Department of the Interior Tribal Self-Governance Act of 2012 - Amends the Indian Self-Determination and Education Assistance Act to revise tribal self-governance requirements.
Directs the Secretary of the Interior to carry out the Tribal Self-Governance Program. Authorizes the Secretary, acting through the Director of the Office of Self-Governance, to select up to 50 new Indian tribes per year from those eligible to participate in self-governance.
[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 3685 Introduced in Senate (IS)]
112th CONGRESS
2d Session
S. 3685
To amend the Indian Self-Determination and Education Assistance Act to
provide further self-governance by Indian tribes, and for other
purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
December 17, 2012
Mr. Akaka (for himself and Mr. Barrasso) introduced the following bill;
which was read twice and referred to the Committee on Indian Affairs
_______________________________________________________________________
A BILL
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 ``Department of the
Interior Tribal Self-Governance Act of 2012''.
(b) Table of Contents.--The table of contents of this Act is as
follows:
Sec. 1. Short title; table of contents.
TITLE I--INDIAN SELF-DETERMINATION
Sec. 101. Definitions; reporting and audit requirements; application of
provisions.
Sec. 102. Contracts by Secretary of Interior.
Sec. 103. Administrative provisions.
Sec. 104. Contract funding and indirect costs.
Sec. 105. Contract or grant specifications.
TITLE II--TRIBAL SELF-GOVERNANCE
Sec. 201. Tribal self-governance.
Sec. 202. Effect of certain provisions.
TITLE I--INDIAN SELF-DETERMINATION
SEC. 101. DEFINITIONS; REPORTING AND AUDIT REQUIREMENTS; APPLICATION OF
PROVISIONS.
(a) Definitions.--Section 4 of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450b) 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);''.
(b) Reporting and Audit Requirements.--Section 5(b) of the Indian
Self-Determination and Education Assistance Act (25 U.S.C. 450c(b)) is
amended--
(1) 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
(2) by adding at the end the following: ``The retention
period shall be defined in regulations promulgated by the
Secretary pursuant to section 414.''.
(c) 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, as amended (25 U.S.C. 450 et seq.)
(Public Law 93-638; 88 Stat. 2203) 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.
SEC. 102. CONTRACTS BY SECRETARY OF INTERIOR.
Section 102 of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450f) 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.--Subject to section 202 of the
Department of the Interior Tribal Self-Governance Act of 2012, 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 the purposes specified in section 3.
``(g) Rule of Construction.--Subject to section 202 of the
Department of the Interior Tribal Self-Governance Act of 2012, 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. 103. ADMINISTRATIVE PROVISIONS.
Section 105 of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450j) 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 (including section 202 of the Department of the Interior Tribal
Self-Governance Act of 2012), 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.''.
SEC. 104. CONTRACT FUNDING AND INDIRECT COSTS.
Section 106(a)(3) of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450j-1(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. 105. CONTRACT OR GRANT SPECIFICATIONS.
Section 108 of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450l) is amended--
(1) in subsection (a)(2), by inserting ``subject to
subsections (a) and (b) of section 102,'' before ``contain'';
and
(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. 450f),''
before ``such other provisions''.
TITLE II--TRIBAL SELF-GOVERNANCE
SEC. 201. TRIBAL SELF-GOVERNANCE.
(a) Definitions.--Section 401 of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 458aa) 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--
``(A) for a program administered by an Indian
tribe; or
``(B) under a compact or funding agreement that
results in a significant reduction of funds available
for the programs assumed by an Indian tribe.
``(6) Inherent federal function.--The term `inherent
Federal function' means a Federal function that may not legally
be delegated to an Indian tribe.
``(7) Program.--The term `program' means any program,
function, service, or activity (or portion thereof) within the
Department that is included in a funding agreement.
``(8) Secretary.--The term `Secretary' means the Secretary
of the Interior.
``(9) Self-governance.--The term `self-governance' means
the Tribal Self-Governance Program established under section
402.
``(10) 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 Special Trustee, 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.''.
(b) Establishment.--Section 402 of the Indian Self-Determination
and Education Assistance Act (25 U.S.C. 458bb) 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 up to 50 new Indian tribes per year from those
eligible under subsection (c) to participate in self-
governance.
``(B) Joint participation.--On the request of each
participating Indian tribe, two 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.--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 under title I or a compact or
funding agreement under this title 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.''.
(c) Funding Agreements.--Section 403 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 458cc) 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, 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, without regard to the
agency or office of that Bureau or those
Offices'';
(ii) in subparagraph (B), by striking
``and'';
(iii) in subparagraph (C), by inserting
``and'' after the semicolon at the end; and
(iv) by adding at the end the following:
``(D) any other programs, services, functions, or
activities (or portions thereof) that are provided
through the Bureau of Indian Affairs, the Office of the
Assistant Secretary for Indian Affairs, or the Office
of the Special Trustee 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 413(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); and
(3) 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.); and
``(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 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.
``(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 Department of the Interior Tribal
Self-Governance Act of 2012 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.''.
(d) General Revisions.--Title IV of the Indian Self-Determination
and Education Assistance Act (25 U.S.C. 450aa 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) another date 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 Department of the Interior Tribal Self-Governance Act of 2012,
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 any manner that the Indian tribe determines to be
in the best interest of the Indian community being served, so long as
that 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, 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, natural
resources, 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 the one or more officials
designated pursuant to paragraph (4), the Secretary shall
review and make a determination with respect to the final
offer.
``(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 Executive Secretariat of the Secretary
shall be the designated official.
``(5) No timely determination.--Except as otherwise
provided in section 202 of the Department of the Interior
Tribal Self-Governance Act of 2012, if the Secretary fails to
make a determination with respect to a final offer within the
period specified in paragraph (2), the Secretary shall be
deemed to have agreed to the offer.
``(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--
``(I) a hearing on the record with
the right to engage in full discovery
relevant to any issue raised in the
matter; and
``(II) 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, or
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.--Subject to section 202 of the Department
of the Interior Tribal Self-Governance Act of 2012, 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.--Subject to section 202 of the Department of
the Interior Tribal Self-Governance Act of 2012, 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) Decisionmaker.--A decision that constitutes final agency
action and relates to an appeal within the Department conducted under
subsection (c)(4) 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 202 of the
Department of the Interior Tribal Self-Governance Act of 2012, 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 construction projects 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.), the National
Historic Preservation Act (16 U.S.C. 470 et seq.), and related
provisions of 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 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 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 (42 U.S.C. 4321 et seq.), the National
Historic Preservation Act (16 U.S.C. 470 et seq.), 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 (c)(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.--Subject to section 202 of the Department
of the Interior Tribal Self-Governance Act of 2012, 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.--Subject to section 202 of the
Department of the Interior Tribal Self-Governance Act of 2012,
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
(c); 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 (c).
``(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 the Office of Federal Procurement Policy Act (41 U.S.C. 401 et
seq.), the Federal Acquisition Regulations issued pursuant to that Act,
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.--Subject to section 202 of the Department of
the Interior Tribal Self-Governance Act of 2012, 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 Department of the Interior Tribal Self-
Governance Act of 2012, 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 1 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.--Section 202 of the Department of the Interior
Tribal Self-Governance Act of 2012 applies to subsections (a) through
(m).
``SEC. 409. FACILITATION.
``(a) In General.--Except as otherwise provided by law (including
section 202 of the Department of the Interior Tribal Self-Governance
Act of 2012), 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)--
``(A) for a program eligible under paragraph (1) or
(2) of section 403(b), only 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; and
``(B) for a program eligible under section 403(c),
upon a specific finding by the Secretary that the
waiver is prohibited by Federal law or is inconsistent
with the express provisions of the funding agreement.
``(6) Failure to make determination.--If the Secretary
fails to approve or deny a waiver request within the period
required under paragraph (2), the Secretary shall be deemed to
have approved the request.
``(7) Finality.--A decision of the Secretary under this
section shall be final for the Department.
``SEC. 410. DISCLAIMERS.
``Nothing in this title expands or alters any statutory authority
of the Secretary in a manner that authorizes the Secretary to enter
into any agreement under section 403--
``(1) with respect to an inherent Federal function;
``(2) in a case in which the law establishing a program
explicitly prohibits the type of participation sought by the
Indian tribe (without regard to whether one or more Indian
tribes are identified in the authorizing law); or
``(3) that limits or reduces in any way the services,
contracts, or funds that any other Indian tribe or tribal
organization is eligible to receive under section 102 or any
other applicable Federal law.
``SEC. 411. DISCRETIONARY APPLICATION OF OTHER SECTIONS.
``(a) In General.--Except as otherwise provided in section 101(c),
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.
``(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. 412. 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 Act.
``SEC. 413. 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 no 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, Non-OST Programs.--
``(1) In general.--In order to optimize opportunities for
including non-Bureau of Indian Affairs and non-Office of
Special Trustee 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 or
Office of the Special Trustee, 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,
2013, 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. 414. REGULATIONS.
``(a) In General.--
``(1) Promulgation.--Not later than 90 days after the date
of enactment of the Department of the Interior Tribal Self-
Governance Act of 2012, 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 Department of the Interior Tribal Self-
Governance Act of 2012.
``(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 Department of
the Interior Tribal Self-Governance Act of 2012.
``(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 202 of
the Department of the Interior Tribal Self-Governance Act of
2012, 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. 415. 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 414.
``SEC. 416. 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. 417. 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. 418. AUTHORIZATION OF APPROPRIATIONS.
``There are authorized to be appropriated such sums as are
necessary to carry out this title.''.
SEC. 202. EFFECT OF CERTAIN PROVISIONS.
(a) Definitions.--In this section:
(1) Funding agreement.--The term ``funding agreement''
means a funding agreement entered into under section 403 of the
ISDEAA (25 U.S.C. 458cc).
(2) ISDEAA.--The term ``ISDEAA'' means the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450 et
seq.).
(3) 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 through--
(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.
(4) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(5) Self-determination contract.--The term ``self-
determination contract'' means a self-determination contract
entered into under section 102 of the ISDEAA (25 U.S.C. 450f).
(6) Tribal water settlement.--The term ``tribal water
settlement'' means any settlement, compact, or other agreement
entered into by an Indian tribe and the United States, or by an
Indian tribe, the United States, and one or more parties that--
(A) settles or quantifies any Federal reserved
water rights or any claims relating to those rights of
the Indian tribe; and
(B) has been authorized by an Act of Congress.
(b) Effect of Provisions.--Nothing in this Act (including this
section) or any amendment made by this Act (including section 414 of
the ISDEAA (relating to regulations), as added by section 201)--
(1) modifies or affects the meaning, application, or effect
of--
(A) section 102(a)(1)(E) of the ISDEAA (25 U.S.C.
450f(a)(1)(E)), as in effect on the day before the date
of enactment of this Act; or
(B) paragraph (2) or (3) of subsection (b) or
subsection (c) of section 403 of the ISDEAA (25 U.S.C.
458cc), as in effect on the day before the date of
enactment of this Act;
(2) increases, limits, modifies, or otherwise affects any
authority of the Secretary that the Secretary held on the day
before the date of enactment of this Act under section 403(c)
of the ISDEAA (25 U.S.C. 458cc(c));
(3) authorizes the inclusion of any non-BIA program in--
(A) a self-determination contract as a program
under section 102(a)(1)(E) of the ISDEAA (25 U.S.C.
450f(a)(1)(E)) if the inclusion of that non-BIA program
in a self-determination contract as a program under
that section would not have been authorized under the
ISDEAA on the day before the date of enactment of this
Act;
(B) a funding agreement as a program under section
403(b)(2) of the ISDEAA (25 U.S.C. 458cc(b)(2)) if the
inclusion of that non-BIA program in a funding
agreement as a program under that section would not
have been authorized on the day before the date of
enactment of this Act; or
(C) a funding agreement as a program under section
403(c) of the ISDEAA (25 U.S.C. 458cc(c)) if the
inclusion of that non-BIA program in a funding
agreement as a program under that section would not
have been authorized under the ISDEAA on the day before
the date of enactment of this Act;
(4) modifies or otherwise affects the meaning, application,
or effect of any provision of law that--
(A) is not contained in the ISDEAA; and
(B) expressly authorizes or prohibits contracting
or compacting under title I or title IV of the ISDEAA
with respect to a specific program or project that is
identified or otherwise referred to in that provision
of law;
(5) modifies or otherwise affects the meaning, application,
or effect of, or the performance required of a party, or any
payment or funding under--
(A) a tribal water settlement; or
(B) any Act of Congress approving, authorizing, or
ratifying a tribal water settlement; or
(6) authorizes any self-determination contract or funding
agreement or approval of any self-determination contract or
funding agreement under the ISDEAA (as amended by section 201)
that would authorize an Indian tribe to plan, conduct,
consolidate, administer, or receive funding for any program,
project, or activity that is required, authorized, or funded by
a tribal water settlement or an Act of Congress approving,
authorizing, or ratifying a tribal water settlement in a manner
that is inconsistent with the terms of that tribal water
settlement or that Act of Congress.
<all>
Introduced in Senate
Sponsor introductory remarks on measure. (CR S8072)
Read twice and referred to the Committee on Indian Affairs.
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