SUBCHAPTER II—INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE
Subchapter Referred to in Other Sections
This subchapter is referred to in
§450. 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.
(
Short Title of 2000 Amendments
Short Title of 1994 Amendment
Short Title of 1990 Amendment
Short Title of 1988 Amendment
Short Title
Section 1 of
Section 101 of title I of
Section 201 of title II of
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
Executive Order No. 13084
Ex. Ord. No. 13084, May 14, 1998, 63 F.R. 27655, which provided for agencies to establish regular and meaningful consultation and collaboration with Indian tribal governments in the development of regulatory practices on Federal matters that significantly or uniquely affect their communities, to reduce the imposition of unfunded mandates upon Indian tribal governments, and to streamline the application process for and increase the availability of waivers to Indian tribal governments, was revoked, effective 60 days after Nov. 6, 2000, by Ex. Ord. No. 13175, §9(c), Nov. 6, 2000, 65 F.R. 67251, set out below.
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) is revoked at the time this order takes effect.
(d) This order shall be effective 60 days after the date of this order.
William J. Clinton.
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.
§450a. 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.
(
Amendments
1988—Subsec. (b).
§450a–1. 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 (
(
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 subchapter.
§450b. Definitions
For purposes of this subchapter, 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" 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 (or grant or cooperative agreement utilized under
(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" 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.
(
References in Text
This subchapter, referred to in text, was in the original "this Act", meaning
The Alaska Native Claims Settlement Act, referred to in subsec. (e), is
Part A of this subchapter, referred to in subsec. (j), was in the original "title I of this act", meaning title I of
Amendments
1994—Subsec. (g).
Subsec. (m).
1990—Subsec. (e).
Subsec. (h).
Subsec. (j).
1988—
Subsec. (h).
Subsec. (j).
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be "provided in".
2 See References in Text note below.
§450c. Reporting and audit requirements for recipients of Federal financial assistance
(a) Maintenance of records
(1) Each recipient of Federal financial assistance under this subchapter 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 completion of the project or undertaking referred to in the preceding subsection of this section, 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.
(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 450j–1(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 subchapter, 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
(
References in Text
Amendments
1994—Subsec. (f).
1990—Subsec. (a)(2).
Subsec. (d).
1988—Subsec. (a).
Subsec. (e).
Subsec. (f).
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be followed by a comma.
2 See References in Text note below.
§450d. 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 subchapter or the Act of April 16, 1934 (
(
References in Text
Act of April 16, 1934, referred to in text, is act Apr. 16, 1934, ch. 147,
Section Referred to in Other Sections
This section is referred to in
§450e. 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 subchapter, 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 the Davis-Bacon Act of March 3, 1931 (
(b) Preference requirements for wages and grants
Any contract, subcontract, grant, or subgrant pursuant to this subchapter, 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.
(
References in Text
The Davis-Bacon Act, referred to in subsec. (a), is act Mar. 3, 1931, ch. 411,
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,
Amendments
1994—Subsec. (a).
Subsec. (c).
Section Referred to in Other Sections
This section is referred to in
§450e–1. Grant and cooperative agreements
The provisions of this subchapter shall not be subject to the requirements of
(
References in Text
Amendments
1990—
Section Referred to in Other Sections
This section is referred to in
1 See References in Text note below.
§450e–2. 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
(
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 subchapter.
Prior Provisions
Provisions similar to those in this section were contained in the following prior appropriation acts:
Part A—Indian Self-Determination
Part Referred to in Other Sections
This part is referred to in
§450f. 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 subchapter. 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.
(
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 subchapter, referred to in subsec. (c)(1), was in the original "this Act", meaning
The Federal Tort Claims Act, referred to in subsec. (c)(1), is classified generally to section 1346(b) and
Amendments
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).
Short Title of 1991 Amendment
Short Title
For short title of title I of
Savings Provision
Tribal Self-Governance—Department of Health and Human Services
Title VI of
"SEC. 601. DEFINITIONS.
"(a)
"(b)
"(1)
"(2)
"SEC. 602. DEMONSTRATION PROJECT FEASIBILITY.
"(a)
"(b)
"(1) the probable effects on specific programs and program beneficiaries of such a demonstration project;
"(2) statutory, regulatory, or other impediments to implementation of such a demonstration project;
"(3) strategies for implementing such a demonstration project;
"(4) probable costs or savings associated with such a demonstration project;
"(5) methods to assure quality and accountability in such a demonstration project; and
"(6) such other issues that may be determined by the Secretary or developed through consultation pursuant to section 603.
"(c)
"(1) the results of the study under this section;
"(2) a list of programs, services, functions, and activities (or portions thereof) within each agency with respect to which it would be feasible to include in a tribal self-governance demonstration project;
"(3) a list of programs, services, functions, and activities (or portions thereof) included in the list provided pursuant to paragraph (2) that could be included in a tribal self-governance demonstration project without amending statutes, or waiving regulations that the Secretary may not waive;
"(4) a list of legislative actions required in order to include those programs, services, functions, and activities (or portions thereof) included in the list provided pursuant to paragraph (2) but not included in the list provided pursuant to paragraph (3) in a tribal self-governance demonstration project; and
"(5) any separate views of tribes and other entities consulted pursuant to section 603 related to the information provided pursuant to paragraphs (1) through (4).
"SEC. 603. CONSULTATION.
"(a)
"(1)
"(2)
"(A) the government-to-government relationship with Indian tribes forms the basis for the consultation process;
"(B) the Indian tribes and the Secretary jointly conduct the consultations required by this section; and
"(C) the consultation process allows for separate and direct recommendations from the Indian tribes and other entities described in subsection (b).
"(b)
"SEC. 604. AUTHORIZATION OF APPROPRIATIONS.
"There are authorized to be appropriated such sums as may be necessary to carry out this title. Such sums shall remain available until expended."
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 Section 450g(c) in Public Law 100–446
Section 201(b)(2) of
Tribal Self-Governance Demonstration Project
Title III of
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be "paragraph,".
2 So in original. Probably should be "section".
§450g. Repealed or Transferred. Pub. L. 100–472, title II, §201(b)(1), Oct. 5, 1988, 102 Stat. 2289
Section,
§450h. 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 450g 2 of this title.
(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 subchapter;
(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.
(
References in Text
Prior Provisions
A prior section 103 of
Amendments
1990—Subsec. (a)(3).
1988—Subsec. (a).
Subsec. (b).
Subsecs. (d), (e).
Authority of Secretary To Acquire Lands In Trust
Section 203(g)(2) of
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be followed by "the".
2 See References in Text note below.
§450i. 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
(k), (l) Omitted
(m) Conversion to career appointment
The status of an Indian (as defined in
(
Codification
Section is comprised of section 104 of
Prior Provisions
A prior section 104 of
Amendments
1990—Subsec. (m).
1988—Subsecs. (a), (b).
Subsec. (e).
Subsecs. (k), (l).
Subsec. (m).
1985—Subsec. (e).
1983—Subsec. (e).
Pribilof Island Natives Employed by Federal Government on October 28, 1983
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 (
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be "with".
§450j. 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 the Office of Federal Procurement Policy Act (
(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 subchapter.
(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 subchapter, unless expressly provided in such law.
(ii) The laws listed in this paragraph are as follows:
(I) The Federal Property and Administrative Services Act of 1949 (
(II) Section 3709 of the Revised Statutes [
(III) Section 9(c) of the Act of Aug. 2, 1946 (
(IV) Title III of the Federal Property and Administrative Services Act of 1949 (
(V) Section 13 of the Act of Oct. 3, 1944 (
(VI) Chapters 21, 25, 27, 29, and 31 of title 44.
(VII) Section 2 of the Act of June 13, 1934 (48 Stat 948,
(VIII) Sections 1 through 12 of the Act of June 30, 1936 (
(IX) The Service Control Act of 1965 (
(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 subchapter, 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 subchapter, 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 subchapter.
(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 part 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 section 201(a) of the Federal Property and Administrative Services Act of 1949 (
(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 subchapter.
(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 subchapter, shall be subject to—
(A) except as otherwise provided in this subchapter, the provisions of this subchapter, 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 subchapter 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
(
References in Text
The Office of Federal Procurement Policy Act, referred to in subsec. (a)(3)(A), is
The Federal Property and Administrative Services Act of 1949, referred to in subsec. (a)(3)(C)(ii)(I), (IV), is act June 30, 1949, ch. 288,
Section 9(c) of the Act of Aug. 2, 1946, referred to in subsec. (a)(3)(C)(ii)(III), is section 9(c) of act Aug. 2, 1946, ch. 744,
The Service Control Act of 1965, referred to in subsec. (a)(3)(C)(ii)(IX), probably means the Service Contract Act of 1965, or
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, as amended, which is set out as a note under
This part, referred to in subsecs. (b) and (i)(2), 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),
Prior Provisions
A prior section 105 of
Amendments
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).
Continued Availability of Certain Funds
Section Referred to in Other Sections
This section is referred to in
1 So in original. probably should be "482".
2 See References in Text note below.
§450j–1. 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 subchapter 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 subchapter shall include the costs of reimbursing each tribal contractor for reasonable and allowable costs of—
(i) direct program expenses for the operation of the Federal program that is the subject of the contract, and
(ii) any additional administrative or other expense related to the overhead 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) On an annual basis, during such period as a tribe or tribal organization operates a Federal program, function, service, or activity pursuant to a contract entered into under this subchapter, the tribe or tribal organization shall have the option to negotiate with the Secretary the amount of funds that the tribe or tribal organization is entitled to receive under such contract pursuant to this paragraph.
(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 subchapter or as provided in
Notwithstanding any other provision in this subchapter, the provision of funds under this subchapter 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 subchapter.
(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 subchapter. 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 subchapter, 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 subchapter.
(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 subchapter reduce the administrative or other responsibilities of the Secretary with respect to the operation of Indian programs and result in savings that have not otherwise been included in the amount of 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.
(
Prior Provisions
A prior section 106 of
Amendments
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).
Section Referred to in Other Sections
This section is referred to in
§450j–2. 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 [
(
References in Text
The Indian Self-Determination Act, referred to in text, is title I of
§450j–3. 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 [
(
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
Similar Provisions
Similar provisions were contained in
1 See References in Text note below.
§450k. 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 subchapter, 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 subchapter relating to
(2)(A) The regulations promulgated under this subchapter, 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 subchapter shall expire if final regulations are not promulgated within 20 months after October 25, 1994.
(b) Conflicting laws and regulations
The provisions of this subchapter 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 subchapter.
(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 subchapter, 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 subchapter.
(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 subchapter, make exceptions in the regulations promulgated to carry out this subchapter, 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 subchapter, 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
(
References in Text
The Contract Disputes Act of 1978, referred to in subsec. (a)(1), is
The Indian Self-Determination Contract Reform Act of 1994, referred to in subsec. (d)(2)(C), is title I of
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 subchapter.
"(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 subchapter."
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
Committee on Natural Resources of House of Representatives treated as referring to Committee on Resources of House of Representatives by section 1(a) of
Effective Date and Construction of 1996 Amendment
Section 6(e) of
Section Referred to in Other Sections
This section is referred to in
§450l. Contract or grant specifications
(a) Terms
Each self-determination contract entered into under this subchapter shall—
(1) contain, or incorporate by reference, the provisions of the model agreement described in subsection (c) of this section (with modifications where indicated and the blanks appropriately filled in), and
(2) contain such other provisions as are agreed to by the parties.
(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) such other provisions, including a brief description of the programs, services, functions, and activities to be performed (including those supported by financial resources other than those provided by the Secretary), to which the parties agree.
"(B)
(
References in Text
The Indian Self-Determination and Education Assistance Act, referred to in section 1(a), (b)(6)(B)(i), (11) of 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
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
Prior Provisions
A prior section 450l,
Amendments
2000—Subsec. (c).
Quarterly Payments of Funds to Tribes
Similar provisions were contained in the following prior appropriation acts:
Section Referred to in Other Sections
This section is referred to in
§450m. 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 450f, 450g, and 450h 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 [
(
References in Text
The Occupational Safety and Health Act of 1970, as amended, referred to in text, is
Amendments
1994—
1990—
1988—
Section Referred to in Other Sections
This section is referred to in
1 See References in Text note below.
§450m–1. 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 subchapter 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 subchapter. 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 subchapter 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 subchapter 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 Contract Disputes Act
The Contract Disputes Act (
(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 except that in any such cases finally disposed of before October 5, 1988, the thirty-day period referred to in
(
References in Text
The Equal Access to Justice Act, referred to in subsec. (c), is
The Contract Disputes Act of 1978, referred to in subsec. (d), is
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,
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).
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be "Public", "21,", and "94", respectively.
§450n. Sovereign immunity and trusteeship rights unaffected
Nothing in this subchapter 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.
(
Section Referred to in Other Sections
This section is referred to in
Part B—Contracts With States
Codification
This part, consisting of
§451. 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,
Codification
Section was not enacted as part of the Johnson-O'Malley Act which comprises this part, nor as part of the Indian Self-Determination and Education Assistance Act which comprises this subchapter.
Amendments
1968—
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
Section Referred to in Other Sections
This section is referred to in
§452. 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,
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.
Short Title
Act April 16, 1934, ch. 147,
Distribution of Public School Assistance
Similar provisions were contained in the following prior appropriation act:
Limitation on Contract Authority
Act Referred to in Other Sections
The Johnson-O'Malley Act is referred to in
Section Referred to in Other Sections
This section is referred to in
§453. 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,
Amendments
1936—Act June 4, 1936, substituted ", may permit such contracting party" for "with any State or Territory, may permit such State or Territory".
§454. 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,
Amendments
1936—Act June 4, 1936, substituted "within which" for "with which".
§455. 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
Prior Provisions
A prior section 4 of act Apr. 16, 1934, ch. 147,
Section Referred to in Other Sections
This section is referred to in title 20 section 2326.
§456. 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
References in Text
Prior Provisions
A prior section 5 of act Apr. 16, 1934, ch. 147,
Amendments
1994—Subsec. (a).
Section Referred to in Other Sections
This section is referred to in title 20 section 2326.
1 See References in Text note below.
§457. 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
Indian Educational Report; Submission to Congressional Committees; Time of Submission; Scope and Content of Report
Section 203 of
Section Referred to in Other Sections
This section is referred to in
Part C—Indian Education Assistance
§458. 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 or State educational agencies in connection with the contracting for construction, acquisition, or renovation of school facilities pursuant to this section; and
(5) the recommendations of the Secretary with respect to the transfer of the responsibility for administering subsections (a) and (b) of section 644 2 of title 20 from the Department of Education to the Department of the Interior.
(g) Authorization of appropriations
For the purpose of carrying out the provisions of this section, there is authorized to be appropriated the sum of $35,000,000 for the fiscal year ending June 30, 1974; $35,000,000 for each of the four succeeding fiscal years; and thereafter, such sums as may be necessary, all of such sums to remain available until expended.
(
References in Text
Act of March 3, 1921, referred to in subsec. (f)(1), probably means the act of Mar. 3, 1931, ch. 411,
Transfer of Functions
"Secretary of Education" substituted for "United States Commissioner of Education" in subsec. (b), and "Department of Education" substituted for "Department of Health, Education, and Welfare" in subsec. (f)(2), (5), pursuant to sections 301 and 507 of
1 See References in Text note below.
2 See References in Text note below.
§458a. General education contract and grant provisions and requirements; school district quality and standards of excellence
No funds from any grant or contract pursuant to this part shall be made available to any school district unless the Secretary is satisfied that the quality and standard of education, including facilities and auxiliary services, for Indian students enrolled in the schools of such district are at least equal to that provided all other students from resources, other than resources provided in this part, available to the local school district.
(
References in Text
This part, referred to in text, was in the original "this title", meaning title II of
§458b. Availability of funds to agencies, institutions, and organizations
No funds from any contract or grant pursuant to this part shall be made available by any Federal agency directly to other than public agencies and Indian tribes, institutions, and organizations: Provided, That school districts, State education agencies, and Indian tribes, institutions, and organizations assisted by this part may use funds provided herein to contract for necessary services with any appropriate individual, organization, or corporation.
(
§458c. Rules and regulations
(a) Prerequisites for promulgation
(1) Within six months from January 4, 1975, the Secretary shall, to the extent practicable, consult with national and regional Indian organizations with experiences in Indian education to consider and formulate appropriate rules and regulations to implement the provisions of this part.
(2) Within seven months from January 4, 1975, the Secretary shall 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 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 shall promulgate rules and regulations to implement the provisions of this part.
(b) Revision and amendment
The Secretary is authorized to revise and amend any rules or regulations promulgated pursuant to subsection (a) of this section: Provided, That prior to any revision or amendment to such rules or regulations the Secretary shall, to the extent practicable, consult with appropriate national and 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.
(
Change of Name
Committee on Interior and Insular Affairs of the Senate abolished and replaced by Committee on Energy and Natural Resources of the Senate, effective Feb. 11, 1977. See Rule XXV of Standing Rules of the Senate, as amended by Senate Resolution No. 4, Ninety-fifth Congress (popularly cited as the "Committee System Reorganization Amendments of 1977"), approved Feb. 4, 1977. Section 105 of Senate Resolution No. 4 established a temporary Select Committee on Indian Affairs having jurisdiction over matters relating to Indian affairs (such matters previously having been within the jurisdiction of the Committee on Interior and Insular Affairs). Senate Resolution No. 127, June 6, 1984, Ninety-eighth Congress, established the Select Committee on Indian Affairs as a permanent committee of the Senate, and section 25 of Senate Resolution No. 71, Feb. 25, 1993, One Hundred Third Congress, redesignated the Select Committee on Indian Affairs as the Committee on Indian Affairs.
Committee on Interior and Insular Affairs of the House of Representatives changed to Committee on Natural Resources of the House of Representatives on Jan. 5, 1993, by House Resolution No. 5, One Hundred Third Congress. Committee on Natural Resources of House of Representatives treated as referring to Committee on Resources of House of Representatives by section 1(a) of
§458d. Eligibility for funds of tribe or tribal organization controlling or managing private schools
The Secretary is authorized and directed to provide funds, pursuant to this subchapter; the the 1 Act of April 16, 1934 (
(
References in Text
This subchapter, 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,
Amendments
1982—
Section Referred to in Other Sections
This section is referred to in
§458e. Supplemental assistance to funds provided to local educational agencies
The assistance provided in this subchapter for the education of Indians in the public schools of any State is in addition and supplemental to assistance provided under title IX of the Elementary and Secondary Education Act of 1965 [
(
References in Text
The Elementary and Secondary Education Act of 1965, referred to in text, is
Amendments
1994—
Part D—Tribal Self-Governance—Department of the Interior
Part Referred to in Other Sections
This part is referred to in title 16 section 1166.
§458aa. Establishment
The Secretary of the Interior (hereinafter in this part referred to as the "Secretary") shall establish and carry out a program within the Department of the Interior to be known as Tribal Self-Governance (hereinafter in this part referred to as "Self-Governance") in accordance with this part.
(
Short Title
For short title of title II of
Congressional Statement of Findings
Section 202 of
"(1) the tribal right of self-government flows from the inherent sovereignty of Indian tribes and nations;
"(2) the United States recognizes a special government-to-government relationship with Indian tribes, including the right of the tribes to self-governance, as reflected in the Constitution, treaties, Federal statutes, and the course of dealings of the United States with Indian tribes;
"(3) although progress has been made, the Federal bureaucracy, with its centralized rules and regulations, has eroded tribal self-governance and dominates tribal affairs;
"(4) the Tribal Self-Governance Demonstration Project [established by title III of
"(5) Congress has reviewed the results of the Tribal Self-Governance Demonstration Project and finds that—
"(A) transferring control to tribal governments, upon tribal request, over funding and decisionmaking for Federal programs, services, functions, and activities, or portions thereof, is an effective way to implement the Federal policy of government-to-government relations with Indian tribes; and
"(B) transferring control to tribal governments, upon tribal request, over funding and decisionmaking for Federal programs, services, functions, and activities strengthens the Federal policy of Indian self-determination."
Congressional Declaration of Policy
Section 203 of title II of
"(1) to enable the United States to maintain and improve its unique and continuing relationship with, and responsibility to, Indian tribes;
"(2) to permit each Indian tribe to choose the extent of the participation of such tribe in self-governance;
"(3) to coexist with the provisions of the Indian Self-Determination Act [title I of
"(4) to ensure the continuation of the trust responsibility of the United States to Indian tribes and Indian individuals;
"(5) to permit an orderly transition from Federal domination of programs and services to provide Indian tribes with meaningful authority to plan, conduct, redesign, and administer programs, services, functions, and activities that meet the needs of the individual tribal communities; and
"(6) to provide for an orderly transition through a planned and measurable parallel reduction in the Federal bureaucracy."
§458bb. Selection of participating Indian tribes
(a) Continuing participation
Each Indian tribe that is participating in the Tribal Self-Governance Demonstration Project at the Department of the Interior under title III 1 on October 25, 1994, shall thereafter participate in Self-Governance under this part and cease participation in the Tribal Self-Governance Demonstration Project under title III 1 with respect to the Department of the Interior.
(b) Additional participants
(1) In addition to those Indian tribes participating in self-governance under subsection (a) of this section, the Secretary, acting through the Director of the Office of Self-Governance, may select up to 50 new tribes per year from the applicant pool described in subsection (c) of this section to participate in self-governance.
(2) If each tribe requests, two or more otherwise eligible Indian tribes may be treated as a single Indian tribe for the purpose of participating in Self-Governance as a consortium.
(c) Applicant pool
The qualified applicant pool for Self-Governance shall consist of each tribe that—
(1) successfully completes the planning phase described in subsection (d) of this section;
(2) has requested participation in Self-Governance by resolution or other official action by the tribal governing body; and
(3) has demonstrated, for the previous three fiscal years, financial stability and financial management capability as evidenced by the tribe having no material audit exceptions in the required annual audit of the self-determination contracts of the tribe.
(d) Planning phase
Each Indian tribe seeking to begin participation in Self-Governance shall complete a planning phase in accordance with this subsection. The tribe shall be eligible for a grant to plan and negotiate participation in Self-Governance. The planning phase shall include—
(1) legal and budgetary research; and
(2) internal tribal government planning and organizational preparation.
(
References in Text
Title III, referred to in subsec. (a), means title III of
Amendments
1996—Subsec. (b)(1).
1 See References in Text note below.
§458cc. Funding agreements
(a) Authorization
The Secretary shall negotiate and enter into an annual written funding agreement with the governing body of each participating tribal government in a manner consistent with the Federal Government's laws and trust relationship to and responsibility for the Indian people.
(b) Contents
Each funding agreement shall—
(1) authorize the tribe to plan, conduct, consolidate, and administer programs, services, functions, and activities, or portions thereof, administered by the Department of the Interior through the Bureau of Indian Affairs, without regard to the agency or office of the Bureau of Indian Affairs within which the program, service, function, and activity, or portion thereof, is performed, including funding for agency, area, and central office functions in accordance with subsection (g)(3) of this section, and including any program, service, function, and activity, or portion thereof, administered under the authority of—
(A) the Act of April 16, 1934 (
(B)
(C) programs, services, functions, and activities or portions thereof administered by the Secretary of the Interior that are otherwise available to Indian tribes or Indians for which appropriations are made to agencies other than the Department of the Interior;
(2) subject to such terms as may be negotiated, authorize the tribe to plan, conduct, consolidate, and administer programs, services, functions, and activities, or portions thereof, administered by the Department of the Interior, other than through the Bureau of Indian Affairs, that are otherwise available to Indian tribes or Indians, as identified in
(3) subject to the terms of the agreement, authorize the tribe to redesign or consolidate programs, services, functions, and activities, or portions thereof, and reallocate funds for such programs, services, functions, and activities, or portions thereof, except that, with respect to the reallocation, consolidation, and redesign of programs described in paragraph (2), a joint agreement between the Secretary and the tribe shall be required;
(4) prohibit the inclusion of funds provided—
(A) pursuant to the Tribally Controlled College or University Assistance Act of 1978 (
(B) for elementary and secondary schools under the formula developed pursuant to
(C) the Flathead Agency Irrigation Division or the Flathead Agency Power Division, except that nothing in this section shall affect the contract authority of such divisions under
(5) specify the services to be provided, the functions to be performed, and the responsibilities of the tribe and the Secretary pursuant to the agreement;
(6) authorize the tribe and the Secretary to reallocate funds or modify budget allocations within any year, and specify the procedures to be used;
(7) allow for retrocession of programs or portions of programs pursuant to
(8) provide that, for the year for which, and to the extent to which, funding is provided to a tribe under this section, the tribe—
(A) shall not be entitled to contract with the Secretary for such funds under
(B) shall be responsible for the administration of programs, services, functions, and activities pursuant to agreements entered into under this section; and
(9) prohibit the Secretary from waiving, modifying, or diminishing in any way the trust responsibility of the United States with respect to Indian tribes and individual Indians that exists under treaties, Executive orders, and other laws.
(c) Additional activities
Each funding agreement negotiated pursuant to subsections (a) and (b) of this section may, in accordance to such additional terms as the parties deem appropriate, also include other programs, services, functions, and activities, or portions thereof, administered by the Secretary of the Interior which are of special geographic, historical, or cultural significance to the participating Indian tribe requesting a compact.
(d) Provisions relating to Secretary
Funding agreements negotiated between the Secretary and an Indian tribe shall include provisions—
(1) to monitor the performance of trust functions by the tribe through the annual trust evaluation, and
(2) for the Secretary to reassume a program, service, function, or activity, or portions thereof, if there is a finding of imminent jeopardy to a physical trust asset, natural resources, or public health and safety.
(e) Construction projects
(1) Regarding construction programs or projects, the Secretary and Indian tribes may negotiate for the inclusion of specific provisions of the Office of Federal Procurement and Policy Act [
(2) In all construction projects performed pursuant to this part, the Secretary shall ensure that proper health and safety standards are provided for in the funding agreements.
(f) Submission for review
Not later than 90 days before the proposed effective date of an agreement entered into under this section, the Secretary shall submit a copy of such agreement to—
(1) each Indian tribe that is served by the Agency that is serving the tribe that is a party to the funding agreement;
(2) the Committee on Indian Affairs of the Senate; and
(3) the Subcommittee on Native American Affairs of the Committee on Natural Resources of the House of Representatives.
(g) Payment
(1) At the request of the governing body of the tribe and under the terms of an agreement entered into under this section, the Secretary shall provide funding to the tribe to carry out the agreement.
(2) The funding agreements authorized by this part and title III of this Act shall provide for advance payments to the tribes in the form of annual or semi-annual installments at the discretion of the tribes.
(3) Subject to paragraph (4) of this subsection and paragraphs (1) through (3) of subsection (b) of this section, the Secretary shall provide funds to the tribe under an agreement under this part for programs, services, functions, and activities, or portions thereof, in an amount equal to the amount that the tribe would have been eligible to receive under contracts and grants under this subchapter, including amounts for direct program and contract support costs and, in addition, any funds that are specifically or functionally related to the provision by the Secretary of services and benefits to the tribe or its members, without regard to the organization level within the Department where such functions are carried out.
(4) Funds for trust services to individual Indians shall be available under an agreement entered into under this section only to the extent that the same services that would have been provided by the Secretary are provided to individual Indians by the tribe.
(h) Civil actions
(1) Except as provided in paragraph (2), for the purposes of
(2) For the period that an agreement entered into under this part is in effect, the provisions of
(i) Facilitation
(1) Except as otherwise provided by law, the Secretary shall interpret each Federal law and regulation in a manner that will facilitate—
(A) the inclusion of programs, services, functions, and activities in the agreements entered into under this section; and
(B) the implementation of agreements entered into under this section.
(2)(A) A tribe may submit a written request for a waiver to the Secretary identifying the regulation sought to be waived and the basis for the request.
(B) Not later than 60 days after receipt by the Secretary of a written request by a tribe to waive application of a Federal regulation for an agreement entered into under this section, the Secretary shall either approve or deny the requested waiver in writing to the tribe. A denial may be made only upon a specific finding by the Secretary that identified language in the regulation may not be waived because such waiver is prohibited by Federal law. The Secretary's decision shall be final for the Department.
(j) Funds
All funds provided under funding agreements entered into pursuant to this subchapter, and all funds provided under contracts or grants made pursuant to this subchapter, shall be treated as non-Federal funds for purposes of meeting matching requirements under any other Federal law.
(k) Disclaimer
Nothing in this section is intended or shall be construed to expand or alter existing statutory authorities in the Secretary so as to authorize the Secretary to enter into any agreement under subsection (b)(2) of this section and
(l) Incorporate self-determination provisions
At the option of a participating tribe or tribes, any or all provisions of part A of this subchapter shall be made part of an agreement entered into under title III of this Act or this part. The Secretary is obligated to include such provisions at the option of the participating tribe or tribes. If such provision is incorporated it shall have the same force and effect as if set out in full in title III or this part.
(
References in Text
Act of April 16, 1934, referred to in subsec. (b)(1)(A), is act Apr. 16, 1934, ch. 147,
The Tribally Controlled College or University Assistance Act of 1978, referred to in subsec. (b)(4)(A), is
The Office of Federal Procurement Policy Act, referred to in subsec. (e)(1), is
This subchapter, referred to in subsecs. (e)(1), (g)(3), and (j), was in the original "this Act", meaning
Title III of this Act, referred to in subsecs. (g)(2) and (l), is title III of
The Act of July 3, 1952, referred to in subsec. (h)(2), is act July 3, 1952, ch. 549,
Part A of this subchapter, referred to in subsec. (l), was in the original "title I of this Act", meaning title I of
Amendments
2000—Subsec. (h)(2).
1998—Subsec. (b)(4)(A).
1996—Subsec. (l).
Change of Name
Committee on Natural Resources of House of Representatives treated as referring to Committee on Resources of House of Representatives by section 1(a) of
Effective Date of 1998 Amendment
Amendment by
Section Referred to in Other Sections
This section is referred to in
§458dd. Budget request
The Secretary shall identify, in the annual budget request of the President to the Congress under
(
§458ee. Reports
(a) Requirement
The Secretary shall submit to Congress a written report on January 1 of each year following October 25, 1994, regarding the administration of this part.
(b) Contents
The report shall—
(1) identify the relative costs and benefits of Self-Governance;
(2) identify, with particularity, all funds that are specifically or functionally related to the provision by the Secretary of services and benefits to Self-Governance tribes and their members;
(3) identify the funds transferred to each Self-Governance tribe and the corresponding reduction in the Federal bureaucracy;
(4) include the separate views of the tribes; and
(5) include the funding formula for individual tribal shares of Central Office funds, together with the comments of affected Indian tribes, developed under subsection (d) of this section.
(c) Report on non-BIA programs
(1) In order to optimize opportunities for including non-Bureau of Indian Affairs programs, services, functions, and activities, or portions thereof, in agreements with tribes participating in Self-Governance under this part, the Secretary shall—
(A) review all programs, services, functions, and activities, or portions thereof, administered by the Department of the Interior, other than through the Bureau of Indian Affairs, without regard to the agency or office concerned; and
(B) not later than 90 days after October 25, 1994, provide to the appropriate committees of Congress a listing of all such programs, services, functions, and activities, or portions thereof, that the Secretary determines, with the concurrence of tribes participating in Self-Governance under this part, are eligible for inclusion in such agreements at the request of a participating Indian tribe.
(2) The Secretary shall establish programmatic targets, after consultation with tribes participating in Self-Governance under this part, to encourage bureaus of the Department to assure that a significant portion of such programs, services, functions, and activities are actually included in the agreements negotiated under
(3) The listing and targets under paragraphs (1) and (2) shall be published in the Federal Register and be made available to any Indian tribe participating in Self-Governance under this part. The list shall be published before January 1, 1995, and annually thereafter by January 1 preceding the fiscal year in which the targets are to be met.
(4) Thereafter, the Secretary shall annually review and publish in the Federal Register, after consultation with tribes participating in Self-Governance under this part, a revised listing and programmatic targets.
(d) Report on Central Office funds
Within 90 days after October 25, 1994, the Secretary shall, in consultation with Indian tribes, develop a funding formula to determine the individual tribal share of funds controlled by the Central Office of the Bureau of Indian Affairs for inclusion in the Self-Governance compacts. The Secretary shall include such formula in the annual report submitted to the Congress under subsection (b) of this section, together with the views of the affected Indian tribes.
(
Section Referred to in Other Sections
This section is referred to in
§458ff. Disclaimers
(a) Other services, contracts, and funds
Nothing in this part shall be construed to limit or reduce in any way the services, contracts, or funds that any other Indian tribe or tribal organization is eligible to receive under
(b) Federal trust responsibilities
Nothing in this subchapter shall be construed to diminish the Federal trust responsibility to Indian tribes, individual Indians, or Indians with trust allotments.
(c) Application of other sections of subchapter
All provisions of
(
Amendments
1998—Subsec. (c).
§458gg. Regulations
(a) In general
Not later than 90 days after October 25, 1994, at the request of a majority of the Indian tribes with agreements under this part, the Secretary shall initiate procedures under subchapter III of
(b) Committee
A negotiated rulemaking committee established pursuant to
(c) Adaptation of procedures
The Secretary shall adapt the negotiated rulemaking procedures to the unique context of Self-Governance and the government-to-government relationship between the United States and the Indian tribes.
(d) Effect
The lack of promulgated regulations shall not limit the effect of this part.
(
§458hh. Authorization of appropriations
There are authorized to be appropriated such sums as may be necessary to carry out this part.
(
Part E—Tribal Self-Governance—Indian Health Service
Codification
This part is comprised of title V of
§458aaa. Definitions
(a) In general
In this part:
(1) Construction project
The term "construction project"—
(A) means an organized noncontinuous undertaking to complete a specific set of predetermined objectives for the planning, environmental determination, design, construction, repair, improvement, or expansion of buildings or facilities, as described in a construction project agreement; and
(B) does not include construction program administration and activities described in paragraphs (1) through (3) of
(2) Construction project agreement
The term "construction project agreement" means a negotiated agreement between the Secretary and an Indian tribe, that at a minimum—
(A) establishes project phase start and completion dates;
(B) defines a specific scope of work and standards by which it will be accomplished;
(C) identifies the responsibilities of the Indian tribe and the Secretary;
(D) addresses environmental considerations;
(E) identifies the owner and operations and maintenance entity of the proposed work;
(F) provides a budget;
(G) provides a payment process; and
(H) establishes the duration of the agreement based on the time necessary to complete the specified scope of work, which may be 1 or more years.
(3) Gross mismanagement
The term "gross mismanagement" means a significant, clear, and convincing violation of a compact, funding agreement, or regulatory, or statutory requirements applicable to Federal funds transferred to an Indian tribe by a compact or funding agreement that results in a significant reduction of funds available for the programs, services, functions, or activities (or portions thereof) assumed by an Indian tribe.
(4) Inherent Federal functions
The term "inherent Federal functions" means those Federal functions which cannot legally be delegated to Indian tribes.
(5) Inter-tribal consortium
The term "inter-tribal consortium" means a coalition of two 1 more separate Indian tribes that join together for the purpose of participating in self-governance, including tribal organizations.
(6) Secretary
The term "Secretary" means the Secretary of Health and Human Services.
(7) Self-governance
The term "self-governance" means the program of self-governance established under
(8) Tribal share
The term "tribal share" means an Indian tribe's portion of all funds and resources that support secretarial programs, services, functions, and activities (or portions thereof) that are not required by the Secretary for performance of inherent Federal functions.
(b) Indian tribe
In any case in which an Indian tribe has authorized another Indian tribe, an inter-tribal consortium, or a tribal organization to plan for or carry out programs, services, functions, or activities (or portions thereof) on its behalf under this part, the authorized Indian tribe, inter-tribal consortium, or tribal organization shall have the rights and responsibilities of the authorizing Indian tribe (except as otherwise provided in the authorizing resolution or in this part). In such event, the term "Indian tribe" as used in this part shall include such other authorized Indian tribe, inter-tribal consortium, or tribal organization.
(
Codification
Another section 501 of
Effective Date
Findings
"(1) the tribal right of self-government flows from the inherent sovereignty of Indian tribes and nations;
"(2) the United States recognizes a special government-to-government relationship with Indian tribes, including the right of the Indian tribes to self-governance, as reflected in the Constitution, treaties, Federal statutes, and the course of dealings of the United States with Indian tribes;
"(3) although progress has been made, the Federal bureaucracy, with its centralized rules and regulations, has eroded tribal self-governance and dominates tribal affairs;
"(4) the Tribal Self-Governance Demonstration Project, established under title III of the Indian Self-Determination and Education Assistance Act ([
"(5) although the Federal Government has made considerable strides in improving Indian health care, it has failed to fully meet its trust responsibilities and to satisfy its obligations to the Indian tribes under treaties and other laws; and
"(6) Congress has reviewed the results of the Tribal Self-Governance Demonstration Project and finds that transferring full control and funding to tribal governments, upon tribal request, over decision making for Federal programs, services, functions, and activities (or portions thereof)—
"(A) is an appropriate and effective means of implementing the Federal policy of government-to-government relations with Indian tribes; and
"(B) strengthens the Federal policy of Indian self-determination."
Declaration of Policy
"(1) to permanently establish and implement tribal self-governance within the Department of Health and Human Services;
"(2) to call for full cooperation from the Department of Health and Human Services and its constituent agencies in the implementation of tribal self-governance—
"(A) to enable the United States to maintain and improve its unique and continuing relationship with, and responsibility to, Indian tribes;
"(B) to permit each Indian tribe to choose the extent of its participation in self-governance in accordance with the provisions of the Indian Self-Determination and Education Assistance Act [
"(C) to ensure the continuation of the trust responsibility of the United States to Indian tribes and Indian individuals;
"(D) to affirm and enable the United States to fulfill its obligations to the Indian tribes under treaties and other laws;
"(E) to strengthen the government-to-government relationship between the United States and Indian tribes through direct and meaningful consultation with all tribes;
"(F) to permit an orderly transition from Federal domination of programs and services to provide Indian tribes with meaningful authority, control, funding, and discretion to plan, conduct, redesign, and administer programs, services, functions, and activities (or portions thereof) that meet the needs of the individual tribal communities;
"(G) to provide for a measurable parallel reduction in the Federal bureaucracy as programs, services, functions, and activities (or portion thereof) are assumed by Indian tribes;
"(H) to encourage the Secretary to identify all programs, services, functions, and activities (or portions thereof) of the Department of Health and Human Services that may be managed by an Indian tribe under this Act [see Short Title of 2000 Amendments note set out under
"(I) to provide Indian tribes with the earliest opportunity to administer programs, services, functions, and activities (or portions thereof) from throughout the Department of Health and Human Services."
1 So in original. Probably should be followed by "or".
§458aaa–1. Establishment
The Secretary shall establish and carry out a program within the Indian Health Service of the Department of Health and Human Services to be known as the "Tribal Self-Governance Program" in accordance with this part.
(
Codification
Another section 502 of
Section Referred to in Other Sections
This section is referred to in
§458aaa–2. Selection of participating Indian tribes
(a) Continuing participation
Each Indian tribe that is participating in the Tribal Self-Governance Demonstration Project under title III 1 on August 18, 2000, may elect to participate in self-governance under this part under existing authority as reflected in tribal resolution.
(b) Additional participants
(1) In general
In addition to those Indian tribes participating in self-governance under subsection (a) of this section, each year an additional 50 Indian tribes that meet the eligibility criteria specified in subsection (c) of this section shall be entitled to participate in self-governance.
(2) Treatment of certain Indian tribes
(A) In general
An Indian tribe that has withdrawn from participation in an inter-tribal consortium or tribal organization, in whole or in part, shall be entitled to participate in self-governance provided the Indian tribe meets the eligibility criteria specified in subsection (c) of this section.
(B) Effect of withdrawal
If an Indian tribe has withdrawn from participation in an inter-tribal consortium or tribal organization, that Indian tribe shall be entitled to its tribal share of funds supporting those programs, services, functions, and activities (or portions thereof) that the Indian tribe will be carrying out under the compact and funding agreement of the Indian tribe.
(C) Participation in self-governance
In no event shall the withdrawal of an Indian tribe from an inter-tribal consortium or tribal organization affect the eligibility of the inter-tribal consortium or tribal organization to participate in self-governance.
(c) Applicant pool
(1) In general
The qualified applicant pool for self-governance shall consist of each Indian tribe that—
(A) successfully completes the planning phase described in subsection (d) of this section;
(B) has requested participation in self-governance by resolution or other official action by the governing body of each Indian tribe to be served; and
(C) has demonstrated, for 3 fiscal years, financial stability and financial management capability.
(2) Criteria for determining financial stability and financial management capacity
For purposes of this subsection, evidence that, during the 3-year period referred to in paragraph (1)(C), an Indian tribe had no uncorrected significant and material audit exceptions in the required annual audit of the Indian tribe's self-determination contracts or self-governance funding agreements with any Federal agency shall be conclusive evidence of the required stability and capability.
(d) Planning phase
Each Indian tribe seeking participation in self-governance shall complete a planning phase. The planning phase shall be conducted to the satisfaction of the Indian tribe and shall include—
(1) legal and budgetary research; and
(2) internal tribal government planning and organizational preparation relating to the administration of health care programs.
(e) Grants
Subject to the availability of appropriations, any Indian tribe meeting the requirements of paragraph (1)(B) and (C) of subsection (c) of this section shall be eligible for grants—
(1) to plan for participation in self-governance; and
(2) to negotiate the terms of participation by the Indian tribe or tribal organization in self-governance, as set forth in a compact and a funding agreement.
(f) Receipt of grant not required
Receipt of a grant under subsection (e) of this section shall not be a requirement of participation in self-governance.
(
References in Text
Title III, referred to in subsec. (a), means title III of
Codification
Another section 503 of
Section Referred to in Other Sections
This section is referred to in
1 See References in Text note below.
§458aaa–3. Compacts
(a) Compact required
The Secretary shall negotiate and enter into a written compact with each Indian tribe participating in self-governance in a manner consistent with the Federal Government's trust responsibility, treaty obligations, and the government-to-government relationship between Indian tribes and the United States.
(b) Contents
Each compact required under subsection (a) of this section shall set forth the general terms of the government-to-government relationship between the Indian tribe and the Secretary, including such terms as the parties intend shall control year after year. Such compacts may only be amended by mutual agreement of the parties.
(c) Existing compacts
An Indian tribe participating in the Tribal Self-Governance Demonstration Project under title III 1 on August 18, 2000, shall have the option at any time after August 18, 2000, to—
(1) retain the Tribal Self-Governance Demonstration Project compact of that Indian tribe (in whole or in part) to the extent that the provisions of that funding agreement are not directly contrary to any express provision of this part; or
(2) instead of retaining a compact or portion thereof under paragraph (1), negotiate a new compact in a manner consistent with the requirements of this part.
(d) Term and effective date
The effective date of a compact shall be the date of the approval and execution by the Indian tribe or another date agreed upon by the parties, and shall remain in effect for so long as permitted by Federal law or until terminated by mutual written agreement, retrocession, or reassumption.
(
References in Text
Title III, referred to in subsec. (c), means title III of
1 See References in Text note below.
§458aaa–4. Funding agreements
(a) Funding agreement required
The Secretary shall negotiate and enter into a written funding agreement with each Indian tribe participating in self-governance in a manner consistent with the Federal Government's trust responsibility, treaty obligations, and the government-to-government relationship between Indian tribes and the United States.
(b) Contents
(1) In general
Each funding agreement required under subsection (a) of this section shall, as determined by the Indian tribe, authorize the Indian tribe to plan, conduct, consolidate, administer, and receive full tribal share funding, including tribal shares of discretionary Indian Health Service competitive grants (excluding congressionally earmarked competitive grants), for all programs, services, functions, and activities (or portions thereof), that are carried out for the benefit of Indians because of their status as Indians without regard to the agency or office of the Indian Health Service within which the program, service, function, or activity (or portion thereof) is performed.
(2) Inclusion of certain programs, services, functions, and activities
Such programs, services, functions, or activities (or portions thereof) include all programs, services, functions, activities (or portions thereof), including grants (which may be added to a funding agreement after an award of such grants), with respect to which Indian tribes or Indians are primary or significant beneficiaries, administered by the Department of Health and Human Services through the Indian Health Service and all local, field, service unit, area, regional, and central headquarters or national office functions so administered under the authority of—
(A)
(B) the Act of April 16, 1934 (
(C) the Act of August 5, 1954 (
(D) the Indian Health Care Improvement Act (
(E) the Indian Alcohol and Substance Abuse Prevention and Treatment Act of 1986 (
(F) any other Act of Congress authorizing any agency of the Department of Health and Human Services to administer, carry out, or provide financial assistance to such a program, service, function or activity (or portions thereof) described in this section that is carried out for the benefit of Indians because of their status as Indians; or
(G) any other Act of Congress authorizing such a program, service, function, or activity (or portions thereof) carried out for the benefit of Indians under which appropriations are made available to any agency other than an agency within the Department of Health and Human Services, in any case in which the Secretary administers that program, service, function, or activity (or portion thereof).
(c) Inclusion in compact or funding agreement
It shall not be a requirement that an Indian tribe or Indians be identified in the authorizing statute for a program or element of a program to be eligible for inclusion in a compact or funding agreement under this part.
(d) Funding agreement terms
Each funding agreement under this part shall set forth—
(1) terms that generally identify the programs, services, functions, and activities (or portions thereof) to be performed or administered; and
(2) for the items identified in paragraph (1)—
(A) the general budget category assigned;
(B) the funds to be provided, including those funds to be provided on a recurring basis;
(C) the time and method of transfer of the funds;
(D) the responsibilities of the Secretary; and
(E) any other provision with respect to which the Indian tribe and the Secretary agree.
(e) Subsequent funding agreements
Absent notification from an Indian tribe that is withdrawing or retroceding the operation of one or more programs, services, functions, or activities (or portions thereof) identified in a funding agreement, or unless otherwise agreed to by the parties, each funding agreement shall remain in full force and effect until a subsequent funding agreement is executed, and the terms of the subsequent funding agreement shall be retroactive to the end of the term of the preceding funding agreement.
(f) Existing funding agreements
Each Indian tribe participating in the Tribal Self-Governance Demonstration Project established under title III 1 on August 18, 2000, shall have the option at any time thereafter to—
(1) retain the Tribal Self-Governance Demonstration Project funding agreement of that Indian tribe (in whole or in part) to the extent that the provisions of that funding agreement are not directly contrary to any express provision of this part; or
(2) instead of retaining a funding agreement or portion thereof under paragraph (1), negotiate a new funding agreement in a manner consistent with the requirements of this part.
(g) Stable base funding
At the option of an Indian tribe, a funding agreement may provide for a stable base budget specifying the recurring funds (including, for purposes of this provision, funds available under
(
References in Text
Act of April 16, 1934, referred to in subsec. (b)(2)(B), is act Apr. 16, 1934, ch. 147,
Act of August 5, 1954, referred to in subsec. (b)(2)(C), is act Aug. 5, 1954, ch. 658,
The Indian Health Care Improvement Act, referred to in subsec. (b)(2)(D), is
The Indian Alcohol and Substance Abuse Prevention and Treatment Act of 1986, referred to in subsec. (b)(2)(E), is subtitle C of title IV of
Title III, referred to in subsec. (f), means title III of
Section Referred to in Other Sections
This section is referred to in
1 See References in Text note below.
§458aaa–5. General provisions
(a) Applicability
The provisions of this section shall apply to compacts and funding agreements negotiated under this part and an Indian tribe may, at its option, include provisions that reflect such requirements in a compact or funding agreement.
(b) Conflicts of interest
Indian tribes participating in self-governance under this part shall ensure that internal measures are in place to address conflicts of interest in the administration of self-governance programs, services, functions, or activities (or portions thereof).
(c) Audits
(1) Single Agency Audit Act
The provisions of
(2) Cost principles
An Indian tribe shall apply cost principles under the applicable Office of Management and Budget circular, except as modified by
(d) Records
(1) In general
Unless an Indian tribe specifies otherwise in the compact or funding agreement, records of the Indian tribe shall not be considered Federal records for purposes of
(2) Recordkeeping system
The Indian tribe shall maintain a recordkeeping system, and, after 30 days advance notice, provide the Secretary with reasonable access to such records to enable the Department of Health and Human Services to meet its minimum legal recordkeeping system requirements under
(e) Redesign and consolidation
An Indian tribe may redesign or consolidate programs, services, functions, and activities (or portions thereof) included in a funding agreement under
(f) Retrocession
An Indian tribe may retrocede, fully or partially, to the Secretary programs, services, functions, or activities (or portions thereof) included in the compact or funding agreement. Unless the Indian tribe rescinds the request for retrocession, such retrocession will become effective within the timeframe specified by the parties in the compact or funding agreement. In the absence of such a specification, such retrocession shall become effective on—
(1) the earlier of—
(A) 1 year after the date of submission of such request; or
(B) the date on which the funding agreement expires; or
(2) such date as may be mutually agreed upon by the Secretary and the Indian tribe.
(g) Withdrawal
(1) Process
(A) In general
An Indian tribe may fully or partially withdraw from a participating inter-tribal consortium or tribal organization its share of any program, function, service, or activity (or portions thereof) included in a compact or funding agreement.
(B) Effective date
The withdrawal referred to in subparagraph (A) shall become effective within the timeframe specified in the resolution which authorizes transfer to the participating tribal organization or inter-tribal consortium. In the absence of a specific timeframe set forth in the resolution, such withdrawal shall become effective on—
(i) the earlier of—
(I) 1 year after the date of submission of such request; or
(II) the date on which the funding agreement expires; or
(ii) such date as may be mutually agreed upon by the Secretary, the withdrawing Indian tribe, and the participating tribal organization or inter-tribal consortium that has signed the compact or funding agreement on behalf of the withdrawing Indian tribe, inter-tribal consortium, or tribal organization.
(2) Distribution of funds
When an Indian tribe or tribal organization eligible to enter into a self-determination contract under part A of this subchapter or a compact or funding agreement under this part fully or partially withdraws from a participating inter-tribal consortium or tribal organization—
(A) the withdrawing Indian tribe or tribal organization shall be entitled to its tribal share of funds supporting those programs, services, functions, or activities (or portions thereof) that the Indian tribe will be carrying out under its own self-determination contract or compact and funding agreement (calculated on the same basis as the funds were initially allocated in the funding agreement of the inter-tribal consortium or tribal organization); and
(B) the funds referred to in subparagraph (A) shall be transferred from the funding agreement of the inter-tribal consortium or tribal organization, on the condition that the provisions of
(3) Regaining mature contract status
If an Indian tribe elects to operate all or some programs, services, functions, or activities (or portions thereof) carried out under a compact or funding agreement under this part through a self-determination contract under part A of this subchapter, at the option of the Indian tribe, the resulting self-determination contract shall be a mature self-determination contract.
(h) Nonduplication
For the period for which, and to the extent to which, funding is provided under this part or under the compact or funding agreement, the Indian tribe shall not be entitled to contract with the Secretary for such funds under
(
§458aaa–6. Provisions relating to the Secretary
(a) Mandatory provisions
(1) Health status reports
Compacts or funding agreements negotiated between the Secretary and an Indian tribe shall include a provision that requires the Indian tribe to report on health status and service delivery—
(A) to the extent such data is not otherwise available to the Secretary and specific funds for this purpose are provided by the Secretary under the funding agreement; and
(B) if such reporting shall impose minimal burdens on the participating Indian tribe and such requirements are promulgated under
(2) Reassumption
(A) In general
Compacts or funding agreements negotiated between the Secretary and an Indian tribe shall include a provision authorizing the Secretary to reassume operation of a program, service, function, or activity (or portions thereof) and associated funding if there is a specific finding relative to that program, service, function, or activity (or portion thereof) of—
(i) imminent endangerment of the public health caused by an act or omission of the Indian tribe, and the imminent endangerment arises out of a failure to carry out the compact or funding agreement; or
(ii) gross mismanagement with respect to funds transferred to a tribe by a compact or funding agreement, as determined by the Secretary in consultation with the Inspector General, as appropriate.
(B) Prohibition
The Secretary shall not reassume operation of a program, service, function, or activity (or portions thereof) unless—
(i) the Secretary has first provided written notice and a hearing on the record to the Indian tribe; and
(ii) the Indian tribe has not taken corrective action to remedy the imminent endangerment to public health or gross mismanagement.
(C) Exception
(i) In general
Notwithstanding subparagraph (B), the Secretary may, upon written notification to the Indian tribe, immediately reassume operation of a program, service, function, or activity (or portion thereof) if—
(I) the Secretary makes a finding of imminent substantial and irreparable endangerment of the public health caused by an act or omission of the Indian tribe; and
(II) the endangerment arises out of a failure to carry out the compact or funding agreement.
(ii) Reassumption
If the Secretary reassumes operation of a program, service, function, or activity (or portion thereof) under this subparagraph, the Secretary shall provide the Indian tribe with a hearing on the record not later than 10 days after such reassumption.
(D) Hearings
In any hearing or appeal involving a decision to reassume operation of a program, service, function, or activity (or portion thereof), the Secretary shall have the burden of proof of demonstrating by clear and convincing evidence the validity of the grounds for the reassumption.
(b) Final offer
In the event the Secretary and a participating Indian tribe are unable to agree, in whole or in part, on the terms of a compact or funding agreement (including funding levels), the Indian tribe may submit a final offer to the Secretary. Not more than 45 days after such submission, or within a longer time agreed upon by the Indian tribe, the Secretary shall review and make a determination with respect to such offer. In the absence of a timely rejection of the offer, in whole or in part, made in compliance with subsection (c) of this section, the offer shall be deemed agreed to by the Secretary.
(c) Rejection of final offers
(1) In general
If the Secretary rejects an offer made under subsection (b) of this section (or one or more provisions or funding levels in such offer), the Secretary shall provide—
(A) a timely written notification to the Indian tribe that contains a specific finding that clearly demonstrates, or that is supported by a controlling legal authority, that—
(i) the amount of funds proposed in the final offer exceeds the applicable funding level to which the Indian tribe is entitled under this part;
(ii) the program, function, service, or activity (or portion thereof) that is the subject of the final offer is an inherent Federal function that cannot legally be delegated to an Indian tribe;
(iii) the Indian tribe cannot carry out the program, function, service, or activity (or portion thereof) in a manner that would not result in significant danger or risk to the public health; or
(iv) the Indian tribe is not eligible to participate in self-governance under
(B) technical assistance to overcome the objections stated in the notification required by subparagraph (A);
(C) the Indian tribe with a hearing on the record with the right to engage in full discovery relevant to any issue raised in the matter and the opportunity for appeal on the objections raised, except that the Indian tribe may, in lieu of filing such appeal, directly proceed to initiate an action in a Federal district court pursuant to
(D) the Indian tribe with the option of entering into the severable portions of a final proposed compact or funding agreement, or provision thereof, (including a lesser funding amount, if any), that the Secretary did not reject, subject to any additional alterations necessary to conform the compact or funding agreement to the severed provisions.
(2) Effect of exercising certain option
If an Indian tribe exercises the option specified in paragraph (1)(D), that Indian tribe shall retain the right to appeal the Secretary's rejection under this section, and subparagraphs (A), (B), and (C) of that paragraph shall only apply to that portion of the proposed final compact, funding agreement, or provision thereof that was rejected by the Secretary.
(d) Burden of proof
With respect to any hearing or appeal or civil action conducted pursuant to this section, the Secretary shall have the burden of demonstrating by clear and convincing evidence the validity of the grounds for rejecting the offer (or a provision thereof) made under subsection (b) of this section.
(e) Good faith
In the negotiation of compacts and funding agreements the Secretary shall at all times negotiate in good faith to maximize implementation of the self-governance policy. The Secretary shall carry out this part in a manner that maximizes the policy of tribal self-governance, in a manner consistent with the purposes specified in section 3 of the Tribal Self-Governance Amendments of 2000.
(f) Savings
To the extent that programs, functions, services, or activities (or portions thereof) carried out by Indian tribes under this part reduce the administrative or other responsibilities of the Secretary with respect to the operation of Indian programs and result in savings that have not otherwise been included in the amount of tribal shares and other funds determined under
(g) Trust responsibility
The Secretary is prohibited from waiving, modifying, or diminishing in any way the trust responsibility of the United States with respect to Indian tribes and individual Indians that exists under treaties, Executive orders, other laws, or court decisions.
(h) Decisionmaker
A decision that constitutes final agency action and relates to an appeal within the Department of Health and Human Services conducted under subsection (c) of this section shall be made either—
(1) by an official of the Department who holds a position at a higher organizational level within the Department than the level of the departmental agency in which the decision that is the subject of the appeal was made; or
(2) by an administrative judge.
(
References in Text
Section 3 of the Tribal Self-Governance Amendments of 2000, referred to in subsec. (e), is section 3 of
§458aaa–7. Transfer of funds
(a) In general
Pursuant to the terms of any compact or funding agreement entered into under this part, the Secretary shall transfer to the Indian tribe all funds provided for in the funding agreement, pursuant to subsection (c) of this section, and provide funding for periods covered by joint resolution adopted by Congress making continuing appropriations, to the extent permitted by such resolutions. In any instance where a funding agreement requires an annual transfer of funding to be made at the beginning of a fiscal year, or requires semiannual or other periodic transfers of funding to be made commencing at the beginning of a fiscal year, the first such transfer shall be made not later than 10 days after the apportionment of such funds by the Office of Management and Budget to the Department, unless the funding agreement provides otherwise.
(b) Multiyear funding
The Secretary is authorized to employ, upon tribal request, multiyear funding agreements. References in this part to funding agreements shall include such multiyear funding agreements.
(c) Amount of funding
The Secretary shall provide funds under a funding agreement under this part in an amount equal to the amount that the Indian tribe would have been entitled to receive under self-determination contracts under this subchapter, including amounts for direct program costs specified under
(d) Prohibitions
(1) In general
Except as provided in paragraph (2), the Secretary is expressly prohibited from—
(A) failing or refusing to transfer to an Indian tribe its full share of any central, headquarters, regional, area, or service unit office or other funds due under this subchapter, except as required by Federal law;
(B) withholding portions of such funds for transfer over a period of years; and
(C) reducing the amount of funds required under this subchapter—
(i) to make funding available for self-governance monitoring or administration by the Secretary;
(ii) in subsequent years, except pursuant to—
(I) a reduction in appropriations from the previous fiscal year for the program or function to be included in a compact or funding agreement;
(II) a congressional directive in legislation or accompanying report;
(III) a tribal authorization;
(IV) a change in the amount of pass-through funds subject to the terms of the funding agreement; or
(V) completion of a project, activity, or program for which such funds were provided;
(iii) to pay for Federal functions, including Federal pay costs, Federal employee retirement benefits, automated data processing, technical assistance, and monitoring of activities under this subchapter; or
(iv) to pay for costs of Federal personnel displaced by self-determination contracts under this subchapter or self-governance;
(2) Exception
The funds described in paragraph (1)(C) may be increased by the Secretary if necessary to carry out this subchapter or as provided in
(e) Other resources
In the event an Indian tribe elects to carry out a compact or funding agreement with the use of Federal personnel, Federal supplies (including supplies available from Federal warehouse facilities), Federal supply sources (including lodging, airline transportation, and other means of transportation including the use of interagency motor pool vehicles) or other Federal resources (including supplies, services, and resources available to the Secretary under any procurement contracts in which the Department is eligible to participate), the Secretary shall acquire and transfer such personnel, supplies, or resources to the Indian tribe.
(f) Reimbursement to Indian Health Service
With respect to functions transferred by the Indian Health Service to an Indian tribe, the Indian Health Service shall provide goods and services to the Indian tribe, on a reimbursable basis, including payment in advance with subsequent adjustment. The reimbursements received from those goods and services, along with the funds received from the Indian tribe pursuant to this part, may be credited to the same or subsequent appropriation account which provided the funding, such amounts to remain available until expended.
(g) Prompt Payment Act
(h) Interest or other income on transfers
An Indian tribe is entitled to retain interest earned on any funds paid under a compact or funding agreement to carry out governmental or health purposes and such interest shall not diminish the amount of funds the Indian tribe is authorized to receive under its funding agreement in the year the interest is earned or in any subsequent fiscal year. Funds transferred under this part shall be managed using the prudent investment standard.
(i) Carryover of funds
All funds paid to an Indian tribe in accordance with a compact or funding agreement shall remain available until expended. In the event that an Indian tribe elects to carry over funding from 1 year to the next, such carryover shall not diminish the amount of funds the Indian tribe is authorized to receive under its funding agreement in that or any subsequent fiscal year.
(j) Program income
All Medicare, Medicaid, or other program income earned by an Indian tribe shall be treated as supplemental funding to that negotiated in the funding agreement. The Indian tribe may retain all such income and expend such funds in the current year or in future years except to the extent that the Indian Health Care Improvement Act (
(k) Limitation of costs
An Indian tribe shall not be obligated to continue performance that requires an expenditure of funds in excess of the amount of funds transferred under a compact or funding agreement. If at any time the Indian tribe has reason to believe that the total amount provided for a specific activity in the compact or funding agreement is insufficient the Indian tribe shall provide reasonable notice of such insufficiency to the Secretary. If the Secretary does not increase the amount of funds transferred under the funding agreement, the Indian tribe may suspend performance of the activity until such time as additional funds are transferred.
(
References in Text
This subchapter, referred to in subsecs. (c) and (d), was in the original "this Act", meaning
The Indian Health Care Improvement Act, referred to in subsec. (j), is
Section Referred to in Other Sections
This section is referred to in
§458aaa–8. Construction projects
(a) In general
Indian tribes participating in tribal self-governance may carry out construction projects under this part if they elect to assume all Federal responsibilities under the National Environmental Policy Act of 1969 (
(1) designating a certifying officer to represent the Indian tribe and to assume the status of a responsible Federal official under such laws; and
(2) accepting the jurisdiction of the Federal court for the purpose of enforcement of the responsibilities of the responsible Federal official under such environmental laws.
(b) Negotiations
Construction project proposals shall be negotiated pursuant to the statutory process in
(c) Codes and standards
The Indian tribe and the Secretary shall agree upon and specify appropriate building codes and architectural and engineering standards (including health and safety) which shall be in conformity with nationally recognized standards for comparable projects.
(d) Responsibility for completion
The Indian tribe shall assume responsibility for the successful completion of the construction project in accordance with the negotiated construction project agreement.
(e) Funding
Funding for construction projects carried out under this part shall be included in funding agreements as annual advance payments, with semiannual payments at the option of the Indian tribe. Annual advance and semiannual payment amounts shall be determined based on mutually agreeable project schedules reflecting work to be accomplished within the advance payment period, work accomplished and funds expended in previous payment periods, and the total prior payments. The Secretary shall include associated project contingency funds with each advance payment installment. The Indian tribe shall be responsible for the management of the contingency funds included in funding agreements.
(f) Approval
The Secretary shall have at least one opportunity to approve project planning and design documents prepared by the Indian tribe in advance of construction of the facilities specified in the scope of work for each negotiated construction project agreement or amendment thereof which results in a significant change in the original scope of work. The Indian tribe shall provide the Secretary with project progress and financial reports not less than semiannually. The Secretary may conduct onsite project oversight visits semiannually or on an alternate schedule agreed to by the Secretary and the Indian tribe.
(g) Wages
All laborers and mechanics employed by contractors and subcontractors (excluding tribes and tribal organizations) in the construction, alteration, or repair, including painting or decorating of a building or other facilities in connection with construction projects funded by the United States under this subchapter shall be paid wages at not less than those prevailing wages on similar construction in the locality as determined by the Secretary of Labor in accordance with the Davis-Bacon Act of March 3, 1931 (
(h) Application of other laws
Unless otherwise agreed to by the Indian tribe, no provision of the Office of Federal Procurement Policy Act [
(
References in Text
The National Environmental Policy Act of 1969, referred to in subsec. (a), is
The National Historic Preservation Act, referred to in subsec. (a), is
The Davis-Bacon Act of March 3, 1931, referred to in subsec. (g), is act Mar. 3, 1931, ch. 411,
Reorganization Plan numbered 14, of 1950, referred to in subsec. (g), is set out in the Appendix to Title 5, Government Organization and Employees.
The Office of Federal Procurement Policy Act, referred to in subsec. (h), is
§458aaa–9. Federal procurement laws and regulations
Regarding construction programs or projects, the Secretary and Indian tribes may negotiate for the inclusion of specific provisions of the Office of Federal Procurement and Policy Act (
(
References in Text
The Office of Federal Procurement and Policy Act, referred to in text, probably means the Office of Federal Procurement Policy Act,
§458aaa–10. Civil actions
(a) Contract defined
For the purposes of
(b) Applicability of certain laws
(c) References
All references in this subchapter to
(
§458aaa–11. Facilitation
(a) Secretarial interpretation
Except as otherwise provided by law, the Secretary shall interpret all Federal laws, Executive orders, and regulations in a manner that will facilitate—
(1) the inclusion of programs, services, functions, and activities (or portions thereof) and funds associated therewith, in the agreements entered into under this section;
(2) the implementation of compacts and funding agreements entered into under this part; and
(3) the achievement of tribal health goals and objectives.
(b) Regulation waiver
(1) In general
An Indian tribe may submit a written request to waive application of a regulation promulgated under
(2) Approval
Not later than 90 days after receipt by the Secretary of a written request by an Indian tribe to waive application of a regulation for a compact or funding agreement entered into under this part, the Secretary shall either approve or deny the requested waiver in writing. A denial may be made only upon a specific finding by the Secretary that identified language in the regulation may not be waived because such waiver is prohibited by Federal law. A failure to approve or deny a waiver request not later than 90 days after receipt shall be deemed an approval of such request. The Secretary's decision shall be final for the Department.
(c) Access to Federal property
In connection with any compact or funding agreement executed pursuant to this part or an agreement negotiated under the Tribal Self-Governance Demonstration Project established under title III,1 as in effect before August 18, 2000, upon the request of an Indian tribe, the Secretary—
(1) shall permit an Indian tribe to use existing school buildings, hospitals, and other facilities and all equipment therein or appertaining thereto and other personal property owned by the Government within the Secretary's jurisdiction under such terms and conditions as may be agreed upon by the Secretary and the Indian tribe for their use and maintenance;
(2) may donate to an Indian tribe title to any personal or real property found to be excess to the needs of any agency of the Department, or the General Services Administration, except that—
(A) subject to the provisions of subparagraph (B), title to property and equipment furnished by the Federal Government for use in the performance of the compact or funding agreement or purchased with funds under any compact or funding agreement shall, unless otherwise requested by the Indian tribe, vest in the appropriate Indian tribe;
(B) if property described in subparagraph (A) has a value in excess of $5,000 at the time of retrocession, withdrawal, or reassumption, at the option of the Secretary upon the retrocession, withdrawal, or reassumption, title to such property and equipment shall revert to the Department of Health and Human Services; and
(C) all property referred to in subparagraph (A) shall remain eligible for replacement, maintenance, and improvement on the same basis as if title to such property were vested in the United States; and
(3) shall acquire excess or surplus Government personal or real property for donation to an Indian tribe if the Secretary determines the property is appropriate for use by the Indian tribe for any purpose for which a compact or funding agreement is authorized under this part.
(d) Matching or cost-participation requirement
All funds provided under compacts, funding agreements, or grants made pursuant to this subchapter, shall be treated as non-Federal funds for purposes of meeting matching or cost participation requirements under any other Federal or non-Federal program.
(e) State facilitation
States are hereby authorized and encouraged to enact legislation, and to enter into agreements with Indian tribes to facilitate and supplement the initiatives, programs, and policies authorized by this part and other Federal laws benefiting Indians and Indian tribes.
(f) Rules of construction
Each provision of this part and each provision of a compact or funding agreement shall be liberally construed for the benefit of the Indian tribe participating in self-governance and any ambiguity shall be resolved in favor of the Indian tribe.
(
References in Text
Title III, referred to in subsec. (c), means title III of
1 See References in Text note below.
§458aaa–12. Budget request
(a) Requirement of annual budget request
(1) In general
The President shall identify in the annual budget request submitted to Congress under
(2) Rule of construction
Nothing in this subsection shall be construed to authorize the Indian Health Service to reduce the amount of funds that a self-governance tribe is otherwise entitled to receive under its funding agreement or other applicable law, whether or not such funds are apportioned to the Office of Tribal Self-Governance under this section.
(b) Present funding; shortfalls
In such budget request, the President shall identify the level of need presently funded and any shortfall in funding (including direct program and contract support costs) for each Indian tribe, either directly by the Secretary of Health and Human Services, under self-determination contracts, or under compacts and funding agreements authorized under this part.
(
§458aaa–13. Reports
(a) Annual report
(1) In general
Not later than January 1 of each year after August 18, 2000, the Secretary shall submit to the Committee on Indian Affairs of the Senate and the Committee on Resources of the House of Representatives a written report regarding the administration of this part.
(2) Analysis
The report under paragraph (1) shall include a detailed analysis of the level of need being presently funded or unfunded for each Indian tribe, either directly by the Secretary, under self-determination contracts under part A of this subchapter, or under compacts and funding agreements authorized under this subchapter. In compiling reports pursuant to this section, the Secretary may not impose any reporting requirements on participating Indian tribes or tribal organizations, not otherwise provided in this subchapter.
(b) Contents
The report under subsection (a) of this section shall—
(1) be compiled from information contained in funding agreements, annual audit reports, and data of the Secretary regarding the disposition of Federal funds; and
(2) identify—
(A) the relative costs and benefits of self-governance;
(B) with particularity, all funds that are specifically or functionally related to the provision by the Secretary of services and benefits to self-governance Indian tribes and their members;
(C) the funds transferred to each self-governance Indian tribe and the corresponding reduction in the Federal bureaucracy;
(D) the funding formula for individual tribal shares of all headquarters funds, together with the comments of affected Indian tribes or tribal organizations, developed under subsection (c) of this section; and
(E) amounts expended in the preceding fiscal year to carry out inherent Federal functions, including an identification of those functions by type and location;
(3) contain a description of the method or methods (or any revisions thereof) used to determine the individual tribal share of funds controlled by all components of the Indian Health Service (including funds assessed by any other Federal agency) for inclusion in self-governance compacts or funding agreements;
(4) before being submitted to Congress, be distributed to the Indian tribes for comment (with a comment period of no less than 30 days, beginning on the date of distribution); and
(5) include the separate views and comments of the Indian tribes or tribal organizations.
(c) Report on fund distribution method
Not later than 180 days after August 18, 2000, the Secretary shall, after consultation with Indian tribes, submit a written report to the Committee on Resources of the House of Representatives and the Committee on Indian Affairs of the Senate that describes the method or methods used to determine the individual tribal share of funds controlled by all components of the Indian Health Service (including funds assessed by any other Federal agency) for inclusion in self-governance compacts or funding agreements.
(
§458aaa–14. Disclaimers
(a) No funding reduction
Nothing in this part shall be construed to limit or reduce in any way the funding for any program, project, or activity serving an Indian tribe under this or other applicable Federal law. Any Indian tribe that alleges that a compact or funding agreement is in violation of this section may apply the provisions of
(b) Federal trust and treaty responsibilities
Nothing in this subchapter shall be construed to diminish in any way the trust responsibility of the United States to Indian tribes and individual Indians that exists under treaties, Executive orders, or other laws and court decisions.
(c) Obligations of the United States
The Indian Health Service under this subchapter shall neither bill nor charge those Indians who may have the economic means to pay for services, nor require any Indian tribe to do so.
(
§458aaa–15. Application of other sections of this subchapter
(a) Mandatory application
All provisions of sections 450c(b), 450d, 450e, 450f(c) and (d), 450i, 450j(k) and (l), 450j–1(a) through (k), and 450n of this title and section 314 of
(b) Discretionary application
At the request of a participating Indian tribe, any other provision of part A of this subchapter, to the extent such provision is not in conflict with this part, shall be made a part of a funding agreement or compact entered into under this part. The Secretary is obligated to include such provision at the option of the participating Indian tribe or tribes. If such provision is incorporated it shall have the same force and effect as if it were set out in full in this part. In the event an Indian tribe requests such incorporation at the negotiation stage of a compact or funding agreement, such incorporation shall be deemed effective immediately and shall control the negotiation and resulting compact and funding agreement.
(
References in Text
Section 314 of
§458aaa–16. Regulations
(a) In general
(1) Promulgation
Not later than 90 days after August 18, 2000, the Secretary shall initiate procedures under subchapter III of
(2) Publication of proposed regulations
Proposed regulations to implement this part shall be published in the Federal Register by the Secretary no later than 1 year after August 18, 2000.
(3) Expiration of authority
The authority to promulgate regulations under paragraph (1) shall expire 21 months after August 18, 2000.
(b) Committee
(1) In general
A negotiated rulemaking committee established pursuant to
(2) Requirements
The committee shall confer with, and accommodate participation by, representatives of Indian tribes, inter-tribal consortia, tribal organizations, and individual tribal members.
(c) Adaptation of procedures
The Secretary shall adapt the negotiated rulemaking procedures to the unique context of self-governance and the government-to-government relationship between the United States and Indian tribes.
(d) Effect
The lack of promulgated regulations shall not limit the effect of this part.
(e) Effect of circulars, policies, manuals, guidances, and rules
Unless expressly agreed to by the participating Indian tribe in the compact or funding agreement, the participating Indian tribe shall not be subject to any agency circular, policy, manual, guidance, or rule adopted by the Indian Health Service, except for the eligibility provisions of
(
Section Referred to in Other Sections
This section is referred to in
§458aaa–17. Appeals
In any appeal (including civil actions) involving decisions made by the Secretary under this part, the Secretary shall have the burden of proof of demonstrating by clear and convincing evidence—
(1) the validity of the grounds for the decision made; and
(2) that the decision is fully consistent with provisions and policies of this part.
(
§458aaa–18. Authorization of appropriations
(a) In general
There are authorized to be appropriated such sums as may be necessary to carry out this part.
(b) Availability of appropriations
Notwithstanding any other provision of this subchapter, the provision of funds under this subchapter shall be subject to the availability of appropriations and the Secretary is not required to reduce funding for programs, projects, or activities serving a tribe in order to make funds available to another tribe or tribal organization under this subchapter.
(
Part F—American Indian Education Foundation
Codification
This part is comprised of title V of
§458bbb. American Indian Education Foundation
(a) In general
As soon as practicable after December 27, 2000, the Secretary of the Interior shall establish, under the laws of the District of Columbia and in accordance with this part, the American Indian Education Foundation.
(b) Perpetual existence
Except as otherwise provided, the Foundation shall have perpetual existence.
(c) Nature of corporation
The Foundation shall be a charitable and nonprofit federally chartered corporation and shall not be an agency or instrumentality of the United States.
(d) Place of incorporation and domicile
The Foundation shall be incorporated and domiciled in the District of Columbia.
(e) Purposes
The purposes of the Foundation shall be—
(1) to encourage, accept, and administer private gifts of real and personal property or any income therefrom or other interest therein for the benefit of, or in support of, the mission of the Office of Indian Education Programs of the Bureau of Indian Affairs (or its successor office);
(2) to undertake and conduct such other activities as will further the educational opportunities of American Indians who attend a Bureau funded school; and
(3) to participate with, and otherwise assist, Federal, State, and tribal governments, agencies, entities, and individuals in undertaking and conducting activities that will further the educational opportunities of American Indians attending Bureau funded schools.
(f) Board of Directors
(1) In general
The Board of Directors shall be the governing body of the Foundation. The Board may exercise, or provide for the exercise of, the powers of the Foundation.
(2) Selection
The number of members of the Board, the manner of their selection (including the filling of vacancies), and their terms of office shall be as provided in the constitution and bylaws of the Foundation. However, the Board shall have at least 11 members, two of whom shall be the Secretary and the Assistant Secretary of the Interior for Indian Affairs, who shall serve as ex officio nonvoting members, and the initial voting members of the Board shall be appointed by the Secretary not later than 6 months after the date that the Foundation is established and shall have staggered terms (as determined by the Secretary).
(3) Qualification
The members of the Board shall be United States citizens who are knowledgeable or experienced in American Indian education and shall, to the extent practicable, represent diverse points of view relating to the education of American Indians.
(4) Compensation
Members of the Board shall not receive compensation for their services as members, but shall be reimbursed for actual and necessary travel and subsistence expenses incurred by them in the performance of the duties of the Foundation.
(g) Officers
(1) In general
The officers of the Foundation shall be a secretary, elected from among the members of the Board, and any other officers provided for in the constitution and bylaws of the Foundation.
(2) Secretary of Foundation
The secretary shall serve, at the direction of the Board, as its chief operating officer and shall be knowledgeable and experienced in matters relating to education in general and education of American Indians in particular.
(3) Election
The manner of election, term of office, and duties of the officers shall be as provided in the constitution and bylaws of the Foundation.
(h) Powers
The Foundation—
(1) shall adopt a constitution and bylaws for the management of its property and the regulation of its affairs, which may be amended;
(2) may adopt and alter a corporate seal;
(3) may make contracts, subject to the limitations of this subchapter;
(4) may acquire (through a gift or otherwise), own, lease, encumber, and transfer real or personal property as necessary or convenient to carry out the purposes of the Foundation;
(5) may sue and be sued; and
(6) may perform any other act necessary and proper to carry out the purposes of the Foundation.
(i) Principal office
The principal office of the Foundation shall be in the District of Columbia. However, the activities of the Foundation may be conducted, and offices may be maintained, throughout the United States in accordance with the constitution and bylaws of the Foundation.
(j) Service of process
The Foundation shall comply with the law on service of process of each State in which it is incorporated and of each State in which the Foundation carries on activities.
(k) Liability of officers and agents
The Foundation shall be liable for the acts of its officers and agents acting within the scope of their authority. Members of the Board are personally liable only for gross negligence in the performance of their duties.
(l) Restrictions
(1) Limitation on spending
Beginning with the fiscal year following the first full fiscal year during which the Foundation is in operation, the administrative costs of the Foundation may not exceed 10 percent of the sum of—
(A) the amounts transferred to the Foundation under subsection (m) of this section during the preceding fiscal year; and
(B) donations received from private sources during the preceding fiscal year.
(2) Appointment and hiring
The appointment of officers and employees of the Foundation shall be subject to the availability of funds.
(3) Status
Members of the Board, and the officers, employees, and agents of the Foundation are not, by reason of their association with the Foundation, officers, employees, or agents of the United States.
(m) Transfer of donated funds
The Secretary may transfer to the Foundation funds held by the Department of the Interior under
(n) Audits
The Foundation shall comply with the audit requirements set forth in
(
References in Text
This subchapter, referred to in subsec. (h)(3), was in the original "this Act", meaning
Codification
Another section 501 of
Section Referred to in Other Sections
This section is referred to in
§458bbb–1. Administrative services and support
(a) Provision of support by Secretary
Subject to subsection (b) of this section, during the 5-year period beginning on the date that the Foundation is established, the Secretary—
(1) may provide personnel, facilities, and other administrative support services to the Foundation;
(2) may provide funds to reimburse the travel expenses of the members of the Board under
(3) shall require and accept reimbursements from the Foundation for any—
(A) services provided under paragraph (1); and
(B) funds provided under paragraph (2).
(b) Reimbursement
Reimbursements accepted under subsection (a)(3) of this section shall be deposited in the Treasury to the credit of the appropriations then current and chargeable for the cost of providing services described in subsection (a)(1) of this section and the travel expenses described in subsection (a)(2) of this section.
(c) Continuation of certain services
Notwithstanding any other provision of this section, the Secretary may continue to provide facilities and necessary support services to the Foundation after the termination of the 5-year period specified in subsection (a) of this section, on a space available, reimbursable cost basis.
(
Codification
Another section 502 of
§458bbb–2. Definitions
For the purposes of this part—
(1) the term "Bureau funded school" has the meaning given that term in title XI of the Education Amendments of 1978 [
(2) the term "Foundation" means the Foundation established by the Secretary pursuant to
(3) the term "Secretary" means the Secretary of the Interior.
(
References in Text
The Education Amendments of 1978, referred to in par. (1), is
Codification
Another section 503 of