[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4842 Engrossed in House (EH)]

103d CONGRESS

  2d Session

                               H. R. 4842

_______________________________________________________________________

                                 AN ACT

To specify the terms of contracts entered into by the United States and 
  Indian tribal organizations under the Indian Self-Determination and 
Education Assistance Act and to provide for tribal Self-Governance, and 
                          for other purposes.




103d CONGRESS
  2d Session
                                H. R. 4842

_______________________________________________________________________

                                 AN ACT


 
To specify the terms of contracts entered into by the United States and 
  Indian tribal organizations under the Indian Self-Determination and 
Education Assistance Act and to provide for tribal Self-Governance, 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.

    This Act may be cited as the ``Indian Self-Determination Act 
Amendments of 1994''.

            TITLE I--INDIAN SELF-DETERMINATION ACT CONTRACTS

SEC. 101. SHORT TITLE.

    This title may be cited as the ``Indian Self-Determination Contract 
Reform Act of 1994''.

SEC. 102. GENERAL AMENDMENTS.

    The Indian Self-Determination and Education Assistance Act (25 
U.S.C. 450 et seq.) is amended--
            (1) in section 4--
                    (A) in subsection (g), by striking ``indirect costs 
                rate'' and inserting ``indirect cost rate'';
                    (B) by striking ``and'' at the end of subsection 
                (k);
                    (C) by striking the period at the end of subsection 
                (l) and inserting ``; and''; and
                    (D) by adding at the end the following new 
                subsection:
    ``(m) `construction contract' means a fixed-price or cost-
reimbursement self-determination contract for a construction project, 
except that such term does not include any contract--
            ``(1) that is limited to providing planning services and 
        construction management services (or a combination of such 
        services);
            ``(2) for the Housing Improvement Program or roads 
        maintenance program of the Bureau of Indian Affairs 
        administered by the Secretary of the Interior; or
            ``(3) for the health facility maintenance and improvement 
        program administered by the Secretary of Health and Human 
        Services.'';
            (2) by striking subsection (f) of section 5 and inserting 
        the following new subsection:
    ``(f)(1) For each fiscal year during which an Indian tribal 
organization receives or expends funds pursuant to a contract entered 
into, or grant made, under this Act, the tribal organization that 
requested such contract or grant shall submit to the appropriate 
Secretary a single-agency audit report required by chapter 75 of title 
31, United States Code.
    ``(2) In addition to submitting a single-agency audit report 
pursuant to paragraph (1), a tribal organization referred to in such 
paragraph shall submit such additional information concerning the 
conduct of the program, function, service, or activity carried out 
pursuant to the contract or grant that is the subject of the report as 
the tribal organization may negotiate with the Secretary.
    ``(3) Any disagreement over reporting requirements shall be subject 
to the declination criteria and procedures set forth in section 102.'';
            (3) in section 7(a), by striking ``of subcontractors'' and 
        inserting in lieu thereof ``or subcontractors (excluding tribes 
        and tribal organizations)'';
            (4) at the end of section 7, add the following new 
        subsection:
    ``(c) Notwithstanding subsections (a) and (b), with respect to any 
self-determination contract, or portion of a self-determination 
contract, that is intended to benefit one tribe, the tribal employment 
or contract preference laws adopted by such tribe shall govern with 
respect to the administration of the contract or portion of the 
contract.'';
            (5) at the end of section 102(a)(1), add the following new 
        flush sentence:
``The programs, functions, services, or activities that are contracted 
under this paragraph shall include administrative functions of the 
Department of the Interior and the Department of Health and Human 
Services (whichever is applicable) that support the delivery of 
services to Indians, including those administrative activities 
supportive of, but not included as part of, the service delivery 
programs described in this paragraph that are otherwise contractable. 
The administrative functions referred to in the preceding sentence 
shall be contractable without regard to the organizational level within 
the department that carries out such functions.'';
            (6) in section 102(a)--
                    (A) in paragraph (2)--
                            (i) in the first sentence, by inserting ``, 
                        or a proposal to amend or renew a self-
                        determination contract,'' before ``to the 
                        Secretary for review'';
                            (ii) in the second sentence--
                                    (I) by striking ``The'' and 
                                inserting ``Subject to the provisions 
                                of paragraph (4), the'';
                                    (II) by inserting ``and award the 
                                contract'' after ``approve the 
                                proposal'';
                                    (III) by striking ``, within sixty 
                                days of receipt of the proposal,''; and
                                    (IV) by striking ``a specific 
                                finding is made that'' and inserting 
                                ``the Secretary provides written 
                                notification to the applicant that 
                                contains a specific finding that 
                                clearly demonstrates that, or that is 
                                supported by a controlling legal 
                                authority that'';
                            (iii) in subparagraph (B), by striking 
                        ``or'' after the semicolon;
                            (iv) in subparagraph (C), by striking the 
                        period at the end and inserting a semicolon;
                            (v) by adding at the end the following new 
                        subparagraphs:
                    ``(D) the amount of funds proposed under the 
                contract is in excess of the applicable funding level 
                for the contract, as determined under section 106(a); 
                or
                    ``(E) the program, function, service, or activity 
                (or portion thereof) that is the subject of the 
                proposal is beyond the scope of programs, functions, 
                services, or activities covered under paragraph (1) 
                because the proposal includes activities that cannot 
                lawfully be carried out by the contractor.''; and
                            (vi) by adding at the end of the paragraph 
                        the following new flush material:
``Notwithstanding any other provision of law, the Secretary may extend 
or otherwise alter the 90-day period specified in the second sentence 
of this subsection, if before the expiration of such period, the 
Secretary obtains the voluntary and express written consent of the 
tribe or tribal organization to extend or otherwise alter such period. 
The contractor shall include in the proposal of the contractor the 
standards under which the tribal organization will operate the 
contracted program, service, function, or activity, including in the 
area of construction, provisions regarding the use of licensed and 
qualified architects, applicable health and safety standards, adherence 
to applicable Federal, State, local, or tribal building codes and 
engineering standards. The standards referred to in the preceding 
sentence shall ensure structural integrity, accountability of funds, 
adequate competition for subcontracting under tribal or other 
applicable law, the commencement, performance, and completion of the 
contract, adherence to project plans and specifications (including any 
applicable Federal construction guidelines and manuals), the use of 
proper materials and workmanship, necessary inspection and testing, and 
changes, modifications, stop work, and termination of the work when 
warranted.''; and
                    (B) by adding at the end the following new 
                paragraph:
    ``(4) The Secretary shall approve any severable portion of a 
contract proposal that does not support a declination finding described 
in paragraph (2). If the Secretary determines under such paragraph that 
a contract proposal--
            ``(A) proposes in part to plan, conduct, or administer a 
        program, function, service, or activity that is beyond the 
        scope of programs covered under paragraph (1), or
            ``(B) proposes a level of funding that is in excess of the 
        applicable level determined under section 106(a),
subject to any alteration in the scope of the proposal that the 
Secretary and the tribal organization agree to, the Secretary shall, as 
appropriate, approve such portion of the program, function, service, or 
activity as is authorized under paragraph (1) or approve a level of 
funding authorized under section 106(a). If a tribal organization 
elects to carry out a severable portion of a contract proposal pursuant 
to this paragraph, subsection (b) shall only apply to the portion of 
the contract that is declined by the Secretary pursuant to this 
subsection.'';
            (7) in section 102(b)(3)--
                    (A) by inserting after ``record'' the following: 
                ``with the right to engage in full discovery relevant 
                to any issue raised in the matter''; and
                    (B) by inserting before the period the following: 
                ``, except that the tribe or tribal organization may, 
                in lieu of filing such appeal, exercise the option to 
                initiate an action in a Federal district court and 
                proceed directly to such court pursuant to section 
                110(a)'';
            (8) in section 102(d), by striking ``as provided in section 
        2671 of title 28)'' and inserting ``as provided in section 2671 
        of title 28, United States Code, and including an individual 
        who provides health care services pursuant to a personal 
        services contract with a tribal organization for the provision 
        of services in any facility owned, operated, or constructed 
        under the jurisdiction of the Indian Health Service)'';
            (9) by adding at the end of section 102 the following new 
        subsection:
    ``(e)(1) With respect to any hearing or appeal conducted pursuant 
to subsection (b)(3), the Secretary shall have the burden of proof to 
establish by clearly demonstrating the validity of the grounds for 
declining the contract proposal (or portion thereof).
    ``(2) Notwithstanding any other provision of law, a decision by an 
official of the Department of the Interior or the Department of Health 
and Human Services, as appropriate (referred to in this paragraph as 
the `Department') that constitutes final agency action and that relates 
to an appeal within the Department that is conducted under subsection 
(b)(3) shall be made either--
            ``(A) by an official of the Department who holds a position 
        at a higher organizational level within the Department than the 
        level of the departmental agency (such as the Indian Health 
        Service or the Bureau of Indian Affairs) in which the decision 
        that is the subject of the appeal was made; or
            ``(B) by an administrative judge.'';
            (10) by striking subsection (a) of section 105 and 
        inserting the following new subsection:
    ``(a)(1) Notwithstanding any other provision of law, subject to 
paragraph (3), the contracts and cooperative agreements entered into 
with tribal organizations pursuant to section 102 shall not be subject 
to Federal contracting or cooperative agreement laws (including any 
regulations), except to the extent that such laws expressly apply to 
Indian tribes.
    ``(2) Program standards applicable to a nonconstruction self-
determination contract shall be set forth in the contract proposal and 
the final contract of the tribe or tribal organization.
    ``(3)(A) With respect to a construction contract (or a subcontract 
of such a construction contract), the provisions of the Office of 
Federal Procurement Policy Act (41 U.S.C. 401 et seq.) and the 
regulations relating to acquisitions promulgated under such Act shall 
apply only to the extent that the application of such provision to the 
construction contract (or subcontract) is--
            ``(i) necessary to ensure that the contract may be carried 
        out in a satisfactory manner;
            ``(ii) directly related to the construction activity; and
            ``(iii) not inconsistent with this Act.
    ``(B) A list of the Federal requirements that meet the requirements 
of clauses (i) through (iii) of subparagraph (A) shall be included in 
an attachment to the contract pursuant to negotiations between the 
Secretary and the tribal organization.
    ``(C)(i) Except as provided in subparagraph (B), no Federal law 
listed in clause (ii) or any other provision of Federal law (including 
an Executive order) relating to acquisition by the Federal Government 
shall apply to a construction contract that a tribe or tribal 
organization enters into under this Act, unless expressly provided in 
such law.
    ``(ii) The laws listed in this paragraph are as follows:
            ``(I) The Federal Property and Administrative Services Act 
        of 1949 (40 U.S.C. 471 et seq.).
            ``(II) Section 3709 of the Revised Statutes.
            ``(III) Section 9(c) of the Act of Aug. 2, 1946 (60 Stat. 
        809, chapter 744).
            ``(IV) Title III of the Federal Property and Administrative 
        Services Act of 1949 (63 Stat. 393 et seq., chapter 288).
            ``(V) Section 13 of the Act of Oct. 3, 1944 (58 Stat. 770; 
        chapter 479).
            ``(VI) Chapters 21, 25, 27, 29, and 31 of title 44, United 
        States Code.
            ``(VII) Section 2 of the Act of June 13, 1934 (48 Stat 948, 
        chapter 483).
            ``(VIII) Sections 1 through 12 of the Act of June 30, 1936 
        (49 Stat. 2036 et seq. chapter 881).
            ``(IX) The Service Control Act of 1965 (41 U.S.C. 351 et 
        seq.).
            ``(X) The Small Business Act (15 U.S.C. 631 et seq.).
            ``(XI) Executive Order Nos. 12138, 11246, 11701 and 
        11758.'';
            (11) by striking subsection (e) and inserting the following 
        new subsection:
    ``(e) If an Indian tribe, or a tribal organization authorized by a 
tribe, requests retrocession of the appropriate Secretary for any 
contract or portion of a contract entered into pursuant to this Act, 
unless the tribe or tribal organization rescinds the request for 
retrocession, such retrocession shall become effective on--
            ``(1) the earlier of--
                    ``(A) the date that is 1 year after the date the 
                Indian tribe or tribal organization submits such 
                request; or
                    ``(B) the date on which the contract expires; or
            ``(2) such date as may be mutually agreed by the Secretary 
        and the Indian tribe.'';
            (12) by striking paragraph (2) of section 105(f) and 
        inserting the following new paragraph:
            ``(2) donate to an Indian tribe or tribal organization 
        title to any personal or real property found to be excess to 
        the needs of the Bureau of Indian Affairs, the Indian Health 
        Service, or the General Services Administration, except that--
                    ``(A) subject to the provisions of subparagraph 
                (B), title to property and equipment furnished by the 
                Federal Government for use in the performance of the 
                contract or purchased with funds under any self-
                determination contract or grant agreement shall, unless 
                otherwise requested by the tribe or tribal 
                organization, vest in the appropriate tribe or tribal 
                organization;
                    ``(B) if property described in subparagraph (A) has 
                a value in excess of $5,000 at the time of the 
                retrocession, rescission, or termination of the self-
                determination contract or grant agreement, at the 
                option of the Secretary, upon the retrocession, 
                rescission, or termination, title to such property and 
                equipment shall revert to the Department of the 
                Interior or the Department of Health and Human 
                Services, as appropriate; and
                    ``(C) all property referred to in subparagraph (A) 
                shall remain eligible for replacement on the same basis 
                as if title to such property were vested in the United 
                States; and'';
            (13) by adding at the end of section 105 the following new 
        subsections:
    ``(i)(1) If a self-determination contract requires the Secretary to 
divide the administration of a program that has previously been 
administered for the benefit of a greater number of tribes than are 
represented by the tribal organization that is a party to the contract, 
the Secretary shall take such action as may be necessary to ensure that 
services are provided to the tribes not served by a self-determination 
contract, including program redesign in consultation with the tribal 
organization and all affected tribes.
    ``(2) Nothing in this title shall be construed to limit or reduce 
in any way the funding for any program, project, or activity serving a 
tribe under this or other applicable Federal law. Any tribe or tribal 
organization that alleges that a self-determination contract is in 
violation of this section may apply the provisions of section 110.
    ``(j) Upon providing notice to the Secretary, a tribal organization 
that carries out a nonconstruction self-determination contract may 
propose a redesign of a program, activity, function, or service carried 
out by the tribal organization under the contract, including any 
nonstatutory program standard, in such manner as to best meet the local 
geographic, demographic, economic, cultural, health, and institutional 
needs of the Indian people and tribes served under the contract. The 
Secretary shall evaluate any proposal to redesign any program, 
activity, function, or service provided under the contract. With 
respect to declining to approve a redesigned program, activity, 
function, or service under this subsection, the Secretary shall apply 
the criteria and procedures set forth in section 102.
    ``(k) For purposes of section 201(a) of the Federal Property and 
Administrative Services Act of 1949 (40 U.S.C. 481(a)) (relating to 
Federal sources of supply, including lodging providers, airlines and 
other transportation providers), a tribal organization carrying out a 
contract, grant, or cooperative agreement under this Act shall be 
deemed an executive agency when carrying out such contract, grant, or 
agreement and the employees of the tribal organization shall be 
eligible to have access to such sources of supply on the same basis as 
employees of an executive agency have such access.
    ``(l)(1) Upon the request of an Indian tribe or tribal 
organization, the Secretary shall enter into a lease with the Indian 
tribe or tribal organization that holds title to, a leasehold interest 
in, or a trust interest in, a facility used by the Indian tribe or 
tribal organization for the administration and delivery of services 
under this Act.
    ``(2) The Secretary shall compensate each Indian tribe or tribal 
organization that enters into a lease under paragraph (1) for the use 
of the facility leased for the purposes specified in such paragraph. 
Such compensation may include rent, depreciation based on the useful 
life of the facility, principal and interest paid or accrued, operation 
and maintenance expenses, and such other reasonable expenses that the 
Secretary determines, by regulation, to be allowable.
    ``(m)(1) Each construction contract requested, approved, or awarded 
under this Act shall be subject to--
            ``(A) except as otherwise provided in this Act, the 
        provisions of this Act, other than sections 102(a)(2), 106(l), 
        108 and 109; and
            ``(B) section 314 of the Department of the Interior and 
        Related Agencies Appropriations Act, 1991 (104 Stat. 1959).
    ``(2) In providing technical assistance to tribes and tribal 
organizations in the development of construction contract proposals, 
the Secretary shall provide, not later than 30 days after receiving a 
request from a tribe or tribal organization, all information available 
to the Secretary regarding the construction project, including 
construction drawings, maps, engineering reports, design reports, plans 
of requirements, cost estimates, environmental assessments or 
environmental impact reports, and archaeological reports.
    ``(3) Prior to finalizing a construction contract proposal pursuant 
to section 102(a), and upon request of the tribe or tribal organization 
that submits the proposal, the Secretary shall provide for a 
precontract negotiation phase in the development of a contract 
proposal. Such phase shall include, at a minimum, the following 
elements:
            ``(A) The provision of technical assistance pursuant to 
        section 103 and paragraph (2).
            ``(B) A joint scoping session between the Secretary and the 
        tribe or tribal organization to review all plans, 
        specifications, engineering reports, cost estimates, and other 
        information available to the parties, for the purpose of 
        identifying all areas of agreement and disagreement.
            ``(C) An opportunity for the Secretary to revise the plans, 
        designs, or cost estimates of the Secretary in response to 
        concerns raised, or information provided by, the tribe or 
        tribal organization.
            ``(D) A negotiation session during which the Secretary and 
        the tribe or tribal organization shall seek to develop a 
        mutually agreeable contract proposal.
            ``(E) Upon the request of the tribe or tribal organization, 
        the use of an alternative dispute resolution mechanism to seek 
        resolution of all remaining areas of disagreement pursuant to 
        the dispute resolution provisions under subchapter IV of 
        chapter 5 of title 5, United States Code.
            ``(F) The submission to the Secretary by the tribe or 
        tribal organization of a final contract proposal pursuant to 
        section 102(a).
    ``(4)(A) Subject to subparagraph (B), in funding a fixed-price 
construction contract pursuant to section 106(a), the Secretary shall 
provide for the following:
            ``(i) The reasonable costs to the tribe or tribal 
        organization for general administration incurred in connection 
        with the project that is the subject of the contract.
            ``(ii) The ability of the contractor that carries out the 
        construction contract to make a reasonable profit, taking into 
        consideration the risks associated with carrying out the 
        contract and other relevant considerations.
    ``(B) In establishing a contract budget for a construction project, 
the Secretary shall not be required to separately identify the 
components described in clauses (i) and (ii) of subparagraph (A).
    ``(C) The total amount awarded under a construction contract shall 
reflect an overall fair and reasonable price to the parties, including 
the following costs:
            ``(i) The reasonable costs to the tribal organization of 
        performing the contract, taking into consideration the terms of 
        the contract and the requirements of this Act and any other 
        applicable law.
            ``(ii) The costs of preparing the contract proposal and 
        supporting cost data.
            ``(iii) The costs associated with auditing the general and 
        administrative costs of the tribal organization associated with 
        the management of the construction contract.
            ``(iv) In the case of a fixed-price contract, a fair profit 
        determined by taking into consideration the relevant risks and 
        local market conditions.
            ``(v) If the Secretary and the tribe or tribal organization 
        are unable to develop a mutually agreeable construction 
        contract proposal pursuant to the procedures set forth in this 
        subsection, the tribe or tribal organization may submit a final 
        contract proposal to the Secretary. Not later than 30 days 
        after receiving such final contract proposal, the Secretary 
        shall approve the contract proposal and award the contract, 
        unless, during such period the Secretary declines the proposal 
        pursuant to sections 102(a)(2) and 102(b) of section 102 
        (including providing opportunity for an appeal pursuant to 
        section 102(b)).
    ``(n) Notwithstanding any other provision of law, the rental rates 
for housing provided to an employee by the Federal Government in Alaska 
pursuant to a self-determination contract shall be determined on the 
basis of--
            ``(1) the reasonable value of the quarters and facilities 
        (as such terms are defined under section 5911 of title 5, 
        United States Code) to such employee, and
            ``(2) the circumstances under which such quarters and 
        facilities are provided to such employee,
as based on the cost of comparable private rental housing in the 
nearest established community with a year-round population of 1,500 or 
more individuals.'';
            (14) in section 106(a)--
                    (A) in paragraph (1), by inserting before the 
                period at the end the following: ``, without regard to 
                any organizational level within the Department of the 
                Interior or the Department of Health and Human 
                Services, as appropriate, at which the program, 
                function, service, or activity or portion thereof, 
                including supportive administrative functions that are 
                otherwise contractable, is operated'';
                    (B) in paragraph (2), by inserting after ``consist 
                of'' the following: ``an amount for''; and
                    (C) by striking paragraph (3) and inserting the 
                following new paragraphs:
    ``(3)(A) The contract support costs that are eligible costs for the 
purposes of receiving funding under this Act shall include the costs of 
reimbursing each tribal contractor for reasonable and allowable costs 
of--
            ``(i) direct program expenses for the operation of the 
        Federal program that is the subject of the contract, and
            ``(ii) any additional administrative or other expense 
        related to the overhead incurred by the tribal contractor in 
        connection with the operation of the Federal program, function, 
        service, or activity pursuant to the contract,
except that such funding shall not duplicate any funding provided under 
section 106(a)(1).
    ``(B) On an annual basis, during such period as a tribe or tribal 
organization operates a Federal program, function, service, or activity 
pursuant to a contract entered into under this Act, the tribe or tribal 
organization shall have the option to negotiate with the Secretary the 
amount of funds that the tribe or tribal organization is entitled to 
receive under such contract pursuant to this paragraph.
    ``(4) For each fiscal year during which a self-determination 
contract is in effect, any savings attributable to the operation of a 
Federal program, function, service, or activity under a self-
determination contract by a tribe or tribal organization (including a 
cost reimbursement construction contract) shall--
            ``(A) be used to provide additional services or benefits 
        under the contract; or
            ``(B) be expended by the tribe or tribal organization in 
        the succeeding fiscal year, as provided in section 8.
    ``(5) Subject to paragraph (6), during the initial year that a 
self-determination contract is in effect, the amount required to be 
paid under paragraph (2) shall include startup costs consisting of the 
reasonable costs that have been incurred or will be incurred on a one-
time basis pursuant to the contract necessary--
            ``(A) to plan, prepare for, and assume operation of the 
        program, function, service, or activity that is the subject of 
        the contract; and
            ``(B) to ensure compliance with the terms of the contract 
        and prudent management.
    ``(6) Costs incurred before the initial year that a self-
determination contract is in effect may not be included in the amount 
required to be paid under paragraph (2) if the Secretary does not 
receive a written notification of the nature and extent of the costs 
prior to the date on which such costs are incurred.'';
            (15) in section 106(c)--
                    (A) by striking ``March 15'' and inserting ``May 
                15'';
                    (B) in paragraphs (1) and (2), by striking 
                ``indirect costs'' each place it appears and inserting 
                ``contract support costs'';
                    (C) in paragraph (4), by striking ``and'' at the 
                end;
                    (D) in paragraph (5), by striking the period at the 
                end and inserting ``; and''; and
                    (E) by adding at the end the following new 
                paragraph:
            ``(6) an accounting of any deficiency of funds needed to 
        maintain the preexisting level of services to any tribes 
        affected by contracting activities under this Act, and a 
        statement of the amount of funds needed for transitional 
        purposes to enable contractors to convert from a Federal fiscal 
        year accounting cycle to a different accounting cycle, as 
        authorized by section 105(d).'';
            (16) in section 106(f), by inserting immediately after the 
        second sentence the following new sentence: ``For the purpose 
        of determining the 365-day period specified in this paragraph, 
        an audit report shall be deemed to have been received on the 
        date of actual receipt by the Secretary, if, within 60 days 
        after receiving the report, the Secretary does not give notice 
        of a determination by the Secretary to reject the single-agency 
        report as insufficient due to noncompliance with chapter 75 of 
        title 31, United States Code, or noncompliance with any other 
        applicable law.'';
            (17) by striking subsection (g) of section 106 and 
        inserting the following new subsection:
    ``(g) Upon the approval of a self-determination contract, the 
Secretary shall add to the contract the full amount of funds to which 
the contractor is entitled under section 106(a), subject to adjustments 
for each subsequent year that such tribe or tribal organization 
administers a Federal program, function, service, or activity under 
such contract.'';
            (18) by striking subsection (i) of section 106 and 
        inserting the following new subsection:
    ``(i) On an annual basis, the Secretary shall consult with, and 
solicit the participation of, Indian tribes and tribal organizations in 
the development of the budget for the Indian Health Service and the 
Bureau of Indian Affairs (including participation of Indian tribes and 
tribal organizations in formulating annual budget requests that the 
Secretary submits to the President for submission to Congress pursuant 
to section 1105 of title 31, United States Code).''; and
            (19) by adding at the end of section 106 the following new 
        subsections:
    ``(j) Notwithstanding any other provision of law, a tribal 
organization may use funds provided under a self-determination contract 
to meet matching or cost participation requirements under other Federal 
and non-Federal programs.
    ``(k) Without intending any limitation, a tribal organization may, 
without the approval of the Secretary, expend funds provided under a 
self-determination contract for the following purposes, to the extent 
that the expenditure of the funds is supportive of a contracted 
program:
            ``(1) Depreciation and use allowances not otherwise 
        specifically prohibited by law, including the depreciation of 
        facilities owned by the tribe or tribal organization.
            ``(2) Publication and printing costs.
            ``(3) Building, realty, and facilities costs, including 
        rental costs or mortgage expenses.
            ``(4) Automated data processing and similar equipment or 
        services.
            ``(5) Costs for capital assets and repairs.
            ``(6) Management studies.
            ``(7) Professional services, other than services provided 
        in connection with judicial proceedings by or against the 
        United States.
            ``(8) Insurance and indemnification, including insurance 
        covering the risk of loss of or damage to property used in 
        connection with the contract without regard to the ownership of 
        such property.
            ``(9) Costs incurred to raise funds or contributions from 
        non-Federal sources for the purpose of furthering the goals and 
        objectives of the self-determination contract.
            ``(10) Interest expenses paid on capital expenditures such 
        as buildings, building renovation, or acquisition or 
        fabrication of capital equipment, and interest expenses on 
        loans necessitated due to delays by the Secretary in providing 
        funds under a contract.
            ``(11) Expenses of a governing body of a tribal 
        organization that are attributable to the management or 
        operation of programs under this Act.
            ``(12) Costs associated with the management of pension 
        funds, self-insurance funds, and other funds of the tribal 
        organization that provide for participation by the Federal 
        Government.
    ``(l) The Secretary may only suspend, withhold, or delay the 
payment of funds for a period of 30 days beginning on the date the 
Secretary makes a determination under this paragraph to a tribal 
organization under a self-determination contract, if the Secretary 
determines that the tribal organization has failed to substantially 
carry out the contract without good cause. In any such case, the 
Secretary shall provide the tribal organization with reasonable advance 
written notice, technical assistance (subject to available resources) 
to assist the tribal organization, a hearing on the record not later 
than 10 days after the date of such determination or such later date as 
the tribal organization shall approve, and promptly release any funds 
withheld upon subsequent compliance.
    ``(2) With respect to any hearing or appeal conducted pursuant to 
this subsection, the Secretary shall have the burden of proof to 
establish by clearly demonstrating the validity of the grounds for 
suspending, withholding, or delaying payment of funds.
    ``(m) The program income earned by a tribal organization in the 
course of carrying out a self-determination contract--
            ``(1) shall be used by the tribal organization to further 
        the general purposes of the contract; and
            ``(2) shall not be a basis for reducing the amount of funds 
        otherwise obligated to the contract.
    ``(n) To the extent that programs, functions, services, or 
activities carried out by tribal organizations pursuant to contracts 
entered into under this Act reduce the administrative or other 
responsibilities of the Secretary with respect to the operation of 
Indian programs and result in savings that have not otherwise been 
included in the amount of contract funds determined under subsection 
(a), the Secretary shall make such savings available for the provision 
of additional services to program beneficiaries, either directly or 
through contractors, in a manner equitable to both direct and 
contracted programs.
    ``(o) Notwithstanding any other provision of law (including any 
regulation), a tribal organization that carries out a self-
determination contract may, with respect to allocations within the 
approved budget of the contract, rebudget to meet contract 
requirements, if such rebudgeting would not have an adverse effect on 
the performance of the contract.''.

SEC. 103. CONTRACT SPECIFICATIONS.

    The Indian Self-Determination Education Assistance Act (25 U.S.C. 
450 et seq.) is amended by inserting after section 107 the following 
new section:

``SEC. 108. CONTRACT OR GRANT SPECIFICATIONS.

    ``(a) Each self-determination contract entered into under this Act 
shall--
            ``(1) contain, or incorporate by reference, the provisions 
        of the model agreement described in subsection (c) (with 
        modifications where indicated and the blanks appropriately 
        filled in), and
            ``(2) contain such other provisions as are agreed to by the 
        parties.
    ``(b) Notwithstanding any other provision of law, the Secretary may 
make payments pursuant to section 1(b)(6) of such model agreement. As 
provided in section 1(b)(7) of the model agreement, the records of the 
tribal government or tribal organization specified in such section 
shall not be considered Federal records for purposes of chapter 5 of 
title 5, United States Code.
    ``(c) The model agreement referred to in subsection (a)(1) reads as 
follows:

```SECTION 1. AGREEMENT BETWEEN THE SECRETARY AND THE ____ TRIBAL 
              GOVERNMENT.

    ```(a) Authority and Purpose.--
            ```(1) Authority.--This agreement, denoted a Self-
        Determination Contract (referred to in this agreement as the 
        ``Contract''), is entered into by the Secretary of the Interior 
        or the Secretary of Health and Human Services (referred to in 
        this agreement as the ``Secretary''), for and on behalf of the 
        United States pursuant to title I of the Indian Self-
        Determination and Education Assistance Act (25 U.S.C. 450 et 
        seq.) and by the authority of the ____ tribal government or 
        tribal organization (referred to in this agreement as the 
        ``Contractor''). The provisions of title I of the Indian Self-
        Determination and Education Assistance Act (25 U.S.C. 450 et 
        seq.) are incorporated in this agreement.
            ```(2) Purpose.--Each provision of the Indian Self-
        Determination and Education Assistance Act (25 U.S.C. 450 et 
        seq.) and each provision of this Contract shall be liberally 
        construed for the benefit of the Contractor to transfer the 
        funding and the following related functions, services, 
        activities, and programs (or portions thereof), that are 
        otherwise contractable under section 102(a) of such Act, 
        including all related administrative functions, from the 
        Federal Government to the Contractor: (List functions, 
        services, activities, and programs).
    ```(b) Terms, Provisions, and Conditions.--
            ```(1) Term.--Pursuant to section 105(c)(1) of the Indian 
        Self-Determination and Education Assistance Act (25 U.S.C. 
        450j(c)(1)), the term of this contract shall be ____ years. 
        Pursuant to section 105(d)(1) of such Act (25 U.S.C. 450j(d)), 
        upon the election by the Contractor, the period of this 
        Contract shall be determined on the basis of a calendar year, 
        unless the Secretary and the Contractor agree on a different 
        period in the annual funding agreement incorporated by 
        reference in subsection (f)(2).
            ```(2) Effective date.--This Contract shall become 
        effective upon the date of the approval and execution by the 
        Contractor and the Secretary, unless the Contractor and the 
        Secretary agree on an effective date other than the date 
        specified in this paragraph.
            ```(3) Program standard.--The Contractor agrees to 
        administer the program, services, functions and activities (or 
        portions thereof) listed in subsection (a)(2) of the Contract 
        in conformity with the following standards: (list standards).
            ```(4) Funding amount.--Subject to the availability of 
        appropriations, the Secretary shall make available to the 
        Contractor the total amount specified in the annual funding 
        agreement incorporated by reference in subsection (f)(2). Such 
        amount shall not be less than the applicable amount determined 
        pursuant to section 106(a) of the Indian Self-Determination and 
        Education Assistance Act (25 U.S.C. 450j-1).
            ```(5) Limitation of costs.--The Contractor shall not be 
        obligated to continue performance that requires an expenditure 
        of funds in excess of the amount of funds awarded under this 
        Contract. If, at any time, the Contractor has reason to believe 
        that the total amount required for performance of this Contract 
        or a specific activity conducted under this Contract would be 
        greater than the amount of funds awarded under this Contract, 
        the Contractor shall provide reasonable notice to the 
        appropriate Secretary. If the appropriate Secretary does not 
        take such action as may be necessary to increase the amount of 
        funds awarded under this Contract, the Contractor may suspend 
        performance of the Contract until such time as additional funds 
        are awarded.
            ```(6) Payment.--
                    ```(A) In general.--Payments to the Contractor 
                under this Contract shall--
                            ```(i) be made as expeditiously as 
                        practicable; and
                            ```(ii) include financial arrangements to 
                        cover funding during periods covered by joint 
                        resolutions adopted by Congress making 
                        continuing appropriations, to the extent 
                        permitted by such resolutions.
                    ```(B) Quarterly, semiannual, lump-sum, and other 
                methods of payment.--
                            ```(i) In general.--Pursuant to section 
                        108(b) of the Indian Self-Determination and 
                        Education Assistance Act, and notwithstanding 
                        any other provision of law, for each fiscal 
                        year covered by this Contract, the Secretary 
                        shall make available to the Contractor the 
                        funds specified for the fiscal year under the 
                        annual funding agreement incorporated by 
                        reference pursuant to subsection (f)(2) by 
                        paying to the Contractor, on a quarterly basis, 
                        one-quarter of the total amount provided for in 
                        the annual funding agreement for that fiscal 
                        year, in a lump-sum payment or as semiannual 
                        payments, or any other method of payment 
                        authorized by law, in accordance with such 
                        method as may be requested by the Contractor 
                        and specified in the annual funding agreement.
                            ```(ii) Method of quarterly payment.--If 
                        quarterly payments are specified in the annual 
                        funding agreement incorporated by reference 
                        pursuant to subsection (f)(2), each quarterly 
                        payment made pursuant to clause (i) shall be 
                        made on the first day of each quarter of the 
                        fiscal year, except that in any case in which 
                        the contract year coincides with the Federal 
                        fiscal year, payment for the first quarter 
                        shall be made not later than the date that is 
                        10 calendar days after the date on which the 
                        Office of Management and Budget apportions the 
                        appropriations for the fiscal year for the 
                        programs, services, functions, and activities 
                        subject to this Contract.
                            ```(iii) Applicability.--Chapter 39 of 
                        title 31, United States Code, shall apply to 
                        the payment of funds due under this Contract 
                        and the annual funding agreement referred to in 
                        clause (i).
            ```(7) Records and monitoring.--
                    ```(A) In general.--Except for previously provided 
                copies of tribal records that the Secretary 
                demonstrates are clearly required to be maintained as 
                part of the recordkeeping system of the Department of 
                the Interior or the Department of Health and Human 
                Services (or both), records of the Contractor shall not 
                be considered Federal records for purposes of chapter 5 
                of title 5, United States Code.
                    ```(B) Recordkeeping system.--The Contractor shall 
                maintain a recordkeeping system and, upon reasonable 
                advance request, provide reasonable access to such 
                records to the Secretary.
                    ```(C) Responsibilities of contractor.--The 
                Contractor shall be responsible for managing the day-
                to-day operations conducted under this Contract and for 
                monitoring activities conducted under this Contract to 
                ensure compliance with the contract and applicable 
                Federal requirements. With respect to the monitoring 
                activities of the Secretary, the routine monitoring 
                visits shall be limited to not more than one 
                performance monitoring visit for this Contract by the 
                head of each operating division, departmental bureau, 
                or departmental agency, or duly authorized 
                representative of such head unless--
                            ```(i) the Contractor agrees to one or more 
                        additional visits; or
                            ```(ii) the appropriate official determines 
                        that there is reasonable cause to believe that 
                        grounds for reassumption of the Contract, 
                        suspension of contract payments, or other 
                        serious contract performance deficiency may 
                        exist.
                No additional visit referred to in clause (ii) shall be 
                made until such time as reasonable advance notice that 
                includes a description of the nature of the problem 
                that requires the additional visit has been given to 
                the Contractor.
            ```(8) Property.--
                    ```(A) In general.--As provided in section 105(f) 
                of the Indian Self-Determination and Education 
                Assistance Act (25 U.S.C. 450j(f)), at the request of 
                the Contractor, the Secretary may make available, or 
                transfer to the Contractor, all reasonably divisible 
                real property, facilities, equipment, and personal 
                property that the Secretary has used to provide or 
                administer the programs, services, functions, and 
                activities covered by this Contract. A mutually agreed 
                upon list specifying the property, facilities, and 
                equipment so furnished shall also be prepared by the 
                Secretary, with the concurrence of the Contractor, and 
                periodically revised by the Secretary, with the 
                concurrence of the Contractor.
                    ```(B) Records.--The Contractor shall maintain a 
                record of all property referred to in subparagraph (A) 
                or other property acquired by the Contractor under 
                section 105(f)(2)(A) of such Act for purposes of 
                replacement.
                    ```(C) Joint use agreements.--Upon the request of 
                the Contractor, the Secretary and the Contractor shall 
                enter into a separate joint use agreement to address 
                the shared use by the parties of real or personal 
                property that is not reasonably divisible.
                    ```(D) Acquisition of property.--The Contractor is 
                granted the authority to acquire such excess property 
                as the Contractor may determine to be appropriate in 
                the judgment of the Contractor to support the programs, 
                services, functions, and activities operated pursuant 
                to this Contract.
                    ```(E) Confiscated or excess property.--The 
                Secretary shall assist the Contractor in obtaining such 
                confiscated or excess property as may become available 
                to tribes, tribal organizations, or local governments.
                    ```(F) Screener identification card.--A screener 
                identification card (General Services Administration 
                form numbered 2946) shall be issued to the Contractor 
                not later than the effective date of this Contract. The 
                designated official shall, upon request, assist the 
                Contractor in securing the use of the card.
                    ```(G) Capital equipment.--The Contractor shall 
                determine the capital equipment, leases, rentals, 
                property, or services the Contractor requires to 
                perform the obligations of the Contractor under this 
                subsection, and shall acquire and maintain records of 
                such capital equipment, property rentals, leases, 
                property, or services through applicable procurement 
                procedures of the Contractor.
            ```(9) Availability of funds.--Notwithstanding any other 
        provision of law, any funds provided under this contract--
                    ```(A) shall remain available until expended; and
                    ```(B) with respect to such funds, no further--
                            ```(i) approval by the Secretary, or
                            ```(ii) justifying documentation from the 
                        Contractor, shall be required prior to the 
                        expenditure of such funds.
            ```(10) Transportation.--Beginning on the effective date of 
        this Contract, the Secretary shall authorize the Contractor to 
        obtain interagency motor pool vehicles and related services for 
        performance of any activities carried out under this Contract.
            ```(11) Federal program guidelines, manuals, or policy 
        directives.--Except as specifically provided in the Indian 
        Self-Determination and Education Assistance Act (25 U.S.C. 450 
        et seq.) the Contractor is not required to abide by program 
        guidelines, manuals, or policy directives of the Secretary, 
        unless otherwise agreed to by the Contractor and the Secretary, 
        or otherwise required by law.
            ```(12) Disputes.--
                    ```(A) Third-party mediation defined.--For the 
                purposes of this Contract, the term ``third-party 
                mediation'' means a form of mediation whereby the 
                Secretary and the Contractor nominate a third party who 
                is not employed by or significantly involved with the 
                Secretary of the Interior, the Secretary of Health and 
                Human Services, or the Contractor, to serve as a third-
                party mediator to mediate disputes under this Contract.
                    ```(B) Alternative procedures.--In addition to, or 
                as an alternative to, remedies and procedures 
                prescribed by section 110 of the Indian Self-
                Determination and Education Assistance Act (25 U.S.C. 
                450m-1), the parties to this Contract may jointly--
                            ```(i) submit disputes under this Contract 
                        to third-party mediation;
                            ```(ii) submit the dispute to the 
                        adjudicatory body of the Contractor, including 
                        the tribal court of the Contractor;
                            ```(iii) submit the dispute to mediation 
                        processes provided for under the laws, 
                        policies, or procedures of the Contractor; or
                            ```(iv) use the administrative dispute 
                        resolution processes authorized in subchapter 
                        IV of chapter 5 of title 5, United States Code.
                    ```(C) Effect of decisions.--The Secretary shall be 
                bound by decisions made pursuant to the processes set 
                forth in subparagraph (B), except that the Secretary 
                shall not be bound by any decision that significantly 
                conflicts with the interests of Indians or the United 
                States.
            ```(13) Administrative procedures of contractor.--Pursuant 
        to the Indian Civil Rights Act of 1968 (25 U.S.C. 1301 et 
        seq.), the laws, policies, and procedures of the Contractor 
        shall provide for administrative due process (or the equivalent 
        of administrative due process) with respect to programs, 
        services, functions, and activities that are provided by the 
        Contractor pursuant to this Contract.
            ```(14) Successor annual funding agreement.--
                    ```(A) In general.--Negotiations for a successor 
                annual funding agreement, provided for in subsection 
                (f)(2), shall begin not later than 120 days prior to 
                the conclusion of the preceding annual funding 
                agreement. Except as provided in section 105(c)(2) of 
                the Indian Self-Determination and Education Assistance 
                Act (25 U.S.C. 450j(c)(2)) the funding for each such 
                successor annual funding agreement shall only be 
                reduced pursuant to section 106(b) of such Act (25 
                U.S.C. 450j-1(b)).
                    ```(B) Information.--The Secretary shall prepare 
                and supply relevant information, and promptly comply 
                with any request by the Contractor for information that 
                the Contractor reasonably needs to determine the amount 
                of funds that may be available for a successor annual 
                funding agreement, as provided for in subsection (f)(2) 
                of this Contract.
            ```(15) Contract requirements; approval by secretary.--
                    ```(A) In general.--Except as provided in 
                subparagraph (B), for the term of the Contract, section 
                2103 of the Revised Statutes (25 U.S.C. 81) and section 
                16 of the Act of June 18, 1934 (48 Stat. 987, chapter 
                576; 25 U.S.C. 476), shall not apply to any contract 
                entered into in connection with this Contract.
                    ```(B) Requirements.--Each Contract entered into by 
                the Contractor with a third party in connection with 
                performing the obligations of the Contractor under this 
                Contract shall--
                            ```(i) be in writing;
                            ```(ii) identify the interested parties, 
                        the authorities of such parties, and purposes 
                        of the Contract;
                            ```(iii) state the work to be performed 
                        under the Contract; and
                            ```(iv) state the process for making any 
                        claim, the payments to be made, and the terms 
                        of the Contract, which shall be fixed.
    ```(c) Obligation of the Contractor.--
            ```(1) Contract performance.--Except as provided in 
        subsection (d)(2), the Contractor shall perform the programs, 
        services, functions, and activities as provided in the annual 
        funding agreement under subsection (f)(2) of this Contract.
            ```(2) Amount of funds.--The total amount of funds to be 
        paid under this Contract pursuant to section 106(a) shall be 
        determined in an annual funding agreement entered into between 
        the Secretary and the Contractor, which shall be incorporated 
        into this Contract.
            ```(3) Contracted programs.--Subject to the availability of 
        appropriated funds, the Contractor shall administer the 
        programs, services, functions, and activities identified in 
        this Contract and funded through the annual funding agreement 
        under subsection (f)(2).
            ```(4) Trust services for individual indians.--
                    ```(A) In general.--To the extent that the annual 
                funding agreement provides funding for the delivery of 
                trust services to individual Indians that have been 
                provided by the Secretary, the Contractor shall 
                maintain at least the same level of service as the 
                Secretary provided for such individual Indians, subject 
                to the availability of appropriated funds for such 
                services.
                    ```(B) Trust services to individual indians.--For 
                the purposes of this paragraph only, the term ``trust 
                services for individual Indians'' means only those 
                services that pertain to land or financial management 
                connected to individually held allotments.
            ```(5) Fair and uniform services.--The Contractor shall 
        provide services under this Contract in a fair and uniform 
        manner and shall provide access to an administrative or 
        judicial body empowered to adjudicate or otherwise resolve 
        complaints, claims, and grievances brought by program 
        beneficiaries against the Contractor arising out of the 
        performance of the Contract.
    ```(d) Obligation of the United States.--
            ```(1) Trust responsibility.--
                    ```(A) In general.--The United States reaffirms the 
                trust responsibility of the United States to the ____ 
                Indian tribe(s) to protect and conserve the trust 
                resources of the Indian tribe(s) and the trust 
                resources of individual Indians.
                    ```(B) Construction of contract.--Nothing in this 
                Contract may be construed to terminate, waive, modify, 
                or reduce the trust responsibility of the United States 
                to the tribe(s) or individual Indians. The Secretary 
                shall act in good faith in upholding such trust 
                responsibility.
            ```(2) Good faith.--To the extent that health programs are 
        included in this Contract, and within available funds, the 
        Secretary shall act in good faith in cooperating with the 
        Contractor to achieve the goals set forth in the Indian Health 
        Care Improvement Act (25 U.S.C. 1601 et seq.).
            ```(3) Programs retained.--As specified in the annual 
        funding agreement, the United States hereby retains the 
        programs, services, functions, and activities with respect to 
        the tribe(s) that are not specifically assumed by the 
        Contractor in the annual funding agreement under subsection 
        (f)(2).
    ```(e) Other Provisions.--
            ```(1) Designated officials.--Not later than the effective 
        date of this Contract, the United States shall provide to the 
        Contractor, and the Contractor shall provide to the United 
        States, a written designation of a senior official to serve as 
        a representative for notices, proposed amendments to the 
        Contract, and other purposes for this Contract.
            ```(2) Contract modifications or amendment.--
                    ```(A) In general.--Except as provided in 
                subparagraph (B), no modification to this Contract 
                shall take effect unless such modification is made in 
                the form of a written amendment to the Contract, and 
                the Contractor and the Secretary provide written 
                consent for the modification.
                    ```(B) Exception.--The addition of supplemental 
                funds for programs, functions, and activities (or 
                portions thereof) already included in the annual 
                funding agreement under subsection (f)(2), and the 
                reduction of funds pursuant to section 106(b)(2), shall 
                not be subject to subparagraph (A).
            ```(3) Officials not to benefit.--No Member of Congress, or 
        resident commissioner, shall be admitted to any share or part 
        of any contract executed pursuant to this Contract, or to any 
        benefit that may arise from such contract. This paragraph may 
        not be construed to apply to any contract with a third party 
        entered into under this Contract if such contract is made with 
        a corporation for the general benefit of the corporation.
            ```(4) Covenant against contingent fees.--The parties 
        warrant that no person or selling agency has been employed or 
        retained to solicit or secure any contract executed pursuant to 
        this Contract upon an agreement or understanding for a 
        commission, percentage, brokerage, or contingent fee, excepting 
        bona fide employees or bona fide established commercial or 
        selling agencies maintained by the Contractor for the purpose 
        of securing business.
    ```(f) Attachments.--
            ```(1) Approval of contract.--Unless previously furnished 
        to the Secretary, the resolution of the ____ Indian tribe(s) 
        authorizing the contracting of the programs, services, 
        functions, and activities identified in this Contract is 
        attached to this Contract as attachment 1.
            ```(2) Annual funding agreement.--
                    ```(A) In general.--The annual funding agreement 
                under this Contract shall only contain--
                            ```(i) terms that identify the programs, 
                        services, functions, and activities to be 
                        performed or administered, the general budget 
                        category assigned, the funds to be provided, 
                        and the time and method of payment; and
                            ```(ii) such other provisions, including a 
                        brief description of the programs, services, 
                        functions, and activities to be performed 
                        (including those supported by financial 
                        resources other than those provided by the 
                        Secretary), to which the parties agree.
                    ```(B) Incorporation by reference.--The annual 
                funding agreement is hereby incorporated in its 
                entirety in this Contract and attached to this Contract 
                as attachment 2.'''.

SEC. 104. ADDITIONAL AMENDMENTS.

    The Indian Self-Determination and Education Assistance Act (25 
U.S.C. 450 et seq.), as amended by sections 102 and 103, is further 
amended--
            (1) in section 109--
                    (A) by inserting after ``pursuant to such contract 
                or grant agreement,'' the following ``or in the 
                management of trust fund, trust lands or interests in 
                such lands pursuant to such contract or grant 
                agreement,'';
                    (B) by striking ``action as prescribed by him'' and 
                all that follows through ``in such cases, he'' and 
                inserting the following: ``action as prescribed by the 
                Secretary to remedy the contract deficiency, except 
                that the appropriate Secretary may, upon written notice 
                to a tribal organization, and the tribe served by the 
                tribal organization, immediately rescind a contract or 
                grant, in whole or in part, and resume control or 
                operation of a program, activity, function, or service, 
                if the Secretary finds that (i) there is an immediate 
                threat of imminent harm to the safety of any person, or 
                imminent substantial and irreparable harm to trust 
                funds, trust lands, or interests in such lands, and 
                (ii) such threat arises from the failure of the 
                contractor to fulfill the requirements of the contract. 
                In such cases, the Secretary'';
                    (C) by inserting after ``rescind such contract or 
                grant agreement'' the following: ``, in whole or in 
                part,'';
                    (D) by striking the second period after ``the 
                tribal organization may approve''; and
                    (E) by inserting before the last sentence, the 
                following new sentence: ``In any hearing or appeal 
                provided for under this section, the Secretary shall 
                have the burden of proof to establish, by clearly 
                demonstrating the validity of the grounds for 
                rescinding, assuming, or reassuming the contract that 
                is the subject of the hearing.'';
            (2) in section 110(a), by inserting immediately before the 
        period at the end the following: ``(including immediate 
        injunctive relief to reverse a declination finding under 
        section 102(a)(2) or to compel the Secretary to award and fund 
        an approved self-determination contract)''; and
            (3) in section 110(d), by inserting immediately before the 
        period at the end the following: ``, except that all 
        administrative appeals relating to such contracts shall be 
        heard by the Interior Board of Contract Appeals established 
        pursuant to section 8 of such Act (41 U.S.C. 607)''.

SEC. 105. REGULATIONS.

    The Indian Self-Determination and Education Assistance Act (25 
U.S.C. 450 et seq.), as amended by sections 2 through 4, is further 
amended--
            (1) by striking subsections (a) and (b) of section 107 and 
        inserting the following new subsections:
    ``(a)(1) Except as may be specifically authorized in this 
subsection, or in any other provision of this Act, the Secretary of the 
Interior and the Secretary of Health and Human Services may not 
promulgate any regulation, nor impose any nonregulatory requirement, 
relating to self-determination contracts or the approval, award, or 
declination of such contracts, except that the Secretary of the 
Interior and the Secretary of Health and Human Services may promulgate 
regulations under this Act relating to chapter 171 of title 28, United 
States Code, commonly known as the `Federal Tort Claims Act', the 
Contract Disputes Act of 1978 (41 U.S.C. 601 et seq.), declination and 
waiver procedures, appeal procedures, reassumption procedures, 
discretionary grant procedures for grants awarded under section 103, 
property donation procedures arising under section 105(f), internal 
agency procedures relating to the implementation of this Act, 
retrocession and tribal organization relinquishment procedures, 
contract proposal contents, conflicts of interest, construction, 
programmatic reports and data requirements, procurement standards, 
property management standards, and financial management standards.
    ``(2)(A) The regulations promulgated under this Act, including the 
regulations referred to in this subsection, shall be promulgated--
            ``(i) in conformance with sections 552 and 553 of title 5, 
        United States Code and subsections (c), (d), and (e) of this 
        section; and
            ``(ii) as a single set of regulations in title 25 of the 
        Code of Federal Regulations.
    ``(B) The authority to promulgate regulations set forth in this Act 
shall expire if final regulations are not promulgated within 18 months 
after the date of enactment of the Indian Self-Determination Contract 
Reform Act of 1994.
    ``(b) The provisions of this Act shall supersede any conflicting 
provisions of law (including any conflicting regulations) in effect on 
the day before the date of enactment of the Indian Self-Determination 
Contract Reform Act of 1994, and the Secretary is authorized to repeal 
any regulation inconsistent with the provisions of this Act.''; and
            (2) by adding at the end of section 107, the following new 
        subsections:
    ``(d)(1) In drafting and promulgating regulations as provided in 
subsection (a) (including drafting and promulgating any revised 
regulations), the Secretary of the Interior and the Secretary of Health 
and Human Services shall confer with, and allow for active 
participation by, representatives of Indian tribes, tribal 
organizations, and individual tribal members.
    ``(2)(A) In carrying out rulemaking processes under this Act, the 
Secretary of the Interior and the Secretary of Health and Human 
Services shall follow the guidance of--
            ``(i) subchapter III of chapter 5 of title 5, United States 
        Code, commonly known as the `Negotiated Rulemaking Act of 
        1990'; and
            ``(ii) the recommendations of the Administrative Conference 
        of the United States numbered 82-4 and 85-5 entitled 
        `Procedures for Negotiating Proposed Regulations' under 
        sections 305.82-4 and 305.85-5 of title 1, Code of Federal 
        Regulations, and any successor recommendation or law (including 
        any successor regulation).
    ``(B) The tribal participants in the negotiation process referred 
to in subparagraph (A) shall be nominated by and shall represent the 
groups described in this paragraph and shall include tribal 
representatives from all geographic regions.
    ``(C) The negotiations referred to in subparagraph (B) shall be 
conducted in a timely manner. Proposed regulations to implement the 
amendments made by the Indian Self-Determination Contract Reform Act of 
1994 shall be published in the Federal Register by the Secretary of the 
Interior and the Secretary of Health and Human Services not later than 
180 days after the date of enactment of such Act.
    ``(D) Notwithstanding any other provision of law (including any 
regulation), the Secretary of the Interior and the Secretary of Health 
and Human Services are authorized to jointly establish and fund such 
interagency committees or other interagency bodies, including advisory 
bodies comprised of tribal representatives, as may be necessary or 
appropriate to carry out the provisions of this Act.
    ``(E) If the Secretary determines that an extension of the 
deadlines under subsection (a)(2)(B) and subparagraph (C) of this 
paragraph is appropriate, the Secretary may submit proposed legislation 
to Congress for the extension of such deadlines.
    ``(e) The Secretary may, with respect to a contract entered into 
under this Act, make exceptions in the regulations promulgated to carry 
out this Act, or waive such regulations, if the Secretary finds that 
such exception or waiver is in the best interest of the Indians served 
by the contract or is consistent with the policies of this Act, and is 
not contrary to statutory law. In reviewing each request, the Secretary 
shall follow the timeline, findings, assistance, hearing, and appeal 
procedures set forth in section 102.''.

SEC. 106. CONFORMING AMENDMENTS.

    Section 105(h) of the Indian Self-Determination and Education 
Assistance Act (25 U.S.C. 450j(h)) is amended by striking ``and the 
rules and regulations adopted by the Secretaries of the Interior and 
Health and Human Services pursuant to section 107 of this Act''.

                       TITLE II--SELF-GOVERNANCE

SEC. 201. SHORT TITLE.

    This title may be cited as the ``Tribal Self-Governance Act of 
1994''.

SEC. 202. FINDINGS.

    Congress finds that--
            (1) the tribal right of self-government flows from the 
        inherent sovereignty of Indian tribes and nations;
            (2) the United States recognizes a special government-to-
        government relationship with Indian tribes, including the right 
        of the tribes to self-governance, as reflected in the 
        Constitution, treaties, Federal statutes, and the course of 
        dealings of the United States with Indian tribes;
            (3) although progress has been made, the Federal 
        bureaucracy, with its centralized rules and regulations, has 
        eroded tribal self-governance and dominates tribal affairs;
            (4) the Tribal Self-Governance Demonstration Project was 
        designed to improve and perpetuate the government-to-government 
        relationship between Indian tribes and the United States and to 
        strengthen tribal control over Federal funding and program 
        management; and
            (5) Congress has reviewed the results of the Tribal Self-
        Governance Demonstration Project and finds that--
                    (A) transferring control to tribal governments, 
                upon tribal request, over funding and decisionmaking 
                for Federal programs, services, functions, and 
                activities, or portions thereof, is an effective way to 
                implement the Federal policy of government-to-
                government relations with Indian tribes; and
                    (B) transferring control to tribal governments, 
                upon tribal request, over funding and decisionmaking 
                for Federal programs, services, functions, and 
                activities strengthens the Federal policy of Indian 
                self-determination.

SEC. 203. DECLARATION OF POLICY.

    It is the policy of this title to permanently establish and 
implement tribal self-governance--
            (1) to enable the United States to maintain and improve its 
        unique and continuing relationship with, and responsibility to, 
        Indian tribes;
            (2) to permit each Indian tribe to choose the extent of the 
        participation of such tribe in self-governance;
            (3) to coexist with the provisions of the Indian Self-
        Determination Act relating to the provision of Indian services 
        by designated Federal agencies;
            (4) to ensure the continuation of the trust responsibility 
        of the United States to Indian tribes and Indian individuals;
            (5) to permit an orderly transition from Federal domination 
        of programs and services to provide Indian tribes with 
        meaningful authority to plan, conduct, redesign, and administer 
        programs, services, functions, and activities that meet the 
        needs of the individual tribal communities; and
            (6) to provide for an orderly transition through a planned 
        and measurable parallel reduction in the Federal bureaucracy.

SEC. 204. TRIBAL SELF-GOVERNANCE.

    The Indian Self-Determination and Education Assistance Act is 
amended by adding at the end the following new title:

                   ``TITLE IV--TRIBAL SELF-GOVERNANCE

``SEC. 401. ESTABLISHMENT.

    ``The Secretary of the Interior (hereinafter in this title referred 
to as the `Secretary') shall establish and carry out a program within 
the Department of the Interior to be known as Tribal Self-Governance 
(hereinafter in this title referred to as `Self-Governance') in 
accordance with this title.

``SEC. 402. SELECTION OF PARTICIPATING INDIAN TRIBES.

    ``(a) Continuing Participation.--Each Indian tribe that is 
participating in the Tribal Self-Governance Demonstration Project at 
the Department of the Interior under title III on the date of enactment 
of this title shall thereafter participate in Self-Governance under 
this title and cease participation in the Tribal Self-Governance 
Demonstration Project under title III with respect to the Department of 
the Interior.
    ``(b) Additional Participants.--(1) In addition to those Indian 
tribes participating in Self-Governance under subsection (a), the 
Secretary, acting through the Director of the Office of Self-
Governance, may select up to 20 new tribes per year from the applicant 
pool described in subsection (c) to participate in Self-Governance.
    ``(2) If each tribe requests, two or more otherwise eligible Indian 
tribes may be treated as a single Indian tribe for the purpose of 
participating in Self-Governance as a consortium.
    ``(c) Applicant Pool.--The qualified applicant pool for Self-
Governance shall consist of each tribe that--
            ``(1) successfully completes the planning phase described 
        in subsection (d);
            ``(2) has requested participation in Self-Governance by 
        resolution or other official action by the tribal governing 
        body; and
            ``(3) has demonstrated, for the previous three fiscal 
        years, financial stability and financial management capability 
        as evidenced by the tribe having no material audit exceptions 
        in the required annual audit of the self-determination 
        contracts of the tribe.
    ``(d) Planning Phase.--Each Indian tribe seeking to begin 
participation in Self-Governance shall complete a planning phase in 
accordance with this subsection. The tribe shall be eligible for a 
grant to plan and negotiate participation in Self-Governance. The 
planning phase shall include--
            ``(1) legal and budgetary research; and
            ``(2) internal tribal government planning and 
        organizational preparation.

``SEC. 403. FUNDING AGREEMENTS.

    ``(a) Authorization.--The Secretary shall negotiate and enter into 
an annual written funding agreement with the governing body of each 
participating tribal government in a manner consistent with the Federal 
Government's laws and trust relationship to and responsibility for the 
Indian people.
    ``(b) Contents.--Each funding agreement shall--
            ``(1) authorize the tribe to plan, conduct, consolidate, 
        and administer programs, services, functions, and activities, 
        or portions thereof, administered by the Department of the 
        Interior through the Bureau of Indian Affairs, without regard 
        to the agency or office of the Bureau of Indian Affairs within 
        which the program, service, function, and activity, or portion 
        thereof, is performed, including funding for agency, area, and 
        central office functions in accordance with subsection (g)(3), 
        and including any program, service, function, and activity, or 
        portion thereof, administered under the authority of--
                    ``(A) the Act of April 16, 1934 (25 U.S.C. 452 et 
                seq.);
                    ``(B) the Act of November 2, 1921 (25 U.S.C. 13); 
                and
                    ``(C) programs, services, functions, and activities 
                or portions thereof administered by the Secretary of 
                the Interior that are otherwise available to Indian 
                tribes or Indians for which appropriations are made to 
                agencies other than the Department of the Interior;
            ``(2) subject to such terms as may be negotiated, authorize 
        the tribe to plan, conduct, consolidate, and administer 
        programs, services, functions, and activities, or portions 
        thereof, administered by the Department of the Interior, other 
        than through the Bureau of Indian Affairs, that are otherwise 
        available to Indian tribes or Indians, as identified in section 
        405(c), except that nothing in this subsection may be construed 
        to provide any tribe with a preference with respect to the 
        opportunity of the tribe to administer programs, services, 
        functions, and activities, or portions thereof, unless such 
        preference is otherwise provided for by law;
            ``(3) subject to the terms of the agreement, authorize the 
        tribe to redesign or consolidate programs, services, functions, 
        and activities, or portions thereof, and reallocate funds for 
        such programs, services, functions, and activities, or portions 
        thereof, except that, with respect to the reallocation, 
        consolidation, and redesign of programs described in paragraph 
        (2), a joint agreement between the Secretary and the tribe 
        shall be required;
            ``(4) prohibit the inclusion of funds provided--
                    ``(A) pursuant to the Tribally Controlled Community 
                College Assistance Act of 1978 (25 U.S.C. 1801 et 
                seq.);
                    ``(B) for elementary and secondary schools under 
                the formula developed pursuant to section 1128 of the 
                Education Amendments of 1978 (25 U.S.C. 2008); and
                    ``(C) the Flathead Agency Irrigation Division or 
                the Flathead Agency Power Division, except that nothing 
                in this section shall affect the contract authority of 
                such divisions under section 102;
            ``(5) specify the services to be provided, the functions to 
        be performed, and the responsibilities of the tribe and the 
        Secretary pursuant to the agreement;
            ``(6) authorize the tribe and the Secretary to reallocate 
        funds or modify budget allocations within any year, and specify 
        the procedures to be used;
            ``(7) allow for retrocession of programs or portions of 
        programs pursuant to section 105(e);
            ``(8) provide that, for the year for which, and to the 
        extent to which, funding is provided to a tribe under this 
        section, the tribe--
                    ``(A) shall not be entitled to contract with the 
                Secretary for such funds under section 102, except that 
                such tribe shall be eligible for new programs on the 
                same basis as other tribes; and
                    ``(B) shall be responsible for the administration 
                of programs, services, functions, and activities 
                pursuant to agreements entered into under this section; 
                and
            ``(9) prohibit the Secretary from waiving, modifying, or 
        diminishing in any way the trust responsibility of the United 
        States with respect to Indian tribes and individual Indians 
        that exists under treaties, Executive orders, and other laws.
    ``(c) Additional Activities.--Each funding agreement negotiated 
pursuant to subsections (a) and (b) may, in accordance to such 
additional terms as the parties deem appropriate, also include other 
programs, services, functions, and activities, or portions thereof, 
administered by the Secretary of the Interior which are of special 
geographic, historical, or cultural significance to the participating 
Indian tribe requesting a compact.
    ``(d) Provisions Relating to the Secretary.--Funding agreements 
negotiated between the Secretary and an Indian tribe shall include 
provisions--
            ``(1) to monitor the performance of trust functions by the 
        tribe through the annual trust evaluation, and
            ``(2) for the Secretary to reassume a program, service, 
        function, or activity, or portions thereof, if there is a 
        finding of imminent jeopardy to a physical trust asset, natural 
        resources, or public health and safety.
    ``(e) Construction Projects.--(1) Regarding construction programs 
or projects, the Secretary and Indian tribes may negotiate for the 
inclusion of specific provisions of the Office of Federal Procurement 
and Policy Act and Federal acquisition regulations in any funding 
agreement entered into under this Act. Absent a negotiated agreement, 
such provisions and regulatory requirements shall not apply.
    ``(2) In all construction projects performed pursuant to this 
title, the Secretary shall ensure that proper health and safety 
standards are provided for in the funding agreements.
    ``(f) Submission for Review.--Not later than 90 days before the 
proposed effective date of an agreement entered into under this 
section, the Secretary shall submit a copy of such agreement to--
            ``(1) each Indian tribe that is served by the Agency that 
        is serving the tribe that is a party to the funding agreement;
            ``(2) the Committee on Indian Affairs of the Senate; and
            ``(3) the Subcommittee on Native American Affairs of the 
        Committee on Natural Resources of the House of Representatives.
    ``(g) Payment.--(1) At the request of the governing body of the 
tribe and under the terms of an agreement entered into under this 
section, the Secretary shall provide funding to the tribe to carry out 
the agreement.
    ``(2) The funding agreements authorized by this title and title III 
of this Act shall provide for advance payments to the tribes in the 
form of annual or semi-annual installments at the discretion of the 
tribes.
    ``(3) Subject to paragraph (4) of this subsection and paragraphs 
(1) through (3) of subsection (b), the Secretary shall provide funds to 
the tribe under an agreement under this title for programs, services, 
functions, and activities, or portions thereof, in an amount equal to 
the amount that the tribe would have been eligible to receive under 
contracts and grants under this 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 tribe or its members, without regard to 
the organization level within the Department where such functions are 
carried out.
    ``(4) Funds for trust services to individual Indians shall be 
available under an agreement entered into under this section only to 
the extent that the same services that would have been provided by the 
Secretary are provided to individual Indians by the tribe.
    ``(h) Civil Actions.--(1) Except as provided in paragraph (2), for 
the purposes of section 110, the term `contract' shall include 
agreements entered into under this title.
    ``(2) For the period that an agreement entered into under this 
title is in effect, the provisions of section 2103 of the Revised 
Statutes of the United States (25 U.S.C. 81), and section 16 of the Act 
of June 18, 1934 (25 U.S.C. 476), shall not apply to attorney and other 
professional contracts by Indian tribal governments participating in 
Self-Governance under this title.
    ``(i) Facilitation.--(1) Except as otherwise provided by law, the 
Secretary shall interpret each Federal law and regulation in a manner 
that will facilitate--
            ``(A) the inclusion of programs, services, functions, and 
        activities in the agreements entered into under this section; 
        and
            ``(B) the implementation of agreements entered into under 
        this section.
    ``(2)(A) A tribe may submit a written request for a waiver to the 
Secretary identifying the regulation sought to be waived and the basis 
for the request.
    ``(B) Not later than 60 days after receipt by the Secretary of a 
written request by a tribe to waive application of a Federal regulation 
for an agreement entered into under this section, the Secretary shall 
either approve or deny the requested waiver in writing to the tribe. A 
denial may be made only upon a specific finding by the Secretary that 
identified language in the regulation may not be waived because such 
waiver is prohibited by Federal law. The Secretary's decision shall be 
final for the Department.
    ``(j) Funds.--All funds provided under funding agreements entered 
into pursuant to this Act, and all funds provided under contracts or 
grants made pursuant to this Act, shall be treated as non-Federal funds 
for purposes of meeting matching requirements under any other Federal 
law.
    ``(k) Disclaimer.--Nothing in this section is intended or shall be 
construed to expand or alter existing statutory authorities in the 
Secretary so as to authorize the Secretary to enter into any agreement 
under sections 403(b)(2) and 405(c)(1) with respect to functions that 
are inherently Federal or where the statute establishing the existing 
program does not authorize the type of participation sought by the 
tribe: Provided, however an Indian tribe or tribes need not be 
identified in the authorizing statute in order for a program or element 
of a program to be included in a compact under section 403(b)(2).

``SEC. 404. BUDGET REQUEST.

    ``The Secretary shall identify, in the annual budget request of the 
President to the Congress under section 1105 of title 31, United States 
Code, any funds proposed to be included in agreements authorized under 
this title.

``SEC. 405. REPORTS.

    ``(a) Requirement.--The Secretary shall submit to Congress a 
written report on January 1 of each year following the date of 
enactment of this title regarding the administration of this title.
    ``(b) Contents.--The report shall--
            ``(1) identify the relative costs and benefits of Self-
        Governance;
            ``(2) identify, with particularity, all funds that are 
        specifically or functionally related to the provision by the 
        Secretary of services and benefits to Self-Governance tribes 
        and their members;
            ``(3) identify the funds transferred to each Self-
        Governance tribe and the corresponding reduction in the Federal 
        bureaucracy;
            ``(4) include the separate views of the tribes; and
            ``(5) include the funding formula for individual tribal 
        shares of Central Office funds, together with the comments of 
        affected Indian tribes, developed under subsection (d).
    ``(c) Report on Non-BIA Programs.--(1) In order to optimize 
opportunities for including non-Bureau of Indian Affairs programs, 
services, functions, and activities, or portions thereof, in agreements 
with tribes participating in Self-Governance under this title, the 
Secretary shall--
            ``(A) review all programs, services, functions, and 
        activities, or portions thereof, administered by the Department 
        of the Interior, other than through the Bureau of Indian 
        Affairs, without regard to the agency or office concerned; and
            ``(B) not later than 90 days after the date of enactment of 
        this title, provide to the appropriate committees of Congress a 
        listing of all such programs, services, functions, and 
        activities, or portions thereof, that the Secretary determines, 
        with the concurrence of tribes participating in Self-Governance 
        under this title, are eligible for inclusion in such agreements 
        at the request of a participating Indian tribe.
    ``(2) The Secretary shall establish programmatic targets, after 
consultation with tribes participating in Self-Governance under this 
title, to encourage bureaus of the Department to assure that a 
significant portion of such programs, services, functions, and 
activities are actually included in the agreements negotiated under 
section 403.
    ``(3) The listing and targets under paragraphs (1) and (2) shall be 
published in the Federal Register and be made available to any Indian 
tribe participating in Self-Governance under this title. The list shall 
be published before January 1, 1995, and annually thereafter by January 
1 preceding the fiscal year in which the targets are to be met.
    ``(4) Thereafter, the Secretary shall annually review and publish 
in the Federal Register, after consultation with tribes participating 
in Self-Governance under this title, a revised listing and programmatic 
targets.
    ``(d) Report on Central Office Funds.--Within 90 days after the 
date of the enactment of this title, the Secretary shall, in 
consultation with Indian tribes, develop a funding formula to determine 
the individual tribal share of funds controlled by the Central Office 
of the Bureau of Indian Affairs for inclusion in the Self-Governance 
compacts. The Secretary shall include such formula in the annual report 
submitted to the Congress under subsection (b), together with the views 
of the affected Indian tribes.

``SEC. 406. DISCLAIMERS.

    ``(a) Other Services, Contracts, and Funds.--Nothing in this title 
shall be construed to limit or reduce in any way the services, 
contracts, or funds that any other Indian tribe or tribal organization 
is eligible to receive under section 102 or any other applicable 
Federal law.
    ``(b) Federal Trust Responsibilities.--Nothing in this Act shall be 
construed to diminish the Federal trust responsibility to Indian 
tribes, individual Indians, or Indians with trust allotments.
    ``(c) Application of Other Sections of Act.--All provisions of 
sections 6, 102(c), 104, 105(f), 110, and 111 of this Act shall apply 
to agreements provided under this title.

``SEC. 407. REGULATIONS.

    ``(a) In General.--Not later than 90 days after the date of 
enactment of this title, at the request of a majority of the Indian 
tribes with agreements under this title, 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.
    ``(b) Committee.--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 Federal and tribal 
government representatives, a majority of whom shall be representatives 
of Indian tribes with agreements under this title.
    ``(c) Adaptation of Procedures.--The Secretary shall adapt the 
negotiated rulemaking procedures to the unique context of Self-
Governance and the government-to-government relationship between the 
United States and the Indian tribes.
    ``(d) Effect.--The lack of promulgated regulations shall not limit 
the effect of this title.

``SEC. 408. AUTHORIZATION OF APPROPRIATIONS.

    ``There are authorized to be appropriated such sums as may be 
necessary to carry out this title.''.

            Passed the House of Representatives October 7 (legislative 
      day, October 6), 1994.

            Attest:






                                                                 Clerk.

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