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





                                                 Union Calendar No. 436

105th CONGRESS

  2d Session

                               H. R. 1833

                          [Report No. 105-765]

_______________________________________________________________________

                                 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.

_______________________________________________________________________

                            October 2, 1998

  Reported with an amendment, committed to the Committee of the Whole 
       House on the State of the Union, and ordered to be printed





                                                 Union Calendar No. 436
105th CONGRESS
  2d Session
                                H. R. 1833

                          [Report No. 105-765]

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

                            October 2, 1998

  Reported with an amendment, committed to the Committee of the Whole 
       House on the State of the Union, and ordered to be printed
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]
[For text of introduced bill, see copy of bill as introduced on June 7, 
                                 1997]

_______________________________________________________________________

                                 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 
1998''.

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 Project, established under 
        title III of the Indian Self-Determination and Education 
        Assistance Act of 1975 (25 U.S.C. 450f note) 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 and to satisfy its obligations 
        to the Indian tribes under treaties and other laws; and
            (6) Congress has reviewed the results of the Tribal Self-
        Governance Demonstration Project and finds that transferring 
        full control and funding to tribal governments, upon tribal 
        request, over decision making for Federal programs, services, 
        functions, and activities (or portions thereof)--
                    (A) is an appropriate and effective means of 
                implementing the Federal policy of government-to-
                government relations with Indian tribes; and
                    (B) strengthens the Federal policy of Indian self-
                determination.

SEC. 3. DECLARATION OF POLICY.

    It is the policy of Congress to--
            (1) permanently establish and implement tribal Self-
        Governance within the Department of Health and Human Services;
            (2) call for full cooperation from the Department of Health 
        and Human Services and its constituent agencies in the 
        implementation of tribal Self-Governance--
                    (A) to enable the United States to maintain and 
                improve its unique and continuing relationship with, 
                and responsibility to, Indian tribes;
                    (B) to permit each Indian tribe to choose the 
                extent of its participation in Self-Governance;
                    (C) in accordance with the provisions of the Indian 
                Self-Determination Act relating to the provision of 
                Federal services to Indian tribes;
                    (D) to ensure the continuation of the trust 
                responsibility of the United States to Indian tribes 
                and Indian individuals;
                    (E) to affirm and enable the United States to 
                fulfill its obligations to the Indian tribes under 
                treaties and other laws;
                    (F) to strengthen the government-to-government 
                relationship between the United States and Indian 
                tribes through direct and meaningful consultation with 
                all tribes;
                    (G) 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;
                    (H) 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;
                    (I) to encourage the Secretary to identify all 
                programs, services, functions, and activities (or 
                portions thereof) of the Department of Health and Human 
                Services that may be managed by an Indian tribe under 
                this Act and to assist Indian tribes in assuming 
                responsibility for such programs, services, functions, 
                and activities (or portions thereof); and
                    (J) to provide Indian tribes with the earliest 
                opportunity to administer programs, services, 
                functions, and activities (or portions thereof) from 
                throughout the Department of Health and Human Services.

SEC. 4. TRIBAL SELF-GOVERNANCE.

    The Indian Self-Determination 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 the `Tribal Self-Governance Program' in accordance with 
this title.

``SEC. 502. DEFINITIONS.

    ``(a) In General.--For purposes of this title--
            ``(1) the term `inherent Federal functions' means those 
        Federal functions which cannot legally 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, but 
        not limited to, 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 pursuant to section 501.
    ``(b) Indian Tribe.--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 under 
title III on the date of enactment of this title may elect to 
participate in Self-Governance under this title under existing 
authority as reflected in tribal resolution.
    ``(b) Additional Participants.--
            ``(1) In addition to those Indian tribes participating in 
        Self-Governance under subsection (a), each year an additional 
        50 Indian tribes that meet the eligibility criteria specified 
        in subsection (c) shall be entitled to participate in Self-
        Governance.
            ``(2)(A) An Indian tribe that has withdrawn from 
        participation in an inter-tribal consortium or tribal 
        organization, in whole or in part, shall be entitled to 
        participate in Self-Governance provided the Indian tribe meets 
        the eligibility criteria specified in subsection (c).
            ``(B) If an Indian tribe has withdrawn from participation 
        in an inter-tribal consortium or tribal organization, it shall 
        be entitled to its tribal share of funds supporting those 
        programs, services, functions, and activities (or portions 
        thereof) that it will be carrying out under its compact and 
        funding agreement.
            ``(C) 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 each 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 3 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 be conducted to the satisfaction of the Indian tribe and shall 
include--
            ``(1) legal and budgetary research; and
            ``(2) internal tribal government planning and 
        organizational preparation relating to the administration of 
        health care programs.
    ``(e) Grants.--Subject to the availability of appropriations, any 
Indian tribe meeting the requirements of subsections (c)(2) and (3) 
shall be eligible for grants--
            ``(1) to plan for participation in Self-Governance; and
            ``(2) to negotiate the terms of participation by the Indian 
        tribe or tribal organization in Self-Governance, as set forth 
        in a compact and a funding agreement.
    ``(f) Receipt of Grant Not Required.--Receipt of a grant under 
subsection (e) shall not be a requirement of 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, treaty obligations, 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 the 
tribal Self-Governance on the date of enactment of this title shall 
have the option at any time thereafter to--
            ``(1) retain its Tribal Self-Governance Project 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) negotiate 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, retrocession, or reassumption.

``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, treaty obligations, and the 
government-to-government relationship between Indian tribes and the 
United States.
    ``(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 full 
tribal share funding for all programs, services, functions, and 
activities (or portions thereof), including tribal shares of 
discretionary Indian Health Service competitive grants (excluding 
congressionally earmarked competitive grants), that are carried out for 
the benefit of Indians because of their status as Indians (including 
all programs, services, functions, or activities (or portions thereof) 
where Indian tribes or Indians are primary or significant 
beneficiaries, administered by the Department of Health and Human 
Services through the Indian Health Service and grants (which may be 
added to a funding agreement after award of such grants)) without 
regard to the agency or office of the Indian Health Service (or of such 
other agency) 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, the responsibilities of the Secretary, 
and any other provisions to which the Indian tribe and the Secretary 
agree.
    ``(e) Subsequent Funding Agreements.--Absent notification from an 
Indian tribe that is withdrawing or retroceding the operation of one or 
more programs, services, functions, or activities (or portions thereof) 
identified in a funding agreement, or unless otherwise agreed to by the 
parties, each funding agreement shall remain in full force and effect 
until a subsequent funding agreement is executed, and the terms of the 
subsequent funding agreement shall be retroactive to the end of the 
term of the preceding funding agreement.
    ``(f) Existing Funding Agreements.--Each Indian tribe participating 
in the Tribal Self-Governance Project established under title III, as 
in force before the enactment of the Tribal Self-Governance Amendments 
of 1998, on the date of enactment of this title shall have the option 
at any time thereafter to--
            ``(1) retain its Tribal Self-Governance Project 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.
    ``(g) Stable Base Funding.--At the option of an Indian tribe, a 
funding agreement may provide for a stable base budget specifying the 
recurring funds (including, for purposes of this provision, funds 
available under section 106(a) of the Act) to be transferred to such 
Indian tribe, for such period as may be specified in the funding 
agreement, subject to annual adjustment only to reflect changes in 
congressional appropriations by sub-sub activity excluding earmarks.

``SEC. 506. SELF-GOVERNANCE FEASIBILITY STUDY.

    ``(a) In General.--The Secretary shall conduct a study, in 
consultation with Indian tribes and other entities specified in 
subsection (b), to determine the feasibility of including in Self-
Governance, on a demonstration project basis, programs of the 
Department of Health and Human Services, other than the Indian Health 
Service, that benefit Indian tribes or their members, and to identify 
the programs suitable for inclusion in such demonstration.
    ``(b) Entities To Be Consulted.--In conducting the study required 
under this section, the Secretary shall consult with Indian tribes, 
States, counties and municipalities, program beneficiaries, and 
concerned public interest groups, and may consult with other entities 
as the Secretary finds appropriate.
    ``(c) Issues.--The study under this section shall consider the 
following issues with respect to the feasibility and design of a Self-
Governance demonstration:
            ``(1) The probable effects on specific programs and program 
        beneficiaries.
            ``(2) Statutory, regulatory, or operational impediments to 
        implementation.
            ``(3) Strategies for facilitating Self-Governance.
            ``(4) Probable costs associated with Self-Governance.
            ``(5) Methods to ensure quality and accountability in Self-
        Governance demonstrations.
            ``(6) Such other issues as may be identified by the 
        Secretary.
    ``(d) Report to Congress.--Not later than 18 months after the date 
of the enactment of this Act, the Secretary shall report to the 
Congress the findings and conclusions of the study under this section 
and any separate or dissenting views of the entities consulted pursuant 
to subsection (b).
    ``(e) Authorization of Appropriations.--There are authorized to be 
appropriated for fiscal years 1999 and 2000 such sums as necessary to 
carry out the purposes of this section, to remain available until 
expended.

``SEC. 507. 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 ensure 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, 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).
    ``(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 recordkeeping system requirements 
        under the sections 3101 through 3106 of title 44, United States 
        Code.
    ``(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, only if the redesign or 
consolidation does not have the effect of denying eligibility for 
services to population groups otherwise eligible to be served.
    ``(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. Such withdrawal shall become effective within the 
        time frame specified in the resolution which authorizes 
        transfer to the participating tribal organization or inter-
        tribal consortium. In the absence of a specific time frame 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 withdrawing Indian tribe and the 
                participating tribal organization or inter-tribal 
                consortium that has signed the compact or funding 
                agreement on behalf of the withdrawing Indian tribe, 
                inter-tribal consortium, or tribal organization.
            ``(2) Distribution of funds.--When an Indian tribe or 
        tribal organization eligible to enter into a self-determination 
        contract under title I or a compact or funding agreement under 
        this title fully or partially withdraws from a participating 
        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 (calculated on the same basis as 
        the funds were initially allocated in the funding agreement of 
        the inter-tribal consortium or tribal organization), and such 
        funds shall be transferred from the funding agreement of the 
        inter-tribal consortium or tribal organization, provided that 
        the provisions of sections 102, 105(i), and 506, as 
        appropriate, shall apply to such withdrawing Indian tribe.
            ``(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, at the option of the Indian tribe, 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 title 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. 508. 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 requires the Indian tribe to 
        report on health status and service delivery--
                    ``(A) 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; and
                    ``(B) if such reporting shall impose minimal 
                burdens on the participating Indian tribe and such 
                requirements are promulgated under section 518 of this 
                title.
            ``(2) Reassumption.--(A) Contracts 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 imminent 
        endangerment of the public health caused by an act or omission 
        of the Indian tribe, and the imminent endangerment arises out 
of a failure to carry out the compact or funding agreement.
            ``(B) The Secretary shall not reassume operation of a 
        program, service, function, or activity unless (i) the 
        Secretary has first provided written notice and a hearing on 
        the record to the Indian tribe; and (ii) the Indian tribe has 
        not taken corrective action to remedy the imminent endangerment 
        to public health.
            ``(C) Notwithstanding subparagraph (B), the Secretary may, 
        upon written notification to the tribe, immediately reassume 
        operation of a program, service, function, or activity (or 
        portion thereof) if (i) 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 
        (ii) the endangerment arises out of a failure to carry out the 
        compact or funding agreement. If the Secretary reassumes 
        operation of a program, service, function, or activity (or 
        portion thereof) under this subparagraph, the Secretary shall 
        provide the tribe with a hearing on the record not later than 
        10 days after such reassumption.
            ``(D) In any hearing or appeal involving a decision to 
        reassume operation of a program, service, function, or activity 
        (or portion thereof), 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, in whole or in part, on the terms of 
a compact or funding agreement (including funding levels), the Indian 
tribe may submit a final offer to the Secretary. The Secretary shall 
have no more than 45 days after such submission, or within a longer 
time agreed upon by the Indian tribe made in compliance to review and 
make a determination with respect to such offer. In the absence of a 
timely rejection of the offer, in whole or in part, made in compliance 
with subsection (c), 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) (or one or more provisions or funding 
levels in such offer), the Secretary shall provide--
            ``(1) a timely written notification to the Indian tribe 
        that contains a specific finding that clearly demonstrates, or 
        that is supported by a controlling legal authority, that--
                    ``(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 cannot 
                legally be delegated to an Indian tribe;
                    ``(C) the Indian tribe cannot carry out the 
                program, function, service, or activity (or portion 
                thereof) in a manner that would not result in imminent 
                danger to the public health; or
                    ``(D) the tribe is not eligible to participate in 
                Self-Governance under section 503 of this title;
            ``(2) technical assistance to overcome the objections 
        stated in the notification required by paragraph (1);
            ``(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 initiate an action 
        in a Federal district court pursuant to section 110(a); 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.--With respect to any hearing or appeal or 
civil action 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).
    ``(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 3.
    ``(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 509(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, and/or 
court decisions.
    ``(h) Decisionmaker.--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--
            ``(1) 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
            ``(2) by an administrative judge.

``SEC. 509. 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 fiscal year, or requires semi-annual or other 
periodic transfers of funding to be made commencing at the beginning of 
a fiscal year, the first such transfer shall be made not later than 10 
days after the apportionment of such funds by the Office of Management 
and Budget to the Department, unless the funding agreement provides 
otherwise.
    ``(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 full funding or annual or semi-
annual installments, at the discretion of the Indian tribe.
    ``(d) Amount of Funding.--The Secretary shall provide funds under a 
funding agreement under this title in an amount equal to the amount 
that the Indian tribe would have been entitled 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, headquarters, regional, area, or 
        service unit office or other funds due under this Act, except 
        as required by other Federal law;
            ``(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 for which such funds were provided;
                    ``(C) to pay for Federal functions, including 
                Federal pay costs, Federal employee retirement 
                benefits, automated data processing, technical 
                assistance, and monitoring of activities under this 
                Act; or
                    ``(D) to pay for costs of Federal personnel 
                displaced by self-determination contracts under this 
                Act or Self-Governance;
except that such funds may be increased by the Secretary if necessary 
to carry out this Act or as provided in section 105(c)(2).
    ``(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.
    ``(g) Reimbursement to Indian Health Service.--With respect to 
functions transferred by the Indian health Service to an Indian tribe, 
the Indian Health Service is authorized to provide goods and services 
to the Indian tribe, on a reimbursable basis, including payment in 
advance with subsequent adjustment, and the reimbursements received 
therefrom, along with the funds received from the Indian tribe pursuant 
to this title, may be credited to the same or subsequent appropriation 
account which provided the funding, such amounts to remain available 
until expended.
    ``(h) 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.
    ``(i) Interest or Other Income on Transfers.--An Indian tribe is 
entitled to retain interest earned on any funds paid under a compact or 
funding agreement to carry out governmental or health purposes 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. Funds transferred 
under this Act shall be managed using the prudent investment standard.
    ``(j) 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.
    ``(k) 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 except to the extent that the Indian Health 
Care Improvement Act (25 U.S.C. 1601 et seq.) provides otherwise for 
Medicaid and Medicare receipts, and 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.
    ``(l) 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 transferred 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 insufficiency to the Secretary. If the 
Secretary does not increase the amount of funds transferred under the 
funding agreement, the Indian tribe may suspend performance of the 
activity until such time as additional funds are transferred.

``SEC. 510. CONSTRUCTION PROJECTS.

    ``(a) In General.--Unless agreed to by the participating Indian 
tribe, no provision of the Office of Federal Procurement Policy Act or 
the Federal acquisition regulations or any other general law or 
regulation pertaining to Federal procurement (including executive 
orders), shall apply to any construction activity included in a compact 
or funding agreement.
    ``(b) Health and Safety Standards.--In all construction projects 
performed pursuant to this title, the parties shall specify appropriate 
health and safety standards relevant to the construction activity which 
shall be in conformity with nationally recognized standards for 
comparable projects.

``SEC. 511. 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 procurement 
regulations), except to the extent that such laws expressly apply to 
Indian tribes.

``SEC. 512. CIVIL ACTIONS.

    ``(a) Contract Defined.--For the purposes of section 110, the term 
`contract' shall include compacts and funding agreements entered into 
under this title.
    ``(b) Applicability of Certain Laws.--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. 513. 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) and funds associated 
        therewith, in the agreements entered into under this section;
            ``(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 with the Indian Health Service 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 90 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 not later than 90 days after receipt shall be 
        deemed an approval of such request. The Secretary's decision 
        shall be final for the Department.
    ``(c) Access to Federal Property.--In connection with any compact 
or funding agreement executed pursuant to this title or an agreement 
negotiated under the Tribal Self-Governance Project established under 
title III, as in effect before the enactment of the Tribal Self-
Governance Amendments of 1998, 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 for their use and maintenance;
            ``(2) may donate to an Indian tribe title to 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) subject to the provisions of subparagraph 
                (B), title to property and equipment furnished by the 
                Federal Government for use in the performance of the 
                compact or funding agreement or purchased with funds 
                under any compact or funding agreement shall, unless 
                otherwise requested by the Indian tribe, vest in the 
                appropriate Indian tribe;
                    ``(B) if property described in subparagraph (A) has 
                a value in excess of $5,000 at the time of 
                retrocession, withdrawal, or reassumption, at the 
                option of the Secretary upon the retrocession, 
                withdrawal, or reassumption, title to such property and 
                equipment shall revert to the Department of Health and 
                Human Services; and
                    ``(C) all property referred to in subparagraph (A) 
                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 any 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 title and other Federal laws benefiting 
Indians and Indian tribes.
    ``(f) Rules of Construction.--Each provision of this title and each 
provision of a compact or funding agreement shall be liberally 
construed for the benefit of the Indian tribe participating in Self-
Governance and any ambiguity shall be resolved in favor of the Indian 
tribe.

``SEC. 514. BUDGET REQUEST.

    ``(a) In General.--The President shall identify in the annual 
budget request 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, including funds specifically 
identified to fund tribal base budgets. All funds so identified shall 
be apportioned to the Indian Health Service, Office of Tribal Self-
Governance. The Office shall be responsible for distribution of all 
funds provided under section 505. Nothing in this provision shall be 
construed to authorize the IHS to reduce the amount of funds that a 
Self-Governance tribe is otherwise entitled to receive under its 
funding agreement or other applicable law, whether or not such funds 
are apportioned to the Office of Tribal Self-Governance under this 
section.
    ``(b) Present Funding; Shortfalls.--In such budget request, the 
President shall identify the level of need presently funded and any 
shortfall in funding (including direct program and contract support 
costs) for each Indian tribe in the United States, either directly by 
the Secretary, under self-determination contracts, or under compacts 
and funding agreements authorized under this title.

``SEC. 515. 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 in the United States, either 
directly by the Secretary, under self-determination contracts under 
this Act, or under compacts and funding agreements authorized under 
this Act.
    ``(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) 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);
            ``(5) identify amounts expended in the preceding fiscal 
        year to carry out inherent Federal functions, including an 
        identification of those functions by type and location;
            ``(6) include the separate views and comments of the Indian 
        tribes or tribal organizations; and
            ``(7) 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 180 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 all components of 
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 (or 
any revisions thereof) in the annual report submitted to the Congress 
under subsection (b), together with the views of the affected Indian 
tribes and tribal organizations.

``SEC. 516. DISCLAIMERS.

    ``(a) No Funding Reduction.--Nothing in this title shall be 
construed to limit or reduce in any way the funding for any program, 
project, or activity serving an Indian tribe under this or other 
applicable Federal law. Any Indian tribe that alleges that a compact or 
funding agreement is in violation of this section may apply the 
provisions of section 110.
    ``(b) Federal Trust and Treaty 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) of the 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.
    ``(d) Obligations of the United States.--The Indian Health Service 
shall neither bill nor charge those Indians who may have the economic 
means to pay for services, nor require any Indian tribe to do so.

``SEC. 517. APPLICATION OF OTHER SECTIONS OF THE ACT.

    ``(a) Mandatory Application.--All provisions of sections 6, 7, 8, 
102(c) and (d), 104, 105(k) and (l), 106(a) through (k), and 111 of 
this Act and section 314 of Public Law 101-512 (coverage under the 
Federal Tort Claims Act), to the extent not in conflict with this 
title, shall apply to compacts and funding agreements authorized by 
this title.
    ``(b) Discretionary Application.--At the request of a participating 
Indian tribe, any other provision of title I, to the extent such 
provision is not in conflict with this title, shall be made a part of a 
funding agreement or compact entered into under this title. The 
Secretary is obligated to include such provision at the option of the 
participating Indian tribe or tribes. If such provision is incorporated 
it shall have the same force and effect as if it were set out in full 
in this title. In the event an Indian tribe requests such incorporation 
at the negotiation stage of a compact or funding agreement, such 
incorporation shall be deemed effective immediately and shall control 
the negotiation and resulting compact and funding agreement.

``SEC. 518. 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 1 year after the date of enactment of this title.
            ``(3) No regulations to implement this title 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.
    ``(e) Effect of Circulars, Policies, Manuals, Guidances, and 
Rules.--Unless expressly agreed to by the participating Indian tribe in 
the compact or funding agreement, the participating Indian tribe shall 
not be subject to any agency circular, policy, manual, guidance, or 
rule adopted by the Indian Health Service, except as provided in 
section 105(g) and 510.

``SEC. 519. APPEALS.

    ``In any appeal (including civil actions) 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. 520. AUTHORIZATION OF APPROPRIATIONS.

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

SEC. 5. AMENDMENTS CLARIFYING CIVIL PROCEEDINGS.

    (a) Burden of Proof in District Court Actions.--Section 102(e)(1) 
of the Indian Self-Determination and Education Assistance Act (25 
U.S.C. 450f(e)(1)) is amended by inserting after ``subsection (b)(3)'' 
the following: ``or any civil action conducted pursuant to section 
110(a)''.
    (b) Confirmation of 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.''.
    (c) Effective Date.--This section shall apply to any proceedings 
commenced after October 25, 1994.

SEC. 6. REPEAL.

    (a) In General.--Title III of the Indian Self-Determination and 
Education Assistance Act (25 U.S.C. 450f note) is hereby repealed.
    (b) Effective Date.--This section shall take effect on October 1, 
1998.

SEC. 7. EFFECTIVE DATE.

    Except as otherwise provided, the provisions of this Act shall take 
effect on the date of the enactment of this Act.