Bill Summary
This legislation, also known as the Indian Self-Determination and Education Assistance Act, aims to provide self-governance for Indian Tribes and cover various purposes. It clarifies the effect of the Act on the Secretary of the Interior's authority and responsibilities in regards to non-BIA programs, Tribal water rights settlements, and Federal laws related to the protection of fish and wildlife. The legislation also establishes the Tribal Self-Governance Program and outlines eligibility requirements and procedures for participating in the program. It also addresses the negotiation and management of funding agreements, including the process for amendments and termination. The legislation reaffirms the trust responsibility of the United States to Indian Tribes and outlines the responsibilities of the Secretary in regards to trust evaluations and reassumption of programs. Additionally, it allows for Indian Tribes to carry out construction projects and assume Federal responsibilities for environmental activities through funding agreements. The legislation also outlines the payment process for funding agreements and requires the Secretary to provide an annual report to Congress on the administration of the Act. Lastly, the legislation authorizes necessary funds to carry out the Act and amends various sections of the Indian Self-Determination and Education Assistance Act, including addressing contract funding and indirect costs.
Possible Impacts
1. The legislation will allow Indian Tribes to have more self-governance and control over their own programs and services, including water rights settlements and protection of fish and wildlife. This will give Tribes more autonomy and decision-making power in these important areas.
2. The legislation outlines a process for Indian Tribes to participate in the Tribal Self-Governance Program, which includes eligibility requirements and the ability to receive grants for planning and negotiating their participation. This will give Tribes the opportunity to participate in self-governance and potentially improve the management of their programs and services.
3. The legislation also addresses the funding and payment process for creating and maintaining funding agreements between the Secretary and Indian Tribes. This includes the requirement for the Secretary to provide funding upon request and the option for Tribes to receive an advance annual payment. This will ensure that Tribes have the necessary funds to carry out their programs and services and have more control over their financial resources.
[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 209 Enrolled Bill (ENR)]
S.209
One Hundred Sixteenth Congress
of the
United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Friday,
the third day of January, two thousand and twenty
An Act
To amend the Indian Self-Determination and Education Assistance Act to
provide further self-governance by Indian Tribes, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Practical Reforms
and Other Goals To Reinforce the Effectiveness of Self-Governance and
Self-Determination for Indian Tribes Act of 2019'' or the ``PROGRESS
for Indian Tribes Act''.
(b) Table of Contents.--The table of contents of this Act is as
follows:
Sec. 1. Short title; table of contents.
TITLE I--TRIBAL SELF-GOVERNANCE
Sec. 101. Tribal self-governance.
TITLE II--INDIAN SELF-DETERMINATION
Sec. 201. Definitions; reporting and audit requirements; application of
provisions.
Sec. 202. Contracts by Secretary of the Interior.
Sec. 203. Administrative provisions.
Sec. 204. Contract funding and indirect costs.
Sec. 205. Contract or grant specifications.
TITLE I--TRIBAL SELF-GOVERNANCE
SEC. 101. TRIBAL SELF-GOVERNANCE.
(a) Effect of Provisions.--Nothing in this Act, or the amendments
made by this Act, shall be construed--
(1) to modify, limit, expand, or otherwise affect--
(A) the authority of the Secretary of the Interior, as
provided for under the Indian Self-Determination and Education
Assistance Act (as in effect on the day before the date of
enactment of this Act), regarding--
(i) the inclusion of any non-BIA program (as defined in
section 401 of the Indian Self-Determination and Education
Assistance Act) in a self-determination contract or funding
agreement under section 403(c) of such Act (as so in
effect); or
(ii) the implementation of any contract or agreement
described in clause (i) that is in effect on the day
described in subparagraph (A);
(B) the meaning, application, or effect of any Tribal water
rights settlement, including the performance required of a
party thereto or any payment or funding obligation thereunder;
(C) the authority, jurisdiction, or responsibility of a
State to manage, control, or regulate fish and wildlife under
State law (including regulations) on land or water in the
State, including Federal public land;
(D) except for the authority provided to the Secretary as
described in subparagraph (A), the applicability or effect of
any Federal law related to the protection or management of fish
or wildlife; or
(E) any treaty-reserved right or other right of any Indian
Tribe as recognized by any other means, including treaties or
agreements with the United States, Executive orders, statutes,
regulations, or case law; or
(2) to authorize any provision of a contract or agreement that
is not consistent with the terms of a Tribal water rights
settlement.
(b) Definitions.--Section 401 of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 5361) is amended to read as
follows:
``SEC. 401. DEFINITIONS.
``In this title:
``(1) Compact.--The term `compact' means a self-governance
compact entered into under section 404.
``(2) Construction program; construction project.--The term
`construction program' or `construction project' means a Tribal
undertaking relating to the administration, planning, environmental
determination, design, construction, repair, improvement, or
expansion of roads, bridges, buildings, structures, systems, or
other facilities for purposes of housing, law enforcement,
detention, sanitation, water supply, education, administration,
community, health, irrigation, agriculture, conservation, flood
control, transportation, or port facilities, or for other Tribal
purposes.
``(3) Department.--The term `Department' means the Department
of the Interior.
``(4) Funding agreement.--The term `funding agreement' means a
funding agreement entered into under section 403.
``(5) Gross mismanagement.--The term `gross mismanagement'
means a significant violation, shown by a preponderance of the
evidence, of a compact, funding agreement, or statutory or
regulatory requirement applicable to Federal funds for a program
administered by an Indian Tribe under a compact or funding
agreement.
``(6) Inherent federal function.--The term `inherent Federal
function' means a Federal function that may not legally be
delegated to an Indian Tribe.
``(7) Non-BIA program.--The term `non-BIA program' means all or
a portion of a program, function, service, or activity that is
administered by any bureau, service, office, or agency of the
Department of the Interior other than--
``(A) the Bureau of Indian Affairs;
``(B) the Office of the Assistant Secretary for Indian
Affairs; or
``(C) the Office of the Special Trustee for American
Indians.
``(8) Program.--The term `program' means any program, function,
service, or activity (or portion thereof) within the Department
that is included in a funding agreement.
``(9) Secretary.--The term `Secretary' means the Secretary of
the Interior.
``(10) Self-determination contract.--The term `self-
determination contract' means a self-determination contract entered
into under section 102.
``(11) Self-governance.--The term `self-governance' means the
Tribal Self-Governance Program established under section 402.
``(12) Tribal share.--The term `Tribal share' means the portion
of all funds and resources of an Indian Tribe that--
``(A) support any program within the Bureau of Indian
Affairs, the Office of the Special Trustee for American
Indians, or the Office of the Assistant Secretary for Indian
Affairs; and
``(B) are not required by the Secretary for the performance
of an inherent Federal function.
``(13) Tribal water rights settlement.--The term `Tribal water
rights settlement' means any settlement, compact, or other
agreement expressly ratified or approved by an Act of Congress
that--
``(A) includes an Indian Tribe and the United States as
parties; and
``(B) quantifies or otherwise defines any water right of
the Indian Tribe.''.
(c) Establishment.--Section 402 of the Indian Self-Determination
and Education Assistance Act (25 U.S.C. 5362) is amended to read as
follows:
``SEC. 402. TRIBAL SELF-GOVERNANCE PROGRAM.
``(a) Establishment.--The Secretary shall establish and carry out a
program within the Department to be known as the `Tribal Self-
Governance Program'.
``(b) Selection of Participating Indian Tribes.--
``(1) In general.--
``(A) Eligibility.--The Secretary, acting through the
Director of the Office of Self-Governance, may select not more
than 50 new Indian Tribes per year from those tribes eligible
under subsection (c) to participate in self-governance.
``(B) Joint participation.--On the request of each
participating Indian Tribe, 2 or more otherwise eligible Indian
Tribes may be treated as a single Indian Tribe for the purpose
of participating in self-governance.
``(2) Other authorized indian tribe or tribal organization.--If
an Indian Tribe authorizes another Indian Tribe or a Tribal
organization to plan for or carry out a program on its behalf under
this title, the authorized Indian Tribe or Tribal organization
shall have the rights and responsibilities of the authorizing
Indian Tribe (except as otherwise provided in the authorizing
resolution).
``(3) Joint participation as organization.--Two or more Indian
Tribes that are not otherwise eligible under subsection (c) may be
treated as a single Indian Tribe for the purpose of participating
in self-governance as a Tribal organization if--
``(A) each Indian Tribe so requests; and
``(B) the Tribal organization itself, or at least one of
the Indian Tribes participating in the Tribal organization, is
eligible under subsection (c).
``(4) Tribal withdrawal from a tribal organization.--
``(A) In general.--An Indian Tribe that withdraws from
participation in a Tribal organization, in whole or in part,
shall be entitled to participate in self-governance if the
Indian Tribe is eligible under subsection (c).
``(B) Effect of withdrawal.--If an Indian Tribe withdraws
from participation in a Tribal organization, the Indian Tribe
shall be entitled to its Tribal share of funds and resources
supporting the programs that the Indian Tribe is entitled to
carry out under the compact and funding agreement of the Indian
Tribe.
``(C) Participation in self-governance.--The withdrawal of
an Indian Tribe from a Tribal organization shall not affect the
eligibility of the Tribal organization to participate in self-
governance on behalf of one or more other Indian Tribes, if the
Tribal organization still qualifies under subsection (c).
``(D) Withdrawal process.--
``(i) In general.--An Indian Tribe may, by Tribal
resolution, fully or partially withdraw its Tribal share of
any program in a funding agreement from a participating
Tribal organization.
``(ii) Notification.--The Indian Tribe shall provide a
copy of the Tribal resolution described in clause (i) to
the Secretary.
``(iii) Effective date.--
``(I) In general.--A withdrawal under clause (i)
shall become effective on the date that is specified in
the Tribal resolution and mutually agreed upon by the
Secretary, the withdrawing Indian Tribe, and the Tribal
organization that signed the compact and funding
agreement on behalf of the withdrawing Indian Tribe or
Tribal organization.
``(II) No specified date.--In the absence of a date
specified in the resolution, the withdrawal shall
become effective on--
``(aa) the earlier of--
``(AA) 1 year after the date of submission
of the request; and
``(BB) the date on which the funding
agreement expires; or
``(bb) such date as may be mutually agreed upon
by the Secretary, the withdrawing Indian Tribe, and
the Tribal organization that signed the compact and
funding agreement on behalf of the withdrawing
Indian Tribe or Tribal organization.
``(E) Distribution of funds.--If an Indian Tribe or Tribal
organization eligible to enter into a self-determination
contract or a compact or funding agreement fully or partially
withdraws from a participating Tribal organization, the
withdrawing Indian Tribe--
``(i) may elect to enter into a self-determination
contract or compact, in which case--
``(I) the withdrawing Indian Tribe or Tribal
organization shall be entitled to its Tribal share of
unexpended funds and resources supporting the programs
that the Indian Tribe will be carrying out under its
own self-determination contract or compact and funding
agreement (calculated on the same basis as the funds
were initially allocated to the funding agreement of
the Tribal organization); and
``(II) the funds referred to in subclause (I) shall
be withdrawn by the Secretary from the funding
agreement of the Tribal organization and transferred to
the withdrawing Indian Tribe, on the condition that
sections 102 and 105(i), as appropriate, shall apply to
the withdrawing Indian Tribe; or
``(ii) may elect not to enter into a self-determination
contract or compact, in which case all unexpended funds and
resources associated with the withdrawing Indian Tribe's
returned programs (calculated on the same basis as the
funds were initially allocated to the funding agreement of
the Tribal organization) shall be returned by the Tribal
organization to the Secretary for operation of the programs
included in the withdrawal.
``(F) Return to mature contract status.--If an Indian Tribe
elects to operate all or some programs carried out under a
compact or funding agreement under this title through a self-
determination contract under title I, at the option of the
Indian Tribe, the resulting self-determination contract shall
be a mature self-determination contract as long as the Indian
Tribe meets the requirements set forth in section 4(h).
``(c) Eligibility.--To be eligible to participate in self-
governance, an Indian Tribe shall--
``(1) successfully complete the planning phase described in
subsection (d);
``(2) request participation in self-governance by resolution or
other official action by the Tribal governing body; and
``(3) demonstrate, for the 3 fiscal years preceding the date on
which the Indian Tribe requests participation, financial stability
and financial management capability as evidenced by the Indian
Tribe having no uncorrected significant and material audit
exceptions in the required annual audit of its self-determination
or self-governance agreements with any Federal agency.
``(d) Planning Phase.--
``(1) In general.--An Indian Tribe seeking to begin
participation in self-governance shall complete a planning phase as
provided in this subsection.
``(2) Activities.--The planning phase shall--
``(A) be conducted to the satisfaction of the Indian Tribe;
and
``(B) include--
``(i) legal and budgetary research; and
``(ii) internal Tribal government planning, training,
and organizational preparation.
``(e) Grants.--
``(1) In general.--Subject to the availability of
appropriations, an Indian Tribe or Tribal organization that meets
the requirements of paragraphs (2) and (3) of subsection (c) shall
be eligible for grants--
``(A) to plan for participation in self-governance; and
``(B) to negotiate the terms of participation by the Indian
Tribe or Tribal organization in self-governance, as set forth
in a compact and a funding agreement.
``(2) Receipt of grant not required.--Receipt of a grant under
paragraph (1) shall not be a requirement of participation in self-
governance.''.
(d) Funding Agreements.--Section 403 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 5363) is
amended--
(1) by striking subsection (a) and inserting the following:
``(a) Authorization.--The Secretary shall, on the request of any
Indian Tribe or Tribal organization, negotiate and enter into a written
funding agreement with the governing body of the Indian Tribe or the
Tribal organization in a manner consistent with--
``(1) the trust responsibility of the Federal Government,
treaty obligations, and the government-to-government relationship
between Indian Tribes and the United States; and
``(2) subsection (b).'';
(2) in subsection (b)--
(A) in paragraph (1)--
(i) in the matter preceding subparagraph (A), by
striking ``without regard to the agency or office of the
Bureau of Indian Affairs'' and inserting ``the Office of
the Assistant Secretary for Indian Affairs, and the Office
of the Special Trustee for American Indians, without regard
to the agency or office of that Bureau or those Offices'';
(ii) by redesignating subparagraphs (A) and (B) as
clauses (i) and (ii), respectively, and indenting the
margins of such clauses accordingly;
(iii) by striking ``including any program'' and
inserting the following: ``including--
``(A) any program'';
(iv) in subparagraph (A)--
(I) in clause (i), as redesignated by clause (ii),
by striking the semicolon at the end and inserting ``;
and''; and
(II) in clause (ii), as so redesignated, by
striking ``and'' after the semicolon;
(v) by redesignating subparagraph (C) as subparagraph
(B);
(vi) in subparagraph (B), as redesignated by clause
(v), by striking the semicolon and inserting ``; and''; and
(vii) by adding at the end the following:
``(C) any other program, service, function, or activity (or
portion thereof) that is provided through the Bureau of Indian
Affairs, the Office of the Assistant Secretary for Indian
Affairs, or the Office of the Special Trustee for American
Indians with respect to which Indian Tribes or Indians are
primary or significant beneficiaries;'';
(B) in paragraph (2)--
(i) by striking ``section 405(c)'' and inserting
``section 412(c)''; and
(ii) by inserting ``and'' after the semicolon at the
end;
(C) in paragraph (3), by striking the semicolon at the end
and inserting a period; and
(D) by striking paragraphs (4) through (9);
(3) in subsection (f)--
(A) in the subsection heading, by striking ``for Review'';
(B) by striking ``such agreement to--'' and all that
follows through ``Indian tribe'' and inserting ``such agreement
to each Indian Tribe'';
(C) by striking ``agreement;'' and inserting
``agreement.''; and
(D) by striking paragraphs (2) and (3);
(4) in subsection (k), by striking ``section 405(c)(1)'' and
inserting ``section 412(c)''; and
(5) by adding at the end the following:
``(m) Other Provisions.--
``(1) Excluded funding.--A funding agreement shall not
authorize an Indian Tribe to plan, conduct, administer, or receive
Tribal share funding under any program that--
``(A) is provided under the Tribally Controlled Colleges
and Universities Assistance Act of 1978 (25 U.S.C. 1801 et
seq.); or
``(B) is provided for elementary and secondary schools
under the formula developed under section 1127 of the Education
Amendments of 1978 (25 U.S.C. 2007).
``(2) Services, functions, and responsibilities.--A funding
agreement shall specify--
``(A) the services to be provided under the funding
agreement;
``(B) the functions to be performed under the funding
agreement; and
``(C) the responsibilities of the Indian Tribe and the
Secretary under the funding agreement.
``(3) Base budget.--
``(A) In general.--A funding agreement shall, at the option
of the Indian Tribe, provide for a stable base budget
specifying the recurring funds (which may include funds
available under section 106(a)) to be transferred to the Indian
Tribe, for such period as the Indian Tribe specifies in the
funding agreement, subject to annual adjustment only to reflect
changes in congressional appropriations.
``(B) Limitations.--Notwithstanding subparagraph (A), a
funding agreement shall not specify funding associated with a
program described in subsection (b)(2) or (c) unless the
Secretary agrees.
``(4) No waiver of trust responsibility.--A funding agreement
shall prohibit the Secretary from waiving, modifying, or
diminishing in any way the trust responsibility of the United
States with respect to Indian Tribes and individual Indians that
exists under treaties, Executive orders, court decisions, and other
laws.
``(n) Amendment.--The Secretary shall not revise, amend, or require
additional terms in a new or subsequent funding agreement without the
consent of the Indian Tribe, unless such terms are required by Federal
law.
``(o) Effective Date.--A funding agreement shall become effective
on the date specified in the funding agreement.
``(p) Existing and Subsequent Funding Agreements.--
``(1) Subsequent funding agreements.--Absent notification from
an Indian Tribe that the Indian Tribe is withdrawing or retroceding
the operation of one or more programs identified in a funding
agreement, or unless otherwise agreed to by the parties to the
funding agreement or by the nature of any noncontinuing program,
service, function, or activity contained in a funding agreement--
``(A) a funding agreement shall remain in full force and
effect until a subsequent funding agreement is executed, with
funding paid annually for each fiscal year the agreement is in
effect; and
``(B) the term of the subsequent funding agreement shall be
retroactive to the end of the term of the preceding funding
agreement for the purposes of calculating the amount of funding
to which the Indian Tribe is entitled.
``(2) Disputes.--Disputes over the implementation of paragraph
(1)(A) shall be subject to section 406(c).
``(3) Existing funding agreements.--An Indian Tribe that was
participating in self-governance under this title on the date of
enactment of the PROGRESS for Indian Tribes Act shall have the
option at any time after that date--
``(A) to retain its existing funding agreement (in whole or
in part) to the extent that the provisions of that funding
agreement are not directly contrary to any express provision of
this title; or
``(B) to negotiate a new funding agreement in a manner
consistent with this title.
``(4) Multiyear funding agreements.--An Indian Tribe may, at
the discretion of the Indian Tribe, negotiate with the Secretary
for a funding agreement with a term that exceeds 1 year.''.
(e) General Revisions.--Title IV of the Indian Self-Determination
and Education Assistance Act (25 U.S.C. 5361 et seq.) is amended by
striking sections 404 through 408 and inserting the following:
``SEC. 404. COMPACTS.
``(a) In General.--The Secretary shall negotiate and enter into a
written compact with each Indian Tribe participating in self-governance
in a manner consistent with the trust responsibility of the Federal
Government, treaty obligations, and the government-to-government
relationship between Indian Tribes and the United States.
``(b) Contents.--A compact under subsection (a) shall--
``(1) specify and affirm the general terms of the government-
to-government relationship between the Indian Tribe and the
Secretary; and
``(2) include such terms as the parties intend shall control
during the term of the compact.
``(c) Amendment.--A compact under subsection (a) may be amended
only by agreement of the parties.
``(d) Effective Date.--The effective date of a compact under
subsection (a) shall be--
``(1) the date of the execution of the compact by the parties;
or
``(2) such date as is mutually agreed upon by the parties.
``(e) Duration.--A compact under subsection (a) shall remain in
effect--
``(1) for so long as permitted by Federal law; or
``(2) until termination by written agreement, retrocession, or
reassumption.
``(f) Existing Compacts.--An Indian Tribe participating in self-
governance under this title, as in effect on the date of enactment of
the PROGRESS for Indian Tribes Act, shall have the option at any time
after that date--
``(1) to retain its negotiated compact (in whole or in part) to
the extent that the provisions of the compact are not directly
contrary to any express provision of this title; or
``(2) to negotiate a new compact in a manner consistent with
this title.
``SEC. 405. GENERAL PROVISIONS.
``(a) Applicability.--An Indian Tribe and the Secretary shall
include in any compact or funding agreement provisions that reflect the
requirements of this title.
``(b) Conflicts of Interest.--An Indian Tribe participating in
self-governance shall ensure that internal measures are in place to
address, pursuant to Tribal law and procedures, conflicts of interest
in the administration of programs.
``(c) Audits.--
``(1) Single agency audit act.--Chapter 75 of title 31, United
States Code, shall apply to a funding agreement under this title.
``(2) Cost principles.--An Indian Tribe shall apply cost
principles under the applicable Office of Management and Budget
circular, except as modified by--
``(A) any provision of law, including section 106; or
``(B) any exemptions to applicable Office of Management and
Budget circulars subsequently granted by the Office of
Management and Budget.
``(3) Federal claims.--Any claim by the Federal Government
against an Indian Tribe relating to funds received under a funding
agreement based on any audit under this subsection shall be subject
to section 106(f).
``(d) Redesign and Consolidation.--Except as provided in section
407, an Indian Tribe may redesign or consolidate programs, or
reallocate funds for programs, in a compact or funding agreement in any
manner that the Indian Tribe determines to be in the best interest of
the Indian community being served--
``(1) so long as the redesign or consolidation does not have
the effect of denying eligibility for services to population groups
otherwise eligible to be served under applicable Federal law; and
``(2) except that, with respect to the reallocation,
consolidation, and redesign of programs described in subsection
(b)(2) or (c) of section 403, a joint agreement between the
Secretary and the Indian Tribe shall be required.
``(e) Retrocession.--
``(1) In general.--An Indian Tribe may fully or partially
retrocede to the Secretary any program under a compact or funding
agreement.
``(2) Effective date.--
``(A) Agreement.--Unless an Indian Tribe rescinds a request
for retrocession under paragraph (1), the retrocession shall
become effective on the date specified by the parties in the
compact or funding agreement.
``(B) No agreement.--In the absence of a specification of
an effective date in the compact or funding agreement, the
retrocession shall become effective on--
``(i) the earlier of--
``(I) 1 year after the date on which the request is
submitted; and
``(II) the date on which the funding agreement
expires; or
``(ii) such date as may be mutually agreed upon by the
Secretary and the Indian Tribe.
``(f) Nonduplication.--A funding agreement shall provide that, for
the period for which, and to the extent to which, funding is provided
to an Indian Tribe under this title, the Indian Tribe--
``(1) shall not be entitled to contract with the Secretary for
funds under section 102, except that the Indian Tribe shall be
eligible for new programs on the same basis as other Indian Tribes;
and
``(2) shall be responsible for the administration of programs
in accordance with the compact or funding agreement.
``(g) Records.--
``(1) In general.--Unless an Indian Tribe specifies otherwise
in the compact or funding agreement, records of an Indian Tribe
shall not be considered to be Federal records for purposes of
chapter 5 of title 5, United States Code.
``(2) Recordkeeping system.--An Indian Tribe shall--
``(A) maintain a recordkeeping system; and
``(B) on a notice period of not less than 30 days, provide
the Secretary with reasonable access to the records to enable
the Department to meet the requirements of sections 3101
through 3106 of title 44, United States Code.
``SEC. 406. PROVISIONS RELATING TO THE SECRETARY.
``(a) Trust Evaluations.--A funding agreement shall include a
provision to monitor the performance of trust functions by the Indian
Tribe through the annual trust evaluation.
``(b) Reassumption.--
``(1) In general.--A compact or funding agreement shall include
provisions for the Secretary to reassume a program and associated
funding if there is a specific finding relating to that program
of--
``(A) imminent jeopardy to a trust asset, a natural
resource, or public health and safety that--
``(i) is caused by an act or omission of the Indian
Tribe; and
``(ii) arises out of a failure to carry out the compact
or funding agreement; or
``(B) gross mismanagement with respect to funds transferred
to an Indian Tribe under a compact or funding agreement, as
determined by the Secretary in consultation with the Inspector
General, as appropriate.
``(2) Prohibition.--The Secretary shall not reassume operation
of a program, in whole or part, unless--
``(A) the Secretary first provides written notice and a
hearing on the record to the Indian Tribe; and
``(B) the Indian Tribe does not take corrective action to
remedy the mismanagement of the funds or programs, or the
imminent jeopardy to a trust asset, natural resource, or public
health and safety.
``(3) Exception.--
``(A) In general.--Notwithstanding paragraph (2), the
Secretary may, on written notice to the Indian Tribe,
immediately reassume operation of a program if--
``(i) the Secretary makes a finding of imminent and
substantial jeopardy and irreparable harm to a trust asset,
a natural resource, or the public health and safety caused
by an act or omission of the Indian Tribe; and
``(ii) the imminent and substantial jeopardy and
irreparable harm to the trust asset, natural resource, or
public health and safety arises out of a failure by the
Indian Tribe to carry out the terms of an applicable
compact or funding agreement.
``(B) Reassumption.--If the Secretary reassumes operation
of a program under subparagraph (A), the Secretary shall
provide the Indian Tribe with a hearing on the record not later
than 10 days after the date of reassumption.
``(c) Inability To Agree on Compact or Funding Agreement.--
``(1) Final offer.--If the Secretary and a participating Indian
Tribe are unable to agree, in whole or in part, on the terms of a
compact or funding agreement (including funding levels), the Indian
Tribe may submit a final offer to the Secretary.
``(2) Determination.--Not more than 60 days after the date of
receipt of a final offer by one or more of the officials designated
pursuant to paragraph (4), the Secretary shall review and make a
determination with respect to the final offer, except that the 60-
day period may be extended for up to 30 days for circumstances
beyond the control of the Secretary, upon written request by the
Secretary to the Indian tribe.
``(3) Extensions.--The deadline described in paragraph (2) may
be extended for any length of time, as agreed upon by both the
Indian Tribe and the Secretary.
``(4) Designated officials.--
``(A) In general.--The Secretary shall designate one or
more appropriate officials in the Department to receive a copy
of the final offer described in paragraph (1).
``(B) No designation.--If no official is designated, the
Director of the Office of the Executive Secretariat and
Regulatory Affairs shall be the designated official.
``(5) No timely determination.--If the Secretary fails to make
a determination with respect to a final offer within the period
specified in paragraph (2), including any extension agreed to under
paragraph (3), the Secretary shall be deemed to have agreed to the
offer, except that with respect to any compact or funding agreement
provision concerning a program described under section 403(c), the
Secretary shall be deemed to have rejected the offer with respect
to such provision and the terms of clauses (ii) through (iv) of
paragraphs (6)(A) shall apply.
``(6) Rejection of final offer.--
``(A) In general.--If the Secretary rejects a final offer
(or one or more provisions or funding levels in a final offer),
the Secretary shall--
``(i) provide timely written notification to the Indian
Tribe that contains a specific finding that clearly
demonstrates, or that is supported by a controlling legal
authority, that--
``(I) the amount of funds proposed in the final
offer exceeds the applicable funding level as
determined under section 106(a)(1);
``(II) the program that is the subject of the final
offer is an inherent Federal function or is subject to
the discretion of the Secretary under section 403(c);
``(III) the Indian Tribe cannot carry out the
program in a manner that would not result in
significant danger or risk to the public health or
safety, to natural resources, or to trust resources;
``(IV) the Indian Tribe is not eligible to
participate in self-governance under section 402(c);
``(V) the funding agreement would violate a Federal
statute or regulation; or
``(VI) with respect to a program or portion of a
program included in a final offer pursuant to section
403(b)(2), the program or the portion of the program is
not otherwise available to Indian Tribes or Indians
under section 102(a)(1)(E);
``(ii) provide technical assistance to overcome the
objections stated in the notification required by clause
(i);
``(iii) provide the Indian Tribe with a hearing on the
record with the right to engage in full discovery relevant
to any issue raised in the matter, and the opportunity for
appeal on the objections raised, except that the Indian
Tribe may, in lieu of filing such appeal, directly proceed
to initiate an action in a United States district court
under section 110(a); and
``(iv) provide the Indian Tribe the option of entering
into the severable portions of a final proposed compact or
funding agreement (including a lesser funding amount, if
any), that the Secretary did not reject, subject to any
additional alterations necessary to conform the compact or
funding agreement to the severed provisions.
``(B) Effect of exercising certain option.--If an Indian
Tribe exercises the option specified in subparagraph (A)(iv)--
``(i) the Indian Tribe shall retain the right to appeal
the rejection by the Secretary under this section; and
``(ii) clauses (i), (ii), and (iii) of subparagraph (A)
shall apply only to the portion of the proposed final
compact or funding agreement that was rejected by the
Secretary.
``(d) Burden of Proof.--In any administrative action, hearing,
appeal, or civil action brought under this section, the Secretary shall
have the burden of proof--
``(1) of demonstrating, by a preponderance of the evidence, the
validity of the grounds for a reassumption under subsection (b);
and
``(2) of clearly demonstrating the validity of the grounds for
rejecting a final offer made under subsection (c).
``(e) Good Faith.--
``(1) In general.--In the negotiation of compacts and funding
agreements, the Secretary shall at all times negotiate in good
faith to maximize implementation of the self-governance policy.
``(2) Policy.--The Secretary shall carry out this title in a
manner that maximizes the policy of Tribal self-governance.
``(f) Savings.--
``(1) In general.--To the extent that programs carried out for
the benefit of Indian Tribes and Tribal organizations under this
title reduce the administrative or other responsibilities of the
Secretary with respect to the operation of Indian programs and
result in savings that have not otherwise been included in the
amount of Tribal shares and other funds determined under section
408(c), except for funding agreements entered into for programs
under section 403(c), the Secretary shall make such savings
available to the Indian Tribes or Tribal organizations for the
provision of additional services to program beneficiaries in a
manner equitable to directly served, contracted, and compacted
programs.
``(2) Discretionary programs of special significance.--For any
savings generated as a result of the assumption of a program by an
Indian Tribe under section 403(c), such savings shall be made
available to that Indian Tribe.
``(g) Trust Responsibility.--The Secretary may not waive, modify,
or diminish in any way the trust responsibility of the United States
with respect to Indian Tribes and individual Indians that exists under
treaties, Executive orders, other laws, or court decisions.
``(h) Decision Maker.--A decision that constitutes final agency
action and relates to an appeal within the Department conducted under
subsection (c)(6)(A)(iii) may be made by--
``(1) an official of the Department who holds a position at a
higher organizational level within the Department than the level of
the departmental agency in which the decision that is the subject
of the appeal was made; or
``(2) an administrative law judge.
``(i) Rules of Construction.--Subject to section 101(a) of the
PROGRESS for Indian Tribes Act, each provision of this title and each
provision of a compact or funding agreement shall be liberally
construed for the benefit of the Indian Tribe participating in self-
governance, and any ambiguity shall be resolved in favor of the Indian
Tribe.
``SEC. 407. CONSTRUCTION PROGRAMS AND PROJECTS.
``(a) In General.--Indian Tribes participating in Tribal self-
governance may carry out any construction project included in a compact
or funding agreement under this title.
``(b) Tribal Option To Carry Out Certain Federal Environmental
Activities.--In carrying out a construction project under this title,
an Indian Tribe may, subject to the agreement of the Secretary, elect
to assume some Federal responsibilities under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), division A
of subtitle III of title 54, United States Code, and related provisions
of other law and regulations that would apply if the Secretary were to
undertake a construction project, by adopting a resolution--
``(1) designating a certifying Tribal officer to represent the
Indian Tribe and to assume the status of a responsible Federal
official under those Acts, laws, or regulations; and
``(2) accepting the jurisdiction of the United States courts
for the purpose of enforcing the responsibilities of the certifying
Tribal officer assuming the status of a responsible Federal
official under those Acts, laws, or regulations.
``(c) Savings Clause.--Notwithstanding subsection (b), nothing in
this section authorizes the Secretary to include in any compact or
funding agreement duties of the Secretary under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), division A
of subtitle III of title 54, United States Code, and other related
provisions of law that are inherent Federal functions.
``(d) Codes and Standards.--In carrying out a construction project
under this title, an Indian Tribe shall--
``(1) adhere to applicable Federal, State, local, and Tribal
building codes, architectural and engineering standards, and
applicable Federal guidelines regarding design, space, and
operational standards, appropriate for the particular project; and
``(2) use only architects and engineers who--
``(A) are licensed to practice in the State in which the
facility will be built; and
``(B) certify that--
``(i) they are qualified to perform the work required
by the specific construction involved; and
``(ii) upon completion of design, the plans and
specifications meet or exceed the applicable construction
and safety codes.
``(e) Tribal Accountability.--
``(1) In general.--In carrying out a construction project under
this title, an Indian Tribe shall assume responsibility for the
successful completion of the construction project and of a facility
that is usable for the purpose for which the Indian Tribe received
funding.
``(2) Requirements.--For each construction project carried out
by an Indian Tribe under this title, the Indian Tribe and the
Secretary shall negotiate a provision to be included in the funding
agreement that identifies--
``(A) the approximate start and completion dates for the
project, which may extend over a period of one or more years;
``(B) a general description of the project, including the
scope of work, references to design criteria, and other terms
and conditions;
``(C) the responsibilities of the Indian Tribe and the
Secretary for the project;
``(D) how project-related environmental considerations will
be addressed;
``(E) the amount of funds provided for the project;
``(F) the obligations of the Indian Tribe to comply with
the codes referenced in subsection (d)(1) and applicable
Federal laws and regulations;
``(G) the agreement of the parties over who will bear any
additional costs necessary to meet changes in scope, or errors
or omissions in design and construction; and
``(H) the agreement of the Secretary to issue a certificate
of occupancy, if requested by the Indian Tribe, based upon the
review and verification by the Secretary, to the satisfaction
of the Secretary, that the Indian Tribe has secured upon
completion the review and approval of the plans and
specifications, sufficiency of design, life safety, and code
compliance by qualified, licensed, and independent architects
and engineers.
``(f) Funding.--
``(1) In general.--Funding appropriated for construction
projects carried out under this title shall be included in funding
agreements as annual or semiannual advance payments at the option
of the Indian Tribe.
``(2) Advance payments.--The Secretary shall include all
associated project contingency funds with each advance payment, and
the Indian Tribe shall be responsible for the management of such
contingency funds.
``(g) Negotiations.--At the option of the Indian Tribe,
construction project funding proposals shall be negotiated pursuant to
the statutory process in section 105, and any resulting construction
project agreement shall be incorporated into the funding agreement as
addenda.
``(h) Federal Review and Verification.--
``(1) In general.--On a schedule negotiated by the Secretary
and the Indian Tribe--
``(A) the Secretary shall review and verify, to the
satisfaction of the Secretary, that project planning and design
documents prepared by the Indian Tribe in advance of initial
construction are in conformity with the obligations of the
Indian Tribe under subsection (d); and
``(B) before the project planning and design documents are
implemented, the Secretary shall review and verify to the
satisfaction of the Secretary that subsequent document
amendments which result in a significant change in construction
are in conformity with the obligations of the Indian Tribe
under subsection (d).
``(2) Reports.--The Indian Tribe shall provide the Secretary
with project progress and financial reports not less than
semiannually.
``(3) Oversight visits.--The Secretary may conduct onsite
project oversight visits semiannually or on an alternate schedule
agreed to by the Secretary and the Indian Tribe.
``(i) Application of Other Laws.--Unless otherwise agreed to by the
Indian Tribe and except as otherwise provided in this Act, no provision
of title 41, United States Code, the Federal Acquisition Regulation, or
any other law or regulation pertaining to Federal procurement
(including Executive orders) shall apply to any construction program or
project carried out under this title.
``(j) Future Funding.--Upon completion of a facility constructed
under this title, the Secretary shall include the facility among those
eligible for annual operation and maintenance funding support
comparable to that provided for similar facilities funded by the
Department as annual appropriations are available and to the extent
that the facility size and complexity and other factors do not exceed
the funding formula criteria for comparable buildings.
``SEC. 408. PAYMENT.
``(a) In General.--At the request of the governing body of an
Indian Tribe and under the terms of an applicable funding agreement,
the Secretary shall provide funding to the Indian Tribe to carry out
the funding agreement.
``(b) Advance Annual Payment.--At the option of the Indian Tribe, a
funding agreement shall provide for an advance annual payment to an
Indian Tribe.
``(c) Amount.--
``(1) In general.--Subject to subsection (e) and sections 403
and 405, the Secretary shall provide funds to the Indian Tribe
under a funding agreement for programs in an amount that is equal
to the amount that the Indian Tribe would have been entitled to
receive under contracts and grants under this Act (including
amounts for direct program and contract support costs and, in
addition, any funds that are specifically or functionally related
to the provision by the Secretary of services and benefits to the
Indian Tribe or its members) without regard to the organization
level within the Department at which the programs are carried out.
``(2) Savings clause.--Nothing in this section reduces
programs, services, or funds of, or provided to, another Indian
Tribe.
``(d) Timing.--
``(1) In general.--Pursuant to the terms of any compact or
funding agreement entered into under this title, the Secretary
shall transfer to the Indian Tribe all funds provided for in the
funding agreement, pursuant to subsection (c), and provide funding
for periods covered by joint resolution adopted by Congress making
continuing appropriations, to the extent permitted by such
resolution.
``(2) Transfers.--Not later than 1 year after the date of
enactment of the PROGRESS for Indian Tribes Act, in any instance in
which a funding agreement requires an annual transfer of funding to
be made at the beginning of a fiscal year or requires semiannual or
other periodic transfers of funding to be made commencing at the
beginning of a fiscal year, the first such transfer shall be made
not later than 10 days after the apportionment of such funds by the
Office of Management and Budget to the Department, unless the
funding agreement provides otherwise.
``(e) Availability.--Funds for trust services to individual Indians
shall be available under a funding agreement only to the extent that
the same services that would have been provided by the Secretary are
provided to individual Indians by the Indian Tribe.
``(f) Multiyear Funding.--A funding agreement may provide for
multiyear funding.
``(g) Limitations on Authority of the Secretary.--The Secretary
shall not--
``(1) fail to transfer to an Indian Tribe its full share of any
central, headquarters, regional, area, or service unit office or
other funds due under this title for programs eligible under
paragraph (1) or (2) of section 403(b), except as required by
Federal law;
``(2) withhold any portion of such funds for transfer over a
period of years; or
``(3) reduce the amount of funds required under this title--
``(A) to make funding available for self-governance
monitoring or administration by the Secretary;
``(B) in subsequent years, except as necessary as a result
of--
``(i) a reduction in appropriations from the previous
fiscal year for the program to be included in a compact or
funding agreement;
``(ii) a congressional directive in legislation or an
accompanying report;
``(iii) a Tribal authorization;
``(iv) a change in the amount of pass-through funds
subject to the terms of the funding agreement; or
``(v) completion of an activity under a program for
which the funds were provided;
``(C) to pay for Federal functions, including--
``(i) Federal pay costs;
``(ii) Federal employee retirement benefits;
``(iii) automated data processing;
``(iv) technical assistance; and
``(v) monitoring of activities under this title; or
``(D) to pay for costs of Federal personnel displaced by
self-determination contracts under this Act or self-governance
under this title.
``(h) Federal Resources.--If an Indian Tribe elects to carry out a
compact or funding agreement with the use of Federal personnel, Federal
supplies (including supplies available from Federal warehouse
facilities), Federal supply sources (including lodging, airline
transportation, and other means of transportation, including the use of
interagency motor pool vehicles), or other Federal resources (including
supplies, services, and resources available to the Secretary under any
procurement contracts in which the Department is eligible to
participate), the Secretary shall, as soon as practicable, acquire and
transfer such personnel, supplies, or resources to the Indian Tribe
under this title.
``(i) Prompt Payment Act.--Chapter 39 of title 31, United States
Code, shall apply to the transfer of funds due under a compact or
funding agreement authorized under this title.
``(j) Interest or Other Income.--
``(1) In general.--An Indian Tribe may retain interest or
income earned on any funds paid under a compact or funding
agreement to carry out governmental purposes.
``(2) No effect on other amounts.--The retention of interest or
income under paragraph (1) shall not diminish the amount of funds
an Indian Tribe is entitled to receive under a funding agreement in
the year the interest or income is earned or in any subsequent
fiscal year.
``(3) Investment standard.--Funds transferred under this title
shall be managed by the Indian Tribe using the prudent investment
standard, provided that the Secretary shall not be liable for any
investment losses of funds managed by the Indian Tribe that are not
otherwise guaranteed or insured by the Federal Government.
``(k) Carryover of Funds.--
``(1) In general.--Notwithstanding any provision of an
appropriations Act, all funds paid to an Indian Tribe in accordance
with a compact or funding agreement shall remain available until
expended.
``(2) Effect of carryover.--If an Indian Tribe elects to carry
over funding from one year to the next, the carryover shall not
diminish the amount of funds the Indian Tribe is entitled to
receive under a funding agreement in that fiscal year or any
subsequent fiscal year.
``(l) Limitation of Costs.--
``(1) In general.--An Indian Tribe shall not be obligated to
continue performance that requires an expenditure of funds in
excess of the amount of funds transferred under a compact or
funding agreement.
``(2) Notice of insufficiency.--If at any time the Indian Tribe
has reason to believe that the total amount provided for a specific
activity under a compact or funding agreement is insufficient, the
Indian Tribe shall provide reasonable notice of such insufficiency
to the Secretary.
``(3) Suspension of performance.--If, after notice under
paragraph (2), the Secretary does not increase the amount of funds
transferred under the funding agreement, the Indian Tribe may
suspend performance of the activity until such time as additional
funds are transferred.
``(4) Savings clause.--Nothing in this section reduces any
programs, services, or funds of, or provided to, another Indian
Tribe.
``(m) Distribution of Funds.--The Office of Self-Governance shall
be responsible for distribution of all Bureau of Indian Affairs funds
provided under this title unless otherwise agreed by the parties to an
applicable funding agreement.
``(n) Applicability.--Notwithstanding any other provision of this
section, section 101(a) of the PROGRESS for Indian Tribes Act applies
to subsections (a) through (m).
``SEC. 409. FACILITATION.
``(a) In General.--Except as otherwise provided by law (including
section 101(a) of the PROGRESS for Indian Tribes Act), the Secretary
shall interpret each Federal law and regulation in a manner that
facilitates--
``(1) the inclusion of programs in funding agreements; and
``(2) the implementation of funding agreements.
``(b) Regulation Waiver.--
``(1) Request.--An Indian Tribe may submit to the Secretary a
written request for a waiver of applicability of a Federal
regulation, including--
``(A) an identification of the specific text in the
regulation sought to be waived; and
``(B) the basis for the request.
``(2) Determination by the secretary.--Not later than 120 days
after receipt by the Secretary and the designated officials under
paragraph (4) of a request under paragraph (1), the Secretary shall
approve or deny the requested waiver in writing to the Indian
Tribe.
``(3) Extensions.--The deadline described in paragraph (2) may
be extended for any length of time, as agreed upon by both the
Indian Tribe and the Secretary.
``(4) Designated officials.--The Secretary shall designate one
or more appropriate officials in the Department to receive a copy
of the waiver request described in paragraph (1).
``(5) Grounds for denial.--The Secretary may deny a request
under paragraph (1) upon a specific finding by the Secretary that
the identified text in the regulation may not be waived because
such a waiver is prohibited by Federal law.
``(6) Failure to make determination.--If the Secretary fails to
make a determination with respect to a waiver request within the
period specified in paragraph (2) (including any extension agreed
to under paragraph (3)), the Secretary shall be deemed to have
agreed to the request, except that for a waiver request relating to
programs eligible under section 403(b)(2) or section 403(c), the
Secretary shall be deemed to have denied the request.
``(7) Finality.--A decision of the Secretary under this section
shall be final for the Department.
``SEC. 410. DISCRETIONARY APPLICATION OF OTHER SECTIONS.
``(a) In General.--Except as otherwise provided in section 201(d)
of the PROGRESS for Indian Tribes Act, at the option of a participating
Indian Tribe or Indian Tribes, any of the provisions of title I may be
incorporated in any compact or funding agreement under this title. The
inclusion of any such provision shall be subject to, and shall not
conflict with, section 101(a) of such Act.
``(b) Effect.--Each incorporated provision under subsection (a)
shall--
``(1) have the same force and effect as if set out in full in
this title;
``(2) supplement or replace any related provision in this
title; and
``(3) apply to any agency otherwise governed by this title.
``(c) Effective Date.--If an Indian Tribe requests incorporation at
the negotiation stage of a compact or funding agreement, the
incorporation shall--
``(1) be effective immediately; and
``(2) control the negotiation and resulting compact and funding
agreement.
``SEC. 411. ANNUAL BUDGET LIST.
``The Secretary shall list, in the annual budget request submitted
to Congress under section 1105 of title 31, United States Code, any
funds proposed to be included in funding agreements authorized under
this title.
``SEC. 412. REPORTS.
``(a) In General.--
``(1) Requirement.--On January 1 of each year, the Secretary
shall submit to Congress a report regarding the administration of
this title.
``(2) Analysis.--Any Indian Tribe may submit to the Office of
Self-Governance and to the appropriate committees of Congress a
detailed annual analysis of unmet Tribal needs for funding
agreements under this title.
``(b) Contents.--The report under subsection (a)(1) shall--
``(1) be compiled from information contained in funding
agreements, annual audit reports, and data of the Secretary
regarding the disposition of Federal funds;
``(2) identify--
``(A) the relative costs and benefits of self-governance;
``(B) with particularity, all funds that are specifically
or functionally related to the provision by the Secretary of
services and benefits to self-governance Indian Tribes and
members of Indian Tribes;
``(C) the funds transferred to each Indian Tribe and the
corresponding reduction in the Federal employees and workload;
and
``(D) the funding formula for individual Tribal shares of
all Central Office funds, together with the comments of
affected Indian Tribes, developed under subsection (d);
``(3) before being submitted to Congress, be distributed to the
Indian Tribes for comment (with a comment period of not less than
30 days);
``(4) include the separate views and comments of each Indian
Tribe or Tribal organization; and
``(5) include a list of--
``(A) all such programs that the Secretary determines, in
consultation with Indian Tribes participating in self-
governance, are eligible for negotiation to be included in a
funding agreement at the request of a participating Indian
Tribe; and
``(B) all such programs which Indian Tribes have formally
requested to include in a funding agreement under section
403(c) due to the special geographic, historical, or cultural
significance of the program to the Indian Tribe, indicating
whether each request was granted or denied, and stating the
grounds for any denial.
``(c) Report on Non-BIA Programs.--
``(1) In general.--In order to optimize opportunities for
including non-BIA programs in agreements with Indian Tribes
participating in self-governance under this title, the Secretary
shall review all programs administered by the Department, other
than through the Bureau of Indian Affairs, the Office of the
Assistant Secretary for Indian Affairs, or the Office of the
Special Trustee for American Indians, without regard to the agency
or office concerned.
``(2) Programmatic targets.--The Secretary shall establish
programmatic targets, after consultation with Indian Tribes
participating in self-governance, to encourage bureaus of the
Department to ensure that an appropriate portion of those programs
are available to be included in funding agreements.
``(3) Publication.--The lists under subsection (b)(5) and
targets under paragraph (2) shall be published in the Federal
Register and made available to any Indian Tribe participating in
self-governance.
``(4) Annual review.--
``(A) In general.--The Secretary shall annually review and
publish in the Federal Register, after consultation with Indian
Tribes participating in self-governance, revised lists and
programmatic targets.
``(B) Contents.--In preparing the revised lists and
programmatic targets, the Secretary shall consider all programs
that were eligible for contracting in the original list
published in the Federal Register in 1995, except for programs
specifically determined not to be contractible as a matter of
law.
``(d) Report on Central Office Funds.--Not later than January 1,
2020, the Secretary shall, in consultation with Indian Tribes, develop
a funding formula to determine the individual Tribal share of funds
controlled by the Central Office of the Bureau of Indian Affairs and
the Office of the Special Trustee for inclusion in the compacts.
``SEC. 413. REGULATIONS.
``(a) In General.--
``(1) Promulgation.--Not later than 90 days after the date of
enactment of the PROGRESS for Indian Tribes Act, the Secretary
shall initiate procedures under subchapter III of chapter 5 of
title 5, United States Code, to negotiate and promulgate such
regulations as are necessary to carry out this title.
``(2) Publication of proposed regulations.--Proposed
regulations to implement this title shall be published in the
Federal Register not later than 21 months after the date of
enactment of the PROGRESS for Indian Tribes Act.
``(3) Expiration of authority.--The authority to promulgate
regulations under paragraph (1) shall expire on the date that is 30
months after the date of enactment of the PROGRESS for Indian
Tribes Act.
``(b) Committee.--
``(1) Membership.--A negotiated rulemaking committee
established pursuant to section 565 of title 5, United States Code,
to carry out this section shall have as its members only
representatives of the Federal Government and Tribal government.
``(2) Lead agency.--Among the Federal representatives described
in paragraph (1), the Office of Self-Governance shall be the lead
agency for the Department.
``(c) Adaptation of Procedures.--The Secretary shall adapt the
negotiated rulemaking procedures to the unique context of self-
governance and the government-to-government relationship between the
United States and Indian Tribes.
``(d) Effect.--
``(1) Repeal.--The Secretary may repeal any regulation that is
inconsistent with this Act.
``(2) Conflicting provisions.--Subject to section 101(a) of the
PROGRESS for Indian Tribes Act and except with respect to programs
described under section 403(c), this title shall supersede any
conflicting provision of law (including any conflicting
regulations).
``(3) Effectiveness without regard to regulations.--The lack of
promulgated regulations on an issue shall not limit the effect or
implementation of this title.
``SEC. 414. EFFECT OF CIRCULARS, POLICIES, MANUALS, GUIDANCE, AND
RULES.
``Unless expressly agreed to by a participating Indian Tribe in a
compact or funding agreement, the participating Indian Tribe shall not
be subject to any agency circular, policy, manual, guidance, or rule
adopted by the Department, except for--
``(1) the eligibility provisions of section 105(g); and
``(2) regulations promulgated pursuant to section 413.
``SEC. 415. APPEALS.
``Except as provided in section 406(d), in any administrative
action, appeal, or civil action for judicial review of any decision
made by the Secretary under this title, the Secretary shall have the
burden of proof of demonstrating by a preponderance of the evidence--
``(1) the validity of the grounds for the decision; and
``(2) the consistency of the decision with the requirements and
policies of this title.
``SEC. 416. APPLICATION OF OTHER PROVISIONS.
``Section 314 of the Department of the Interior and Related
Agencies Appropriations Act, 1991 (Public Law 101-512; 104 Stat. 1959),
shall apply to compacts and funding agreements entered into under this
title.
``SEC. 417. AUTHORIZATION OF APPROPRIATIONS.
``There are authorized to be appropriated such sums as may be
necessary to carry out this title.''.
TITLE II--INDIAN SELF-DETERMINATION
SEC. 201. DEFINITIONS; REPORTING AND AUDIT REQUIREMENTS;
APPLICATION OF PROVISIONS.
(a) Definitions.--
(1) In general.--Section 4 of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 5304) is amended by striking
subsection (j) and inserting the following:
``(j) `self-determination contract' means a contract entered into
under title I (or a grant or cooperative agreement used under section
9) between a Tribal organization and the appropriate Secretary for the
planning, conduct, and administration of programs or services that are
otherwise provided to Indian Tribes and members of Indian Tribes
pursuant to Federal law, subject to the condition that, except as
provided in section 105(a)(3), no contract entered into under title I
(or grant or cooperative agreement used under section 9) shall be--
``(1) considered to be a procurement contract; or
``(2) except as provided in section 107(a)(1), subject to any
Federal procurement law (including regulations);''.
(2) Technical amendments.--Section 4 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 5304), as
amended by paragraph (1), is further amended--
(A) in subsection (e), by striking ```Indian tribe' means''
and inserting ```Indian tribe' or `Indian Tribe' means''; and
(B) in subsection (l), by striking ```tribal organization'
means'' and inserting ```Tribal organization' or `tribal
organization' means''.
(b) Reporting and Audit Requirements.--Section 5 of the Indian
Self-Determination and Education Assistance Act (25 U.S.C. 5305) is
amended--
(1) in subsection (b)--
(A) by striking ``after completion of the project or
undertaking referred to in the preceding subsection of this
section'' and inserting ``after the retention period for the
report that is submitted to the Secretary under subsection
(a)''; and
(B) by adding at the end the following: ``The retention
period shall be defined in regulations promulgated by the
Secretary pursuant to section 413.''; and
(2) in subsection (f)(1), by inserting ``if the Indian Tribal
organization expends $500,000 or more in Federal awards during such
fiscal year'' after ``under this Act,''.
(c) Effective Date.--The amendment made by subsection (b)(2) shall
not take effect until 14 months after the date of enactment of this
Act.
(d) Application of Other Provisions.--Sections 4, 5, 6, 7, 102(c),
104, 105(a)(1), 105(f), 110, and 111 of the Indian Self-Determination
and Education Assistance Act (25 U.S.C. 5304, 5305, 5306, 5307,
5321(c), 5323, 5324(a)(1), 5324(f), 5331, and 5332) and section 314 of
the Department of the Interior and Related Agencies Appropriations Act,
1991 (Public Law 101-512; 104 Stat. 1959), apply to compacts and
funding agreements entered into under title IV of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 5361 et seq.).
SEC. 202. CONTRACTS BY SECRETARY OF THE INTERIOR.
Section 102 of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 5321) is amended--
(1) in subsection (c)(2), by striking ``economic enterprises''
and all that follows through ``except that'' and inserting
``economic enterprises (as defined in section 3 of the Indian
Financing Act of 1974 (25 U.S.C. 1452)), except that''; and
(2) by adding at the end the following:
``(f) Good Faith Requirement.--In the negotiation of contracts and
funding agreements, the Secretary shall--
``(1) at all times negotiate in good faith to maximize
implementation of the self-determination policy; and
``(2) carry out this Act in a manner that maximizes the policy
of Tribal self-determination, in a manner consistent with--
``(A) the purposes specified in section 3; and
``(B) the PROGRESS for Indian Tribes Act.
``(g) Rule of Construction.--Subject to section 101(a) of the
PROGRESS for Indian Tribes Act, each provision of this Act and each
provision of a contract or funding agreement shall be liberally
construed for the benefit of the Indian Tribe participating in self-
determination, and any ambiguity shall be resolved in favor of the
Indian Tribe.''.
SEC. 203. ADMINISTRATIVE PROVISIONS.
Section 105 of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 5324) is amended--
(1) in subsection (b), in the first sentence, by striking
``pursuant to'' and all that follows through ``of this Act'' and
inserting ``pursuant to sections 102 and 103''; and
(2) by adding at the end the following:
``(p) Interpretation by Secretary.--Except as otherwise provided by
law, the Secretary shall interpret all Federal laws (including
regulations) and Executive orders in a manner that facilitates, to the
maximum extent practicable--
``(1) the inclusion in self-determination contracts and funding
agreements of--
``(A) applicable programs, services, functions, and
activities (or portions thereof); and
``(B) funds associated with those programs, services,
functions, and activities;
``(2) the implementation of self-determination contracts and
funding agreements; and
``(3) the achievement of Tribal health objectives.
``(q)(1) Technical Assistance for Internal Controls.--In
considering proposals for, amendments to, or in the course of, a
contract under this title and compacts under titles IV and V of this
Act, if the Secretary determines that the Indian Tribe lacks adequate
internal controls necessary to manage the contracted program or
programs, the Secretary shall, as soon as practicable, provide the
necessary technical assistance to assist the Indian Tribe in developing
adequate internal controls. As part of that technical assistance, the
Secretary and the Tribe shall develop a plan for assessing the
subsequent effectiveness of such technical assistance. The inability of
the Secretary to provide technical assistance or lack of a plan under
this subsection shall not result in the reassumption of an existing
agreement, contract, or compact, or declination or rejection of a new
agreement, contract, or compact.
``(2) The Secretary shall prepare a report to be included in the
information required for the reports under sections 412(b)(2)(A) and
514(b)(2)(A). The Secretary shall include in this report, in the
aggregate, a description of the internal controls that were inadequate,
the technical assistance provided, and a description of Secretarial
actions taken to address any remaining inadequate internal controls
after the provision of technical assistance and implementation of the
plan required by paragraph (1).''.
SEC. 204. CONTRACT FUNDING AND INDIRECT COSTS.
Section 106(a)(3) of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 5325(a)(3)) is amended--
(1) in subparagraph (A)--
(A) in clause (i), by striking ``, and'' and inserting ``;
and''; and
(B) in clause (ii), by striking ``expense related to the
overhead incurred'' and inserting ``expense incurred by the
governing body of the Indian Tribe or Tribal organization and
any overhead expense incurred'';
(2) by redesignating subparagraph (B) as subparagraph (C); and
(3) by inserting after subparagraph (A) the following:
``(B) In calculating the reimbursement rate for expenses
described in subparagraph (A)(ii), not less than 50 percent of
the expenses described in subparagraph (A)(ii) that are
incurred by the governing body of an Indian Tribe or Tribal
organization relating to a Federal program, function, service,
or activity carried out pursuant to the contract shall be
considered to be reasonable and allowable.''.
SEC. 205. CONTRACT OR GRANT SPECIFICATIONS.
Section 108 of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 5329) is amended--
(1) in subsection (a)(2), by inserting ``subject to subsections
(a) and (b) of section 102,'' before ``contain'';
(2) in subsection (f)(2)(A)(ii) of the model agreement
contained in subsection (c), by inserting ``subject to subsections
(a) and (b) of section 102 of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 5321),'' before ``such other
provisions''; and
(3) in subsection (b)(7)(C) of the model agreement contained in
subsection (c), in the second sentence of the matter preceding
clause (i), by striking ``one performance monitoring visit'' and
inserting ``two performance monitoring visits''.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.