[Congressional Record Volume 166, Number 163 (Monday, September 21, 2020)]
[House]
[Pages H4549-H4557]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PRACTICAL REFORMS AND OTHER GOALS TO REINFORCE THE EFFECTIVENESS OF
SELF-GOVERNANCE AND SELF-DETERMINATION FOR INDIAN TRIBES ACT OF 2019
Ms. HAALAND. Madam Speaker, I move to suspend the rules and pass the
bill (S. 209) to amend the Indian Self-Determination and Education
Assistance Act to provide further self-governance by Indian Tribes, and
for other purposes.
[[Page H4550]]
The Clerk read the title of the bill.
The text of the bill is as follows:
S. 209
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--
[[Page H4551]]
``(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:
[[Page H4552]]
``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
[[Page H4553]]
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.
[[Page H4554]]
``(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.
[[Page H4555]]
``(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
[[Page H4556]]
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''.
The SPEAKER pro tempore. Pursuant to the rule, the gentlewoman from
New Mexico (Ms. Haaland) and the gentlewoman from Wyoming (Ms. Cheney)
each will control 20 minutes.
The Chair recognizes the gentlewoman from New Mexico.
General Leave
Ms. HAALAND. Madam Speaker, I ask unanimous consent that all Members
may have 5 legislative days in which to revise and extend their remarks
and include extraneous material on the measure under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentlewoman from New Mexico?
There was no objection.
Ms. HAALAND. Madam Speaker, I yield myself such time as I may
consume.
Madam Speaker, S. 209, the PROGRESS for Indian Tribes Act, introduced
by Senator Hoeven of North Dakota, will enhance the Department of the
Interior's self-governance process and provide Indian Tribes with
greater flexibility.
The Indian Self-Determination and Education Assistance Act is one of
the most important legislative acts affecting Indian Country in the
last 40-plus years as a key driver to improving the Tribal communities.
Enacted in 1975, the act was a Nixon-era initiative signed into law by
President Gerald Ford yet strongly supported by Democrats at the time.
Pursuant to the act, Tribes are able to enter into self-governance
contracts, commonly known as 638 contracts, with BIA and IHS, the
Bureau of Indian Affairs and Indian Health Service, to manage and
administer Federal Indian programs.
In 1994, the ISDEAA was amended by adding title IV, which authorized
Tribes to enter into negotiated compact agreements with the BIA under
which Tribes can assume control of the Department programs and
associated funding and tailor those programs to the needs of their
Tribal communities.
In 2000, the act was again amended to add title V, which authorizes
similar Tribal compacts with the Indian Health Service, the IHS,
through the Department of Health and Human Services.
There are more than 350 self-governance Tribes in the country, and
the vast majority of them manage programs within both DOI and IHS and
have achieved great success. In my home State of New Mexico, there are
six pueblos engaged in self-governance: Sandia, Santa Clara, Taos,
Cochiti, Jemez, and Ohkay Owingeh.
Tribal self-governance programs are successful in their
acknowledgment that Tribes have the right to govern themselves with
minimal Federal oversight and maximum flexibility to meet local Tribal
needs. However, significant differences between the title IV and title
V amendments have forced self-governance Tribes to operate under two
separate sets of legislative and administrative requirements.
[[Page H4557]]
The PROGRESS for Indian Tribes Act would largely reconcile these
differences, streamline the self-governance process, improve
efficiencies, and strengthen reservation economies.
Passage of the PROGRESS Act is a top legislative priority for self-
governance Tribes and is supported by the National Congress of American
Indians, United South and Eastern Tribes, the Alaska Federation of
Natives, the Midwest Alliance of Sovereign Tribes, the Affiliated
Tribes of Northwest Indians, and many more Indian Tribes. The
administration and the U.S. Chamber of Commerce are also on record in
support of this legislation.
This legislation is a product of over a decade of bipartisan
negotiations, which is why S. 209 passed the Republican-controlled
Senate on a voice vote. If bipartisan consensus was so easily found in
the Senate in this Congress, then it should be clear that this is a
commonsense bill that both sides of the aisle can support as well.
Madam Speaker, I am proud to be the sponsor of the House version of
the legislation, H.R. 2031, along with my dear colleagues,
Representatives Tom Cole of Oklahoma and Don Young of Alaska and
others. I hope that you will join me in passing S. 209 and sending it
to the President's desk.
Madam Speaker, I reserve the balance of my time.
Ms. CHENEY. Madam Speaker, I yield myself such time as I may consume.
Madam Speaker, this is a very important bill. Unfortunately, the way
that it is currently written raises some significant concerns.
As the Representative of Tribal communities in Wyoming, I share very
much the notion and the concept of helping to increase self-
determination, but I believe that this bill, as it is currently
written, unfortunately, leaves unresolved some major issues with
respect to, in particular, Bureau of Reclamation water projects that
could affect both Tribal as well as non-Tribal interests.
In our Western States where water is a scarce and precious commodity,
water management interests must be carefully balanced, and I am
concerned that S. 209 does not strike that balance.
Over the last several Congresses, House Republicans have offered
solutions to the reclamation projects issues without the need for
courts to step in to sort this out. Unfortunately, this effort was most
recently defeated on a party-line vote with little discussion from the
Democrat majority.
Unfortunately, we still are, today, faced with a situation where we
have got a worthy goal that this legislation is attempting to achieve,
but it doesn't quite get there.
Given these unresolved concerns, I must urge rejection of the measure
as written and ask for a ``no'' vote.
Madam Speaker, I yield back the balance of my time.
Ms. HAALAND. Madam Speaker, I yield myself such time as I may
consume.
As I stated before, this legislation is a result of over a decade of
bipartisan, bicameral negotiations.
Since self-governance was first enacted in 1994, there have been no
assumptions by Tribes of Bureau of Reclamation projects--none. Under
the 1994 law, the conditions, requirements, and limitations mitigating
against any such Tribal assumption of a Bureau of Reclamation project
have resulted in no such assumptions.
S. 209 does not change the 1994 authority in this regard. This is why
the gentlewoman's concerns are completely unfounded and why we defeated
an amendment on this in committee in the first place.
More so, S. 209 already contains a lengthy disclaimer specifically
stating that it does not affect, in any way, the ability of Tribes to
take over programs or projects of Interior agencies other than the BIA.
{time} 1215
Unless I'm not privy to yet another department reorganization, the
Bureau of Reclamation is not part of the BIA.
This bipartisan bill is critical to the furtherance of self-
governance and improvements in Tribal communities. I strongly urge my
colleagues to do the right thing and support this legislation.
Madam Speaker, versions of this bipartisan bill have lain before this
House and the Senate for nearly 2 decades, passing each body several
times. It is time to finally push this legislation across the finish
line so that Tribes can finally move to effectively-managed programs
for their people.
I urge my colleagues to show their support for Tribal self-governance
and Tribal sovereignty by passing S. 209, the PROGRESS for Indian
Tribes Act.
I yield back the balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by the
gentlewoman from New Mexico (Ms. Haaland) that the House suspend the
rules and pass the bill, S. 209.
The question was taken; and (two-thirds being in the affirmative) the
rules were suspended and the bill was passed.
A motion to reconsider was laid on the table.
____________________