[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1833 Introduced in House (IH)]







105th CONGRESS
  1st Session
                                H. R. 1833

To amend the Indian Self-Determination and Education Assistance Act to 
  provide for further Self-Governance by Indian Tribes, and for other 
                               purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                              June 7, 1997

Mr. Miller of California (for himself, Mr. Young of Alaska, Mr. Kildee, 
   Mr. Kennedy of Rhode Island, and Mr. Faleomavaega) introduced the 
    following bill; which was referred to the Committee on Resources

_______________________________________________________________________

                                 A BILL


 
To amend the Indian Self-Determination and Education Assistance Act to 
  provide for further Self-Governance by Indian Tribes, and for other 
                               purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Tribal Self-Governance Amendments of 
1997''.

SEC. 2. 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 Indian tribes to self-governance, as reflected in the 
        Constitution, treaties, Federal statutes, and the course of 
        dealings of the United States with Indian tribes;
            (3) although progress has been made, the Federal 
        bureaucracy, with its centralized rules and regulations, has 
        eroded tribal self-governance and dominates tribal affairs;
            (4) the Tribal Self-Governance Demonstration Project 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;
            (5) although the Federal Government has made considerable 
        strides in improving Indian health care, it has failed to fully 
        meet its trust responsibilities to the Indian tribes; and
            (6) Congress has reviewed the results of the Tribal Self-
        Governance Demonstration Project and finds that--
                    (A) transferring full control and funding to tribal 
                governments, upon tribal request, over decision making 
                for Federal programs, services, functions and 
                activities (or portions thereof) is an appropriate and 
                effective means to implement the Federal policy of 
                government-to-government relations with Indian tribes; 
                and
                    (B) transferring full control and funding to tribal 
                governments, upon tribal request, over decision making 
                for Federal programs, services, functions and 
                activities strengthens the Federal policy of Indian 
                self-determination.

SEC. 3. DECLARATION OF POLICY.

    It is the policy of the Congress to permanently establish and 
implement tribal self-governance within the Department of Health and 
Human Services, and to call for full cooperation from the Department 
and its constituent agencies in the implementation of 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 Indian 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 strengthen the government-to-government relationship 
        between the United States and Indian tribes;
            (6) to permit an orderly transition from Federal domination 
        of programs and services to provide Indian tribes with 
        meaningful authority, control, funding and discretion to plan, 
        conduct, redesign and administer programs, services, functions 
        and activities (or portions thereof) that meet the needs of the 
        individual tribal communities;
            (7) to provide for a measurable parallel reduction in the 
        Federal bureaucracy as programs, services, functions and 
        activities (or portions thereof) are assumed by Indian tribes;
            (8) to encourage the Secretary to identify all programs, 
        services, functions and activities (or portions thereof) of the 
        Department that may be managed by an Indian tribe under this 
        Act and to assist Indian tribes to assume responsibility for 
        such programs, services, functions and activities (or portions 
        thereof); and
            (9) to provide Indian tribes with the earliest opportunity 
        to administer programs, services, functions and activities (or 
        portions thereof) in the Department of Health and Human 
        Services.

SEC. 4. TRIBAL SELF-GOVERNANCE.

    The Indian Self-Determination and Education Assistance Act (25 
U.S.C. 450 et seq.) is amended by adding at the end the following new 
title:

                   ``TITLE V--TRIBAL SELF-GOVERNANCE

``SEC. 501. ESTABLISHMENT.

    ``The Secretary of Health and Human Services shall establish and 
carry out a program within the Department of Health and Human Services 
to be known as Tribal Self-Governance in accordance with this title.

``SEC. 502. DEFINITIONS.

    ``(a) Except as otherwise provided herein, the definitions set out 
in sections 4(a) through (g), (j), (l), and (m) of the Indian Self-
Determination and Education Assistance Act shall apply to this title as 
if fully set forth herein, provided that reference therein to a 
contract or self-determination contract shall include a compact and 
funding agreement authorized under this title.
    ``(b) For purposes of this title--
            ``(1) the term `inherent Federal functions' means those 
        functions which by express provision of the Constitution or 
        Federal statute must be performed by officials of the United 
        States and therefore may not be delegated to Indian tribes;
            ``(2) the term `inter-tribal consortium' means a coalition 
        of two or more separate Indian tribes that join together for 
        the purpose of participating in Self-Governance, including a 
        tribal organization;
            ``(3) the term `tribal shares' means an Indian tribe's 
        portion of all funds and resources that support secretarial 
        programs, services, functions, and activities (or portions 
        thereof) that are not required by the Secretary for performance 
        of inherent Federal functions;
            ``(4) the term `Secretary' means the Secretary of Health 
        and Human Services; and
            ``(5) the term `Self-Governance' means the program 
        established in section 501.
    ``(c) Where an Indian tribe has authorized another Indian tribe, an 
inter-tribal consortium, or a tribal organization to plan for or carry 
out programs, services, functions, or activities (or portions thereof) 
on its behalf under this title, the authorized Indian tribe, inter-
tribal consortium, or tribal organization shall have the rights and 
responsibilities of the authorizing Indian tribe (except as otherwise 
provided in the authorizing resolution or in this title). In such 
event, the term `Indian tribe' as used in this title shall include such 
other authorized Indian tribe, inter-tribal consortium, or tribal 
organization.

``SEC. 503. 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 Health and Human Services 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.
    ``(b) Additional Participants.--
            ``(1) In addition to those Indian tribes participating in 
        Self-Governance under subsection (a), each year an additional 
        50 Indian tribes who meet the eligibility criteria specified in 
        subsection (c) shall be entitled to participate in Self-
        Governance.
            ``(2) An Indian tribe that has withdrawn from participation 
        in an inter-tribal consortium or tribal organization that is 
        participating in Self-Governance shall be entitled to continue 
        to participate in Self-Governance provided the Indian tribe 
        meets the eligibility criteria specified in subsection (c). 
        Such Indian tribe shall be entitled to its tribal share of 
        funds supporting those programs, services, functions, or 
        activities (or portions thereof) that it will be carrying out 
        under its own compact and funding agreement. In no event shall 
        the withdrawal of an Indian tribe from an inter-tribal 
        consortium or tribal organization affect the eligibility of the 
        inter-tribal consortium or tribal organization to participate 
        in Self-Governance.
    ``(c) Applicant Pool.--The qualified applicant pool for Self-
Governance shall consist of an Indian 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 governing body (or 
        bodies) of the Indian tribe or tribes to be served; and
            ``(3) has demonstrated, for the previous three fiscal 
        years, financial stability and financial management capability. 
        Evidence that during such years the Indian tribe had no 
        uncorrected significant and material audit exceptions in the 
        required annual audit of the Indian tribe's self-determination 
        contracts or self-governance funding agreements with any 
        Federal agency shall be conclusive evidence of the required 
        stability and capability for the purposes of this subsection.
    ``(d) Planning Phase.--Each Indian tribe seeking participation in 
Self-Governance shall complete a planning phase. The planning phase 
shall include--
            ``(1) legal and budgetary research; and
            ``(2) internal tribal government planning and 
        organizational preparation.
    ``(e) Grants.--Subject to the availability of appropriations, any 
Indian tribe meeting the requirements of subsections (c)(2) and (3) 
shall be eligible for--
            ``(1) a grant to plan for participation in Self-Governance; 
        and
            ``(2) a grant to negotiate the terms of the Indian tribe's 
        or tribal organization's participation in Self-Governance, as 
        set forth in a compact and a funding agreement.
    ``(f) Receipt of Grant Not Required.--Receipt of a grant under 
subsection (e) shall not be a prerequisite to participation in Self-
Governance.

``SEC. 504. COMPACTS.

    ``(a) Compact Required.--The Secretary shall negotiate and enter 
into a written compact with each Indian tribe participating in Self-
Governance in a manner consistent with the Federal Government's trust 
responsibility and the government-to-government relationship between 
Indian tribes and the United States.
    ``(b) Contents.--Each compact required under subsection (a) shall 
set forth the general terms of the government-to-government 
relationship between the Indian tribe and the Secretary, including such 
terms as the parties intend shall control year after year. Such 
compacts may only be amended by mutual agreement of the parties.
    ``(c) Existing Compacts.--An Indian tribe participating in Self-
Governance on the date of enactment of this title shall have the option 
at any time thereafter to either--
            ``(1) retain its existing compact (in whole or in part) to 
        the extent the provisions of such compact are not directly 
        contrary to any express provision of this title, or
            ``(2) adopt in lieu thereof (in whole or in part) a new 
        compact in conformity with this title.
    ``(d) Term and Effective Date.--The effective date of a compact 
shall be the date of the approval and execution by the Indian tribe or 
another date agreed upon by the parties, and shall remain in effect for 
so long as permitted by Federal law or until terminated by mutual 
written agreement.

``SEC. 505. FUNDING AGREEMENTS.

    ``(a) Funding Agreement Required.--The Secretary shall negotiate 
and enter into a written funding agreement with each Indian tribe 
participating in Self-Governance in a manner consistent with the 
Federal Government's trust responsibility.
    ``(b) Contents.--Each funding agreement required under subsection 
(a) shall, as determined by the Indian tribe, authorize the Indian 
tribe to plan, conduct, consolidate, administer, and receive funding 
for all programs, services, functions, and activities (or portions 
thereof), including tribal shares of Indian Health Service competitive 
grants, that are carried out for the benefit of Indians (where Indian 
tribes or Indians are primary or significant beneficiaries), 
administered by the Department of Health and Human Services through the 
Indian Health Service without regard to the agency or office of the 
Indian Health Service within which the program, service, function, or 
activity (or portion thereof) is performed, including tribal share 
funding for all local, field, service unit, area, regional, and 
central/headquarters or national office functions administered under 
the authority of--
            ``(1) the Act of November 2, 1921 (25 U.S.C. 13);
            ``(2) the Act of April 16, 1934 (25 U.S.C. 452 et seq.);
            ``(3) the Act of August 5, 1954 (68 Stat. 674);
            ``(4) the Indian Health Care Improvement Act (25 U.S.C. 
        1601 et seq.);
            ``(5) the Indian Alcohol and Substance Abuse Prevention and 
        Treatment Act of 1986 (25 U.S.C. 2401 et seq.);
            ``(6) any other act of Congress authorizing agencies of the 
        Department of Health and Human Services to administer, carry 
        out or provide financial assistance to such programs, services, 
        functions or activities (or portions thereof) described in this 
        section; or
            ``(7) any other act of Congress authorizing such programs, 
        services, functions or activities (or portions thereof) under 
        which appropriations are made to agencies other than agencies 
        within the Department of Health and Human Services, when the 
        Secretary administers such programs, services, functions or 
        activities (or portions thereof).
    ``(c) Inclusion in Compact or Funding Agreement.--Indian tribes or 
Indians need not be identified in the authorizing statute for a program 
or element of a program to be eligible for inclusion in a compact or 
funding agreement under this title.
    ``(d) Funding Agreement Terms.--Each funding agreement shall set 
forth terms that generally identify the programs, services, functions, 
and activities (or portions thereof) to be performed or administered, 
the general budget category assigned, the funds to be provided, 
including those to be provided on a recurring basis, the time and 
method of transfer of the funds, and any other provisions to which the 
Indian tribe and the Secretary agree.
    ``(e) Existing Funding Agreements.--Each Indian tribe participating 
in self-governance on the date of enactment of this title shall have 
the option at any time thereafter to either--
            ``(1) retain its existing funding agreement (in whole or in 
        part) to the extent the provisions of such funding agreement 
        are not directly contrary to any express provision of this 
        title, or
            ``(2) adopt in lieu thereof (in whole or in part) a new 
        funding agreement in conformity with this title.
    ``(f) Non-IHS Demonstration.--A compact or funding agreement may 
authorize an Indian tribe to plan, conduct, consolidate, and 
administer, and to receive funding for, any programs, services, 
functions, and activities (or portions thereof), administered by the 
Department of Health and Human Services that benefit the health or 
welfare of Indian tribes or their members.

``SEC. 506. GENERAL PROVISIONS.

    ``(a) Applicability.--The provisions of this section shall apply to 
compacts and funding agreements negotiated under this title and an 
Indian tribe may, at its option, include provisions that reflect such 
requirements in a compact or funding agreement.
    ``(b) Conflicts of Interest.--Indian tribes participating in Self-
Governance under this title shall assure that internal measures are in 
place to address conflicts of interest in the administration of Self-
Governance programs, services, functions, or activities (or portions 
thereof).
    ``(c) Audits.--
            ``(1) Single agency audit act.--The provisions of chapter 
        75 of title 31, United States Code requiring a single agency 
        audit report shall apply to funding agreements under this 
        title.
            ``(2) Cost principles.--An Indian tribe shall apply cost 
        principles under the applicable Office of Management and Budget 
        Circular, except as modified by section 106 of title I of this 
        Act, or by any exemptions to applicable Office of Management 
and Budget Circulars subsequently granted by Office of Management and 
Budget. No other audit or accounting standards shall be required by the 
Secretary. Any claim by the Federal Government against the Indian tribe 
relating to funds received under a funding agreement based on any audit 
under this subsection shall be subject to the provisions of section 
106(f) of this Act.
    ``(d) Records.--
            ``(1) In general.--Unless an Indian tribe specifies 
        otherwise in the compact or funding agreement, records of the 
        Indian tribe shall not be considered Federal records for 
        purposes of chapter 5 of title 5, United States Code.
            ``(2) Recordkeeping system.--The Indian tribe shall 
        maintain a recordkeeping system, and, after 30 days advance 
        notice, provide the Secretary with reasonable access to such 
        records to enable the Department of Health and Human Services 
        to meet its minimum legal record keeping system requirements 
        under the Federal Records Act, 44 U.S.C. 3101, et seq.
    ``(e) Redesign and Consolidation.--An Indian tribe may redesign or 
consolidate programs, services, functions, and activities (or portions 
thereof) included in a funding agreement under section 505 and 
reallocate or redirect funds for such programs, services, functions, 
and activities (or portions thereof) in any manner which the Indian 
tribe deems to be in the best interest of the health and welfare of the 
Indian community being served, except that with respect to the redesign 
of programs described in section 505(f), a joint agreement between the 
Secretary and the Indian tribe shall be required.
    ``(f) Retrocession.--An Indian tribe may retrocede, fully or 
partially, to the Secretary programs, services, functions, or 
activities (or portions thereof) included in the compact or funding 
agreement. Unless the Indian tribe rescinds the request for 
retrocession, such retrocession will become effective within the time 
frame specified by the parties in the compact or funding agreement. In 
the absence of such a specification, such retrocession shall become 
effective on--
            ``(1) the earlier of--
                    ``(A) one year from the date of submission of such 
                request; or
                    ``(B) the date on which the funding agreement 
                expires; or
            ``(2) such date as may be mutually agreed by the Secretary 
        and the Indian tribe.
    ``(g) Withdrawal.--
            ``(1) Process.--An Indian tribe may fully or partially 
        withdraw from a participating inter-tribal consortium or tribal 
        organization its share of any program, function, service, or 
        activity (or portions thereof) included in a compact or funding 
        agreement, and such withdrawal will become effective within the 
        time frame specified in the resolution which authorized 
        transfer to the participating tribal organization or inter-
        tribal consortium. In the absence of a specific time frame 
        being set forth in the resolution, such withdrawal shall become 
        effective on--
                    ``(A) the earlier of--
                            ``(i) one year from the date of submission 
                        of such request; or
                            ``(ii) the date on which the funding 
                        agreement expires; or
                    ``(B) such date as may be mutually agreed upon by 
                the Secretary, the participating tribal organization or 
                inter-tribal consortium, and the withdrawing Indian 
                tribe.
            ``(2) Distribution of funds.--When an Indian tribe or 
        tribal organization eligible to enter into a self-determination 
        contract under title I of this Act or a compact or funding 
        agreement under this title fully or partially withdraws from a 
        participating inter-tribal consortium or tribal organization, 
        the withdrawing Indian tribe or tribal organization shall be 
        entitled to its tribal share of funds supporting those 
        programs, services, functions, or activities (or portions 
        thereof) which it will be carrying out under its own self-
        determination contract or compact and funding agreement, and 
        such funds shall be transferred from the amount in the funding 
        agreement of the inter-tribal consortium or tribal 
        organization.
            ``(3) Regaining mature contract status.--If an Indian tribe 
        elects to operate all or some programs, services, functions, or 
        activities (or portions thereof) carried out under a compact or 
        funding agreement under this title through a self-determination 
        contract under title I of this Act, the resulting self-
        determination contract shall be a mature self-determination 
        contract.
    ``(h) Nonduplication.--For the period for which, and to the extent 
to which, funding is provided under this section or under the compact 
or funding agreement, the Indian tribe shall not be entitled to 
contract with the Secretary for such funds under section 102, except 
that such Indian tribe shall be eligible for new programs on the same 
basis as other Indian tribes.

``SEC. 507. PROVISIONS RELATING TO THE SECRETARY.

    ``(a) Mandatory Provisions.--
            ``(1) Health status reports.--Compacts or funding 
        agreements negotiated between the Secretary and an Indian tribe 
        shall include a provision that may require the Indian tribe to 
        report on data regarding health status and service delivery, to 
        the extent such data is not otherwise available to the 
        Secretary and specific funds for this purpose are provided by 
        the Secretary under the funding agreement, if such reporting 
        shall impose minimal burdens on the participating Indian tribe 
        and such requirements are promulgated under section 517 of this 
        title.
            ``(2) Reassumption.--Compacts or funding agreements 
        negotiated between the Secretary and an Indian tribe shall 
        include a provision authorizing the Secretary to reassume 
        operation of a program, service, function or activity (or 
        portions thereof) if there is a finding of--
                    ``(A) the violation of rights or endangerment of 
                the health, safety, or welfare of any persons; or
                    ``(B) gross negligence or mismanagement in the 
                performance of the compact or funding agreement.
        The Secretary shall not reassume operation of a program, 
        service, function or activity unless the Secretary has first 
        provided 60 days written notice and a hearing on the record to 
        the Indian tribe, and the Indian tribe has not taken corrective 
        action. However, the Secretary may, upon written notification 
        to the tribe, immediately reassume operation of a program, 
        service, function or activity (or portions thereof). If the 
        Secretary makes a finding of imminent substantial and 
        irreparable endangerment of the public health caused by an act 
        or omission of the Indian tribe, and the endangerment arises 
        out of a failure to carry out the compact or funding agreement, 
        the Secretary shall provide the tribe with a hearing on the 
        record within ten days of the reassumption. In any hearing or 
        appeal involving a decision to reassume operation of a program, 
        service, function or activity, the Secretary shall have the 
        burden of proof of demonstrating by clear and convincing 
        evidence the validity of the grounds for the reassumption.
    ``(b) Final Offer.--In the event the Secretary and a participating 
Indian tribe are unable to agree on the terms of a compact or funding 
agreement (including funding levels), the Indian tribe may submit a 
final offer to the Secretary. If the Secretary does not reject the 
offer not later than 30 days after it is submitted by the Indian tribe, 
or within a longer time agreed upon by the Indian tribe made in 
compliance (the offer shall be deemed agreed to by the Secretary).
    ``(c) Rejection of Final Offers.--If the Secretary rejects an 
offer, made under subsection (b), the Secretary shall provide--
            ``(1) written notification to the Indian tribe that 
        contains a specific finding that clearly demonstrates, or that 
        is supported by a controlling legal authority, that--
                    ``(A) the amount of funds proposed in the final 
                offer exceeds the applicable funding level to which the 
                Indian tribe is entitled under this title;
                    ``(B) the program, function, service, or activity 
                (or portion thereof) that is the subject of the final 
                offer is an inherent Federal function that may not be 
                carried out by the Indian tribe;
                    ``(C) the Indian tribe cannot reasonably carry out 
                the program, function, service, or activity (or portion 
                thereof) in a satisfactory manner; or
                    ``(D) the Indian tribe is not eligible to 
                participate in Self-Governance under section 503 of 
                this title;
            ``(2) meaningful technical assistance to overcome the 
        objections stated in the notification required by paragraph 
        (2);
            ``(3) the Indian tribe with a hearing on the record with 
        the right to engage in full discovery relevant to any issue 
        raised in the matter and the opportunity for appeal on the 
        objections raised, provided that the Indian tribe may, in lieu 
        of filing such appeal, directly proceed to Federal district 
        court pursuant to section110(a) of this Act; and
            ``(4) the Indian tribe with the option of entering into the 
        severable portions of a final proposed compact or funding 
        agreement, or provision thereof, (including lesser funding 
        amount, if any), that the Secretary did not reject, subject to 
        any additional alterations necessary to conform the compact or 
        funding agreement to the severed provisions. If an Indian tribe 
        exercises the option specified herein, it shall retain the 
        right to appeal the Secretary's rejection under this section 
        and paragraphs (1), (2), and (3) shall only apply to that 
        portion of the proposed final compact, funding agreement or 
        provision thereof that was rejected by the Secretary.
    ``(d) Burden of Proof.--
            ``(1) With respect to any hearing or appeal conducted 
        pursuant to this section, the Secretary shall have the burden 
        of demonstrating by clear and convincing evidence the validity 
        of the grounds for rejecting the offer (or a provision thereof) 
        made under subsection (b).
            ``(2) A decision that constitutes final agency action and 
        relates to an appeal within the Department of Health and Human 
        Services conducted under subsection (c) 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 in 
                which the decision that is the subject of the appeal 
                was made; or
                    ``(B) by an administrative judge.
    ``(e) Good Faith.--In the negotiation of compacts and funding 
agreements the Secretary shall at all times negotiate in good faith to 
maximize implementation of the Self-Governance policy. The Secretary 
shall carry out this title in a manner that maximizes the policy of 
Tribal Self-Governance, consistent with section 103 of this Act.
    ``(f) Savings.--To the extent that programs, functions, services, 
or activities (or portions thereof) carried out by Indian tribes under 
this title reduce the administrative or other responsibilities of the 
Secretary with respect to the operation of Indian programs and result 
in savings that have not otherwise been included in the amount of 
tribal shares and other funds determined under section 508(d), the 
Secretary shall make such savings available to the Indian tribes, 
inter-tribal consortia, or tribal organizations for the provision of 
additional services to program beneficiaries in a manner equitable to 
directly served, contracted, and compacted programs.
    ``(g) Trust Responsibility.--The Secretary is prohibited from 
waiving, modifying or diminishing in any way the trust responsibility 
of the United States with respect to Indian tribes and individual 
Indians that exist under treaties, Executive orders, other laws, or 
court decisions.

``SEC. 508. TRANSFER OF FUNDS.

    ``(a) In General.--Pursuant to the terms of any compact or funding 
agreement entered into under this title, the Secretary shall transfer 
to the Indian tribe all funds provided for in the funding agreement, 
pursuant to subsection (d), and provide funding for periods covered by 
joint resolution adopted by Congress making continuing appropriations, 
to the extent permitted by such resolutions. In any instance where a 
funding agreement requires an annual transfer of funding to be made at 
the beginning of a Federal fiscal year, or requires semi-annual or 
other periodic transfers of funding to be made commencing at the 
beginning of a Federal fiscal year, the first such transfer shall be 
made within ten days after the apportionment of such funds by the 
Office of Management and Budget to the Department, unless the funding 
agreement provides otherwise.
    ``(b) Multi-Year Funding.--The Secretary is hereby authorized to 
employ, upon tribal request, multi-year funding agreements for 
construction or other multi-year activities, and references in this 
title to funding agreements shall include such multi-year agreements.
    ``(c) Funding for Construction Programs.--Compacts or funding 
agreements authorized by this title, including agreements encompassing 
construction programs, shall provide for advance transfers of funding 
to the Indian tribe in the form of annual or semi-annual installments, 
at the discretion of the Indian tribe.
    ``(d) Amount of Funding.--Subject to the provisions of section 
505(f), the Secretary shall provide funds under funding agreement under 
this title in an amount equal to the amount that the Indian tribe would 
have been eligible to receive under self-determination contracts under 
this Act, including amounts for direct program costs specified under 
section 106(a)(1) and amounts for contract support costs specified 
under sections 106 (a)(2), (a)(3), (a)(5), and (a)(6), including any 
funds that are specifically or functionally related to the provision by 
the Secretary of services and benefits to the Indian tribe or its 
members, all without regard to the organizational level within the 
Department where such functions are carried out.
    ``(e) Prohibitions.--The Secretary is expressly prohibited from--
            ``(1) failing or refusing to transfer to an Indian tribe 
        its full share of any central, regional, or area office or 
        other funds due under this Act;
            ``(2) withholding portions of such funds for transfer over 
        a period of years; and
            ``(3) reducing the amount of funds required herein--
                    ``(A) to make funding available for self-governance 
                monitoring or administration by the Secretary;
                    ``(B) in subsequent years, except pursuant to--
                            ``(i) a reduction in appropriations from 
                        the previous fiscal year for the program or 
                        function to be included in a compact or funding 
                        agreement;
                            ``(ii) a congressional directive in 
                        legislation or accompanying report;
                            ``(iii) a tribal authorization;
                            ``(iv) a change in the amount of pass-
                        through funds subject to the terms of the 
                        funding agreement; or
                            ``(v) completion of a project, activity, or 
                        program;
                    ``(C) to pay for Federal functions including 
                Federal pay costs, Federal employee retirement 
                benefits, automated data processing, technical 
                assistance, or monitoring of activities under this Act; 
                or
                    ``(D) to pay for costs of Federal personnel 
                displaced by Self-Determination contracts or Self-
                Governance;
That such funds may be increased by the Secretary if necessary to carry 
out this Act or as provided in section 105(c)(2) of this Act.
    ``(f) Other Resources.--In the event an Indian tribe elects to 
carry out a compact or funding agreement with the use of Federal 
personnel, Federal supplies (including supplies available from Federal 
warehouse facilities), Federal supply sources (including lodging, 
airline transportation, and other means of transportation including the 
use of Interagency Motor Pool vehicles) or other Federal resources 
(including supplies, services, and resources available to the Secretary 
under any procurement contracts in which the Department is eligible to 
participate), the Secretary is authorized to and shall acquire and 
transfer such personnel, supplies, or resources to the Indian tribe, on 
a reimbursable basis. The Secretary is authorized to receive and shall 
retain such reimbursed amounts and shall not remit such sums to the 
Treasury.
    ``(g) Prompt Payment Act.--Chapter 39 of title 31, United States 
Code, shall apply to the transfer of funds due under a compact or 
funding agreement authorized under this title and the annual or first 
semi-annual or other negotiated periodic transfer shall be made on or 
before 10 calendar days after the date on which the Office of 
Management and Budget apportions the appropriations for that fiscal 
year for the programs, services, functions or activities (or portions 
thereof) subject to the compact or funding agreement.
    ``(h) Interest or Other Income on Advances.--An Indian tribe is 
entitled to retain interest earned on any funds paid under a compact or 
funding agreement and such interest shall not diminish the amount of 
funds the Indian tribe is authorized to receive under its funding 
agreement in the year the interest is earned or in any subsequent 
fiscal year.
    ``(i) Carryover Funds.--All funds paid to an Indian tribe in 
accordance with a compact or funding agreement shall remain available 
until expended. In the event that an Indian tribe elects to carry over 
funding from one year to the next, such carryover shall not diminish 
the amount of funds the Indian tribe is authorized to receive under its 
funding agreement in that or any subsequent fiscal year.
    ``(j) Program Income.--All Medicare, Medicaid, or other program 
income earned by an Indian tribe shall be treated as supplemental 
funding to that negotiated in the funding agreement and the Indian 
tribe may retain all such income and expend such funds in the current 
year or in future years. Such funds shall not result in any offset or 
reduction in the amount of funds the Indian tribe is authorized to 
receive under its funding agreement in the year the program income is 
received or for any subsequent fiscal year.
    ``(k) Limitation of Costs.--An Indian tribe shall not be obligated 
to continue performance that requires an expenditure of funds in excess 
of the amount of funds paid under a compact or funding agreement. If at 
any time the Indian tribe has reason to believe that the total amount 
provided for a specific activity in the compact or funding agreement is 
insufficient the Indian tribe shall provide reasonable notice of such 
insufficient funding to the Secretary. If the Secretary does not 
increase the amount of funds paid under the funding agreement, the 
Indian tribe may suspend performance of the activity until such time as 
additional funds are paid.

``SEC. 509. CONSTRUCTION PROJECTS.

    ``(a) Unless agreed to by the participating Indian tribe, no 
provision of the Office of Federal Procurement Policy Act or the 
Federal acquisition regulations shall apply to any construction 
activity included in a compact or funding agreement.
    ``(b) In all construction projects performed pursuant to this 
title, the parties shall specify appropriate health and safety 
standards relevant to the construction activity.

``SEC. 510. FEDERAL PROCUREMENT LAWS AND REGULATIONS.

    ``Notwithstanding any other provision of law, unless expressly 
agreed to by the participating Indian tribe, the compacts and funding 
agreements entered into under this title shall not be subject to 
Federal contracting or cooperative agreement laws and regulations 
(including executive orders and the Secretary's program regulations), 
except to the extent that such laws expressly apply to Indian tribes.

``SEC. 511. CIVIL ACTIONS.

    ``(a) For the purposes of section 110, the term `contract' shall 
include compacts and funding agreements entered into under this title.
    ``(c) Section 2103 of the Revised Statutes of the United States 
Code (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 entered into by Indian tribes participating in Self-
Governance under this title.

``SEC. 512. FACILITATION.

    ``(a) Secretarial Interpretation.--Except as otherwise provided by 
law, the Secretary shall interpret all Federal laws, Executive orders 
and regulations in a manner that will facilitate--
            ``(1) the inclusion of programs, services, functions, and 
        activities (or portions thereof) in the agreements entered into 
        under this section; and
            ``(2) the implementation of compacts and funding agreements 
        entered into under this title; and
            ``(3) the achievement of tribal health goals and 
        objectives.
    ``(b) Regulation Waiver.--
            ``(1) An Indian tribe may submit a written request to waive 
        application of a regulation for a compact or funding agreement 
        entered into under this title, to the Secretary identifying the 
        applicable Federal regulation sought to be waived and the basis 
        for the request.
            ``(2) Not later than 60 days after receipt by the Secretary 
        of a written request by an Indian tribe to waive application of 
        a regulation for a compact or funding agreement entered into 
        under this title, the Secretary shall either approve or deny 
        the requested waiver in writing. A denial may be made only upon 
        a specific finding by the Secretary that identified language in 
        the regulation may not be waived because such waiver is 
        prohibited by Federal law. A failure to approve or deny a 
        waiver request within 60 days shall be deemed an approval of 
        such request. The Secretary's decision shall be final.
    ``(c) Access to Federal Property.--In connection with any compact 
or funding agreement executed pursuant to this title, upon the request 
of an Indian tribe, the Secretary--
            ``(1) shall permit an Indian tribe to use existing school 
        buildings, hospitals, and other facilities and all equipment 
        therein or appertaining thereto and other personal property 
        owned by the Government within the Secretary's jurisdiction 
        under such terms and conditions as may be agreed upon by the 
        Secretary and the tribe;
            ``(2) may donate to an Indian tribe any personal or real 
        property found to be excess to the needs of any agency of the 
        Department, or the General Services Administration, except 
        that--
                    ``(A) if the property has a value in excess of 
                $5,000, at the option of the Secretary upon 
                retrocession of withdrawal, or reassumption or Self-
                Governance, title to such property and equipment shall 
                revert to the Department of Health and Human Services; 
                and
                    ``(B) all property shall remain eligible for 
                replacement, maintenance and improvement on the same 
                basis as if title to such property were vested in the 
                United States; and
            ``(3) shall acquire excess or surplus Government personal 
        or real property for donation to an Indian tribe if the 
        Secretary determines the property is appropriate for use by the 
        entity for a purpose for which a compact or funding agreement 
        is authorized under this title.
    ``(d) Matching or Cost-Participation Requirement.--All funds 
provided under compacts, funding agreements or grants made pursuant to 
this Act, shall be treated as non-Federal funds for purposes of meeting 
matching or cost participation requirements under any other Federal or 
non-Federal program.
    ``(e) State Facilitation.--States are hereby authorized and 
encouraged to enact legislation, and to enter into agreements with 
Indian tribes to facilitate and supplement the initiatives, programs, 
and policies authorized by this Act and other Federal laws benefiting 
Indians and Indian tribes.

``SEC. 513. BUDGET REQUEST.

    ``The Secretary shall identify in the annual budget request of the 
President submitted to the Congress under section 1105 of title 31, 
United States Code, all funds necessary to fully fund all funding 
agreements authorized under this title. Such request shall include a 
detailed report on the level of need being funded or unfunded for each 
Indian tribe participating in Self-Governance.

``SEC. 514. REPORTS.

    ``(a) Annual Report.--The Secretary shall submit to Congress on 
January 1 of each year following the date of enactment of this title a 
written report regarding the administration of this title. Such report 
shall include a detailed report on the level of need being presently 
funded or unfunded for each Indian tribe participating in Self-
Governance.
    ``(b) Contents.--The report shall be compiled from information 
contained in funding agreements, annual audit reports, and Secretarial 
data regarding the disposition of Federal funds and 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 Indian 
        tribes and their members;
            ``(3) identify the funds transferred to each Self-
        Governance Indian tribe and the corresponding reduction in the 
        Federal bureaucracy;
            ``(4) describe all activities and efforts to implement the 
        non-Indian Health Service Demonstration Project under section 
        505(f);
            ``(5) list all programs, services, functions and activities 
        (or portions thereof) that the Secretary has identified as 
        benefiting the health or welfare of Indian tribes or their 
        members;
            ``(6) list specifically all requests for information 
        regarding the non-Indian Health Service Demonstration Project;
            ``(7) list specifically all requests by an Indian tribe for 
        participation in the non-Indian Health Service Demonstration 
        Project, including disposition of those requests and rationale 
        for accepting or rejecting such requests;
            ``(8) identify, with particularity, all programs, services, 
        functions and activities (or portions thereof) and related 
        funds and other resources transferred to an Indian tribe under 
        the non-Indian Health Service Demonstration Project;
            ``(9) identify specifically all efforts being made by the 
        Secretary and agencies of the Department of Health and Human 
        Services to assist Indian tribes to assume responsibility for 
        programs, services, functions and activities (or portions 
        thereof) under the non-Indian Health Service Demonstration 
        Project;
            ``(10) identify the funding formula for individual tribal 
        shares of all central and headquarters funds, together with the 
        comments of affected Indian tribes or tribal organizations, 
        developed under subsection (c);
            ``(11) identify amounts expended in the preceding fiscal 
        year to carry out inherent Federal functions, including an 
        identification of those functions by type and location;
            ``(12) include the separate views and comments of the 
        Indian tribes or tribal organizations; and
            ``(13) prior to being submitted to Congress, be distributed 
        to the Indian tribes for comment, such comment period to be for 
        no less than 30 days.
In compiling this report the Secretary shall not impose any reporting 
requirements on participating Indian tribes or tribal organizations, 
not otherwise provided in this Act.
    ``(c) Report on IHS Funds.--Not later than 90 days after the date 
of enactment of this title, the Secretary shall, in consultation with 
Indian tribes, report on funding formula or formulas used to determine 
the individual tribal share of funds controlled by the Indian Health 
Service (including funds assessed by any other Federal agency) for 
inclusion in Self-Governance compacts or funding agreements. The 
Secretary shall include such formula or formulas in the annual report 
submitted to the Congress under subsection (b), together with the views 
of the affected Indian tribes and tribal organizations.

``SEC. 515. 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 is eligible to receive 
under section 102 or under any other applicable Federal law.
    ``(b) Federal Trust Responsibilities.--Nothing in this Act shall be 
construed to diminish in any way the trust responsibility of the United 
States to Indian tribes and individual Indians that exist under 
treaties, Executive Orders or other laws and court decisions.
    ``(c) Tribal Employment.--For purposes of section 2(2), Act of July 
5, 1935 (49 Stat. 450, chapter 372) (commonly known as the National 
Labor Relations Act), an Indian tribe carrying out a self-determination 
contract, compact, annual funding agreement, grant, or cooperative 
agreement under this Act shall not be considered an employer.

``SEC. 516. APPLICATION OF OTHER SECTIONS OF THE ACT.

    ``(a) All provisions of sections 6, 7, 102(c) and (d), 104, 105(l), 
106, and 111 of this Act and section 314 of Public Law 101-512 
(coverage under the Federal Tort Claims Act) shall apply to compacts 
and funding agreements authorized by this title.
    ``(b) At the request of a participating Indian tribe, any other 
provision of title I of this Act shall be made a part of an funding 
agreement or compact entered into under this title. If such provision 
is incorporated it shall have the same force and effect as if it were 
set out in full in this title. Such provision shall be deemed effective 
immediately and shall control any subsequent negotiations and resulting 
compact and funding agreement.

``SEC. 517. REGULATIONS.

    ``(a) In General.--
            ``(1) Not later than 90 days after the date of enactment of 
        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.
            ``(2) Proposed regulations to implement this title shall be 
        published in the Federal Register by the Secretary no later 
        than one year after the date of enactment of this title.
            ``(3) No regulations may be published unless they are 
        recommended by the committee formed under subsection (b).
            ``(4) The authority to promulgate regulations under this 
        title shall expire 21 months after the date of enactment of 
        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 nominated by 
and be representatives of Indian tribes with funding agreements under 
this title, and the Committee shall confer with, and accommodate 
participation by, representatives of Indian tribes, inter-tribal 
consortia, tribal organizations, and individual tribal members.
    ``(c) Adaptation of Procedures.--The Secretary shall adapt the 
negotiated rulemaking procedures to the unique context of Self-
Governance and the government-to-government relationship between the 
United States and Indian tribes.
    ``(d) Effect.--The lack of promulgated regulations shall not limit 
the effect of this title.

``SEC. 518. APPEALS.

    ``In any appeal involving decisions made by the Secretary under 
this title, the Secretary shall have the burden of proof of 
demonstrating by clear and convincing evidence--
            ``(1) the validity of the grounds for the decision made; 
        and
            ``(2) the decision is fully consistent with provisions and 
        policies of this title.''.

SEC. 5. AMENDMENT TO PROVIDE FOR TRIAL DE NOVO.

    Section 110(a) of the Indian Self-Determination and Education 
Assistance Act (25 U.S.C. 450m-1) is amended by adding at the end the 
following new sentence: ``In any action brought under this subsection, 
the district courts shall conduct a trial de novo with full rights of 
discovery and proceed in accordance with the Federal Rules of Civil 
Procedure.''.
                                 <all>