[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4347 Reported in House (RH)]

                                                 Union Calendar No. 348
111th CONGRESS
  2d Session
                                H. R. 4347

                          [Report No. 111-603]

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


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           December 16, 2009

  Mr. Boren (for himself and Mr. Walz) introduced the following bill; 
        which was referred to the Committee on Natural Resources

                           September 16, 2010

  Additional sponsors: Mr. Heinrich, Mr. Kildee, Mr. Young of Alaska, 
     Mrs. Napolitano, Mr. Faleomavaega, Mr. Sablan, Mr. Cole, Ms. 
Richardson, Mr. Clay, Mr. Honda, Mr. Larsen of Washington, Mr. Inslee, 
                     Mr. Rehberg, and Mr. Peterson

                           September 16, 2010

  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 
                           December 16, 2009]


_______________________________________________________________________

                                 A BILL


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


 


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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Department of the 
Interior Tribal Self-Governance Act of 2010''.
    (b) Table of Contents.--The table of contents of this Act is as 
follows:

Sec. 1. Short title; table of contents.

                   TITLE I--INDIAN SELF-DETERMINATION

Sec. 101. Definitions; reporting and audit requirements; application of 
                            provisions.
Sec. 102. Contracts by Secretary of Interior.
Sec. 103. Administrative provisions.
Sec. 104. Contract funding and indirect costs.
Sec. 105. Contract or grant specifications.

                    TITLE II--TRIBAL SELF-GOVERNANCE

Sec. 201. Tribal self-governance.

                   TITLE I--INDIAN SELF-DETERMINATION

SEC. 101. DEFINITIONS; REPORTING AND AUDIT REQUIREMENTS; APPLICATION OF 
              PROVISIONS.

    (a) Definitions.--Section 4 of the Indian Self-Determination and 
Education Assistance Act (25 U.S.C. 450b) is amended by striking 
subsection (j) and inserting the following:
            ``(j) `self-determination contract' means a contract 
        entered into (or a grant or cooperative agreement used under 
        section 9) under title I between a tribal organization and the 
        appropriate Secretary for the planning, conduct, and 
        administration of programs or services that are otherwise 
        provided to Indian tribes and members of Indian tribes pursuant 
        to Federal law, subject to the condition that, except as 
        provided in section 105(a)(3), no contract entered into (or 
        grant or cooperative agreement used under section 9) under 
        title I shall be--
                    ``(1) considered to be a procurement contract; or
                    ``(2) subject to any Federal procurement law 
                (including regulations);''.
    (b) Reporting and Audit Requirements.--Section 5(b) of the Indian 
Self-Determination and Education Assistance Act (25 U.S.C. 450c(b)) is 
amended by striking ``after completion of the project or undertaking 
referred to in the preceding subsection of this section'' and inserting 
``after the date on which a report is submitted to the Secretary under 
subsection (a)''.
    (c) Application of Other Provisions.--Sections 4, 5, 6, 7, 102(c), 
104, 105(a)(1), 105(f), 110 and 111 of the Indian Self-Determination 
and Education Assistance Act, as amended (25 U.S.C. 450 et seq.) 
(Public Law 93-638, as amended, 88 Stat. 2203) and section 314 of the 
Department of the Interior and Related Agencies Appropriations Act, 
1991 (Public Law 101-512; 104 Stat. 1959), apply to compacts and 
funding agreements entered into under title IV.

SEC. 102. CONTRACTS BY SECRETARY OF INTERIOR.

    Section 102 of the Indian Self-Determination and Education 
Assistance Act (25 U.S.C. 450f) is amended--
            (1) in subsection (c)(2), by striking ``economic 
        enterprises'' and all that follows through ``except that'' and 
        inserting ``economic enterprises (as defined in section 3 of 
        the Indian Financing Act of 1974 (25 U.S.C. 1452)), except 
        that'';
            (2) by striking subsection (e) and inserting the following:
    ``(e) 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 a preponderance of the 
evidence--
            ``(1) the validity of the grounds for the decision made; 
        and
            ``(2) that the decision is fully consistent with the 
        provisions and policies of this title.''; and
            (3) by adding at the end the following:
    ``(f) Good Faith Requirement.--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 (Public Law 106-260; 25 U.S.C. 458aaa note).''.

SEC. 103. ADMINISTRATIVE PROVISIONS.

    Section 105 of the Indian Self-Determination and Education 
Assistance Act (25 U.S.C. 450j) is amended--
            (1) in subsection (b) in the first sentence, by striking 
        ``pursuant to'' and all that follows through ``of this Act'' 
        and inserting ``pursuant to sections 102 and 103'';
            (2) by striking subsection (j) and inserting the following:
    ``(j) Redesign and Consolidation.--If an Indian tribe can 
demonstrate, for the previous three fiscal years, the financial 
stability and financial management capability as evidenced by the 
Indian tribe having no material audit exceptions in the required annual 
audit of the self-determination contracts of the Indian tribe, then the 
Indian tribe may redesign or consolidate programs, services, functions, 
and activities (or portions thereof) included in a funding agreement 
under this title and reallocate or redirect funds for such programs, 
services, functions, and activities (or portions thereof) that are 
eligible to be included in Consolidated Tribal Government Programs in 
any manner that the Indian tribe determines 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.''; and
            (3) by adding at the end the following:
    ``(p) Interpretation by Secretary.--Except as otherwise provided by 
law, the Secretary shall interpret all Federal laws (including 
regulations) and Executive orders in a manner that facilitates, to the 
maximum extent practicable--
            ``(1) the inclusion in self-determination contracts and 
        funding agreements of--
                    ``(A) applicable programs, services, functions, and 
                activities (or portions thereof); and
                    ``(B) funds associated with those programs, 
                services, functions, and activities;
            ``(2) the implementation of self-determination contracts 
        and funding agreements; and
            ``(3) the achievement of tribal health objectives.''.

SEC. 104. CONTRACT FUNDING AND INDIRECT COSTS.

    Section 106(a)(3)(A) of the Indian Self-Determination and Education 
Assistance Act (25 U.S.C. 450j-1(a)(3)(A)) is amended--
            (1) in clause (i), by striking ``, and'' at the end and 
        inserting a semicolon;
            (2) in clause (ii), by striking ``expense related to the 
        overhead incurred'' and inserting in lieu thereof ``expenses 
        incurred by the governing body of the Indian tribe or tribal 
        organization and overhead incurred'';
            (3) in clause (ii), by striking the comma at the end and 
        inserting ``; and''; and
            (4) by inserting after clause (ii) the following:
            ``(iii) not less than 50 percent of the expenses incurred 
        by the governing body of a Indian tribe or tribal organization 
        relating to a Federal program, function, service, or activity 
        pursuant to the contract (which expenses shall be considered to 
        be reasonable and allowable without documentation for the 
        purpose of this paragraph), except that in the case of a Indian 
        tribe or tribal organization which derives all or substantially 
        all of its program revenue from other governments or 
        organizations, not less than 100 percent of such expenses shall 
        be considered to be reasonable and allowable without 
        documentation.''.

SEC. 105. CONTRACT OR GRANT SPECIFICATIONS.

    Section 108 of the Indian Self-Determination and Education 
Assistance Act (25 U.S.C. 450l) is amended--
            (1) in subsection (a)(2), by inserting ``subject to 
        subsections (a) and (b) of section 102,'' before ``contain''; 
        and
            (2) in subsection (f)(2)(A)(ii) of the model agreement 
        contained in subsection (c), by inserting ``subject to 
        subsections (a) and (b) of section 102 of the Indian Self-
        Determination and Education Assistance Act (25 U.S.C. 450f),'' 
        before ``such other provisions''.

                    TITLE II--TRIBAL SELF-GOVERNANCE

SEC. 201. TRIBAL SELF-GOVERNANCE.

    Title IV of the Indian Self-Determination and Education Assistance 
Act (25 U.S.C. 450 et seq.) is amended to read as follows:

                   ``TITLE IV--TRIBAL SELF-GOVERNANCE

``SEC. 401. DEFINITIONS.

    ``In this title:
            ``(1) Compact.--The term `compact' means a self-governance 
        compact entered into under section 404.
            ``(2) Construction program.--The term `construction 
        program' or `construction project' means a tribal undertaking 
        relating to the administration, planning, environmental 
        determination, design, construction, repair, improvement, or 
        expansion of roads, bridges, buildings, structures, systems, or 
        other facilities for purposes of housing, law enforcement, 
        detention, sanitation, water supply, education, administration, 
        community, health, irrigation, agriculture, conservation, flood 
        control, transportation, or port facilities, or for other 
        tribal purposes.
            ``(3) Department.--The term `Department' means the 
        Department of the Interior.
            ``(4) Funding agreement.--The term `funding agreement' 
        means a funding agreement entered into under section 405.
            ``(5) Gross mismanagement.--The term `gross mismanagement' 
        means a significant violation, shown by a preponderance of the 
        evidence, of a compact, funding agreement, or statutory or 
        regulatory requirement applicable to Federal funds--
                    ``(A) for a program administered by an Indian 
                tribe; or
                    ``(B) under a compact or funding agreement that 
                results in a significant reduction of funds available 
                for the programs assumed by an Indian tribe.
            ``(6) Program.--The term `program' means any program, 
        function, service, or activity (or portion thereof) within the 
        Department of the Interior that is included in a funding 
        agreement.
            ``(7) Inherent federal function.--The term `inherent 
        Federal function' means a Federal function that may not legally 
        be delegated to an Indian tribe.
            ``(8) Secretary.--The term `Secretary' means the Secretary 
        of the Interior.
            ``(9) Self-governance.--The term `self-governance' means 
        the program of self-governance established under section 402.
            ``(10) Tribal share.--The term `tribal share' means an 
        Indian tribe's portion of all funds and resources that support 
        any program within the Bureau of Indian Affairs, the Office of 
        Special Trustee, and the Office of the Assistant Secretary for 
        Indian Affairs and that are not required by the Secretary for 
        the performance of an inherent Federal function.

``SEC. 402. ESTABLISHMENT.

    ``The Secretary shall carry out a program within the Department to 
be known as the `Tribal Self-Governance Program'.

``SEC. 403. SELECTION OF PARTICIPATING INDIAN TRIBES.

    ``(a) In General.--
            ``(1) Participants.--
                    ``(A) The Secretary, acting through the Director of 
                the Office of Self-Governance, may select up to 50 new 
                Indian tribes per year from those eligible under 
                subsection (b) to participate in self-governance.
                    ``(B) If each Indian tribe requests, two or more 
                otherwise eligible Indian tribes may be treated as a 
                single Indian tribe for the purpose of participating in 
                self-governance.
            ``(2) Other authorized indian tribe or tribal 
        organization.--If an Indian tribe authorizes another Indian 
        tribe or a tribal organization to plan for or carry out a 
        program on its behalf under this title, the authorized Indian 
        tribe or tribal organization shall have the rights and 
        responsibilities of the authorizing Indian tribe (except as 
        otherwise provided in the authorizing resolution).
            ``(3) Joint participation.--Two or more Indian tribes that 
        are not otherwise eligible under subsection (b) may be treated 
        as a single Indian tribe for the purpose of participating in 
        self-governance as a tribal organization if--
                    ``(A) each Indian tribe so requests; and
                    ``(B) the tribal organization itself or at least 
                one of the Indian tribes participating in the tribal 
                organization is eligible under subsection (b).
            ``(4) Tribal withdrawal from a tribal organization.--
                    ``(A) In general.--An Indian tribe that withdraws 
                from participation in a tribal organization, in whole 
                or in part, shall be entitled to participate in self-
                governance if the Indian tribe is eligible under 
                subsection (b).
                    ``(B) Effect of withdrawal.--If an Indian tribe 
                withdraws from participation in a tribal organization, 
                the Indian tribe shall be entitled to its tribal share 
                of funds and resources supporting the programs that the 
                Indian tribe is entitled to carry out under the compact 
                and funding agreement of the Indian tribe.
                    ``(C) Participation in self-governance.--The 
                withdrawal of an Indian tribe from a tribal 
                organization shall not affect the eligibility of the 
                tribal organization to participate in self-governance 
                on behalf of one or more other Indian tribes provided 
                that the tribal organization still qualifies under 
                subsection (b).
                    ``(D) Withdrawal process.--
                            ``(i) In general.--An Indian tribe may, by 
                        tribal resolution, fully or partially withdraw 
                        its tribal share of any program in a funding 
                        agreement from a participating tribal 
                        organization. The Indian tribe shall provide a 
                        copy of the tribal resolution to the Secretary.
                            ``(ii) Effective date.--
                                    ``(I) In general.--A withdrawal 
                                under clause (i) shall become effective 
                                on the date specified in the tribal 
                                resolution and that is mutually agreed 
                                upon by the Secretary, the withdrawing 
                                Indian tribe, and the tribal 
                                organization that signed the compact 
                                and funding agreement on behalf of the 
                                withdrawing Indian tribe or tribal 
                                organization.
                                    ``(II) No specified date.--In the 
                                absence of a date specified in the 
                                resolution, the withdrawal shall become 
                                effective on--
                                            ``(aa) the earlier of--

                                                    ``(AA) 1 year after 
                                                the date of submission 
                                                of the request; or

                                                    ``(BB) the date on 
                                                which the funding 
                                                agreement expires; or

                                            ``(bb) such date as may be 
                                        mutually agreed upon by the 
                                        Secretary, the withdrawing 
                                        Indian tribe, and the tribal 
                                        organization that signed the 
                                        compact and funding agreement 
                                        on behalf of the withdrawing 
                                        Indian tribe or tribal 
                                        organization.
                    ``(E) Distribution of funds.--If an Indian tribe or 
                tribal organization eligible to enter into a self-
                determination contract under title I or a compact or 
                funding agreement under this title fully or partially 
                withdraws from a participating tribal organization, the 
                withdrawing Indian tribe--
                            ``(i) may elect to enter a self-
                        determination contract or compact, in which 
                        case--
                                    ``(I) the withdrawing Indian tribe 
                                or tribal organization shall be 
                                entitled to its tribal share of 
                                unexpended funds and resources 
                                supporting the programs that the Indian 
                                tribe will be carrying out under its 
                                own self-determination contract or 
                                compact and funding agreement 
                                (calculated on the same basis as the 
                                funds were initially allocated to the 
                                funding agreement of the tribal 
                                organization); and
                                    ``(II) the funds referred to in 
                                subclause (I) shall be withdrawn by the 
                                Secretary from the funding agreement of 
                                the tribal organization and transferred 
                                to the withdrawing Indian tribe, on the 
                                condition that the provisions of 
                                sections 102 and 105(i), as 
                                appropriate, shall apply to the 
                                withdrawing Indian tribe; or
                            ``(ii) may elect not to enter a self-
                        determination contract or compact, in which 
                        case all funds not obligated by the tribal 
                        organization associated with the withdrawing 
                        Indian tribe's returned programs, less close-
                        out costs, shall be returned by the tribal 
                        organization to the Secretary for operation of 
                        the programs included in the withdrawal.
                    ``(F) Return to mature contract status.--If an 
                Indian tribe elects to operate all or some programs 
                carried out under a compact or funding agreement under 
                this title through a self-determination contract under 
                title I, at the option of the Indian tribe, the 
                resulting self-determination contract shall be a mature 
                self-determination contract as long as the Indian tribe 
                meets the requirements set forth in section 4(h) of 
                this Act.
    ``(b) Eligibility.--To be eligible to participate in self-
governance, an Indian tribe shall--
            ``(1) successfully complete the planning phase described in 
        subsection (c);
            ``(2) request participation in self-governance by 
        resolution or other official action by the tribal governing 
        body; and
            ``(3) demonstrate, for the 3 fiscal years preceding the 
        date on which the Indian tribe requests participation, 
        financial stability and financial management capability as 
        evidenced by the Indian tribe having no uncorrected significant 
        and material audit exceptions in the required annual audit of 
        its self-determination or self-governance agreements with any 
        Federal agency.
    ``(c) Planning Phase.--
            ``(1) In general.--An Indian tribe seeking to begin 
        participation in self-governance shall complete a planning 
        phase in accordance with this subsection.
            ``(2) Activities.--The planning phase--
                    ``(A) shall be conducted to the satisfaction of the 
                Indian tribe; and
                    ``(B) shall include--
                            ``(i) legal and budgetary research; and
                            ``(ii) internal tribal government planning 
                        and organizational preparation.
    ``(d) Grants.--
            ``(1) In general.--Subject to the availability of 
        appropriations, an Indian tribe or tribal organization that 
        meets the requirements of paragraphs (2) and (3) of subsection 
        (b) shall be eligible for grants--
                    ``(A) to plan for participation in self-governance; 
                and
                    ``(B) to negotiate the terms of participation by 
                the Indian tribe or tribal organization in self-
                governance, as set forth in a compact and a funding 
                agreement.
            ``(2) Receipt of grant not required.--Receipt of a grant 
        under paragraph (1) shall not be a requirement of participation 
        in self-governance.

``SEC. 404. COMPACTS.

    ``(a) In General.--The Secretary shall negotiate and enter into a 
written compact with each Indian tribe participating in self-governance 
in a manner consistent with the trust responsibility of the Federal 
Government, treaty obligations, and the government-to-government 
relationship between Indian tribes and the United States.
    ``(b) Contents.--A compact under subsection (a) shall--
            ``(1) specify and affirm the general terms of the 
        government-to-government relationship between the Indian tribe 
        and the Secretary; and
            ``(2) include such terms as the parties intend shall 
        control during the term of the compact.
    ``(c) Amendment.--A compact under subsection (a) may be amended 
only by agreement of the parties.
    ``(d) Effective Date.--The effective date of a compact under 
subsection (a) shall be--
            ``(1) the date of the execution of the compact by the 
        parties; or
            ``(2) another date agreed upon by the parties.
    ``(e) Duration.--A compact under subsection (a) shall remain in 
effect for so long as permitted by Federal law or until termination by 
written agreement, retrocession, or reassumption.
    ``(f) Existing Compacts.--An Indian tribe participating in self-
governance under this title, as in effect on the date of the enactment 
of the Department of the Interior Tribal Self-Governance Act of 2010, 
shall have the option at any time after that date--
            ``(1) to retain its negotiated compact (in whole or in 
        part) to the extent that the provisions of the compact are not 
        directly contrary to any express provision of this title; or
            ``(2) to negotiate a new compact in a manner consistent 
        with this title.

``SEC. 405. FUNDING AGREEMENTS.

    ``(a) In General.--The Secretary shall negotiate and enter into a 
written funding agreement with the governing body of an Indian tribe or 
tribal organization in a manner consistent with the trust 
responsibility of the Federal Government, treaty obligations, and the 
government-to-government relationship between Indian tribes and the 
United States.
    ``(b) Included Programs.--
            ``(1) Bureau of indian affairs and office of special 
        trustee.--
                    ``(A) In general.--A funding agreement 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 
                carried out by the Bureau of Indian Affairs, the Office 
                of the Assistant Secretary for Indian Affairs, and the 
                Office of Special Trustee, without regard to the agency 
                or office within which the program is performed 
                (including funding for agency, area, and central office 
                functions in accordance with subsection 409(c)), that--
                            ``(i) are provided for in the Act of April 
                        16, 1934 (25 U.S.C. 452 et seq.);
                            ``(ii) the Secretary administers for the 
                        benefit of Indians under the Act of November 2, 
                        1921 (25 U.S.C. 13), or any subsequent Act;
                            ``(iii) the Secretary administers for the 
                        benefit of Indians with appropriations made to 
                        agencies other than the Department of the 
                        Interior; or
                            ``(iv) are provided for the benefit of 
                        Indians because of their status as Indians.
                    ``(B) Inclusions.--Programs described in 
                subparagraph (A) shall include all programs with 
                respect to which Indian tribes or Indians are primary 
                or significant beneficiaries.
            ``(2) Discretionary programs of special significance.--A 
        funding agreement under subsection (a) may, in accordance with 
        such additional terms as the parties consider to be 
        appropriate, include programs, services, functions, and 
        activities (or portions thereof), administered by the 
        Secretary, in addition to programs described in paragraphs (1) 
        and (3), that are of special geographic, historical, or 
        cultural significance to the Indian tribe. Such agreements, 
        including the additional terms, shall be governed by the 
        provisions of this title, except that, subject to the 
        discretion of the Secretary--
                    ``(A) the Indian tribe may have reallocation, 
                consolidation, and redesign authority over any program 
                assumed under this paragraph (2);
                    ``(B) the Secretary may reassume any program and 
                associated funding assumed under this paragraph (2) 
                upon a specific finding by the Secretary of a gross 
                violation by the Indian tribe of the terms of the 
                funding agreement;
                    ``(C) the Secretary may require special terms and 
                conditions regarding a construction program or project 
                assumed under this paragraph (2) notwithstanding the 
                provisions of section 408;
                    ``(D) all Federal regulations that otherwise govern 
                the operation of any program assumed under this 
                paragraph (2) apply to the Indian tribe unless a 
                specific regulation is waived by the Secretary under 
                the procedures set forth in section 410(b)(2), which 
                waiver request may be denied upon a specific finding by 
                the Secretary that the waiver is prohibited by Federal 
                law or is inconsistent with the express provisions of 
                the funding agreement; and
                    ``(E) a stable base budget, as described in 
                paragraph (7), may be provided for any program assumed 
                under this paragraph (2).
            ``(3) Programs otherwise available.--A funding agreement 
        shall, as determined by the Indian tribe, authorize the Indian 
        tribe to plan, conduct, consolidate, administer, and receive 
        full tribal share funding for any program administered by the 
        Department of the Interior other than through the Bureau of 
        Indian Affairs, the Office of the Assistant Secretary for 
        Indian Affairs, or the Office of the Special Trustee, that is 
        otherwise available to Indian tribes or Indians under section 
        102 of this Act.
            ``(4) Competitive bidding.--Nothing in this section--
                    ``(A) supersedes any express statutory requirement 
                for competitive bidding; or
                    ``(B) prohibits the inclusion in a funding 
                agreement of a program in which non-Indians have an 
                incidental or legally identifiable interest.
            ``(5) Excluded funding.--A funding agreement shall not 
        authorize an Indian tribe to plan, conduct, administer, or 
        receive tribal share funding under any program that--
                    ``(A) is provided under the Tribally Controlled 
                College or University Assistance Act of 1978 (25 U.S.C. 
                1801 et seq.); and
                    ``(B) is provided for elementary and secondary 
                schools under the formula developed under section 1127 
                of the Education Amendments of 1978 (25 U.S.C. 2007).
            ``(6) Services, functions, and responsibilities.--A funding 
        agreement shall specify--
                    ``(A) the services to be provided under the funding 
                agreement;
                    ``(B) the functions to be performed under the 
                funding agreement; and
                    ``(C) the responsibilities of the Indian tribe and 
                the Secretary under the funding agreement.
            ``(7) Base budget.--A funding agreement pursuant to 
        subsections (b)(1) and (b)(3) shall, at the option of the 
        Indian tribe, provide for a stable base budget specifying the 
        recurring funds (including funds available under section 
        106(a)) to be transferred to the Indian tribe, for such period 
        as the Indian tribe specifies in the funding agreement, subject 
        to annual adjustment only to reflect changes in congressional 
        appropriations. Upon agreement by the Secretary, a funding 
        agreement under subsection (b)(2) may also provide for a stable 
        base budget subject to the terms of this provision.
            ``(8) No waiver of trust responsibility.--A funding 
        agreement shall prohibit the Secretary from waiving, modifying, 
        or diminishing in any way the trust responsibility of the 
        United States with respect to Indian tribes and individual 
        Indians that exists under treaties, Executive orders, court 
        decisions, and other laws.
    ``(c) Amendment.--The Secretary shall not revise, amend, or require 
additional terms in a new or subsequent funding agreement without the 
consent of the Indian tribe, unless such terms are required by Federal 
law.
    ``(d) Effective Date.--A funding agreement shall become effective 
on the date specified in the funding agreement.
    ``(e) Existing and Subsequent Funding Agreements.--
            ``(1) Subsequent funding agreements.--Absent notification 
        from an Indian tribe that it is withdrawing or retroceding the 
        operation of one or more programs identified in a funding 
        agreement under subsections (b)(1) or (b)(3), or unless 
        otherwise agreed to by the parties to the funding agreement--
                    ``(A) a funding agreement shall remain in full 
                force and effect until a subsequent funding agreement 
                is executed, with funding paid annually for each fiscal 
                year the agreement is in effect or by the nature of any 
                noncontinuing program, services, functions, or 
                activities contained in a funding agreement; and
                    ``(B) the term of the subsequent funding agreement 
                shall be retroactive to the end of the term of the 
                preceding funding agreement for the purposes of 
                calculating the amount of funding to which the Indian 
                tribe is entitled.
            ``(2) Disputes.--Disputes over the implementation of 
        paragraph (1)(A) shall be subject to section 407(c).
            ``(3) Existing funding agreements.--An Indian tribe that 
        was participating in self-governance under this title on the 
        date of enactment of the Department of the Interior Tribal 
        Self-Governance Act of 2010 shall have the option at any time 
        after that date--
                    ``(A) to retain its existing funding agreement (in 
                whole or in part) to the extent that the provisions of 
                that funding agreement are not directly contrary to any 
                express provision of this title; or
                    ``(B) to negotiate a new funding agreement in a 
                manner consistent with this title.
            ``(4) Multiyear funding agreements.--An Indian tribe may, 
        at the discretion of the Indian tribe, negotiate with the 
        Secretary for a funding agreement with a term that exceeds one 
        year.

``SEC. 406. GENERAL PROVISIONS.

    ``(a) Applicability.--An Indian tribe and the Secretary shall 
include in any compact or funding agreement provisions that reflect the 
requirements of this title.
    ``(b) Conflicts of Interest.--An Indian tribe participating in 
self-governance shall ensure that internal measures are in place to 
address, pursuant to tribal law and procedures, conflicts of interest 
in the administration of programs.
    ``(c) Audits.--
            ``(1) Single agency audit act.--Chapter 75 of title 31, 
        United States Code, shall apply to a funding agreement under 
        this title.
            ``(2) Cost principles.--An Indian tribe shall apply cost 
        principles under the applicable Office of Management and Budget 
        circular, except as modified by--
                    ``(A) any provision of law, including section 106 
                of this Act; or
                    ``(B) any exemptions to applicable Office of 
                Management and Budget circulars subsequently granted by 
                the Office of Management and Budget.
            ``(3) Federal claims.--Any claim by the Federal Government 
        against 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) Redesign and Consolidation.--An Indian tribe may redesign or 
consolidate programs or reallocate funds for programs in any manner 
that the Indian tribe deems to be in the best interest of the Indian 
community being served, so long as the redesign or consolidation does 
not have the effect of denying eligibility for services to population 
groups otherwise eligible to be served under applicable Federal law, 
except that, with respect to the reallocation, consolidation, and 
redesign of programs described in section 405(b)(2), a joint agreement 
between the Secretary and the Indian tribe shall be required.
    ``(e) Retrocession.--
            ``(1) In general.--An Indian tribe may fully or partially 
        retrocede to the Secretary any program under a compact or 
        funding agreement.
            ``(2) Effective date.--
                    ``(A) Agreement.--Unless the Indian tribe rescinds 
                the request for retrocession, such retrocession shall 
                become effective on the date specified by the parties 
                in the compact or funding agreement.
                    ``(B) No agreement.--In the absence of a 
                specification of an effective date in the compact or 
                funding agreement, the retrocession shall become 
                effective on--
                            ``(i) the earlier of--
                                    ``(I) one 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 and the Indian tribe.
    ``(f) Nonduplication.--A funding agreement shall provide that, for 
the period for which, and to the extent to which, funding is provided 
to an Indian tribe under this title, the Indian tribe--
            ``(1) shall not be entitled to contract with the Secretary 
        for funds under section 102, except that such Indian tribe 
        shall be eligible for new programs on the same basis as other 
        Indian tribes; and
            ``(2) shall be responsible for the administration of 
        programs in accordance with the compact or funding agreement.
    ``(g) Records.--
            ``(1) In general.--Unless an Indian tribe specifies 
        otherwise in the compact or funding agreement, records of an 
        Indian tribe shall not be considered Federal records for 
        purposes of chapter 5 of title 5, United States Code.
            ``(2) Recordkeeping system.--An Indian tribe shall--
                    ``(A) maintain a recordkeeping system; and
                    ``(B) on 30 days' notice, provide the Secretary 
                with reasonable access to the records to enable the 
                Department to meet the requirements of sections 3101 
                through 3106 of title 44, United States Code.

``SEC. 407. PROVISIONS RELATED TO THE SECRETARY.

    ``(a) Trust Evaluations.--A funding agreement shall include a 
provision to monitor the performance of trust functions by the Indian 
tribe through the annual trust evaluation.
    ``(b) Reassumption.--
            ``(1) In general.--A compact or funding agreement shall 
        include provisions for the Secretary to reassume a program and 
        associated funding if there is a specific finding relating to 
        that program of--
                    ``(A) imminent jeopardy to a trust asset, natural 
                resources, or public health and safety that--
                            ``(i) is caused by an act or omission of 
                        the Indian tribe; and
                            ``(ii) arises out of a failure to carry out 
                        the compact or funding agreement; or
                    ``(B) gross mismanagement with respect to funds 
                transferred to an Indian tribe under a compact or 
                funding agreement, as determined by the Secretary in 
                consultation with the Inspector General, as 
                appropriate.
            ``(2) Prohibition.--The Secretary shall not reassume 
        operation of a program in whole or part unless--
                    ``(A) the Secretary first provides written notice 
                and a hearing on the record to the Indian tribe; and
                    ``(B) the Indian tribe does not take corrective 
                action to remedy the mismanagement of the funds or 
                programs, or the imminent jeopardy to a trust asset, 
                natural resource, or public health and safety.
            ``(3) Exception.--
                    ``(A) In general.--Notwithstanding paragraph (2), 
                the Secretary may, on written notice to the Indian 
                tribe, immediately reassume operation of a program if--
                            ``(i) the Secretary makes a finding of both 
                        imminent and substantial jeopardy and 
                        irreparable harm to a trust asset, a natural 
                        resource, or the public health and safety 
                        caused by an act or omission of the Indian 
                        tribe; and
                            ``(ii) the imminent and substantial 
                        jeopardy, and irreparable harm to the trust 
                        asset, natural resource, or public health and 
                        safety arises out of a failure by the Indian 
                        tribe to carry out the terms of its compact or 
                        funding agreement.
                    ``(B) Reassumption.--If the Secretary reassumes 
                operation of a program under subparagraph (A), the 
                Secretary shall provide the Indian tribe with a hearing 
                on the record not later than 10 days after the date of 
                reassumption.
    ``(c) Inability to Agree on Compact or Funding Agreement.--
            ``(1) Final offer.--If the Secretary and a participating 
        Indian tribe are unable to agree, in whole or in part, on the 
        terms of a compact or funding agreement (including funding 
        levels), the Indian tribe may submit a final offer to the 
        Secretary.
            ``(2) Determination.--Not more than 45 days after the date 
        of submission of a final offer, or as otherwise agreed to by 
        the Indian tribe, the Secretary shall review and make a 
        determination with respect to the final offer.
            ``(3) No timely determination.--If the Secretary fails to 
        make a determination with respect to a final offer within the 
        time specified in paragraph (2), the Secretary shall be deemed 
        to have agreed to the offer.
            ``(4) Rejection of final offer.--
                    ``(A) In general.--If the Secretary rejects a final 
                offer (or one or more provisions or funding levels in a 
                final offer), the Secretary shall--
                            ``(i) provide timely written notification 
                        to the Indian tribe that contains a specific 
                        finding that clearly demonstrates, or that is 
                        supported by a controlling legal authority, 
                        that--
                                    ``(I) the amount of funds proposed 
                                in the final offer exceeds the 
                                applicable funding level to which the 
                                Indian tribe is entitled under this 
                                title because it would reduce the funds 
                                that any other Indian tribe or tribal 
                                organization is entitled to receive 
                                under Federal law;
                                    ``(II) the program that is the 
                                subject of the final offer is an 
                                inherent Federal function or is subject 
                                to the discretion of the Secretary 
                                under section 405(b)(2);
                                    ``(III) the Indian tribe cannot 
                                carry out the program in a manner that 
                                would not result in significant danger 
                                or risk to the public health;
                                    ``(IV) the Indian tribe is not 
                                eligible to participate in self-
                                governance under section 403(b); or
                                    ``(V) the funding agreement would 
                                violate Federal statute or regulation;
                            ``(ii) provide technical assistance to 
                        overcome the objections stated in the 
                        notification required by clause (i);
                            ``(iii) provide 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 under section 110(a)); 
                        and
                            ``(iv) provide the Indian tribe the option 
                        of entering into the severable portions of a 
                        final proposed compact or funding agreement 
                        (including a lesser funding amount, if any), 
                        that the Secretary did not reject, subject to 
                        any additional alterations necessary to conform 
                        the compact or funding agreement to the severed 
                        provisions.
                    ``(B) Effect of exercising certain option.--If an 
                Indian tribe exercises the option specified in 
                subparagraph (A)(iv)--
                            ``(i) the Indian tribe shall retain the 
                        right to appeal the rejection by the Secretary 
                        under this section; and
                            ``(ii) clauses (i), (ii), and (iii) of 
                        subparagraph (A) shall apply only to the 
                        portion of the proposed final compact or 
                        funding agreement that was rejected by the 
                        Secretary.
    ``(d) Burden of Proof.--In any administrative hearing or appeal or 
civil action brought under this section, the Secretary shall have the 
burden of demonstrating by a preponderance of the evidence the validity 
of the grounds for rejecting a final offer made under subsection (c) or 
the grounds for a reassumption under subsection (b).
    ``(e) Good Faith.--
            ``(1) In general.--In the negotiation of compacts and 
        funding agreements, the Secretary shall at all times negotiate 
        in good faith to maximize implementation of the self-governance 
        policy.
            ``(2) Policy.--The Secretary shall carry out this title in 
        a manner that maximizes the policy of tribal self-governance.
    ``(f) Savings.--To the extent that programs carried out for the 
benefit of Indian tribes and tribal organizations under this title 
reduce the administrative or other responsibilities of the Secretary 
with respect to the operation of Indian programs and result in savings 
that have not otherwise been included in the amount of tribal shares 
and other funds determined under section 409(c), except for programs 
entered into funding agreements under section 405(b)(2), the Secretary 
shall make such savings available to the Indian tribes or tribal 
organizations for the provision of additional services to program 
beneficiaries in a manner equitable to directly served, contracted, and 
compacted programs. For any savings generated as a result of the 
assumption of a program by an Indian tribe under section 405(b)(2), 
such savings shall be made available to that Indian tribe.
    ``(g) Trust Responsibility.--The Secretary may not waive, modify, 
or diminish in any way the trust responsibility of the United States 
with respect to Indian tribes and individual Indians that exists under 
treaties, Executive orders, other laws, or court decisions.
    ``(h) Decisionmaker.--A decision that constitutes final agency 
action and relates to an appeal within the Department conducted under 
subsection (c)(4) may be made--
            ``(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 law judge.
    ``(i) 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. 408. CONSTRUCTION PROGRAMS AND PROJECTS.

    ``(a) In General.--Indian tribes participating in tribal self-
governance may carry out construction projects under this title.
    ``(b) Tribal Option to Carry Out Certain Federal Environmental 
Activities.--In carrying out a construction project under this title, 
an Indian tribe may, subject to the Secretary's agreement, elect to 
assume some Federal responsibilities under the National Environmental 
Policy Act of 1969 (42 U.S.C. 4321 et seq.), the National Historic 
Preservation Act (16 U.S.C. 470 et seq.), and related provisions of law 
and regulations that would apply if the Secretary were to undertake a 
construction project, by adopting a resolution--
            ``(1) designating a certifying tribal officer to represent 
        the Indian tribe and to assume the status of a responsible 
        Federal official under such laws; and
            ``(2) accepting the jurisdiction of the Federal courts for 
        the purpose of enforcing the responsibilities of the certifying 
        tribal officer assuming the status of a responsible Federal 
        official under such laws.
    ``(c) Savings Clause.--Notwithstanding subsection (b), nothing in 
this Act authorizes the Secretary to include in any compact or funding 
agreement duties of the Secretary under the National Environmental 
Policy Act, the National Historic Preservation Act, and other related 
provisions of law that are inherent Federal functions.
    ``(d) Codes and Standards.--In carrying out a construction project 
under this title, an Indian tribe shall--
            ``(1) adhere to applicable Federal, State, local, and 
        tribal building codes architectural and engineering standards 
        and applicable Federal guidelines regarding design, space, and 
        operational standards, appropriate for the particular project; 
        and
            ``(2) use only architects and engineers who are licensed to 
        practice in the State in which the facility will be built and 
        who certify--
                    ``(A) that they are qualified to perform the work 
                required by the specific construction involved; and
                    ``(B) upon completion of design, that the plans and 
                specifications meet or exceed the applicable 
                construction and safety codes.
    ``(e) Tribal Accountability.--
            ``(1) In carrying out a construction project under this 
        title, an Indian tribe shall assume responsibility for the 
        successful completion of the construction project and of a 
        facility that is usable for the purpose for which it was 
        funded.
            ``(2) For each construction project carried out by an 
        Indian tribe under this title, the Indian tribe and the 
        Secretary shall negotiate a provision to be included in the 
        funding agreement that identifies--
                    ``(A) the approximate start and completion dates 
                for the project, which may extend over a period of one 
                or more years;
                    ``(B) a general description of the project, 
                including the scope of work, references to design 
                criteria, and other terms and conditions;
                    ``(C) the responsibilities of the Indian tribe and 
                the Secretary for the project;
                    ``(D) how project-related environmental 
                considerations will be addressed;
                    ``(E) the amount of funds provided for the project;
                    ``(F) the obligations of the Indian tribe to comply 
                with the codes referenced in subsection (c)(1) and 
                applicable Federal laws, statutes, and regulations;
                    ``(G) the agreement of the parties over who will 
                bear any additional costs necessary to meet changes in 
                scope, or errors or omissions in design and 
                construction; and
                    ``(H) the agreement of the Secretary to issue a 
                certificate of occupancy, if requested by the Indian 
                tribes, based upon the review and verification by the 
                Secretary, to his or her satisfaction, that the Indian 
                tribe has secured upon completion the review and 
                approval of the plans and specifications, sufficiency 
                of design, life safety, and code compliance by 
                qualified, licensed, and independent architects and 
                engineers.
    ``(f) Funding.--Funding appropriated for construction projects 
carried out under this title shall be included in funding agreements as 
annual or semiannual advance payments at the option of the Indian 
tribe. The Secretary shall include all associated project contingency 
funds with each advance payment. The Indian tribe shall be responsible 
for the management of such contingency funds.
    ``(g) Negotiations.--At the option of the Indian tribe, 
construction project funding proposals shall be negotiated pursuant to 
the statutory process in section 450j(m) of title 25 and any resulting 
construction project agreement shall be incorporated into the funding 
agreement as addenda.
    ``(h) Federal Review and Verification.--The Secretary shall have at 
least one opportunity to review and verify, to the satisfaction of the 
Secretary, that project planning and design documents prepared by the 
Indian tribe in advance of initial construction are in conformity with 
the obligations of the Indian tribe under subsection (c) and, before 
they are implemented, at least one opportunity to review and verify to 
the satisfaction of the Secretary that subsequent document amendments 
which result in a significant change in construction are in conformity 
with the obligations of the Indian tribe under subsection (c). 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.
    ``(i) Application of Other Laws.--Unless otherwise agreed to by the 
Indian tribe, no provision of the Office of Federal Procurement Policy 
Act (41 U.S.C. 401 et seq.), 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 program or project carried out under this title.
    ``(j) Future Funding.--Upon completion of a facility constructed 
under this title, the Secretary shall include the facility among those 
eligible for annual operation and maintenance funding support 
comparable to that provided for similar facilities funded by the 
Department as annual appropriations are available and to the extent 
that the facility size and complexity and other factors do not exceed 
the funding formula criteria for comparable buildings.

``SEC. 409. PAYMENT.

    ``(a) In General.--At the request of the governing body of the 
Indian tribe and under the terms of an agreement, the Secretary shall 
provide funding to the Indian tribe to carry out the funding agreement.
    ``(b) Advance Annual Payment.--At the option of the Indian tribe, a 
funding agreement shall provide for an advance annual payment to an 
Indian tribe.
    ``(c) Amount.--
            ``(1) In general.--Subject to subsection (e) and sections 
        405 and 406, the Secretary shall provide funds to the Indian 
        tribe under a funding agreement for programs in an amount that 
        is equal to the amount that the Indian tribe would have been 
        entitled to receive under contracts and grants under this Act 
        (including amounts for direct program and contract support 
        costs and, in addition, any funds that are specifically or 
        functionally related to the provision by the Secretary of 
        services and benefits to the Indian tribe or its members) 
        without regard to the organization level within the Department 
        in which the programs are carried out.
            ``(2) Savings clause.--Nothing in this section shall be 
        construed to reduce funds of or provided to another Indian 
        tribe.
    ``(d) Timing.--Pursuant to the terms of any compact or funding 
agreement entered into under this part, the Secretary shall transfer to 
the Indian tribe all funds provided for in the funding agreement, 
pursuant to subsection (c), and provide funding for periods covered by 
joint resolution adopted by Congress making continuing appropriations, 
to the extent permitted by such resolution. Within 12 months from the 
date of enactment of this bill, 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.
    ``(e) Availability.--Funds for trust services to individual Indians 
shall be available under a funding agreement only to the extent that 
the same services that would have been provided by the Secretary are 
provided to individual Indians by the Indian tribe.
    ``(f) Multiyear Funding.--A funding agreement may provide for 
multiyear funding.
    ``(g) Limitations on Authority of the Secretary.--The Secretary 
shall not--
            ``(1) fail to transfer to an Indian tribe its full share of 
        any central, headquarters, regional, area, or service unit 
        office or other funds due under this title for programs 
        eligible under section 405(b)(1) or (b)(3), except as required 
        by Federal law;
            ``(2) withhold any portion of such funds for transfer over 
        a period of years; or
            ``(3) reduce the amount of funds required under this 
        title--
                    ``(A) to make funding available for self-governance 
                monitoring or administration by the Secretary;
                    ``(B) in subsequent years, except as necessary as a 
                result of--
                            ``(i) a reduction in appropriations from 
                        the previous fiscal year for the program to be 
                        included in a compact or funding agreement;
                            ``(ii) a congressional directive in 
                        legislation or an accompanying report;
                            ``(iii) a tribal authorization;
                            ``(iv) a change in the amount of pass-
                        through funds subject to the terms of the 
                        funding agreement; or
                            ``(v) completion of an activity under a 
                        program for which the funds were provided;
                    ``(C) to pay for Federal functions, including--
                            ``(i) Federal pay costs;
                            ``(ii) Federal employee retirement 
                        benefits;
                            ``(iii) automated data processing;
                            ``(iv) technical assistance; and
                            ``(v) monitoring of activities under this 
                        title; or
                    ``(D) to pay for costs of Federal personnel 
                displaced by self-determination contracts under this 
                Act or self-governance under this title.
    ``(h) Federal Resources.--If an Indian tribe elects to carry out a 
compact or funding agreement with the use of Federal personnel, Federal 
supplies (including supplies available from Federal warehouse 
facilities), Federal supply sources (including lodging, airline 
transportation, and other means of transportation including the use of 
interagency motor pool vehicles), or other Federal resources (including 
supplies, services, and resources available to the Secretary under any 
procurement contracts in which the Department is eligible to 
participate), the Secretary shall, as soon as practicable, transfer 
such personnel, or acquire such supplies, or resources to the Indian 
tribe under this title.
    ``(i) Prompt Payment Act.--Chapter 39 of title 31, United States 
Code, shall apply to the transfer of funds due under a compact or 
funding agreement authorized under this title.
    ``(j) Interest or Other Income.--
            ``(1) In general.--An Indian tribe may retain interest or 
        income earned on any funds paid under a compact or funding 
        agreement to carry out governmental purposes.
            ``(2) No effect on other amounts.--The retention of 
        interest or income under paragraph (1) shall not diminish the 
        amount of funds an Indian tribe is entitled to receive under a 
        funding agreement in the year the interest or income is earned 
        or in any subsequent fiscal year.
            ``(3) Investment standard.--Funds transferred under this 
        title shall be managed by the Indian tribe using the prudent 
        investment standard, provided that the Secretary shall not be 
        liable for any investment losses of funds managed by the Indian 
        tribe which are not otherwise guaranteed or insured by the 
        Federal Government.
    ``(k) Carryover of Funds.--
            ``(1) In general.--Notwithstanding any provision of an Act 
        of appropriation, all funds paid to an Indian tribe in 
        accordance with a compact or funding agreement shall remain 
        available until expended.
            ``(2) Effect of carryover.--If an Indian tribe elects to 
        carry over funding from 1 year to the next, the carryover shall 
        not diminish the amount of funds the Indian tribe is entitled 
        to receive under a funding agreement in that fiscal year or any 
        subsequent fiscal year.
    ``(l) Limitation of Costs.--
            ``(1) In general.--An Indian tribe shall not be obligated 
        to continue performance that requires an expenditure of funds 
        in excess of the amount of funds transferred under a compact or 
        funding agreement.
            ``(2) Notice of insufficiency.--If at any time the Indian 
        tribe has reason to believe that the total amount provided for 
        a specific activity under a compact or funding agreement is 
        insufficient, the Indian tribe shall provide reasonable notice 
        of such insufficiency to the Secretary.
            ``(3) Suspension of performance.--If, after notice under 
        paragraph (2), the Secretary does not increase the amount of 
        funds transferred under the funding agreement, the Indian tribe 
        may suspend performance of the activity until such time as 
        additional funds are transferred.
    ``(m) Distribution of Funds.--The Office of Self-Governance shall 
be responsible for distribution of all Bureau of Indian Affairs funds 
provided under this title unless otherwise agreed by the parties.

``SEC. 410. FACILITATION.

    ``(a) In General.--Except as otherwise provided by law, the 
Secretary shall interpret each Federal law and regulation in a manner 
that facilitates--
            ``(1) the inclusion of programs in funding agreements; and
            ``(2) the implementation of funding agreements.
    ``(b) Regulation Waiver.--
            ``(1) Request.--An Indian tribe may submit a written 
        request for a waiver to the Secretary identifying the specific 
        text in regulation sought to be waived and the basis for the 
        request.
            ``(2) Determination by the secretary.--Not later than 120 
        days after receipt by the Secretary of a request under 
        paragraph (1), the Secretary shall approve or deny the 
        requested waiver in writing to the Indian tribe.
            ``(3) Ground for denial.--The Secretary may deny a request 
        under paragraph (1)--
                    ``(A) for a program eligible under sections 
                405(b)(1) and 405(b)(3) only upon a specific finding by 
                the Secretary that the identified text in the 
                regulation may not be waived because such a waiver is 
                prohibited by Federal law; and
                    ``(B) for a program eligible under section 
                405(b)(2), on a specific finding by the Secretary that 
                the identified text in the regulation may not be waived 
                because such a waiver is prohibited under Federal law.
            ``(4) Failure to make determination.--If the Secretary 
        fails to approve or deny a waiver request within the time 
        required under paragraph (2), the Secretary shall be deemed to 
        have approved the request.
            ``(5) Finality.--The Secretary's decision shall be final 
        for the Department.

``SEC. 411. DISCLAIMERS.

    ``Nothing in this title expands or alters any statutory authority 
of the Secretary so as to authorize the Secretary to enter into any 
agreement under section 405--
            ``(1) with respect to an inherent Federal function;
            ``(2) in a case in which the law establishing a program 
        explicitly prohibits the type of participation sought by the 
        Indian tribe (without regard to whether one or more Indian 
        tribes are identified in the authorizing law); or
            ``(3) which limits or reduces in any way the services, 
        contracts, or funds that any other Indian tribe or tribal 
        organization is eligible to receive under section 102 or any 
        other applicable Federal law.

``SEC. 412. DISCRETIONARY APPLICATION OF OTHER SECTIONS.

    ``(a) In General.--At the option of a participating Indian tribe or 
Indian tribes, any of the provisions of title I shall be incorporated 
in any Department compact or funding agreement.
    ``(b) Effect.--Each incorporated provision--
            ``(1) shall have the same force and effect as if set out in 
        full in this title; and
            ``(2) shall be deemed to supplement or replace any related 
        provision in this title and to apply to any agency otherwise 
        governed by this title.
    ``(c) Effective Date.--If an Indian tribe requests incorporation at 
the negotiation stage of a compact or funding agreement, the 
incorporation--
            ``(1) shall be deemed effective immediately; and
            ``(2) shall control the negotiation and resulting compact 
        and funding agreement.

``SEC. 413. FUNDING NEEDS.

    ``(a) Requirement of Annual Budget Request.--
            ``(1) In general.--The President shall identify in a report 
        to accompany the annual budget request submitted to Congress 
        under section 1105 of title 31, United States Code, all amounts 
        necessary to fully fund all funding agreements entered into 
        under this Act.
            ``(2) Duty of secretary.--The Secretary shall identify in a 
        report which accompanies each budget request the amount of 
        funds that are sufficient for planning and negotiation grants 
        and sufficient to cover any shortfall in funding identified 
        under subsection (b).
            ``(3) Rule of construction.--Nothing in this subsection 
        authorizes the Secretary to reduce the amount of funds that an 
        Indian tribe is otherwise entitled to receive under a funding 
        agreement or other applicable law.
    ``(b) Present Funding; Shortfalls.--In each report identified in 
subsection (a), the Secretary shall identify the level of need 
presently funded and any shortfall in funding (including direct program 
costs, tribal shares, and contract support costs) for each Indian 
tribe, either directly by the Secretary, under self-determination 
contracts, or under compacts and funding agreements. The first report 
identified in subsection (a) shall be limited to the Bureau of Indian 
Affairs agency office and shall be due on February 1, 2012. The next 
report due on February 1, 2013, shall include all funding at the Bureau 
of Indian Affairs agency and regional offices. The next report due on 
February 1, 2014, and all subsequent reports, shall include all funding 
at the Bureau of Indian Affairs agency, regional, and central offices, 
the Office of the Assistant Secretary for Indian Affairs, and the 
Office of the Special Trustee.

``SEC. 414. REPORTS.

    ``(a) In General.--
            ``(1) Requirement.--On February 1 of each year, the 
        Secretary shall submit to Congress a report regarding the 
        administration of this title.
            ``(2) Analysis.--A report under paragraph (1) shall include 
        a detailed analysis of tribal unmet need for each Indian tribe, 
        whether the Indian tribe is served directly by the Secretary, 
        under self-determination contracts under title I, or under 
        compacts and funding agreements authorized under this title.
            ``(3) No additional reporting requirements.--In preparing 
        reports under paragraph (1), the Secretary may not impose any 
        reporting requirements on participating Indian tribes not 
        otherwise provided by this title.
    ``(b) Contents.--The report under subsection (a)(1) shall--
            ``(1) be compiled from information contained in funding 
        agreements, annual audit reports, and data of the Secretary 
        regarding the disposition of Federal funds;
            ``(2) identify--
                    ``(A) the relative costs and benefits of self-
                governance;
                    ``(B) with particularity, all funds that are 
                specifically or functionally related to the provision 
                by the Secretary of services and benefits to self-
                governance Indian tribes and members of Indian tribes;
                    ``(C) the funds transferred to each Indian tribe 
                and the corresponding reduction in the Federal 
                employees and workload;
                    ``(D) the funding formula for individual tribal 
                shares of all Central Office funds, together with the 
                comments of affected Indian tribes, developed under 
                subsection (d); and
                    ``(E) amounts expended in the preceding fiscal year 
                to carry out inherent Federal functions, including an 
                identification of inherent Federal functions;
            ``(3) contain a description of the methods used to 
        determine the individual tribal share of funds controlled by 
        all components of the Department (including funds assessed by 
        any other Federal agency) for inclusion in 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); and
            ``(5) include the separate views and comments of each 
        Indian tribe or tribal organization.
    ``(c) Report on Non-BIA, Non-OST Programs.--
            ``(1) In general.--In order to optimize opportunities for 
        Indian tribes participating in self-governance under this 
        title, the Secretary shall--
                    ``(A) review all programs administered by the 
                Department, other than through the Bureau of Indian 
                Affairs, the Office of the Assistant Secretary for 
                Indian Affairs, or the Office of Special Trustee, 
                without regard to the agency or office concerned; and
                    ``(B) not later than January 1 of each year, submit 
                to Congress--
                            ``(i) a list of all such programs that the 
                        Secretary determines, with the concurrence of 
                        Indian tribes participating in self-governance 
                        under this title, are eligible to be included 
                        in a funding agreement at the request of a 
                        participating Indian tribe; and
                            ``(ii) a list of all such programs for 
                        which Indian tribes have requested to include 
                        in a funding agreement under section 405(b)(2) 
                        or 405(b)(3), indicating whether each request 
                        was granted or denied, and stating the grounds 
                        for any denial.
            ``(2) Programmatic targets.--The Secretary shall establish 
        programmatic targets, after consultation with Indian tribes 
        participating in self-governance, to encourage bureaus of the 
        Department to ensure that a significant portion of the programs 
        identified in paragraph (1) are included in funding agreements.
            ``(3) Publication.--The lists and targets under paragraphs 
        (1) and (2) shall be published in the Federal Register and made 
        available to any Indian tribe participating in self-governance.
            ``(4) Annual review.--
                    ``(A) In general.--The Secretary shall annually 
                review and publish in the Federal Register, after 
                consultation with Indian tribes participating in self-
                governance, revised lists and programmatic targets.
                    ``(B) Contents.--The revised lists and programmatic 
                targets shall include all programs that were eligible 
                for contracting in the original list published in the 
                Federal Register in 1995, except for programs 
                specifically determined not to be contractible as a 
                matter of law.
    ``(d) Report on Central Office Funds.--Not later than February 1, 
2012, the Secretary shall, in consultation with Indian tribes, develop 
a funding formula to determine the individual tribal share of funds 
controlled by the Central Office of the Bureau of Indian Affairs and 
the Office of the Special Trustee and the Office of the Assistant 
Secretary for Indian Affairs for inclusion in the compacts.

``SEC. 415. REGULATIONS.

    ``(a) In General.--
            ``(1) Promulgation.--Not later than 90 days after the date 
        of the enactment of the Department of the Interior Tribal Self-
        Governance Act of 2009, 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 the amendments made by this title.
            ``(2) Publication of proposed regulations.--Proposed 
        regulations to implement the amendments shall be published in 
        the Federal Register not later than 18 months after the date of 
        the enactment of this title.
            ``(3) Expiration of authority.--The authority to promulgate 
        regulations under paragraph (1) shall expire on the date that 
        is 24 months after the date of the enactment of this title.
    ``(b) Committee.--
            ``(1) Membership.--A negotiated rulemaking committee 
        established pursuant to section 565 of title 5, United States 
        Code, to carry out this section shall have as its members only 
        Federal and tribal government representatives.
            ``(2) Lead agency.--Among the Federal representatives, the 
        Office of Self-Governance shall be the lead agency for the 
        Department.
    ``(c) Adaptation of Procedures.--The Secretary shall adapt the 
negotiated rulemaking procedures to the unique context of self-
governance and the government-to-government relationship between the 
United States and Indian tribes.
    ``(d) Effect.--
            ``(1) Repeal.--The Secretary is authorized to repeal any 
        regulation inconsistent with the provisions of this Act.
            ``(2) Conflicting provisions.--The provisions of this title 
        shall supersede any conflicting provisions of law (including 
        any conflicting regulations).
            ``(3) Effectiveness without regard to regulations.--The 
        lack of promulgated regulations on an issue shall not limit the 
        effect or the implementation of this title.

``SEC. 416. EFFECT OF CIRCULARS, POLICIES, MANUALS, GUIDANCES, AND 
              RULES.

    ``Unless expressly agreed to by a 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 Department, except for--
            ``(1) the eligibility provisions of section 105(g); and
            ``(2) regulations promulgated under section 415.

``SEC. 417. APPEALS.

    ``In any administrative appeal or civil action for judicial review 
of any decision made by the Secretary under this title, the Secretary 
shall have the burden of proof of demonstrating by a preponderance of 
the evidence--
            ``(1) the validity of the grounds for the decision; and
            ``(2) the consistency of the decision with the provisions 
        and policies of this title.

``SEC. 418. AUTHORIZATION OF APPROPRIATIONS.

    ``There are authorized to be appropriated such sums as may be 
necessary to carry out this title.''.
                                                 Union Calendar No. 348

111th CONGRESS

  2d Session

                               H. R. 4347

                          [Report No. 111-603]

_______________________________________________________________________

                                 A BILL

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

_______________________________________________________________________

                           September 16, 2010

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