programs described in this paragraph that are otherwise contractable. The administrative functions referred to in the preceding sentence shall be contractable without regard to the organizational level within the Department that carries out such functions.
(2) If so authorized by an Indian tribe under paragraph (1) of this subsection, a tribal organization may submit a proposal for a self-determination contract, or a proposal to amend or renew a self-determination contract, to the Secretary for review. Subject to the provisions of paragraph (4), the Secretary shall, within ninety days after receipt of the proposal, approve the proposal and award the contract unless the Secretary provides written notification to the applicant that contains a specific finding that clearly demonstrates that, or that is supported by a controlling legal authority that—
(A) the service to be rendered to the Indian beneficiaries of the particular program or function to be contracted will not be satisfactory;
(B) adequate protection of trust resources is not assured;
(C) the proposed project or function to be contracted for cannot be properly completed or maintained by the proposed contract;
(D) the amount of funds proposed under the contract is in excess of the applicable funding level for the contract, as determined under
(E) the program, function, service, or activity (or portion thereof) that is the subject of the proposal is beyond the scope of programs, functions, services, or activities covered under paragraph (1) because the proposal includes activities that cannot lawfully be carried out by the contractor.
Notwithstanding any other provision of law, the Secretary may extend or otherwise alter the 90-day period specified in the second sentence of this subsection,1 if before the expiration of such period, the Secretary obtains the voluntary and express written consent of the tribe or tribal organization to extend or otherwise alter such period. The contractor shall include in the proposal of the contractor the standards under which the tribal organization will operate the contracted program, service, function, or activity, including in the area of construction, provisions regarding the use of licensed and qualified architects, applicable health and safety standards, adherence to applicable Federal, State, local, or tribal building codes and engineering standards. The standards referred to in the preceding sentence shall ensure structural integrity, accountability of funds, adequate competition for subcontracting under tribal or other applicable law, the commencement, performance, and completion of the contract, adherence to project plans and specifications (including any applicable Federal construction guidelines and manuals), the use of proper materials and workmanship, necessary inspection and testing, and changes, modifications, stop work, and termination of the work when warranted.
(3) Upon the request of a tribal organization that operates two or more mature self-determination contracts, those contracts may be consolidated into one single contract.
(4) The Secretary shall approve any severable portion of a contract proposal that does not support a declination finding described in paragraph (2). If the Secretary determines under such paragraph that a contract proposal—
(A) proposes in part to plan, conduct, or administer a program, function, service, or activity that is beyond the scope of programs covered under paragraph (1), or
(B) proposes a level of funding that is in excess of the applicable level determined under
subject to any alteration in the scope of the proposal that the Secretary and the tribal organization agree to, the Secretary shall, as appropriate, approve such portion of the program, function, service, or activity as is authorized under paragraph (1) or approve a level of funding authorized under
(b) Procedure upon refusal of request to contract
Whenever the Secretary declines to enter into a self-determination contract or contracts pursuant to subsection (a) of this section, the Secretary shall—
(1) state any objections in writing to the tribal organization,
(2) provide assistance to the tribal organization to overcome the stated objections, and
(3) provide the tribal organization 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, under such rules and regulations as the Secretary may promulgate, except that the tribe or tribal organization may, in lieu of filing such appeal, exercise the option to initiate an action in a Federal district court and proceed directly to such court pursuant to
(c) Liability insurance; waiver of defense
(1) Beginning in 1990, the Secretary shall be responsible for obtaining or providing liability insurance or equivalent coverage, on the most cost-effective basis, for Indian tribes, tribal organizations, and tribal contractors carrying out contracts, grant agreements and cooperative agreements pursuant to this chapter. In obtaining or providing such coverage, the Secretary shall take into consideration the extent to which liability under such contracts or agreements are covered by the Federal Tort Claims Act.
(2) In obtaining or providing such coverage, the Secretary shall, to the greatest extent practicable, give a preference to coverage underwritten by Indian-owned economic enterprises (as defined in
(3)(A) Any policy of insurance obtained or provided by the Secretary pursuant to this subsection shall contain a provision that the insurance carrier shall waive any right it may have to raise as a defense the sovereign immunity of an Indian tribe from suit, but that such waiver shall extend only to claims the amount and nature of which are within the coverage and limits of the policy and shall not authorize or empower such insurance carrier to waive or otherwise limit the tribe's sovereign immunity outside or beyond the coverage or limits of the policy of insurance.
(B) No waiver of the sovereign immunity of an Indian tribe pursuant to this paragraph shall include a waiver to the extent of any potential liability for interest prior to judgment or for punitive damages or for any other limitation on liability imposed by the law of the State in which the alleged injury occurs.
(d) Tribal organizations and Indian contractors deemed part of Public Health Service
For purposes of
(e) Burden of proof at hearing or appeal declining contract; final agency action
(1) With respect to any hearing or appeal conducted pursuant to subsection (b)(3) of this section or any civil action conducted pursuant to
(2) Notwithstanding any other provision of law, a decision by an official of the Department of the Interior or the Department of Health and Human Services, as appropriate (referred to in this paragraph as the "Department") that constitutes final agency action and that relates to an appeal within the Department that is conducted under subsection (b)(3) of this section shall be made either—
(A) 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 (such as the Indian Health Service or the Bureau of Indian Affairs) in which the decision that is the subject of the appeal was made; or
(B) by an administrative judge.
(f) Good faith requirement
In the negotiation of contracts and funding agreements, the Secretary shall—
(1) at all times negotiate in good faith to maximize implementation of the self-determination policy; and
(2) carry out this chapter in a manner that maximizes the policy of Tribal self-determination, in a manner consistent with—
(A) the purposes specified in
(B) the PROGRESS for Indian Tribes Act.
(g) Rule of construction
Subject to section 101(a) of the PROGRESS for Indian Tribes Act, each provision of this chapter and each provision of a contract or funding agreement shall be liberally construed for the benefit of the Indian Tribe participating in self-determination, and any ambiguity shall be resolved in favor of the Indian Tribe.
(
Editorial Notes
References in Text
Act of April 16, 1934, referred to in subsec. (a)(1)(A), is act Apr. 16, 1934, ch. 147,
Act of August 5, 1954, referred to in subsec. (a)(1)(C), is act Aug. 5, 1954, ch. 658,
This chapter, referred to in subsecs. (c)(1), (f)(2), and (g), was in the original "this Act", meaning
The Federal Tort Claims Act, referred to in subsec. (c)(1), is title IV of act Aug. 2, 1946, ch. 753,
The PROGRESS for Indian Tribes Act, referred to in subsec. (f)(2)(B), is
Section 101(a) of the PROGRESS for Indian Tribes Act, referred to in subsec. (g), is section 101(a) of
Codification
Except as provided below, section was formerly classified to
Subsec. (d) of this section was formerly classified to the last sentence of subsec. (c) of former
Amendments
2020—Subsec. (c)(2).
Subsecs. (f), (g).
2000—Subsec. (e)(1).
1994—Subsec. (a)(1).
Subsec. (a)(2).
Subsec. (a)(2)(D), (E).
Subsec. (a)(4).
Subsec. (b)(3).
Subsec. (d).
Subsec. (e).
1990—Subsec. (d).
1988—
Subsec. (c)(2).
Subsec. (d).
1987—Subsec. (d).
Statutory Notes and Related Subsidiaries
Short Title
For short title of this subchapter as the "Indian Self-Determination Act", see section 101 of
Savings Provision
Indian Tribal Tort Claims and Risk Management
"SEC. 701. SHORT TITLE.
"This title may be cited as the 'Indian Tribal Tort Claims and Risk Management Act of 1998'."
"SEC. 702. FINDINGS AND PURPOSE.
"(a)
"(1) Indian tribes have made significant achievements toward developing a foundation for economic self-sufficiency and self-determination, and that economic self-sufficiency and self-determination have increased opportunities for the Indian tribes and other entities and persons to interact more frequently in commerce and intergovernmental relationships;
"(2) although Indian tribes have sought and secured liability insurance coverage to meet their needs, many Indian tribes are faced with significant barriers to obtaining liability insurance because of the high cost or unavailability of such coverage in the private market;
"(3) as a result, Congress has extended liability coverage provided to Indian tribes to organizations to carry out activities under the Indian Self-Determination and Education Assistance Act (
"(4) there is an emergent need for comprehensive and cost-efficient insurance that allows the economy of Indian tribes to continue to grow and provides compensation to persons that may suffer personal injury or loss of property.
"(b)
"SEC. 703. DEFINITIONS.
"In this title:
"(1)
"(2)
"(3)
"SEC. 704. STUDY AND REPORT TO CONGRESS.
"(a)
"(1)
"(2)
"(A) an analysis of loss data;
"(B) risk assessments;
"(C) projected exposure to liability, and related matters; and
"(D) the category of risk and coverage involved, which may include—
"(i) general liability;
"(ii) automobile liability;
"(iii) the liability of officials of the Indian tribe;
"(iv) law enforcement liability;
"(v) workers' compensation; and
"(vi) other types of liability contingencies.
"(3)
"(b)
"(1) be appropriate to improve the provision of insurance coverage to Indian tribes; or
"(2) otherwise achieve the purpose of providing relief to persons who are injured as a result of an official action of a tribal government.
"SEC. 705. AUTHORIZATION OF APPROPRIATIONS.
"There are authorized to be appropriated to the Department of the Interior such sums as may be necessary to carry out this title."
Claims Resulting From Performance of Contract, Grant Agreement, or Cooperative Agreement; Civil Action Against Tribe, Tribal Organization, Etc., Deemed Action Against United States; Reimbursement of Treasury for Payment of Claims
Reference to Former Section 450g(c) in Public Law 100–446
See Codification notes above.
1 So in original. Probably should be "paragraph,".
2 So in original. Probably should be "section".
§5322. Grants to tribal organizations or tribes
(a) Request by tribe for contract or grant by Secretary of the Interior for improving, etc., tribal governmental, contracting, and program planning activities
The Secretary of the Interior is authorized, upon the request of any Indian tribe (from funds appropriated for the benefit of Indians pursuant to
(1) the strengthening or improvement of tribal government (including, but not limited to, the development, improvement, and administration of planning, financial management, or merit personnel systems; the improvement of tribally funded programs or activities; or the development, construction, improvement, maintenance, preservation, or operation of tribal facilities or resources);
(2) the planning, training, evaluation of other activities designed to improve the capacity of a tribal organization to enter into a contract or contracts pursuant to
(3) the acquisition of land in connection with items (1) and (2) above: Provided, That in the case of land within Indian country (as defined in
(b) Grants by Secretary of Health and Human Services for development, maintenance, etc., of health facilities or services and improvement of contract capabilities implementing hospital and health facility functions
The Secretary of Health and Human Services may, in accordance with regulations adopted pursuant to
(1) the development, construction, operation, provision, or maintenance of adequate health facilities or services including the training of personnel for such work, from funds appropriated to the Indian Health Service for Indian health services or Indian health facilities; or
(2) planning, training, evaluation or other activities designed to improve the capacity of a tribal organization to enter into a contract or contracts pursuant to section 103 of this Act.2
(c) Use as matching shares for other similar Federal grant programs
The provisions of any other Act notwithstanding, any funds made available to a tribal organization under grants pursuant to this section may be used as matching shares for any other Federal grant programs which contribute to the purposes for which grants under this section are made.
(d) Technical assistance
The Secretary is directed, upon the request of any tribal organization and subject to the availability of appropriations, to provide technical assistance on a nonreimbursable basis to such tribal organization—
(1) to develop any new self-determination contract authorized pursuant to this chapter;
(2) to provide for the assumption by such tribal organization of any program, or portion thereof, provided for in
(3) to develop modifications to any proposal for a self-determination contract which the Secretary has declined to approve pursuant to
(e) Grants for technical assistance and for planning, etc., Federal programs for tribe
The Secretary is authorized, upon the request of an Indian tribe, to make a grant to any tribal organization for—
(1) obtaining technical assistance from providers designated by the tribal organization, including tribal organizations that operate mature contracts, for the purposes of program planning and evaluation, including the development of any management systems necessary for contract management, and the development of cost allocation plans for indirect cost rates; and
(2) the planning, designing, monitoring, and evaluating of Federal programs serving the tribe, including Federal administrative functions.
(
Editorial Notes
References in Text
Section 103 of this Act, referred to in subsec. (b)(2), probably means former section 103 of
This chapter, referred to in subsec. (d)(1), was in the original "this Act", meaning
Codification
Section was formerly classified to
Prior Provisions
A prior section 103 of
Amendments
1990—Subsec. (a)(3).
1988—Subsec. (a).
Subsec. (b).
Subsecs. (d), (e).
Statutory Notes and Related Subsidiaries
Authority of Secretary To Acquire Lands In Trust
1 So in original. Probably should be followed by "the".
2 See References in Text note below.
§5323. Retention of Federal employee coverage, rights and benefits by employees of tribal organizations
(a) to (d) Omitted
(e) Eligible employees; Federal employee programs subject to retention
Notwithstanding the provisions of
(1) To retain coverage, rights, and benefits under subchapter I of
(A) payments on account of injury or disability shall be credited against disability compensation payable to the injured employee; and
(B) payments on account of death shall be credited against death compensation payable to dependents of the deceased employee.
(2) To retain coverage, rights, and benefits under
(3) To retain coverage, rights, and benefits under
(4) To retain coverage, rights, and benefits under
(f) Deposit by tribal organization of employee deductions and agency contributions in appropriate funds
During the period an employee is entitled to the coverage, rights, and benefits pursuant to the preceding subsection, the tribal organization employing such employee shall deposit currently in the appropriate funds the employee deductions and agency contributions required by paragraphs (2), (3), and (4) of such preceding subsection.
(g) Election for retention by employee and tribal organization before date of employment by tribal organization; transfer of employee to another tribal organization
An employee who is employed by a tribal organization under subsection (e) of this section and such tribal organization shall make the election to retain the coverages, rights, and benefits in paragraphs (1), (2), (3), and (4) of such subsection (e) before the date of his employment by a tribal organization. An employee who is employed by a tribal organization under subsection (e) of this section shall continue to be entitled to the benefits of such subsection if he is employed by another tribal organization to perform service in activities of the type described in such subsection.
(h) "Employee" defined
For the purposes of subsections (e), (f), and (g) of this section, the term "employee" means an employee as defined in
(i) Promulgation of implementation regulations by President
The President may prescribe regulations necessary to carry out the provisions of subsections (e), (f), (g), and (h) of this section and to protect and assure the compensation, retirement, insurance, leave, reemployment rights, and such other similar civil service employment rights as he finds appropriate.
(j) Additional employee employment rights
Anything in
(1) an officer or employee of the United States assigned to a tribal organization (as defined in
(2) a former officer or employee of the United States who is carrying out official duties as an employee or as an elected or appointed official of a tribal organization (as defined in
(k), (l) Omitted
(m) Conversion to career appointment
The status of an Indian (as defined in
(
Editorial Notes
Codification
Section was formerly classified to
Section is comprised of section 104 of
Prior Provisions
A prior section 104 of
Amendments
2007—Subsec. (j).
1990—Subsec. (m).
1988—Subsecs. (a), (b).
Subsec. (e).
Subsecs. (k), (l).
Subsec. (m).
1985—Subsec. (e).
1983—Subsec. (e).
Statutory Notes and Related Subsidiaries
Effective Date of 2007 Amendment
Pribilof Island Natives Employed by Federal Government on October 28, 1983
Executive Documents
Ex. Ord. No. 11899. Providing for Protection of Certain Civil Service Employment Rights of Federal Personnel Who Leave Federal Employment To Be Employed by Tribal Organizations
Ex. Ord. No. 11899, Jan. 26, 1976, 41 F.R. 3459, as amended by Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055; Ex. Ord. No. 12608, Sept. 9, 1987, 52 F.R. 34617, provided:
By virtue of the authority vested in me by section 105(i) of the Indian Self-Determination and Education Assistance Act (
§5324. Contract or grant provisions and administration
(a) Applicability of Federal contracting laws and regulations; waiver of requirements
(1) Notwithstanding any other provision of law, subject to paragraph (3), the contracts and cooperative agreements entered into with tribal organizations pursuant to
(2) Program standards applicable to a nonconstruction self-determination contract shall be set forth in the contract proposal and the final contract of the tribe or tribal organization.
(3)(A) With respect to a construction contract (or a subcontract of such a construction contract), the provisions of division B (except sections 1123, 2303, 2304, and 2313) of subtitle I of title 41 and the regulations relating to acquisitions promulgated under division B (except sections 1123, 2303, 2304, and 2313) of subtitle I of title 41 shall apply only to the extent that the application of such provision 1 to the construction contract (or subcontract) is—
(i) necessary to ensure that the contract may be carried out in a satisfactory manner;
(ii) directly related to the construction activity; and
(iii) not inconsistent with this chapter.
(B) A list of the Federal requirements that meet the requirements of clauses (i) through (iii) of subparagraph (A) shall be included in an attachment to the contract pursuant to negotiations between the Secretary and the tribal organization.
(C)(i) Except as provided in subparagraph (B), no Federal law listed in clause (ii) or any other provision of Federal law (including an Executive order) relating to acquisition by the Federal Government shall apply to a construction contract that a tribe or tribal organization enters into under this chapter, unless expressly provided in such law.
(ii) The laws listed in this paragraph are as follows:
(I) Chapters 1 to 11 of title 40 and division C (except sections 3302, 3307(e), 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41.
(II)
(III) Section 9(c) 2 of the Act of Aug. 2, 1946 (
(IV) Division C (except sections 3302, 3307(e), 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41.
(V) Section 13 of the Act of Oct. 3, 1944 (
(VI) Chapters 21, 25, 27, 29, and 31 of title 44.
(VII)
(VIII)
(IX)
(X) The Small Business Act (
(XI) Executive Order Nos. 12138, 11246, 11701 and 11758.
(b) Payments; transfer of funds by Treasury for disbursement by tribal organization; accountability for interest accrued prior to disbursement
Payments of any grants or under any contracts pursuant to
(c) Term of self-determination contracts; annual renegotiation
(1) A self-determination contract shall be—
(A) for a term not to exceed three years in the case of other than a mature contract, unless the appropriate Secretary and the tribe agree that a longer term would be advisable, and
(B) for a definite or an indefinite term, as requested by the tribe (or, to the extent not limited by tribal resolution, by the tribal organization), in the case of a mature contract.
The amounts of such contracts shall be subject to the availability of appropriations.
(2) The amounts of such contracts may be renegotiated annually to reflect changed circumstances and factors, including, but not limited to, cost increases beyond the control of the tribal organization.
(d) Calendar year basis for contracts
(1) Beginning in fiscal year 1990, upon the election of a tribal organization, the Secretary shall use the calendar year as the basis for any contracts or agreements under this chapter, unless the Secretary and the Indian tribe or tribal organization agree on a different period.
(2) The Secretary shall, on or before April 1 of each year beginning in 1992, submit a report to the Congress on the amounts of any additional obligation authority needed to implement this subsection in the next following fiscal year.
(e) Effective date for retrocession of contract
If an Indian tribe, or a tribal organization authorized by a tribe, requests retrocession of the appropriate Secretary for any contract or portion of a contract entered into pursuant to this chapter, unless the tribe or tribal organization rescinds the request for retrocession, such retrocession shall become effective on—
(1) the earlier of—
(A) the date that is 1 year after the date the Indian tribe or tribal organization submits such request; or
(B) the date on which the contract expires; or
(2) such date as may be mutually agreed by the Secretary and the Indian tribe.
(f) Use of existing school buildings, hospitals, and other facilities and equipment therein; acquisition and donation of excess or surplus Government personal property
In connection with any self-determination contract or grant made pursuant to
(1) permit an Indian tribe or tribal organization in carrying out such contract or grant, to utilize 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 for their use and maintenance;
(2) donate to an Indian tribe or tribal organization title to any personal or real property found to be excess to the needs of the Bureau of Indian Affairs, the Indian Health Service, 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 contract or purchased with funds under any self-determination contract or grant agreement shall, unless otherwise requested by the tribe or tribal organization, vest in the appropriate tribe or tribal organization;
(B) if property described in subparagraph (A) has a value in excess of $5,000 at the time of the retrocession, rescission, or termination of the self-determination contract or grant agreement, at the option of the Secretary, upon the retrocession, rescission, or termination, title to such property and equipment shall revert to the Department of the Interior or the Department of Health and Human Services, as appropriate; and
(C) all property referred to in subparagraph (A) shall remain eligible for replacement on the same basis as if title to such property were vested in the United States; and
(3) acquire excess or surplus Government personal or real property for donation to an Indian tribe or tribal organization if the Secretary determines the property is appropriate for use by the tribe or tribal organization for a purpose for which a self-determination contract or grant agreement is authorized under this chapter.
(g) Performance of personal services
The contracts authorized under
(h) Fair and uniform provision by tribal organization of services and assistance to covered Indians
Contracts and grants with tribal organizations pursuant to
(i) Division of administration of program
(1) If a self-determination contract requires the Secretary to divide the administration of a program that has previously been administered for the benefit of a greater number of tribes than are represented by the tribal organization that is a party to the contract, the Secretary shall take such action as may be necessary to ensure that services are provided to the tribes not served by a self-determination contract, including program redesign in consultation with the tribal organization and all affected tribes.
(2) Nothing in this subchapter shall be construed to limit or reduce in any way the funding for any program, project, or activity serving a tribe under this or other applicable Federal law. Any tribe or tribal organization that alleges that a self-determination contract is in violation of this section may apply the provisions of
(j) Proposal to redesign program, activity, function, or service
Upon providing notice to the Secretary, a tribal organization that carries out a nonconstruction self-determination contract may propose a redesign of a program, activity, function, or service carried out by the tribal organization under the contract, including any nonstatutory program standard, in such manner as to best meet the local geographic, demographic, economic, cultural, health, and institutional needs of the Indian people and tribes served under the contract. The Secretary shall evaluate any proposal to redesign any program, activity, function, or service provided under the contract. With respect to declining to approve a redesigned program, activity, function, or service under this subsection, the Secretary shall apply the criteria and procedures set forth in
(k) Access to Federal sources of supply
For purposes of
(l) Lease of facility used for administration and delivery of services
(1) Upon the request of an Indian tribe or tribal organization, the Secretary shall enter into a lease with the Indian tribe or tribal organization that holds title to, a leasehold interest in, or a trust interest in, a facility used by the Indian tribe or tribal organization for the administration and delivery of services under this chapter.
(2) The Secretary shall compensate each Indian tribe or tribal organization that enters into a lease under paragraph (1) for the use of the facility leased for the purposes specified in such paragraph. Such compensation may include rent, depreciation based on the useful life of the facility, principal and interest paid or accrued, operation and maintenance expenses, and such other reasonable expenses that the Secretary determines, by regulation, to be allowable.
(m) Statutory requirements; technical assistance; precontract negotiation phase; fixed price construction contract
(1) Each construction contract requested, approved, or awarded under this chapter, shall be subject to—
(A) except as otherwise provided in this chapter, the provisions of this chapter, other than
(B) section 314 of the Department of the Interior and Related Agencies Appropriations Act, 1991 (
(2) In providing technical assistance to tribes and tribal organizations in the development of construction contract proposals, the Secretary shall provide, not later than 30 days after receiving a request from a tribe or tribal organization, all information available to the Secretary regarding the construction project, including construction drawings, maps, engineering reports, design reports, plans of requirements, cost estimates, environmental assessments or environmental impact reports, and archaeological reports.
(3) Prior to finalizing a construction contract proposal pursuant to
(A) The provision of technical assistance pursuant to
(B) A joint scoping session between the Secretary and the tribe or tribal organization to review all plans, specifications, engineering reports, cost estimates, and other information available to the parties, for the purpose of identifying all areas of agreement and disagreement.
(C) An opportunity for the Secretary to revise the plans, designs, or cost estimates of the Secretary in response to concerns raised, or information provided by, the tribe or tribal organization.
(D) A negotiation session during which the Secretary and the tribe or tribal organization shall seek to develop a mutually agreeable contract proposal.
(E) Upon the request of the tribe or tribal organization, the use of an alternative dispute resolution mechanism to seek resolution of all remaining areas of disagreement pursuant to the dispute resolution provisions under subchapter IV of
(F) The submission to the Secretary by the tribe or tribal organization of a final contract proposal pursuant to
(4)(A) Subject to subparagraph (B), in funding a fixed-price construction contract pursuant to
(i) The reasonable costs to the tribe or tribal organization for general administration incurred in connection with the project that is the subject of the contract.
(ii) The ability of the contractor that carries out the construction contract to make a reasonable profit, taking into consideration the risks associated with carrying out the contract and other relevant considerations.
(B) In establishing a contract budget for a construction project, the Secretary shall not be required to separately identify the components described in clauses (i) and (ii) of subparagraph (A).
(C) The total amount awarded under a construction contract shall reflect an overall fair and reasonable price to the parties, including the following costs:
(i) The reasonable costs to the tribal organization of performing the contract, taking into consideration the terms of the contract and the requirements of this chapter and any other applicable law.
(ii) The costs of preparing the contract proposal and supporting cost data.
(iii) The costs associated with auditing the general and administrative costs of the tribal organization associated with the management of the construction contract.
(iv) In the case of a fixed-price contract, a fair profit determined by taking into consideration the relevant risks and local market conditions.
(v) If the Secretary and the tribe or tribal organization are unable to develop a mutually agreeable construction contract proposal pursuant to the procedures set forth in this subsection, the tribe or tribal organization may submit a final contract proposal to the Secretary. Not later than 30 days after receiving such final contract proposal, the Secretary shall approve the contract proposal and award the contract, unless, during such period the Secretary declines the proposal pursuant to subsections (a)(2) and (b) 2 of
(n) Rental rates for housing for Government employees in Alaska
Notwithstanding any other provision of law, the rental rates for housing provided to an employee by the Federal Government in Alaska pursuant to a self-determination contract shall be determined on the basis of—
(1) the reasonable value of the quarters and facilities (as such terms are defined under
(2) the circumstances under which such quarters and facilities are provided to such employee,
as based on the cost of comparable private rental housing in the nearest established community with a year-round population of 1,500 or more individuals.
(o) Patient records
(1) In general
At the option of an Indian tribe or tribal organization, patient records may be deemed to be Federal records under those provisions of title 44 that are commonly referred to as the "Federal Records Act of 1950" for the limited purposes of making such records eligible for storage by Federal Records Centers to the same extent and in the same manner as other Department of Health and Human Services patient records.
(2) Treatment of records
Patient records that are deemed to be Federal records under those provisions of title 44 that are commonly referred to as the "Federal Records Act of 1950" pursuant to this subsection shall not be considered Federal records for the purposes of
(p) Interpretation by Secretary
Except as otherwise provided by law, the Secretary shall interpret all Federal laws (including regulations) and Executive orders in a manner that facilitates, to the maximum extent practicable—
(1) the inclusion in self-determination contracts and funding agreements of—
(A) applicable programs, services, functions, and activities (or portions thereof); and
(B) funds associated with those programs, services, functions, and activities;
(2) the implementation of self-determination contracts and funding agreements; and
(3) the achievement of Tribal health objectives.
(q) Technical assistance for internal controls
(1)
(2) The Secretary shall prepare a report to be included in the information required for the reports under
(
Editorial Notes
References in Text
This chapter, referred to in subsecs. (a)(3)(A)(iii), (C)(i), (d)(1), (e), (f)(3), (k), (l)(1), and (m)(1), (4)(C)(i), was in the original "this Act", meaning
Section 9(c) of the Act of Aug. 2, 1946, referred to in subsec. (a)(3)(C)(ii)(III), was section 9(c) of act Aug. 2, 1946, ch. 744,
Section 13 of the Act of Oct. 3, 1944 (
The Small Business Act, referred to in subsec. (a)(3)(C)(ii)(X), is
Executive Order Nos. 12138, 11246, 11701 and 11758, referred to in subsec. (a)(3)(C)(ii)(XI), are Ex. Ord. No. 12138, May 18, 1979, 44 F.R. 29637, which is set out as a note under
This subchapter, referred to in subsecs. (b), (i)(2) and (q)(1), was in the original "this title", meaning title I of
Section 314 of the Department of the Interior and Related Agencies Appropriations Act, 1991, referred to in subsec. (m)(1)(B), is section 314 of
Subsections (a)(2) and (b) of
The Federal Records Act of 1950, referred to in subsec. (o), was title V of act June 30, 1949, ch. 288, as added Sept. 5, 1950, ch. 849, §6(d),
Codification
Section was formerly classified to
In subsec. (a)(3)(A), "division B (except sections 1123, 2303, 2304, and 2313) of subtitle I of title 41" substituted for "the Office of Federal Procurement Policy Act (
In subsec. (a)(3)(C)(ii)(I), "Chapters 1 to 11 of title 40 and division C (except sections 3302, 3307(e), 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41" substituted for "The Federal Property and Administrative Services Act of 1949 (
In subsec. (a)(3)(C)(ii)(II), "
In subsec. (a)(3)(C)(ii)(IV), "Division C (except sections 3302, 3307(e), 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41" substituted for "Title III of the Federal Property and Administrative Services Act of 1949 (
In subsec. (a)(3)(C)(ii)(VII), "
In subsec. (a)(3)(C)(ii)(VIII), "
In subsec. (a)(3)(C)(ii)(IX), "
In subsec. (k), "
Prior Provisions
A prior section 105 of
Amendments
2020—Subsec. (b).
Subsecs. (p), (q).
2000—Subsec. (k).
Subsec. (o).
1996—Subsec. (e).
1994—Subsec. (a).
Subsec. (e).
Subsec. (f)(2).
Subsec. (h).
Subsecs. (i) to (n).
1990—Subsec. (a).
Subsec. (c)(1)(B).
Subsec. (d).
"(1) No later than fiscal year 1990, the Secretary shall begin using the calendar year as the basis for contracts and agreements under this Act except for instances where the Secretary and the Indian tribe or tribal organization agree on a different period.
"(2) The Secretary shall submit a report to the Congress within ninety days of October 5, 1988, on the amounts of any additional obligational authority needed to implement this subsection in fiscal year 1989."
Subsec. (f)(2), (3).
1988—Subsec. (a).
Subsec. (b).
Subsec. (c).
Subsec. (d).
Subsec. (e).
Subsec. (f).
Subsec. (g).
Subsec. (h).
Statutory Notes and Related Subsidiaries
Continued Availability of Certain Funds
1 So in original. Probably should be "provisions".
2 See References in Text note below.
§5325. Contract funding and indirect costs
(a) Amount of funds provided
(1) The amount of funds provided under the terms of self-determination contracts entered into pursuant to this chapter shall not be less than the appropriate Secretary would have otherwise provided for the operation of the programs or portions thereof for the period covered by the contract, without regard to any organizational level within the Department of the Interior or the Department of Health and Human Services, as appropriate, at which the program, function, service, or activity or portion thereof, including supportive administrative functions that are otherwise contractable, is operated.
(2) There shall be added to the amount required by paragraph (1) contract support costs which shall consist of an amount for the reasonable costs for activities which must be carried on by a tribal organization as a contractor to ensure compliance with the terms of the contract and prudent management, but which—
(A) normally are not carried on by the respective Secretary in his direct operation of the program; or
(B) are provided by the Secretary in support of the contracted program from resources other than those under contract.
(3)(A) The contract support costs that are eligible costs for the purposes of receiving funding under this chapter shall include the costs of reimbursing each tribal contractor for reasonable and allowable costs of—
(i) direct program expenses for the operation of the Federal program that is the subject of the contract; and
(ii) any additional administrative or other expense incurred by the governing body of the Indian Tribe or Tribal organization and any overhead expense incurred by the tribal contractor in connection with the operation of the Federal program, function, service, or activity pursuant to the contract,
except that such funding shall not duplicate any funding provided under subsection (a)(1) of this section.
(B) In calculating the reimbursement rate for expenses described in subparagraph (A)(ii), not less than 50 percent of the expenses described in subparagraph (A)(ii) that are incurred by the governing body of an Indian Tribe or Tribal organization relating to a Federal program, function, service, or activity carried out pursuant to the contract shall be considered to be reasonable and allowable.
(C) On an annual basis, during such period as a tribe or tribal organization operates a Federal program, function, service, or activity pursuant to a contract entered into under this chapter, the tribe or tribal organization shall have the option to negotiate with the Secretary the amount of funds that the tribe or tribal organization is entitled to receive under such contract pursuant to this paragraph.
(4) For each fiscal year during which a self-determination contract is in effect, any savings attributable to the operation of a Federal program, function, service, or activity under a self-determination contract by a tribe or tribal organization (including a cost reimbursement construction contract) shall—
(A) be used to provide additional services or benefits under the contract; or
(B) be expended by the tribe or tribal organization in the succeeding fiscal year, as provided in
(5) Subject to paragraph (6), during the initial year that a self-determination contract is in effect, the amount required to be paid under paragraph (2) shall include startup costs consisting of the reasonable costs that have been incurred or will be incurred on a one-time basis pursuant to the contract necessary—
(A) to plan, prepare for, and assume operation of the program, function, service, or activity that is the subject of the contract; and
(B) to ensure compliance with the terms of the contract and prudent management.
(6) Costs incurred before the initial year that a self-determination contract is in effect may not be included in the amount required to be paid under paragraph (2) if the Secretary does not receive a written notification of the nature and extent of the costs prior to the date on which such costs are incurred.
(b) Reductions and increases in amount of funds provided
The amount of funds required by subsection (a) of this section—
(1) shall not be reduced to make funding available for contract monitoring or administration by the Secretary;
(2) shall not be reduced by the Secretary in subsequent years except pursuant to—
(A) a reduction in appropriations from the previous fiscal year for the program or function to be contracted;
(B) a directive in the statement of the managers accompanying a conference report on an appropriation bill or continuing resolution;
(C) a tribal authorization;
(D) a change in the amount of pass-through funds needed under a contract; or
(E) completion of a contracted project, activity, or program;
(3) shall not be reduced by the Secretary to pay for Federal functions, including, but not limited to, Federal pay costs, Federal employee retirement benefits, automated data processing, contract technical assistance or contract monitoring;
(4) shall not be reduced by the Secretary to pay for the costs of Federal personnel displaced by a self-determination contract; and
(5) may, at the request of the tribal organization, be increased by the Secretary if necessary to carry out this chapter or as provided in
Notwithstanding any other provision in this chapter, the provision of funds under this chapter is subject to the availability of appropriations and the Secretary is not required to reduce funding for programs, projects, or activities serving a tribe to make funds available to another tribe or tribal organization under this chapter.
(c) Annual reports
Not later than May 15 of each year, the Secretary shall prepare and submit to Congress an annual report on the implementation of this chapter. Such report shall include—
(1) an accounting of the total amounts of funds provided for each program and the budget activity for direct program costs and contract support costs of tribal organizations under self-determination;
(2) an accounting of any deficiency in funds needed to provide required contract support costs to all contractors for the fiscal year for which the report is being submitted;
(3) the indirect cost rate and type of rate for each tribal organization that has been negotiated with the appropriate Secretary;
(4) the direct cost base and type of base from which the indirect cost rate is determined for each tribal organization;
(5) the indirect cost pool amounts and the types of costs included in the indirect cost pool; and
(6) an accounting of any deficiency in funds needed to maintain the preexisting level of services to any Indian tribes affected by contracting activities under this chapter, and a statement of the amount of funds needed for transitional purposes to enable contractors to convert from a Federal fiscal year accounting cycle, as authorized by
(d) Treatment of shortfalls in indirect cost recoveries
(1) Where a tribal organization's allowable indirect cost recoveries are below the level of indirect costs that the tribal organizations should have received for any given year pursuant to its approved indirect cost rate, and such shortfall is the result of lack of full indirect cost funding by any Federal, State, or other agency, such shortfall in recoveries shall not form the basis for any theoretical over-recovery or other adverse adjustment to any future years' indirect cost rate or amount for such tribal organization, nor shall any agency seek to collect such shortfall from the tribal organization.
(2) Nothing in this subsection shall be construed to authorize the Secretary to fund less than the full amount of need for indirect costs associated with a self-determination contract.
(e) Liability for indebtedness incurred before fiscal year 1992
Indian tribes and tribal organizations shall not be held liable for amounts of indebtedness attributable to theoretical or actual under-recoveries or theoretical over-recoveries of indirect costs, as defined in Office of Management and Budget Circular A–87, incurred for fiscal years prior to fiscal year 1992.
(f) Limitation on remedies relating to cost disallowances
Any right of action or other remedy (other than those relating to a criminal offense) relating to any disallowance of costs shall be barred unless the Secretary has given notice of any such disallowance within three hundred and sixty-five days of receiving any required annual single agency audit report or, for any period covered by law or regulation in force prior to October 19, 1984, any other required final audit report. Such notice shall set forth the right of appeal and hearing to the board of contract appeals pursuant to
(g) Addition to contract of full amount contractor entitled; adjustment
Upon the approval of a self-determination contract, the Secretary shall add to the contract the full amount of funds to which the contractor is entitled under subsection (a) of this section, subject to adjustments for each subsequent year that such tribe or tribal organization administers a Federal program, function, service, or activity under such contract.
(h) Indirect costs for contracts for construction programs
In calculating the indirect costs associated with a self-determination contract for a construction program, the Secretary shall take into consideration only those costs associated with the administration of the contract and shall not take into consideration those moneys actually passed on by the tribal organization to construction contractors and subcontractors.
(i) Indian Health Service and Bureau of Indian Affairs budget consultations
On an annual basis, the Secretary shall consult with, and solicit the participation of, Indian tribes and tribal organizations in the development of the budget for the Indian Health Service and the Bureau of Indian Affairs (including participation of Indian tribes and tribal organizations in formulating annual budget requests that the Secretary submits to the President for submission to Congress pursuant to
(j) Use of funds for matching or cost participation requirements
Notwithstanding any other provision of law, a tribal organization may use funds provided under a self-determination contract to meet matching or cost participation requirements under other Federal and non-Federal programs.
(k) Allowable uses of funds without approval of Secretary
Without intending any limitation, a tribal organization may, without the approval of the Secretary, expend funds provided under a self-determination contract for the following purposes, to the extent that the expenditure of the funds is supportive of a contracted program:
(1) Depreciation and use allowances not otherwise specifically prohibited by law, including the depreciation of facilities owned by the tribe or tribal organization.
(2) Publication and printing costs.
(3) Building, realty, and facilities costs, including rental costs or mortgage expenses.
(4) Automated data processing and similar equipment or services.
(5) Costs for capital assets and repairs.
(6) Management studies.
(7) Professional services, other than services provided in connection with judicial proceedings by or against the United States.
(8) Insurance and indemnification, including insurance covering the risk of loss of or damage to property used in connection with the contract without regard to the ownership of such property.
(9) Costs incurred to raise funds or contributions from non-Federal sources for the purpose of furthering the goals and objectives of the self-determination contract.
(10) Interest expenses paid on capital expenditures such as buildings, building renovation, or acquisition or fabrication of capital equipment, and interest expenses on loans necessitated due to delays by the Secretary in providing funds under a contract.
(11) Expenses of a governing body of a tribal organization that are attributable to the management or operation of programs under this chapter.
(12) Costs associated with the management of pension funds, self-insurance funds, and other funds of the tribal organization that provide for participation by the Federal Government.
(l) Suspension, withholding, or delay in payment of funds
(1) The Secretary may only suspend, withhold, or delay the payment of funds for a period of 30 days beginning on the date the Secretary makes a determination under this paragraph to a tribal organization under a self-determination contract, if the Secretary determines that the tribal organization has failed to substantially carry out the contract without good cause. In any such case, the Secretary shall provide the tribal organization with reasonable advance written notice, technical assistance (subject to available resources) to assist the tribal organization, a hearing on the record not later than 10 days after the date of such determination or such later date as the tribal organization shall approve, and promptly release any funds withheld upon subsequent compliance.
(2) With respect to any hearing or appeal conducted pursuant to this subsection, the Secretary shall have the burden of proof to establish by clearly demonstrating the validity of the grounds for suspending, withholding, or delaying payment of funds.
(m) Use of program income earned
The program income earned by a tribal organization in the course of carrying out a self-determination contract—
(1) shall be used by the tribal organization to further the general purposes of the contract; and
(2) shall not be a basis for reducing the amount of funds otherwise obligated to the contract.
(n) Reduction of administrative or other responsibilities of Secretary; use of savings
To the extent that programs, functions, services, or activities carried out by tribal organizations pursuant to contracts entered into under this chapter 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 contract funds determined under subsection (a) of this section, the Secretary shall make such savings available for the provision of additional services to program beneficiaries, either directly or through contractors, in a manner equitable to both direct and contracted programs.
(o) Rebudgeting by tribal organization
Notwithstanding any other provision of law (including any regulation), a tribal organization that carries out a self-determination contract may, with respect to allocations within the approved budget of the contract, rebudget to meet contract requirements, if such rebudgeting would not have an adverse effect on the performance of the contract.
(
Editorial Notes
References in Text
This chapter, referred to in subsecs. (a)(1), (3), (b), (c), (k)(11), and (n), was in the original "this Act", meaning
Codification
Section was formerly classified to
Prior Provisions
A prior section 106 of
Amendments
2020—Subsec. (a)(3)(A).
Subsec. (a)(3)(B), (C).
2000—Subsecs. (c) to (o).
1998—Subsecs. (c) to (o).
1994—Subsec. (a)(1).
Subsec. (a)(2).
Subsec. (a)(3).
Subsec. (a)(4) to (6).
Subsec. (c).
Subsec. (c)(1), (2).
Subsec. (c)(6).
Subsec. (f).
Subsec. (g).
Subsec. (i).
Subsecs. (j) to (o).
1990—Subsec. (e).
Subsec. (f).
Subsec. (i).
§5326. Indian Health Service: availability of funds for Indian self-determination or self-governance contract or grant support costs
Before, on, and after October 21, 1998, and notwithstanding any other provision of law, funds available to the Indian Health Service in this Act or any other Act for Indian self-determination or self-governance contract or grant support costs may be expended only for costs directly attributable to contracts, grants and compacts pursuant to the Indian Self-Determination Act [
(
Editorial Notes
References in Text
The Indian Self-Determination Act, referred to in text, is title I of
Codification
Section was enacted as part of the Department of the Interior and Related Agencies Appropriations Act, 1999, and also as part of the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, and not as part of the Indian Self-Determination and Education Assistance Act which comprises this chapter.
Section was formerly classified to
§5327. Department of the Interior: availability of funds for Indian self-determination or self-governance contract or grant support costs
Notwithstanding any other provision of law, including but not limited to the Indian Self-Determination Act of 1975, as amended [
(
Editorial Notes
References in Text
The Indian Self-Determination Act of 1975, referred to in text, probably means the Indian Self-Determination Act, title I of
This title, referred to in text, is title I of the Department of the Interior and Related Agencies Appropriations Act, 2000, as enacted by
Codification
Section was enacted as part of the Department of the Interior and Related Agencies Appropriations Act, 2000, and not as part of the Indian Self-Determination and Education Assistance Act which comprises this chapter.
Section was formerly classified to
Statutory Notes and Related Subsidiaries
Similar Provisions
Similar provisions were contained in
1 See References in Text note below.
§5328. Rules and regulations
(a) Authority of Secretaries of the Interior and of Health and Human Services to promulgate; time restriction
(1) Except as may be specifically authorized in this subsection, or in any other provision of this chapter, the Secretary of the Interior and the Secretary of Health and Human Services may not promulgate any regulation, nor impose any nonregulatory requirement, relating to self-determination contracts or the approval, award, or declination of such contracts, except that the Secretary of the Interior and the Secretary of Health and Human Services may promulgate regulations under this chapter relating to
(2)(A) The regulations promulgated under this chapter, including the regulations referred to in this subsection, shall be promulgated—
(i) in conformance with
(ii) as a single set of regulations in title 25 of the Code of Federal Regulations.
(B) The authority to promulgate regulations set forth in this chapter shall expire if final regulations are not promulgated within 20 months after October 25, 1994.
(b) Conflicting laws and regulations
The provisions of this chapter shall supersede any conflicting provisions of law (including any conflicting regulations) in effect on the day before October 25, 1994, and the Secretary is authorized to repeal any regulation inconsistent with the provisions of this chapter.
(c) Revisions and amendments; procedures applicable
The Secretary of the Interior and the Secretary of Health and Human Services are authorized, with the participation of Indian tribes and tribal organizations, to revise and amend any rules or regulations promulgated pursuant to this section: Provided, That prior to any revision or amendment to such rules or regulations, the respective Secretary or Secretaries shall present the proposed revision or amendment to the Committee on Energy and Natural Resources of the Senate and the Committee on Natural Resources of the House of Representatives and shall, to the extent practicable, consult with appropriate national or regional Indian organizations and shall publish any proposed revisions in the Federal Register not less than sixty days prior to the effective date of such rules and regulations in order to provide adequate notice to, and receive comments from, other interested parties.
(d) Consultation in drafting and promulgating; negotiation process; interagency committees; extension of deadlines
(1) In drafting and promulgating regulations as provided in subsection (a) of this section (including drafting and promulgating any revised regulations), the Secretary of the Interior and the Secretary of Health and Human Services shall confer with, and allow for active participation by, representatives of Indian tribes, tribal organizations, and individual tribal members.
(2)(A) In carrying out rulemaking processes under this chapter, the Secretary of the Interior and the Secretary of Health and Human Services shall follow the guidance of—
(i) subchapter III of
(ii) the recommendations of the Administrative Conference of the United States numbered 82–4 and 85–5 entitled "Procedures for Negotiating Proposed Regulations" under sections 305.82–4 and 305.85–5 of title 1, Code of Federal Regulations, and any successor recommendation or law (including any successor regulation).
(B) The tribal participants in the negotiation process referred to in subparagraph (A) shall be nominated by and shall represent the groups described in this paragraph and shall include tribal representatives from all geographic regions.
(C) The negotiations referred to in subparagraph (B) shall be conducted in a timely manner. Proposed regulations to implement the amendments made by the Indian Self-Determination Contract Reform Act of 1994 shall be published in the Federal Register by the Secretary of the Interior and the Secretary of Health and Human Services not later than 180 days after October 25, 1994.
(D) Notwithstanding any other provision of law (including any regulation), the Secretary of the Interior and the Secretary of Health and Human Services are authorized to jointly establish and fund such interagency committees or other interagency bodies, including advisory bodies comprised of tribal representatives, as may be necessary or appropriate to carry out the provisions of this chapter.
(E) If the Secretary determines that an extension of the deadlines under subsection (a)(2)(B) of this section and subparagraph (C) of this paragraph is appropriate, the Secretary may submit proposed legislation to Congress for the extension of such deadlines.
(e) Exceptions in or waiver of regulations
The Secretary may, with respect to a contract entered into under this chapter, make exceptions in the regulations promulgated to carry out this chapter, or waive such regulations, if the Secretary finds that such exception or waiver is in the best interest of the Indians served by the contract or is consistent with the policies of this chapter, and is not contrary to statutory law. In reviewing each request, the Secretary shall follow the timeline, findings, assistance, hearing, and appeal procedures set forth in
(
Editorial Notes
References in Text
This chapter, referred to in subsecs. (a), (b), (d)(2)(A), (D), and (e), was in the original "this Act", meaning
The Indian Self-Determination Contract Reform Act of 1994, referred to in subsec. (d)(2)(C), is title I of
Codification
Section was formerly classified to
In subsec. (a)(1), "
Amendments
1996—Subsec. (a)(2)(B).
Subsec. (b).
1994—Subsec. (a).
Subsec. (b).
"(b)(1) Within three months from October 5, 1988, the Secretary shall consider and formulate appropriate regulations to implement the provisions of this Act, with the participation of Indian tribes. Such proposed regulations shall contain all Federal requirements applicable to self-determination contracts and grants under this Act.
"(2) Within six months from October 5, 1988, the Secretary shall present the proposed regulations to the Select Committee on Indian Affairs of the United States Senate and to the Committee on Interior and Insular Affairs of the United States House of Representatives.
"(3) Within seven months from October 5, 1988, the Secretary shall publish proposed regulations in the Federal Register for the purpose of receiving comments from tribes and other interested parties.
"(4) Within ten months from October 5, 1988, the Secretary shall promulgate regulations to implement the provisions of such Act."
Subsec. (c).
Subsecs. (d), (e).
1990—Subsec. (c).
1988—Subsec. (a).
Subsec. (b).
"(1) Within six months from January 4, 1975, the Secretary of the Interior and the Secretary of Health and Human Services shall each to the extent practicable, consult with national and regional Indian organizations to consider and formulate appropriate rules and regulations to implement the provisions of this chapter.
"(2) Within seven months from January 4, 1975, the Secretary of the Interior and the Secretary of Health and Human Services shall each present the proposed rules and regulations to the Committees on Interior and Insular Affairs of the United States Senate and House of Representatives.
"(3) Within eight months from January 4, 1975, the Secretary of the Interior and the Secretary of Health and Human Services shall publish proposed rules and regulations in the Federal Register for the purpose of receiving comments from interested parties.
"(4) Within ten months from January 4, 1975, the Secretary of the Interior and the Secretary of Health and Human Services shall promulgate rules and regulations to implement the provisions of this chapter."
Statutory Notes and Related Subsidiaries
Change of Name
"Secretary of Health and Human Services" substituted for "Secretary of Health, Education, and Welfare" in subsec. (c), pursuant to section 509(b) of
Effective Date and Construction of 1996 Amendment
§5329. Contract or grant specifications
(a) Terms
Each self-determination contract entered into under this chapter shall—
(1) contain, or incorporate by reference, the provisions of the model agreement described in subsection (c) of this section (with modifications where indicated and the blanks appropriately filled in), and
(2) subject to subsections (a) and (b) of
(b) Payments; Federal records
Notwithstanding any other provision of law, the Secretary may make payments pursuant to section 1(b)(6) of such model agreement. As provided in section 1(b)(7) of the model agreement, the records of the tribal government or tribal organization specified in such section shall not be considered Federal records for purposes of
(c) Model agreement
The model agreement referred to in subsection (a)(1) of this section reads as follows:
"SECTION 1. AGREEMENT BETWEEN THE SECRETARY AND THE ____________ TRIBAL GOVERNMENT.
"(a)
"(1)
"(2)
"(b)
"(1)
"(2)
"(3)
"(4)
"(5)
"(6)
"(A)
"(i) be made as expeditiously as practicable; and
"(ii) include financial arrangements to cover funding during periods covered by joint resolutions adopted by Congress making continuing appropriations, to the extent permitted by such resolutions.
"(B)
"(i)
"(ii)
"(iii)
"(7)
"(A)
"(B)
"(C)
"(i) the Contractor agrees to one or more additional visits; or
"(ii) the appropriate official determines that there is reasonable cause to believe that grounds for reassumption of the Contract, suspension of Contract payments, or other serious Contract performance deficiency may exist.
No additional visit referred to in clause (ii) shall be made until such time as reasonable advance notice that includes a description of the nature of the problem that requires the additional visit has been given to the Contractor.
"(8)
"(A)
"(B)
"(C)
"(D)
"(E)
"(F)
"(G)
"(9)
"(A) shall remain available until expended; and
"(B) with respect to such funds, no further—
"(i) approval by the Secretary, or
"(ii) justifying documentation from the Contractor,
shall be required prior to the expenditure of such funds.
"(10)
"(11)
"(12)
"(A)
"(B)
"(i) submit disputes under this Contract to third-party mediation;
"(ii) submit the dispute to the adjudicatory body of the Contractor, including the tribal court of the Contractor;
"(iii) submit the dispute to mediation processes provided for under the laws, policies, or procedures of the Contractor; or
"(iv) use the administrative dispute resolution processes authorized in subchapter IV of
"(C)
"(13)
"(14)
"(A)
"(B)
"(15)
"(A)
"(B)
"(i) be in writing;
"(ii) identify the interested parties, the authorities of such parties, and purposes of the Contract;
"(iii) state the work to be performed under the Contract; and
"(iv) state the process for making any claim, the payments to be made, and the terms of the Contract, which shall be fixed.
"(c)
"(1)
"(2)
"(3)
"(4)
"(A)
"(B)
"(5)
"(d)
"(1)
"(A)
"(B)
"(2)
"(3)
"(e)
"(1)
"(2)
"(A)
"(B)
"(3)
"(4)
"(f)
"(1)
"(2)
"(A)
"(i) terms that identify the programs, services, functions, and activities to be performed or administered, the general budget category assigned, the funds to be provided, and the time and method of payment; and
"(ii) subject to subsections (a) and (b) of section 102 of the Indian Self-Determination and Education Assistance Act (
"(B)
(
Editorial Notes
References in Text
This chapter, referred to in subsec. (a), was in the original "this Act", meaning
The Indian Self-Determination and Education Assistance Act, referred to in the provisions of subsec. (c) setting out the model agreement, is
The Indian Civil Rights Act of 1968, referred to in section 1(b)(13) of the provisions of subsec. (c) setting out the model agreement, is title II of
Section 16 of the Act of June 18, 1934, referred to in section 1(b)(15)(A) of the provisions of subsec. (c) setting out the model agreement, is section 16 of act June 18, 1934, ch. 576,
The Act of July 3, 1952, referred to in section 1(b)(15)(A) of the provisions of subsec. (c) setting out the model agreement, is act July 3, 1952, ch. 549,
The Indian Health Care Improvement Act, referred to in section 1(d)(2) of the provisions of subsec. (c) setting out the model agreement, is
Codification
Section was formerly classified to
Prior Provisions
A prior section 108 of
Amendments
2020—Subsec. (a)(2).
Subsec. (c).
2000—Subsec. (c).
Statutory Notes and Related Subsidiaries
Quarterly Payments of Funds to Tribes
Similar provisions were contained in the following prior appropriation acts:
1 See References in Text note below.
§5330. Rescission of contract or grant and assumption of control of program, etc.; authority; grounds; procedure; correction of violation as prerequisite to new contract or grant agreement; construction with occupational safety and health requirements
Each contract or grant agreement entered into pursuant to sections 5321 and 5322 1 of this title shall provide that in any case where the appropriate Secretary determines that the tribal organization's performance under such contract or grant agreement involves (1) the violation of the rights or endangerment of the health, safety, or welfare of any persons; or (2) gross negligence or mismanagement in the handling or use of funds provided to the tribal organization pursuant to such contract or grant agreement, or in the management of trust fund, trust lands or interests in such lands pursuant to such contract or grant agreement, such Secretary may, under regulations prescribed by him and after providing notice and a hearing on the record to such tribal organization, rescind such contract or grant agreement, in whole or in part, and assume or resume control or operation of the program, activity, or service involved if he determines that the tribal organization has not taken corrective action as prescribed by the Secretary to remedy the contract deficiency, except that the appropriate Secretary may, upon written notice to a tribal organization, and the tribe served by the tribal organization, immediately rescind a contract or grant, in whole or in part, and resume control or operation of a program, activity, function, or service, if the Secretary finds that (i) there is an immediate threat of imminent harm to the safety of any person, or imminent substantial and irreparable harm to trust funds, trust lands, or interests in such lands, and (ii) such threat arises from the failure of the contractor to fulfill the requirements of the contract. In such cases, the Secretary shall provide the tribal organization with a hearing on the record within ten days or such later date as the tribal organization may approve. Such Secretary may decline to enter into a new contract or grant agreement and retain control of such program, activity, or service until such time as he is satisfied that the violations of rights or endangerment of health, safety, or welfare which necessitated the rescission has been corrected. In any hearing or appeal provided for under this section, the Secretary shall have the burden of proof to establish, by clearly demonstrating the validity of the grounds for rescinding, assuming, or reassuming the contract that is the subject of the hearing. Nothing in this section shall be construed as contravening the Occupational Safety and Health Act of 1970, as amended [
(
Editorial Notes
References in Text
The Occupational Safety and Health Act of 1970, referred to in text, is
Codification
Section was formerly classified to
Amendments
1994—
1990—
1988—
1 See Codification note below.
§5331. Contract disputes and claims
(a) Civil actions; concurrent jurisdiction; relief
The United States district courts shall have original jurisdiction over any civil action or claim against the appropriate Secretary arising under this chapter and, subject to the provisions of subsection (d) of this section and concurrent with the United States Court of Claims, over any civil action or claim against the Secretary for money damages arising under contracts authorized by this chapter. In an action brought under this paragraph, the district courts may order appropriate relief including money damages, injunctive relief against any action by an officer of the United States or any agency thereof contrary to this chapter or regulations promulgated thereunder, or mandamus to compel an officer or employee of the United States, or any agency thereof, to perform a duty provided under this chapter or regulations promulgated hereunder (including immediate injunctive relief to reverse a declination finding under
(b) Revision of contracts
The Secretary shall not revise or amend a self-determination contract with a tribal organization without the tribal organization's consent.
(c) Application of laws to administrative appeals
The Equal Access to Justice Act (Publc 1 Law 96–481, Act of October 1,1 1980; 92 1 Stat. 2325, as amended),
(d) Application of chapter 71 of title 41
(e) Application of subsection (d)
Subsection (d) of this section shall apply to any case pending or commenced on or after March 17, 1986, before the Boards of Contract Appeals of the Department of the Interior or the Department of Health and Human Services 2 except that in any such cases finally disposed of before October 5, 1988, the thirty-day period referred to in
(
Editorial Notes
References in Text
This chapter, referred to in subsec. (a), was in the original "this Act", meaning
The Equal Access to Justice Act, referred to in subsec. (c), is
The Interior Board of Contract Appeals established pursuant to section 8 of such Act (
The Boards of Contract Appeals of the Department of the Interior or the Department of Health and Human Services, referred to in subsec. (e), terminated effective 1 year after Jan. 6, 2006, pursuant to section 847(g) of
October 5, 1988, referred to in subsec. (e), was in the original "the date of enactment of these amendments" and "the date of enactment of this subsection", meaning the date of enactment of the Indian Self-Determination and Education Assistance Act Amendments of 1988,
Codification
Section was formerly classified to
In subsec. (d), "
Prior Provisions
A prior section 110 of
Amendments
1994—Subsec. (a).
Subsec. (d).
1990—Subsec. (a).
Subsec. (b).
Subsec. (c).
1988—Subsec. (a).
Subsec. (b).
Subsec. (c).
1 So in original. Probably should be "Public", "21,", and "94", respectively.
2 See References in Text note below.
§5332. Sovereign immunity and trusteeship rights unaffected
Nothing in this chapter shall be construed as—
(1) affecting, modifying, diminishing, or otherwise impairing the sovereign immunity from suit enjoyed by an Indian tribe; or
(2) authorizing or requiring the termination of any existing trust responsibility of the United States with respect to the Indian people.
(
Editorial Notes
References in Text
This chapter, referred to in text, was in the original "this Act", meaning
Codification
Section was formerly classified to
SUBCHAPTER II—CONTRACTS WITH STATES
Editorial Notes
Codification
Subchapter, consisting of
§5341. Donations for Indians; use of gifts; annual report to Congress
The Secretary of the Interior may accept donations of funds or other property for the advancement of the Indian race, and he may use the donated property in accordance with the terms of the donation in furtherance of any program authorized by other provision of law for the benefit of Indians. An annual report shall be made to the Congress on donations received and allocations made from such donations. This report shall include administrative costs and other pertinent data.
(Feb. 14, 1931, ch. 171,
Editorial Notes
Codification
Section was not enacted as part of the Johnson-O'Malley Act which comprises this subchapter, nor as part of the Indian Self-Determination and Education Assistance Act which comprises this chapter.
Section was formerly classified to
Amendments
1968—
Statutory Notes and Related Subsidiaries
Termination of Reporting Requirements
For termination, effective May 15, 2000, of provisions in this section relating to making an annual report to Congress, see section 3003 of
§5342. Contracts for education, medical attention, relief and social welfare of Indians
The Secretary of the Interior is authorized, in his discretion, to enter into a contract or contracts with any State or Territory, or political subdivision thereof, or with any State university, college, or school, or with any appropriate State or private corporation, agency, or institution, for the education, medical attention, agricultural assistance, and social welfare, including relief of distress, of Indians in such State or Territory, through the agencies of the State or Territory or of the corporations and organizations hereinbefore named, and to expend under such contract or contracts, moneys appropriated by Congress for the education, medical attention, agricultural assistance, and social welfare, including relief of distress, of Indians in such State or Territory.
(Apr. 16, 1934, ch. 147, §1,
Editorial Notes
Codification
Section was formerly classified to
Amendments
1936—Act June 4, 1936, substituted "with any State or Territory, or political subdivision thereof, or with any State university, college, or school, or with any appropriate State or private corporation, agency, or institution", "through the agencies of the State or Territory or of the corporations and organizations hereinbefore named,", and "such State or Territory" for "any State or Territory having legal authority so to do,", "through the qualified agencies of such State or Territory,", and "such State", respectively.
Statutory Notes and Related Subsidiaries
Short Title
Distribution of Public School Assistance
Similar provisions were contained in the following prior appropriation act:
Limitation on Contract Authority
§5343. Use of Government property by States and Territories
The Secretary of the Interior, in making any contract authorized by
(Apr. 16, 1934, ch. 147, §2,
Editorial Notes
Codification
Section was formerly classified to
Amendments
1936—Act June 4, 1936, substituted ", may permit such contracting party" for "with any State or Territory, may permit such State or Territory".
§5344. Rules and regulations; minimum standards of service
The Secretary of the Interior is authorized to perform any and all acts and to make such rules and regulations, including minimum standards of service, as may be necessary and proper for the purpose of carrying the provisions of
(Apr. 16, 1934, ch. 147, §3,
Editorial Notes
Codification
Section was formerly classified to
Amendments
1936—Act June 4, 1936, substituted "within which" for "with which".
§5345. Contracts for education in public schools; submission of education plan by contractor as prerequisite; criteria for approval of plan by Secretary of the Interior; participation by non-Indian students
The Secretary of the Interior shall not enter into any contract for the education of Indians unless the prospective contractor has submitted to, and has had approved by the Secretary of the Interior, an education plan, which plan, in the determination of the Secretary, contains educational objectives which adequately address the educational needs of the Indian students who are to be beneficiaries of the contract and assures that the contract is capable of meeting such objectives: Provided, That where students other than Indian students participate in such programs, money expended under such contract shall be prorated to cover the participation of only the Indian students.
(Apr. 16, 1934, ch. 147, §4, as added
Editorial Notes
Codification
Section was formerly classified to
Prior Provisions
A prior section 4 of act Apr. 16, 1934, ch. 147,
§5346. Local committee of Indian parents in school districts having school boards composed of non-Indian majority
(a) Election; functions
Whenever a school district affected by a contract or contracts for the education of Indians pursuant to
(b) Revocation of contracts
The Secretary of the Interior may, in his discretion, revoke any contract if the contractor fails to permit a local committee to perform its duties pursuant to subsection (a) of this section.
(Apr. 16, 1934, ch. 147, §5, as added
Editorial Notes
Codification
Section was formerly classified to
Prior Provisions
A prior section 5 of act Apr. 16, 1934, ch. 147,
Amendments
2015—Subsec. (a).
2002—Subsec. (a).
1994—Subsec. (a).
Statutory Notes and Related Subsidiaries
Effective Date of 2002 Amendment
Amendment by
§5347. Reimbursement to school districts for educating non-resident students
Any school district educating Indian students who are members of recognized Indian tribes, who do not normally reside in the State in which such school district is located, and who are residing in Federal boarding facilities for the purposes of attending public schools within such district may, in the discretion of the Secretary of the Interior, be reimbursed by him for the full per capita costs of educating such Indian students.
(Apr. 16, 1934, ch. 147, §6, as added
Editorial Notes
Codification
Section was formerly classified to
§5348. Computation of student count
(a) Definitions
For the purposes of
(1) Contracting party
The term "contracting party" means an entity that has a contract through a program authorized under
(2) Eligible entity
The term "eligible entity" means an entity that is eligible to apply for a contract for a supplemental or operational support program under
(3) Existing contracting party
The term "existing contracting party" means a contracting party that has a contract under
(4) JOM Modernization Act
The term "JOM Modernization Act" means the Johnson-O'Malley Supplemental Indian Education Program Modernization Act.
(5) New contracting party
The term "new contracting party" means an entity that enters into a contract under
(6) Secretary
The term "Secretary" means the Secretary of the Interior.
(b) Determination of the number of eligible Indian students
(1) Initial determinations
(A) In general
The Secretary shall make an initial determination of the number of eligible Indian students served or potentially served by each eligible entity in accordance with subparagraph (B).
(B) Process for making the initial determination
(i) Preliminary report
Not later than 180 days after December 31, 2018, the Secretary shall publish a preliminary report describing the number of eligible Indian students served or potentially served by each eligible entity, using the most applicable and accurate data (as determined by the Secretary in consultation with eligible entities) from the fiscal year preceding the fiscal year for which the initial determination is to be made from—
(I) the Bureau of the Census;
(II) the National Center for Education Statistics; or
(III) the Office of Indian Education of the Department of Education.
(ii) Data reconciliation
To improve the accuracy of the preliminary report described in clause (i) prior to publishing, the Secretary shall reconcile the data described in the preliminary report with—
(I) each existing contracting party's data regarding the number of eligible Indian students served by the existing contracting party for the fiscal year preceding the fiscal year for which the initial determination is made; and
(II) identifiable tribal enrollment information.
(iii) Comment period
After publishing the preliminary report under clause (i) in accordance with clause (ii), the Secretary shall establish a 60-day comment period to gain feedback about the preliminary report from eligible entities, which the Secretary shall take into consideration in preparing the final report described in clause (iv).
(iv) Final report
Not later than 120 days after concluding the consultation described in clause (iii), the Secretary shall publish a final report on the initial determination of the number of eligible Indian students served or potentially served by each eligible entity, including justification for not including any feedback gained during such consultation, if applicable.
(2) Subsequent academic years
For each academic year following the fiscal year for which an initial determination is made under paragraph (1) to determine the number of eligible Indian students served or potentially served by a contracting party, the Secretary shall determine the number of eligible Indian students served by the contracting party based on the reported eligible Indian student count numbers identified through the reporting process described in subsection (c).
(c) Contracting party student count reporting compliance
(1) In general
For each academic year following the fiscal year for which an initial determination is made under subsection (b) to determine the number of eligible Indian students served or potentially served by a contracting party, the contracting party shall submit to the Secretary a report describing the number of eligible Indian students who were served using amounts allocated to such party under
(2) Failure to comply
A contracting party that fails to submit a report under paragraph (1) shall receive no amounts under
(3) Notice
The Secretary shall provide contracting parties with timely information relating to—
(A) initial and final reporting deadlines; and
(B) the consequences of failure to comply outlined in paragraph (2).
(4) Technical assistance
The Secretary, acting through the Director of the Bureau of Indian Education, shall provide technical assistance and training on compliance with the reporting requirements of this subsection to contracting parties.
(d) Annual report
(1) In general
The Secretary shall prepare an annual report, including the most recent determination of the number of eligible Indian students served by each contracting party, recommendations on appropriate funding levels for the program based on such determination, and an assessment of the contracts under
(A) may include in the budget request of the Department of the Interior for each fiscal year;
(B) shall submit to—
(i) the Committee on Indian Affairs of the Senate;
(ii) the Subcommittee on Interior, Environment, and Related Agencies of the Committee on Appropriations of the Senate;
(iii) the Committee on Education and the Workforce of the House of Representatives; and
(iv) the Subcommittee on Interior, Environment, and Related Agencies of the Committee on Appropriations of the House of Representatives; and
(C) shall make publicly available.
(2) Manner of preparation
The Secretary shall prepare the report under paragraph (1) in a manner so as to prevent or minimize new administrative burdens on contracting parties receiving funds under
(e) Hold harmless
(1) Initial hold harmless
(A) In general
Except as provided under subparagraph (B) and subject to subparagraphs (C) and (D), for a fiscal year, an existing contracting party shall not receive an amount under
(B) Exceptions
(i) In general
An existing contracting party shall receive an amount under
(I) Failure to report
The existing contracting party failed to submit a complete report described in subsection (c) that was most recently due from the date of the determination.
(II) Violations of contract or law
The Secretary has found that the existing contracting party has violated the terms of a contract entered into under
(III) Student count decrease
The number of eligible Indian students reported by such existing contracting party under subsection (c) has decreased below the number of eligible Indian students served by the existing contracting party in the fiscal year preceding December 31, 2018.
(ii) Amount of funding reduction for existing contracting parties reporting decreased student counts
A reduction in an amount pursuant to clause (i)(III) shall not be done in such a manner that the existing contracting party receives an amount of funding per eligible Indian student that is less than the amount of funding per eligible Indian student such party received for the fiscal year preceding December 31, 2018.
(C) Ratable reductions in appropriations
If the funds available under
(D) Sunset
This paragraph shall cease to be effective 4 years after December 31, 2018.
(2) Maximum decrease after 4 years
Beginning 4 years after December 31, 2018, no contracting party shall receive for a fiscal year more than a 10 percent decrease in funding per eligible Indian student from the previous fiscal year.
(f) Funding allocation and reform
(1) Funding reform
The Secretary may make recommendations for legislation to increase the amount of funds available per eligible Indian student through contracts under
(A) by the Bureau of Indian Education; or
(B) under title VI of the Elementary and Secondary Education Act of 1965 (
(2) Increases in program funding
(A) In general
Subject to subsection (e) and subparagraph (B), for any fiscal year for which the amount appropriated to carry out
(i) be allocated only to those contracting parties that did not receive their full per student funding allocation for the previous fiscal year; and
(ii) be allocated first to new contracting parties that did not receive their full per student funding allocation for the previous fiscal year.
(B) Parity in funding
Subparagraph (A) shall have no effect after the first fiscal year for which each contracting party receives their full per student funding allocation.
(g) Increased geographical and tribal participation in the Johnson-O'Malley supplementary education program
To the maximum extent practicable, the Secretary shall consult with Indian tribes and contact State educational agencies, local educational agencies, and Alaska Native organizations that have not previously entered into a contract under
(1) to determine the interest of the Indian tribes, State educational agencies, local educational agencies, and Alaska Native organizations, in entering into such contracts; and
(2) to share information relating to the process for entering into a contract under
(h) Rulemaking
(1) In general
Not later than 1 year after December 31, 2018, the Secretary, acting through the Director of the Bureau of Indian Education, shall undertake and complete a rulemaking process, following the provisions of subchapter II of
(A) determine how the regulatory definition of "eligible Indian student" may be revised to clarify eligibility requirements for contracting parties under
(B) determine, as necessary, how the funding formula described in section 273.31 of title 25, Code of Federal Regulations (as in effect on the day before December 31, 2018) may be clarified and revised to ensure full participation of contracting parties and provide clarity on the funding process under
(C) otherwise reconcile and modernize the rules to comport with the activities of the contracting parties under
(2) Report
Not later than 30 days after the date the rulemaking under paragraph (1) is complete, the Secretary shall submit a report to Congress describing the results of such rulemaking and necessary recommendations to ensure the full implementation of such rulemaking.
(i) Student privacy
The Secretary shall ensure that data is collected and each report is prepared under this section in a manner that protects the rights of eligible Indian students in accordance with
(j) GAO Report
Not later than 18 months after the final report described in subsection (b)(1)(B)(iv) is published, the Comptroller General shall—
(1) conduct a review of the implementation of this section during the preceding 2-year period, including any factors impacting—
(A) the accuracy of the determinations of the number of eligible Indian students under this section;
(B) the communication between the Bureau of Indian Education and contracting parties; and
(C) the efforts by the Bureau of Indian Education to ensure accurate and sufficient distribution of funding for Indian students;
(2) submit a report describing the results of the review under paragraph (1) to—
(A) the Committee on Indian Affairs of the Senate;
(B) the Subcommittee on Interior, Environment, and Related Agencies of the Committee on Appropriations of the Senate;
(C) the Subcommittee on Indian, Insular and Alaska Native Affairs of the Committee on Natural Resources of the House of Representatives; and
(D) the Subcommittee on Interior, Environment, and Related Agencies of the Committee on Appropriations of the House of Representatives; and
(3) make such report publicly available.
(k) Effect
Nothing in this section—
(1) creates a new program or duplicates program activities under
(2) replaces or diminishes the effect of regulations to carry out
(Apr. 16, 1934, ch. 147, §7, as added
Editorial Notes
References in Text
The Johnson-O'Malley Supplemental Indian Education Program Modernization Act, referred to subsec. (a)(4), is
The Elementary and Secondary Education Act of 1965, referred to in subsec. (f)(1)(B), is
Statutory Notes and Related Subsidiaries
Change of Name
Committee on Education and the Workforce of House of Representatives changed to Committee on Education and Labor of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019.
SUBCHAPTER III—INDIAN EDUCATION ASSISTANCE
§5351. School construction, acquisition, or renovation contracts
(a) Authorization; prerequisites
The Secretary is authorized to enter into a contract or contracts with any State education agency or school district for the purpose of assisting such agency or district in the acquisition of sites for, or the construction, acquisition, or renovation of facilities (including all necessary equipment) in school districts on or adjacent to or in close proximity to any Indian reservation or other lands held in trust by the United States for Indians, if such facilities are necessary for the education of Indians residing on any such reservation or lands.
(b) Eligibility requirements for assistance in federally-affected areas; applicability to projects in determining maximum amount, allocation, of funds, etc.
The Secretary may expend not less than 75 per centum of such funds as are authorized and appropriated pursuant to this section on those projects which meet the eligibility requirements under subsections (a) and (b) of section 644 1 of title 20. Such funds shall be allocated on the basis of existing funding priorities, if any, established by the Secretary of Education under subsections (a) and (b) of section 644 1 of title 20. The Secretary of Education is directed to submit to the Secretary, at the beginning of each fiscal year, commencing with the first full fiscal year after January 4, 1975, a list of those projects eligible for funding under subsections (a) and (b) of section 644 1 of title 20.
(c) Eligibility of private schools to receive funds; maximum amount
The Secretary may expend not more than 25 per centum of such funds as may be authorized and appropriated pursuant to this section on any school eligible to receive funds under
(d) Duties of State education agencies pursuant to contracts
Any contract entered into by the Secretary pursuant to this section shall contain provisions requiring the relevant State educational agency to—
(1) provide Indian students attending any such facilities constructed, acquired, or renovated, in whole or in part, from funds made available pursuant to this section with standards of education not less than those provided non-Indian students in the school district in which the facilities are situated; and
(2) meet, with respect to such facilities, the requirements of the State and local building codes, and other building standards set by the State educational agency or school district for other public school facilities under its jurisdiction or control or by the local government in the jurisdiction within which the facilities are situated.
(e) Advisory consultations by Secretary with affected entities and governing bodies prior to contracts; applicability
The Secretary shall consult with the entity designated pursuant to
(f) Evaluation and report to Congress of effectiveness of construction, etc., programs; scope and content of report
Within ninety days following the expiration of the three year period following January 4, 1975, the Secretary shall evaluate the effectiveness of the program pursuant to this section and transmit a report of such evaluation to the Congress. Such report shall include—
(1) an analysis of construction costs and the impact on such costs of the provisions of subsection (f) of this section and the Act of March 3, 1921 (
(2) a description of the working relationship between the Department of the Interior and the Department of Education including any memorandum of understanding in connection with the acquisition of data pursuant to subsection (b) of this section;
(3) projections of the Secretary of future construction needs of the public schools serving Indian children residing on or adjacent to Indian reservations;
(4) a description of the working relationship of the Department of the Interior with local o