[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1167 Engrossed Amendment Senate (EAS)]

  
  
  
  
  
  
  
  
  
  

                  In the Senate of the United States,

                                                         April 4, 2000.
    Resolved, That the bill from the House of Representatives (H.R. 
1167) entitled ``An Act to amend the Indian Self-Determination and 
Education Assistance Act to provide for further self-governance by 
Indian tribes, and for other purposes.'', do pass with the following

                               AMENDMENT:

            Strike out all after the enacting clause and insert:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Tribal Self-Governance Amendments of 
2000''.

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, 
        established under title III of the Indian Self-Determination 
        and Education Assistance Act (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--
            (1) to permanently establish and implement tribal self-
        governance within the Department of Health and Human Services;
            (2) to 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 in 
                accordance with the provisions of the Indian Self-
                Determination and Education Assistance Act relating to 
                the provision of Federal services to Indian tribes;
                    (C) to ensure the continuation of the trust 
                responsibility of the United States to Indian tribes 
                and Indian individuals;
                    (D) to affirm and enable the United States to 
                fulfill its obligations to the Indian tribes under 
                treaties and other laws;
                    (E) to strengthen the government-to-government 
                relationship between the United States and Indian 
                tribes through direct and meaningful consultation with 
                all tribes;
                    (F) 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;
                    (G) to provide for a measurable parallel reduction 
                in the Federal bureaucracy as programs, services, 
                functions, and activities (or portion thereof) are 
                assumed by Indian tribes;
                    (H) 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
                    (I) 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 and Education Assistance Act (25 
U.S.C. 450 et seq.) is amended by adding at the end the following:

                   ``TITLE V--TRIBAL SELF-GOVERNANCE

``SEC. 501. DEFINITIONS.

    ``(a) In General.--In this title:
            ``(1) Construction project.--The term `construction 
        project'--
                    ``(A) means an organized noncontinuous undertaking 
                to complete a specific set of predetermined objectives 
                for the planning, environmental determination, design, 
                construction, repair, improvement, or expansion of 
                buildings or facilities, as described in a construction 
                project agreement; and
                    ``(B) does not include construction program 
                administration and activities described in paragraphs 
                (1) through (3) of section 4(m), that may otherwise be 
                included in a funding agreement under this title.
            ``(2) Construction project agreement.--The term 
        `construction project agreement' means a negotiated agreement 
        between the Secretary and an Indian tribe, that at a minimum--
                    ``(A) establishes project phase start and 
                completion dates;
                    ``(B) defines a specific scope of work and 
                standards by which it will be accomplished;
                    ``(C) identifies the responsibilities of the Indian 
                tribe and the Secretary;
                    ``(D) addresses environmental considerations;
                    ``(E) identifies the owner and operations and 
                maintenance entity of the proposed work;
                    ``(F) provides a budget;
                    ``(G) provides a payment process; and
                    ``(H) establishes the duration of the agreement 
                based on the time necessary to complete the specified 
                scope of work, which may be 1 or more years.
            ``(3) Gross mismanagement.--The term `gross mismanagement' 
        means a significant, clear, and convincing violation of a 
        compact, funding agreement, or regulatory, or statutory 
        requirements applicable to Federal funds transferred to an 
        Indian tribe by a compact or funding agreement that results in 
        a significant reduction of funds available for the programs, 
        services, functions, or activities (or portions thereof) 
        assumed by an Indian tribe.
            ``(4) Inherent federal functions.--The term `inherent 
        Federal functions' means those Federal functions which cannot 
        legally be delegated to Indian tribes.
            ``(5) Inter-tribal consortium.--The term `inter-tribal 
        consortium' means a coalition of 2 or more separate Indian 
        tribes that join together for the purpose of participating in 
        self-governance, including tribal organizations.
            ``(6) Secretary.--The term `Secretary' means the Secretary 
        of Health and Human Services.
            ``(7) Self-governance.--The term `self-governance' means 
        the program of self-governance established under section 502.
            ``(8) Tribal share.--The term `tribal share' 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.
    ``(b) Indian Tribe.--In any case in which 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. 502. ESTABLISHMENT.

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

``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 general.--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) Treatment of certain indian tribes.--
                    ``(A) In general.--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) Effect of withdrawal.--If an Indian tribe has 
                withdrawn from participation in an inter-tribal 
                consortium or tribal organization, that Indian tribe 
                shall be entitled to its tribal share of funds 
                supporting those programs, services, functions, and 
                activities (or portions thereof) that the Indian tribe 
                will be carrying out under the compact and funding 
                agreement of the Indian tribe.
                    ``(C) Participation in self-governance.--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.--
            ``(1) In general.--The qualified applicant pool for self-
        governance shall consist of each Indian tribe that--
                    ``(A) successfully completes the planning phase 
                described in subsection (d);
                    ``(B) has requested participation in self-
                governance by resolution or other official action by 
                the governing body of each Indian tribe to be served; 
                and
                    ``(C) has demonstrated, for 3 fiscal years, 
                financial stability and financial management 
                capability.
            ``(2) Criteria for determining financial stability and 
        financial management capacity.--For purposes of this 
        subsection, evidence that, during the 3-year period referred to 
        in paragraph (1)(C), an 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.
    ``(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 paragraph (1) (B) and (C) of 
subsection (c) 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 Demonstration Project under title III on the 
date of enactment of this title shall have the option at any time after 
the date of enactment of this title to--
            ``(1) retain the Tribal Self-Governance Demonstration 
        Project compact of that Indian tribe (in whole or in part) to 
        the extent that the provisions of that funding agreement are 
        not directly contrary to any express provision of this title; 
        or
            ``(2) instead of retaining a compact or portion thereof 
        under paragraph (1), negotiate a new compact in a manner 
        consistent with the requirements of 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.--
            ``(1) In general.--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, including 
        tribal shares of discretionary Indian Health Service 
        competitive grants (excluding congressionally earmarked 
        competitive grants), for all programs, services, functions, and 
        activities (or portions thereof), that are carried out for the 
        benefit of Indians because of their status as Indians 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.
            ``(2) Inclusion of certain programs, services, functions, 
        and activities.--Such programs, services, functions, or 
        activities (or portions thereof) include all programs, 
        services, functions, activities (or portions thereof), 
        including grants (which may be added to a funding agreement 
        after an award of such grants), with respect to which Indian 
        tribes or Indians are primary or significant beneficiaries, 
        administered by the Department of Health and Human Services 
        through the Indian Health Service and all local, field, service 
        unit, area, regional, and central headquarters or national 
        office functions administered under the authority of--
                    ``(A) the Act of November 2, 1921 (42 Stat. 208, 
                chapter 115; 25 U.S.C. 13);
                    ``(B) the Act of April 16, 1934 (48 Stat. 596, 
                chapter 147; 25 U.S.C. 452 et seq.);
                    ``(C) the Act of August 5, 1954 (68 Stat. 674, 
                chapter 658);
                    ``(D) the Indian Health Care Improvement Act (25 
                U.S.C. 1601 et seq.);
                    ``(E) the Indian Alcohol and Substance Abuse 
                Prevention and Treatment Act of 1986 (25 U.S.C. 2401 et 
                seq.);
                    ``(F) any other Act of Congress authorizing any 
                agency of the Department of Health and Human Services 
                to administer, carry out, or provide financial 
                assistance to such a program, service, function or 
                activity (or portions thereof) described in this 
                section that is carried out for the benefit of Indians 
                because of their status as Indians; or
                    ``(G) any other Act of Congress authorizing such a 
                program, service, function, or activity (or portions 
                thereof) carried out for the benefit of Indians under 
                which appropriations are made available to any agency 
                other than an agency within the Department of Health 
                and Human Services, in any case in which the Secretary 
                administers that program, service, function, or 
                activity (or portion thereof).
    ``(c) Inclusion in Compact or Funding Agreement.--It shall not be a 
requirement that an Indian tribe or Indians 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 under this 
title shall set forth--
            ``(1) terms that generally identify the programs, services, 
        functions, and activities (or portions thereof) to be performed 
        or administered; and
            ``(2) for the items identified in paragraph (1)--
                    ``(A) the general budget category assigned;
                    ``(B) the funds to be provided, including those 
                funds to be provided on a recurring basis;
                    ``(C) the time and method of transfer of the funds;
                    ``(D) the responsibilities of the Secretary; and
                    ``(E) any other provision with respect 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 1 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 Demonstration Project established under 
title III on the date of enactment of this title shall have the option 
at any time thereafter to--
            ``(1) retain the Tribal Self-Governance Demonstration 
        Project funding agreement of that Indian tribe (in whole or in 
        part) to the extent that the provisions of that funding 
        agreement are not directly contrary to any express provision of 
        this title; or
            ``(2) instead of retaining a funding agreement or portion 
        thereof under paragraph (1), negotiate a new funding agreement 
        in a manner consistent with the requirements of 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)) 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. 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 the 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 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 305 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 under applicable 
Federal law.
    ``(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 
timeframe 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) 1 year after 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 upon by the 
        Secretary and the Indian tribe.
    ``(g) Withdrawal.--
            ``(1) Process.--
                    ``(A) In general.--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.
                    ``(B) Effective date.--The withdrawal referred to 
                in subparagraph (A) shall become effective within the 
                timeframe specified in the resolution which authorizes 
                transfer to the participating tribal organization or 
                inter-tribal consortium. In the absence of a specific 
                timeframe set forth in the resolution, such withdrawal 
                shall become effective on--
                            ``(i) the earlier of--
                                    ``(I) 1 year after the date of 
                                submission of such request; or
                                    ``(II) the date on which the 
                                funding agreement expires; or
                            ``(ii) 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--
                    ``(A) 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) that the Indian 
                tribe will be carrying out under its own self-
                determination contract or compact and funding agreement 
                (calculated on the same basis as the funds were 
                initially allocated in the funding agreement of the 
                inter-tribal consortium or tribal organization); and
                    ``(B) the funds referred to in subparagraph (A) 
                shall be transferred from the funding agreement of the 
                inter-tribal consortium or tribal organization, on the 
                condition that the provisions of sections 102 and 
                105(i), as appropriate, shall apply to that 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. 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 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 517.
            ``(2) Reassumption.--
                    ``(A) In general.--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) and associated funding 
                if there is a specific finding relative to that 
                program, service, function, or activity (or portion 
                thereof) of--
                            ``(i) 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; or
                            ``(ii) gross mismanagement with respect to 
                        funds transferred to a tribe by a compact or 
                        funding agreement, as determined by the 
                        Secretary in consultation with the Inspector 
                        General, as appropriate.
                    ``(B) Prohibition.--The Secretary shall not 
                reassume operation of a program, service, function, or 
                activity (or portions thereof) 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 or gross 
                        mismanagement.
                    ``(C) Exception.--
                            ``(i) In general.--Notwithstanding 
                        subparagraph (B), the Secretary may, upon 
                        written notification to the Indian 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.
                            ``(ii) Reassumption.--If the Secretary 
                        reassumes operation of a program, service, 
                        function, or activity (or portion thereof) 
                        under this subparagraph, the Secretary shall 
                        provide the Indian tribe with a hearing on the 
                        record not later than 10 days after such 
                        reassumption.
                    ``(D) Hearings.--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. Not more than 45 days 
after such submission, or within a longer time agreed upon by the 
Indian tribe, the Secretary shall 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.--
            ``(1) In general.--If the Secretary rejects an offer made 
        under subsection (b) (or 1 or more provisions or funding levels 
        in such offer), the Secretary shall provide--
                    ``(A) 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--
                            ``(i) the amount of funds proposed in the 
                        final offer exceeds the applicable funding 
                        level to which the Indian tribe is entitled 
                        under this title;
                            ``(ii) 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;
                            ``(iii) the Indian tribe cannot carry out 
                        the program, function, service, or activity (or 
                        portion thereof) in a manner that would not 
                        result in significant danger or risk to the 
                        public health; or
                            ``(iv) the Indian tribe is not eligible to 
                        participate in self-governance under section 
                        503;
                    ``(B) technical assistance to overcome the 
                objections stated in the notification required by 
                subparagraph (A);
                    ``(C) the Indian tribe with a hearing on the record 
                with the right to engage in full discovery relevant to 
                any issue raised in the matter and the opportunity for 
                appeal on the objections raised, except that the Indian 
                tribe may, in lieu of filing such appeal, directly 
                proceed to initiate an action in a Federal district 
                court pursuant to section 110(a); and
                    ``(D) the Indian tribe with the option of entering 
                into the severable portions of a final proposed compact 
                or funding agreement, or provision thereof, (including 
                a lesser funding amount, if any), that the Secretary 
                did not reject, subject to any additional alterations 
                necessary to conform the compact or funding agreement 
                to the severed provisions.
            ``(2) Effect of exercising certain option.--If an Indian 
        tribe exercises the option specified in paragraph (1)(D), that 
        Indian tribe shall retain the right to appeal the Secretary's 
        rejection under this section, and subparagraphs (A), (B), and 
        (C) of that paragraph 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, in a manner consistent with the purposes 
specified in section 3 of the Tribal Self-Governance Amendments of 
2000.
    ``(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(c), 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 exists under treaties, Executive orders, other laws, or 
court decisions.
    ``(h) Decisionmaker.--A decision that constitutes final agency 
action and relates to an appeal within the Department 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. 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 (c), 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 semiannual or other 
periodic transfers of funding to be made commencing at the beginning of 
a fiscal year, the first such transfer shall be made not later than 10 
days after the apportionment of such funds by the Office of Management 
and Budget to the Department, unless the funding agreement provides 
otherwise.
    ``(b) Multiyear Funding.--The Secretary may employ, upon tribal 
request, multiyear funding agreements. References in this title to 
funding agreements shall include such multiyear funding agreements.
    ``(c) 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 section 106(a) (2), (3), (5), 
and (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.
    ``(d) Prohibitions.--
            ``(1) In general.--Except as provided in paragraph (2), the 
        Secretary is expressly prohibited from--
                    ``(A) 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 Federal law;
                    ``(B) withholding portions of such funds for 
                transfer over a period of years; and
                    ``(C) reducing the amount of funds required under 
                this Act--
                            ``(i) to make funding available for self-
                        governance monitoring or administration by the 
                        Secretary;
                            ``(ii) 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;
                            ``(iii) 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
                            ``(iv) to pay for costs of Federal 
                        personnel displaced by self-determination 
                        contracts under this Act or self-governance;
            ``(2) Exception.--The funds described in paragraph (1)(C) 
        may be increased by the Secretary if necessary to carry out 
        this Act or as provided in section 105(c)(2).
    ``(e) 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 shall acquire and transfer such personnel, 
supplies, or resources to the Indian tribe.
    ``(f) Reimbursement to Indian Health Service.--With respect to 
functions transferred by the Indian Health Service to an Indian tribe, 
the Indian Health Service shall provide goods and services to the 
Indian tribe, on a reimbursable basis, including payment in advance 
with subsequent adjustment. The reimbursements received from those 
goods and services, 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.
    ``(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.
    ``(h) 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 title shall be managed using the prudent investment 
standard.
    ``(i) Carryover of 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 1 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. 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 
medicare and medicaid receipts. 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 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. 509. CONSTRUCTION PROJECTS.

    ``(a) In General.--Indian tribes participating in tribal self-
governance may carry out construction projects under this title if they 
elect to assume all Federal responsibilities under the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), the National 
Historic Preservation Act (16 U.S.C. 470 et seq.), and related 
provisions of law that would apply if the Secretary were to undertake a 
construction project, by adopting a resolution--
            ``(1) designating a certifying officer to represent the 
        Indian tribe and to assume the status of a responsible Federal 
        official under such laws; and
            ``(2) accepting the jurisdiction of the Federal court for 
        the purpose of enforcement of the responsibilities of the 
        responsible Federal official under such environmental laws.
    ``(b) Negotiations.--Construction project proposals shall be 
negotiated pursuant to the statutory process in section 105(m) and 
resulting construction project agreements shall be incorporated into 
funding agreements as addenda.
    ``(c) Codes and Standards.--The Indian tribe and the Secretary 
shall agree upon and specify appropriate building codes and 
architectural and engineering standards (including health and safety) 
which shall be in conformity with nationally recognized standards for 
comparable projects.
    ``(d) Responsibility for Completion.--The Indian tribe shall assume 
responsibility for the successful completion of the construction 
project in accordance with the negotiated construction project 
agreement.
    ``(e) Funding.--Funding for construction projects carried out under 
this title shall be included in funding agreements as annual advance 
payments, with semiannual payments at the option of the Indian tribe. 
Annual advance and semiannual payment amounts shall be determined based 
on mutually agreeable project schedules reflecting work to be 
accomplished within the advance payment period, work accomplished and 
funds expended in previous payment periods, and the total prior 
payments. The Secretary shall include associated project contingency 
funds with each advance payment installment. The Indian tribe shall be 
responsible for the management of the contingency funds included in 
funding agreements.
    ``(f) Approval.--The Secretary shall have at least 1 opportunity to 
approve project planning and design documents prepared by the Indian 
tribe in advance of construction of the facilities specified in the 
scope of work for each negotiated construction project agreement or 
amendment thereof which results in a significant change in the original 
scope of work. The Indian tribe shall provide the Secretary with 
project progress and financial reports not less than semiannually. The 
Secretary may conduct onsite project oversight visits semiannually or 
on an alternate schedule agreed to by the Secretary and the Indian 
tribe.
    ``(g) Wages.--All laborers and mechanics employed by contractors 
and subcontractors in the construction, alteration, or repair, 
including painting or decorating of a building or other facilities in 
connection with construction projects undertaken by self-governance 
Indian tribes under this Act, shall be paid wages at not less than 
those prevailing wages on similar construction in the locality as 
determined by the Indian tribe.
    ``(h) Application of Other Laws.--Unless otherwise agreed to by the 
Indian tribe, no provision of the Office of Federal Procurement Policy 
Act, the Federal Acquisition Regulations issued pursuant thereto, or 
any other law or regulation pertaining to Federal procurement 
(including Executive orders) shall apply to any construction project 
conducted under this title.

``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 regulations relating to procurement 
issued by the Secretary), except to the extent that such laws expressly 
apply to Indian tribes.

``SEC. 511. 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 (25 U.S.C. 81) and section 16 of the Act of June 18, 1934 (48 
Stat. 987; chapter 576; 25 U.S.C. 476), shall not apply to attorney and 
other professional contracts entered into by Indian tribes 
participating in self-governance under this title.
    ``(c) References.--All references in this Act to section 1 of the 
Act of June 26, 1936 (49 Stat. 1967; chapter 831) are hereby deemed to 
include the first section of the Act of July 3, 1952 (66 Stat. 323, 
chapter 549; 25 U.S.C. 82a).

``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) 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) In general.--An Indian tribe may submit a written 
        request to waive application of a regulation promulgated under 
        section 517 or the authorities specified in section 505(b) 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) Approval.--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 Demonstration Project 
established under title III, as in effect before the enactment of the 
Tribal Self-Governance Amendments of 2000, 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 Indian 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 
        Indian tribe 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. 513. BUDGET REQUEST.

    ``(a) Requirement of Annual Budget Request.--
            ``(1) In general.--The President shall identify in the 
        annual budget request submitted to 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 appropriated shall be apportioned to the 
        Indian Health Service. Such funds shall be provided to the 
        Office of Tribal Self-Governance which shall be responsible for 
        distribution of all funds provided under section 505.
            ``(2) Rule of construction.--Nothing in this subsection 
        shall be construed to authorize the Indian Health Service 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, either directly by the Secretary of 
Health and Human Services, under self-determination contracts, or under 
compacts and funding agreements authorized under this title.

``SEC. 514. REPORTS.

    ``(a) Annual Report.--
            ``(1) In general.--Not later than January 1 of each year 
        after the date of enactment of the Tribal Self-Governance 
        Amendments of 2000, the Secretary shall submit to the Committee 
        on Indian Affairs of the Senate and the Committee on Resources 
        of the House of Representatives a written report regarding the 
        administration of this title.
            ``(2) Analysis.--The report under paragraph (1) shall 
        include a detailed analysis of the level of need being 
        presently funded or unfunded for each Indian tribe, either 
        directly by the Secretary, under self-determination contracts 
        under title I, or under compacts and funding agreements 
        authorized under this Act. In compiling reports pursuant to 
        this section, the Secretary may not impose any reporting 
        requirements on participating Indian tribes or tribal 
        organizations, not otherwise provided in this Act.
    ``(b) Contents.--The report under subsection (a) shall--
            ``(1) be compiled from information contained in funding 
        agreements, annual audit reports, and data of the Secretary 
        regarding the disposition of Federal funds; and
            ``(2) identify--
                    ``(A) the relative costs and benefits of self-
                governance;
                    ``(B) with particularity, all funds that are 
                specifically or functionally related to the provision 
                by the Secretary of services and benefits to self-
                governance Indian tribes and their members;
                    ``(C) the funds transferred to each self-governance 
                Indian tribe and the corresponding reduction in the 
                Federal bureaucracy;
                    ``(D) the funding formula for individual tribal 
                shares of all headquarters funds, together with the 
                comments of affected Indian tribes or tribal 
                organizations, developed under subsection (c); and
                    ``(E) amounts expended in the preceding fiscal year 
                to carry out inherent Federal functions, including an 
                identification of those functions by type and location;
            ``(3) contain a description of the method or methods (or 
        any revisions thereof) 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;
            ``(4) before being submitted to Congress, be distributed to 
        the Indian tribes for comment (with a comment period of no less 
        than 30 days, beginning on the date of distribution); and
            ``(5) include the separate views and comments of the Indian 
        tribes or tribal organizations.
    ``(c) Report on Fund Distribution Method.--Not later than 180 days 
after the date of enactment of the Tribal Self-Governance Amendments of 
2000, the Secretary shall, after consultation with Indian tribes, 
submit a written report to the Committee on Resources of the House of 
Representatives and the Committee on Indian Affairs of the Senate that 
describes the method or methods 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.

``SEC. 515. 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 
exists 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 
under this Act 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. 516. APPLICATION OF OTHER SECTIONS OF THE ACT.

    ``(a) Mandatory Application.--All provisions of sections 5(b), 6, 
7, 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 
chapter 171 of title 28, United States Code, commonly known as 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. 517. REGULATIONS.

    ``(a) In General.--
            ``(1) Promulgation.--Not later than 90 days after the date 
        of enactment of the Tribal Self-Governance Amendments of 2000, 
        the Secretary shall initiate procedures under subchapter III of 
        chapter 5 of title 5, United States Code, to negotiate and 
        promulgate such regulations as are necessary to carry out this 
        title.
            ``(2) Publication of proposed regulations.--Proposed 
        regulations to implement this title shall be published in the 
        Federal Register by the Secretary no later than 1 year after 
        the date of enactment of the Tribal Self-Governance Amendments 
        of 2000.
            ``(3) Expiration of authority.--The authority to promulgate 
        regulations under paragraph (1) shall expire 21 months after 
        the date of enactment of the Tribal Self-Governance Amendments 
        of 2000.
    ``(b) Committee.--
            ``(1) In general.--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 Act.
            ``(2) Requirements.--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 for the eligibility 
provisions of section 105(g) and regulations promulgated under section 
517.

``SEC. 518. 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) that the decision is fully consistent with provisions 
        and policies of this title.

``SEC. 519. AUTHORIZATION OF APPROPRIATIONS.

    ``(a) In General.--There are authorized to be appropriated such 
sums as may be necessary to carry out this title.
    ``(b) Availability of Appropriations.--Notwithstanding any other 
provision of this Act, the provision of funds under this Act shall be 
subject to the availability of appropriations and the Secretary is not 
required to reduce funding for programs, projects, or activities 
serving a tribe in order to make funds available to another tribe or 
tribal organization under this Act.''.

SEC. 5. TRIBAL SELF-GOVERNANCE DEPARTMENT.

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

  ``TITLE VI--TRIBAL SELF-GOVERNANCE--DEPARTMENT OF HEALTH AND HUMAN 
                                SERVICES

``SEC. 601. DEFINITIONS.

    ``(a) In General.--In this title, the Secretary may apply the 
definitions contained in title V.
    ``(b) Other Definitions.--In this title:
            ``(1) Agency.--The term the term `agency' means any agency 
        or other organizational unit of the Department of Health and 
        Human Services, other than the Indian Health Service.
            ``(2) Secretary.--The term `Secretary' means the Secretary 
        of Health and Human Services.

``SEC. 602. DEMONSTRATION PROJECT FEASIBILITY.

    ``(a) Study.--The Secretary shall conduct a study to determine the 
feasibility of a tribal self-governance demonstration project for 
appropriate programs, services, functions, and activities (or portions 
thereof) of the agency.
    ``(b) Considerations.--In conducting the study, the Secretary shall 
consider--
            ``(1) the probable effects on specific programs and program 
        beneficiaries of such a demonstration project;
            ``(2) statutory, regulatory, or other impediments to 
        implementation of such a demonstration project;
            ``(3) strategies for implementing such a demonstration 
        project;
            ``(4) probable costs or savings associated with such a 
        demonstration project;
            ``(5) methods to assure quality and accountability in such 
        a demonstration project; and
            ``(6) such other issues that may be determined by the 
        Secretary or developed through consultation pursuant to section 
        603.
    ``(c) Report.--Not later than 18 months after the date of enactment 
of this title, the Secretary shall submit a report to the Committee on 
Indian Affairs of the Senate and the Committee on Resources of the 
House of Representatives. The report shall contain--
            ``(1) the results of the study under this section;
            ``(2) a list of programs, services, functions, and 
        activities (or portions thereof) within each agency with 
        respect to which it would be feasible to include in a tribal 
        self-governance demonstration project;
            ``(3) a list of programs, services, functions, and 
        activities (or portions thereof) included in the list provided 
        pursuant to paragraph (2) that could be included in a tribal 
        self-governance demonstration project without amending 
        statutes, or waiving regulations that the Secretary may not 
        waive;
            ``(4) a list of legislative actions required in order to 
        include those programs, services, functions, and activities (or 
        portions thereof) included in the list provided pursuant to 
        paragraph (2) but not included in the list provided pursuant to 
        paragraph (3) in a tribal self-governance demonstration 
        project; and
            ``(5) any separate views of tribes and other entities 
        consulted pursuant to section 603 related to the information 
        provided pursuant to paragraphs (1) through (4).

``SEC. 603. CONSULTATION.

    ``(a) Study Protocol.--
            ``(1) Consultation with indian tribes.--The Secretary shall 
        consult with Indian tribes to determine a protocol for 
        consultation under subsection (b) prior to consultation under 
        such subsection with the other entities described in such 
        subsection.
            ``(2) Requirements for protocol.--The protocol shall 
        require, at a minimum, that--
                    ``(A) the government-to-government relationship 
                with Indian tribes forms the basis for the consultation 
                process;
                    ``(B) the Indian tribes and the Secretary jointly 
                conduct the consultations required by this section; and
                    ``(C) the consultation process allows for separate 
                and direct recommendations from the Indian tribes and 
                other entities described in subsection (b).
    ``(b) Conducting Study.--In conducting the study under this title, 
the Secretary shall consult with Indian tribes, States, counties, 
municipalities, program beneficiaries, and interested public interest 
groups, and may consult with other entities as appropriate.

``SEC. 604. AUTHORIZATION OF APPROPRIATIONS.

    ``There are authorized to be appropriated for fiscal years 2000 and 
2001 such sums as may be necessary to carry out this title. Such sums 
shall remain available until expended.''.

SEC. 6. AMENDMENTS CLARIFYING CIVIL PROCEEDINGS.

    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)''.

SEC. 7. SPEEDY ACQUISITION OF GOODS, SERVICES, OR SUPPLIES.

    Section 105(k) of the Indian Self-Determination and Education 
Assistance Act (25 U.S.C. 450j(k)) is amended--
            (1) by striking ``deemed an executive agency'' and 
        inserting ``deemed an executive agency and part of the Indian 
        Health Service''; and
            (2) by adding at the end the following: ``For purposes of 
        carrying out such contract, grant, or agreement, the Secretary 
        shall, at the request of an Indian tribe, enter into an 
        agreement for the acquisition, on behalf of the Indian tribe, 
        of any goods, services, or supplies available to the Secretary 
        from the General Services Administration or other Federal 
        agencies that are not directly available to the Indian tribe 
        under this section or under any other Federal law, including 
        acquisitions from prime vendors. All such acquisitions shall be 
        undertaken through the most efficient and speedy means 
        practicable, including electronic ordering arrangements.''.

SEC. 8. PATIENT RECORDS.

    Section 105 of the Indian Self-Determination and Education 
Assistance Act (25 U.S.C. 450j) is amended by adding at the end the 
following:
    ``(o) Patient Records.--
            ``(1) In general.--At the option of an Indian tribe or 
        tribal organization, patient records may be deemed to be 
        Federal records under those provisions of title 44, United 
        States Code, that are commonly referred to as the `Federal 
        Records Act of 1950' for the limited purposes of making such 
        records eligible for storage by Federal Records Centers to the 
        same extent and in the same manner as other Department of 
        Health and Human Services patient records.
            ``(2) Treatment of records.--Patient records that are 
        deemed to be Federal records under those provisions of title 
        44, United States Code, that are commonly referred to as the 
        `Federal Records Act of 1950' pursuant to this subsection shall 
        not be considered Federal records for the purposes of chapter 5 
        of title 5, United States Code.''.

SEC. 9. ANNUAL REPORTS.

    Section 106 of the Indian Self-Determination and Education 
Assistance Act (25 U.S.C. 450j-1) is amended--
            (1) by redesignating subsections (c) through (n) as 
        subsections (d) through (o), respectively; and
            (2) by inserting after subsection (b), the following:
    ``(c) Annual Reports.--Not later than May 15 of each year, the 
Secretary shall prepare and submit to Congress an annual report on the 
implementation of this Act. Such report shall include--
            ``(1) an accounting of the total amounts of funds provided 
        for each program and the budget activity for direct program 
        costs and contract support costs of tribal organizations under 
        self-determination;
            ``(2) an accounting of any deficiency in funds needed to 
        provide required contract support costs to all contractors for 
        the fiscal year for which the report is being submitted;
            ``(3) the indirect cost rate and type of rate for each 
        tribal organization that has been negotiated with the 
        appropriate Secretary;
            ``(4) the direct cost base and type of base from which the 
        indirect cost rate is determined for each tribal organization;
            ``(5) the indirect cost pool amounts and the types of costs 
        included in the indirect cost pool; and
            ``(6) an accounting of any deficiency in funds needed to 
        maintain the preexisting level of services to any Indian tribes 
        affected by contracting activities under this Act, and a 
        statement of the amount of funds needed for transitional 
        purposes to enable contractors to convert from a Federal fiscal 
        year accounting cycle, as authorized by section 105(d).''.

SEC. 10. REPEAL.

    (a) In General.--Title III of the Indian Self-Determination and 
Education Assistance Act (25 U.S.C. 450f note) is repealed.
    (b) Effective Date.--This section shall take effect on October 1, 
1999.

SEC. 11. SAVINGS PROVISION.

    Funds appropriated for title III of the Indian Self-Determination 
and Education Assistance Act (25 U.S.C. 450f note) shall be available 
for use under title V of such Act.

SEC. 12. OFFICE OF ASSISTANT SECRETARY FOR INDIAN HEALTH.

    (a) Establishment.--There is established within the Department of 
Health and Human Services the Office of the Assistant Secretary for 
Indian Health in order to, in a manner consistent with the government-
to-government relationship between the United States and Indian 
tribes--
            (1) facilitate advocacy for the development of appropriate 
        Indian health policy; and
            (2) promote consultation on matters related to Indian 
        health.
    (b) Assistant Secretary for Indian Health.--In addition to the 
functions performed on the date of enactment of this Act by the 
Director of the Indian Health Service, the Assistant Secretary for 
Indian Health shall perform such functions as the Secretary of Health 
and Human Services (referred to in this section as the ``Secretary'') 
may designate. The Assistant Secretary for Indian Health shall--
            (1) report directly to the Secretary concerning all policy- 
        and budget-related matters affecting Indian health;
            (2) collaborate with the Assistant Secretary for Health 
        concerning appropriate matters of Indian health that affect the 
        agencies of the Public Health Service;
            (3) advise each Assistant Secretary of the Department of 
        Health and Human Services concerning matters of Indian health 
        with respect to which that Assistant Secretary has authority 
        and responsibility;
            (4) advise the heads of other agencies and programs of the 
        Department of Health and Human Services concerning matters of 
        Indian health with respect to which those heads have authority 
        and responsibility; and
            (5) coordinate the activities of the Department of Health 
        and Human Services concerning matters of Indian health.
    (c) References.--Reference in any other Federal law, Executive 
order, rule, regulation, or delegation of authority, or any document of 
or relating to the Director of the Indian Health Service shall be 
deemed to refer to the Assistant Secretary for Indian Health.
    (d) Rate of Pay.--
            (1) Positions at level iv.--Section 5315 of title 5, United 
        States Code, is amended--
                    (A) by striking the following:
            ``Assistant Secretaries of Health and Human Services 
        (6).''; and
                    (B) by inserting the following:
            ``Assistant Secretaries of Health and Human Services 
        (7).''.
            (2) Positions at level v.--Section 5316 of title 5, United 
        States Code, is amended by striking the following:
            ``Director, Indian Health Service, Department of Health and 
        Human Services.''.
    (e) Duties of Assistant Secretary for Indian Health.--Section 
601(a) of the Indian Health Care Improvement Act (25 U.S.C. 1661(a)) is 
amended--
            (1) by inserting ``(1)'' after ``(a)'';
            (2) in the second sentence of paragraph (1), as so 
        designated, by striking ``a Director,'' and inserting ``the 
        Assistant Secretary for Indian Health,''; and
            (3) by striking the third sentence of paragraph (1) and all 
        that follows through the end of the subsection and inserting 
        the following: ``The Assistant Secretary for Indian Health 
        shall carry out the duties specified in paragraph (2).
    ``(2) The Assistant Secretary for Indian Health shall--
            ``(A) report directly to the Secretary concerning all 
        policy- and budget-related matters affecting Indian health;
            ``(B) collaborate with the Assistant Secretary for Health 
        concerning appropriate matters of Indian health that affect the 
        agencies of the Public Health Service;
            ``(C) advise each Assistant Secretary of the Department of 
        Health and Human Services concerning matters of Indian health 
        with respect to which that Assistant Secretary has authority 
        and responsibility;
            ``(D) advise the heads of other agencies and programs of 
        the Department of Health and Human Services concerning matters 
        of Indian health with respect to which those heads have 
        authority and responsibility; and
            ``(E) coordinate the activities of the Department of Health 
        and Human Services concerning matters of Indian health.''.
    (f) Continued Service by Incumbent.--The individual serving in the 
position of Director of the Indian Health Service on the date preceding 
the date of enactment of this Act may serve as Assistant Secretary for 
Indian Health, at the pleasure of the President after the date of 
enactment of this Act.
    (g) Conforming Amendments.--
            (1) Amendments to indian health care improvement act.--The 
        Indian Health Care Improvement Act (25 U.S.C. 1601 et seq.) is 
        amended--
                    (A) in section 601--
                            (i) in subsection (c), by striking 
                        ``Director of the Indian Health Service'' both 
                        places it appears and inserting ``Assistant 
                        Secretary for Indian Health''; and
                            (ii) in subsection (d), by striking 
                        ``Director of the Indian Health Service'' and 
                        inserting ``Assistant Secretary for Indian 
                        Health''; and
                    (B) in section 816(c)(1), by striking ``Director of 
                the Indian Health Service'' and inserting ``Assistant 
                Secretary for Indian Health''.
            (2) Amendments to other provisions of law.--The following 
        provisions are each amended by striking ``Director of the 
        Indian Health Service'' each place it appears and inserting 
        ``Assistant Secretary for Indian Health'':
                    (A) Section 203(a)(1) of the Rehabilitation Act of 
                1973 (29 U.S.C. 761b(a)(1)).
                    (B) Subsections (b) and (e) of section 518 of the 
                Federal Water Pollution Control Act (33 U.S.C. 1377 (b) 
                and (e)).
                    (C) Section 803B(d)(1) of the Native American 
                Programs Act of 1974 (42 U.S.C. 2991b-2(d)(1)).

SEC. 13. APPLICATION TO ALASKA.

    (a) Notwithstanding any other provision of law, nothing in this 
Act, the amendments made thereby, nor its implementation, shall 
affect--
            (1) the right of the Consortium of Southcentral Foundation 
        to carry out the programs, functions, services and activities 
        as specified in section 325 of Public Law 105-83 (111 Stat. 55-
        56), or
            (2) the prohibitions in section 351 of section 101(e) of 
        Division A, Public Law 105-277.
    (b) Section 351 of section 101(e) of Division A, Public Law 105-277 
and section 326 of Public Law 105-83 (111 Stat. 57) are amended by 
inserting ``as amended'' after the phrase ``Public Law 93-638 (25 
U.S.C. 450 et seq.)'' where such phrase appears in each section.

            Attest:

                                                             Secretary.
106th CONGRESS

  2d Session

                               H. R. 1167

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                               AMENDMENT

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