[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 209 Enrolled Bill (ENR)]

        S.209

                     One Hundred Sixteenth Congress

                                 of the

                        United States of America


                          AT THE SECOND SESSION

           Begun and held at the City of Washington on Friday,
            the third day of January, two thousand and twenty


                                 An Act


 
 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 ``Practical Reforms 
and Other Goals To Reinforce the Effectiveness of Self-Governance and 
Self-Determination for Indian Tribes Act of 2019'' or the ``PROGRESS 
for Indian Tribes Act''.
    (b) Table of Contents.--The table of contents of this Act is as 
follows:

Sec. 1. Short title; table of contents.

                     TITLE I--TRIBAL SELF-GOVERNANCE

Sec. 101. Tribal self-governance.

                   TITLE II--INDIAN SELF-DETERMINATION

Sec. 201. Definitions; reporting and audit requirements; application of 
          provisions.
Sec. 202. Contracts by Secretary of the Interior.
Sec. 203. Administrative provisions.
Sec. 204. Contract funding and indirect costs.
Sec. 205. Contract or grant specifications.

                    TITLE I--TRIBAL SELF-GOVERNANCE

    SEC. 101. TRIBAL SELF-GOVERNANCE.
    (a) Effect of Provisions.--Nothing in this Act, or the amendments 
made by this Act, shall be construed--
        (1) to modify, limit, expand, or otherwise affect--
            (A) the authority of the Secretary of the Interior, as 
        provided for under the Indian Self-Determination and Education 
        Assistance Act (as in effect on the day before the date of 
        enactment of this Act), regarding--
                (i) the inclusion of any non-BIA program (as defined in 
            section 401 of the Indian Self-Determination and Education 
            Assistance Act) in a self-determination contract or funding 
            agreement under section 403(c) of such Act (as so in 
            effect); or
                (ii) the implementation of any contract or agreement 
            described in clause (i) that is in effect on the day 
            described in subparagraph (A);
            (B) the meaning, application, or effect of any Tribal water 
        rights settlement, including the performance required of a 
        party thereto or any payment or funding obligation thereunder;
            (C) the authority, jurisdiction, or responsibility of a 
        State to manage, control, or regulate fish and wildlife under 
        State law (including regulations) on land or water in the 
        State, including Federal public land;
            (D) except for the authority provided to the Secretary as 
        described in subparagraph (A), the applicability or effect of 
        any Federal law related to the protection or management of fish 
        or wildlife; or
            (E) any treaty-reserved right or other right of any Indian 
        Tribe as recognized by any other means, including treaties or 
        agreements with the United States, Executive orders, statutes, 
        regulations, or case law; or
        (2) to authorize any provision of a contract or agreement that 
    is not consistent with the terms of a Tribal water rights 
    settlement.
    (b) Definitions.--Section 401 of the Indian Self-Determination and 
Education Assistance Act (25 U.S.C. 5361) is amended to read as 
follows:
    ``SEC. 401. DEFINITIONS.
    ``In this title:
        ``(1) Compact.--The term `compact' means a self-governance 
    compact entered into under section 404.
        ``(2) Construction program; construction project.--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 403.
        ``(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 for a program 
    administered by an Indian Tribe under a compact or funding 
    agreement.
        ``(6) Inherent federal function.--The term `inherent Federal 
    function' means a Federal function that may not legally be 
    delegated to an Indian Tribe.
        ``(7) Non-BIA program.--The term `non-BIA program' means all or 
    a portion of a program, function, service, or activity that is 
    administered by any bureau, service, office, or agency of the 
    Department of the Interior other than--
            ``(A) the Bureau of Indian Affairs;
            ``(B) the Office of the Assistant Secretary for Indian 
        Affairs; or
            ``(C) the Office of the Special Trustee for American 
        Indians.
        ``(8) Program.--The term `program' means any program, function, 
    service, or activity (or portion thereof) within the Department 
    that is included in a funding agreement.
        ``(9) Secretary.--The term `Secretary' means the Secretary of 
    the Interior.
        ``(10) Self-determination contract.--The term `self-
    determination contract' means a self-determination contract entered 
    into under section 102.
        ``(11) Self-governance.--The term `self-governance' means the 
    Tribal Self-Governance Program established under section 402.
        ``(12) Tribal share.--The term `Tribal share' means the portion 
    of all funds and resources of an Indian Tribe that--
            ``(A) support any program within the Bureau of Indian 
        Affairs, the Office of the Special Trustee for American 
        Indians, or the Office of the Assistant Secretary for Indian 
        Affairs; and
            ``(B) are not required by the Secretary for the performance 
        of an inherent Federal function.
        ``(13) Tribal water rights settlement.--The term `Tribal water 
    rights settlement' means any settlement, compact, or other 
    agreement expressly ratified or approved by an Act of Congress 
    that--
            ``(A) includes an Indian Tribe and the United States as 
        parties; and
            ``(B) quantifies or otherwise defines any water right of 
        the Indian Tribe.''.
    (c) Establishment.--Section 402 of the Indian Self-Determination 
and Education Assistance Act (25 U.S.C. 5362) is amended to read as 
follows:
    ``SEC. 402. TRIBAL SELF-GOVERNANCE PROGRAM.
    ``(a) Establishment.--The Secretary shall establish and carry out a 
program within the Department to be known as the `Tribal Self-
Governance Program'.
    ``(b) Selection of Participating Indian Tribes.--
        ``(1) In general.--
            ``(A) Eligibility.--The Secretary, acting through the 
        Director of the Office of Self-Governance, may select not more 
        than 50 new Indian Tribes per year from those tribes eligible 
        under subsection (c) to participate in self-governance.
            ``(B) Joint participation.--On the request of each 
        participating Indian Tribe, 2 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 as organization.--Two or more Indian 
    Tribes that are not otherwise eligible under subsection (c) 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 (c).
        ``(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 (c).
            ``(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, if the 
        Tribal organization still qualifies under subsection (c).
            ``(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.
                ``(ii) Notification.--The Indian Tribe shall provide a 
            copy of the Tribal resolution described in clause (i) to 
            the Secretary.
                ``(iii) Effective date.--

                    ``(I) In general.--A withdrawal under clause (i) 
                shall become effective on the date that is specified in 
                the Tribal resolution and 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; and
                            ``(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 or a compact or funding agreement fully or partially 
        withdraws from a participating Tribal organization, the 
        withdrawing Indian Tribe--
                ``(i) may elect to enter into 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 
                sections 102 and 105(i), as appropriate, shall apply to 
                the withdrawing Indian Tribe; or

                ``(ii) may elect not to enter into a self-determination 
            contract or compact, in which case all unexpended funds and 
            resources associated with the withdrawing Indian Tribe's 
            returned programs (calculated on the same basis as the 
            funds were initially allocated to the funding agreement of 
            the Tribal organization) 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).
    ``(c) Eligibility.--To be eligible to participate in self-
governance, an Indian Tribe shall--
        ``(1) successfully complete the planning phase described in 
    subsection (d);
        ``(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.
    ``(d) Planning Phase.--
        ``(1) In general.--An Indian Tribe seeking to begin 
    participation in self-governance shall complete a planning phase as 
    provided in this subsection.
        ``(2) Activities.--The planning phase shall--
            ``(A) be conducted to the satisfaction of the Indian Tribe; 
        and
            ``(B) include--
                ``(i) legal and budgetary research; and
                ``(ii) internal Tribal government planning, training, 
            and organizational preparation.
    ``(e) 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 (c) 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.''.
    (d) Funding Agreements.--Section 403 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 5363) is 
amended--
        (1) by striking subsection (a) and inserting the following:
    ``(a) Authorization.--The Secretary shall, on the request of any 
Indian Tribe or Tribal organization, negotiate and enter into a written 
funding agreement with the governing body of the Indian Tribe or the 
Tribal organization in a manner consistent with--
        ``(1) the trust responsibility of the Federal Government, 
    treaty obligations, and the government-to-government relationship 
    between Indian Tribes and the United States; and
        ``(2) subsection (b).'';
        (2) in subsection (b)--
            (A) in paragraph (1)--
                (i) in the matter preceding subparagraph (A), by 
            striking ``without regard to the agency or office of the 
            Bureau of Indian Affairs'' and inserting ``the Office of 
            the Assistant Secretary for Indian Affairs, and the Office 
            of the Special Trustee for American Indians, without regard 
            to the agency or office of that Bureau or those Offices'';
                (ii) by redesignating subparagraphs (A) and (B) as 
            clauses (i) and (ii), respectively, and indenting the 
            margins of such clauses accordingly;
                (iii) by striking ``including any program'' and 
            inserting the following: ``including--
            ``(A) any program'';
                (iv) in subparagraph (A)--

                    (I) in clause (i), as redesignated by clause (ii), 
                by striking the semicolon at the end and inserting ``; 
                and''; and
                    (II) in clause (ii), as so redesignated, by 
                striking ``and'' after the semicolon;

                (v) by redesignating subparagraph (C) as subparagraph 
            (B);
                (vi) in subparagraph (B), as redesignated by clause 
            (v), by striking the semicolon and inserting ``; and''; and
                (vii) by adding at the end the following:
            ``(C) any other program, service, function, or activity (or 
        portion thereof) that is provided through the Bureau of Indian 
        Affairs, the Office of the Assistant Secretary for Indian 
        Affairs, or the Office of the Special Trustee for American 
        Indians with respect to which Indian Tribes or Indians are 
        primary or significant beneficiaries;'';
            (B) in paragraph (2)--
                (i) by striking ``section 405(c)'' and inserting 
            ``section 412(c)''; and
                (ii) by inserting ``and'' after the semicolon at the 
            end;
            (C) in paragraph (3), by striking the semicolon at the end 
        and inserting a period; and
            (D) by striking paragraphs (4) through (9);
        (3) in subsection (f)--
            (A) in the subsection heading, by striking ``for Review'';
            (B) by striking ``such agreement to--'' and all that 
        follows through ``Indian tribe'' and inserting ``such agreement 
        to each Indian Tribe'';
            (C) by striking ``agreement;'' and inserting 
        ``agreement.''; and
            (D) by striking paragraphs (2) and (3);
        (4) in subsection (k), by striking ``section 405(c)(1)'' and 
    inserting ``section 412(c)''; and
        (5) by adding at the end the following:
    ``(m) Other Provisions.--
        ``(1) 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 Colleges 
        and Universities Assistance Act of 1978 (25 U.S.C. 1801 et 
        seq.); or
            ``(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).
        ``(2) 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.
        ``(3) Base budget.--
            ``(A) In general.--A funding agreement shall, at the option 
        of the Indian Tribe, provide for a stable base budget 
        specifying the recurring funds (which may include 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.
            ``(B) Limitations.--Notwithstanding subparagraph (A), a 
        funding agreement shall not specify funding associated with a 
        program described in subsection (b)(2) or (c) unless the 
        Secretary agrees.
        ``(4) 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.
    ``(n) 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.
    ``(o) Effective Date.--A funding agreement shall become effective 
on the date specified in the funding agreement.
    ``(p) Existing and Subsequent Funding Agreements.--
        ``(1) Subsequent funding agreements.--Absent notification from 
    an Indian Tribe that the Indian Tribe is withdrawing or retroceding 
    the operation of one or more programs identified in a funding 
    agreement, or unless otherwise agreed to by the parties to the 
    funding agreement or by the nature of any noncontinuing program, 
    service, function, or activity contained in a 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; 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 406(c).
        ``(3) Existing funding agreements.--An Indian Tribe that was 
    participating in self-governance under this title on the date of 
    enactment of the PROGRESS for Indian Tribes Act 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 1 year.''.
    (e) General Revisions.--Title IV of the Indian Self-Determination 
and Education Assistance Act (25 U.S.C. 5361 et seq.) is amended by 
striking sections 404 through 408 and inserting the following:
    ``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) such date as is mutually agreed upon by the parties.
    ``(e) Duration.--A compact under subsection (a) shall remain in 
effect--
        ``(1) for so long as permitted by Federal law; or
        ``(2) 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 enactment of 
the PROGRESS for Indian Tribes Act, 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. 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; 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 an Indian Tribe relating to funds received under a funding 
    agreement based on any audit under this subsection shall be subject 
    to section 106(f).
    ``(d) Redesign and Consolidation.--Except as provided in section 
407, an Indian Tribe may redesign or consolidate programs, or 
reallocate funds for programs, in a compact or funding agreement in any 
manner that the Indian Tribe determines to be in the best interest of 
the Indian community being served--
        ``(1) 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; and
        ``(2) except that, with respect to the reallocation, 
    consolidation, and redesign of programs described in subsection 
    (b)(2) or (c) of section 403, 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 an Indian Tribe rescinds a request 
        for retrocession under paragraph (1), the 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) 1 year after the date on which the request is 
                submitted; and
                    ``(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 the 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 to be 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 a notice period of not less than 30 days, 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. 406. PROVISIONS RELATING 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, a natural 
        resource, 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 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 an applicable 
            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 60 days after the date of 
    receipt of a final offer by one or more of the officials designated 
    pursuant to paragraph (4), the Secretary shall review and make a 
    determination with respect to the final offer, except that the 60-
    day period may be extended for up to 30 days for circumstances 
    beyond the control of the Secretary, upon written request by the 
    Secretary to the Indian tribe.
        ``(3) Extensions.--The deadline described in paragraph (2) may 
    be extended for any length of time, as agreed upon by both the 
    Indian Tribe and the Secretary.
        ``(4) Designated officials.--
            ``(A) In general.--The Secretary shall designate one or 
        more appropriate officials in the Department to receive a copy 
        of the final offer described in paragraph (1).
            ``(B) No designation.--If no official is designated, the 
        Director of the Office of the Executive Secretariat and 
        Regulatory Affairs shall be the designated official.
        ``(5) No timely determination.--If the Secretary fails to make 
    a determination with respect to a final offer within the period 
    specified in paragraph (2), including any extension agreed to under 
    paragraph (3), the Secretary shall be deemed to have agreed to the 
    offer, except that with respect to any compact or funding agreement 
    provision concerning a program described under section 403(c), the 
    Secretary shall be deemed to have rejected the offer with respect 
    to such provision and the terms of clauses (ii) through (iv) of 
    paragraphs (6)(A) shall apply.
        ``(6) 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 as 
                determined under section 106(a)(1);
                    ``(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 403(c);
                    ``(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 or 
                safety, to natural resources, or to trust resources;
                    ``(IV) the Indian Tribe is not eligible to 
                participate in self-governance under section 402(c);
                    ``(V) the funding agreement would violate a Federal 
                statute or regulation; or
                    ``(VI) with respect to a program or portion of a 
                program included in a final offer pursuant to section 
                403(b)(2), the program or the portion of the program is 
                not otherwise available to Indian Tribes or Indians 
                under section 102(a)(1)(E);

                ``(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 United States 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 action, hearing, 
appeal, or civil action brought under this section, the Secretary shall 
have the burden of proof--
        ``(1) of demonstrating, by a preponderance of the evidence, the 
    validity of the grounds for a reassumption under subsection (b); 
    and
        ``(2) of clearly demonstrating the validity of the grounds for 
    rejecting a final offer made under subsection (c).
    ``(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.--
        ``(1) In general.--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 
    408(c), except for funding agreements entered into for programs 
    under section 403(c), 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.
        ``(2) Discretionary programs of special significance.--For any 
    savings generated as a result of the assumption of a program by an 
    Indian Tribe under section 403(c), 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) Decision Maker.--A decision that constitutes final agency 
action and relates to an appeal within the Department conducted under 
subsection (c)(6)(A)(iii) may be made by--
        ``(1) 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) an administrative law judge.
    ``(i) Rules of Construction.--Subject to section 101(a) of the 
PROGRESS for Indian Tribes Act, 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. 407. CONSTRUCTION PROGRAMS AND PROJECTS.
    ``(a) In General.--Indian Tribes participating in Tribal self-
governance may carry out any construction project included in a compact 
or funding agreement 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 agreement of the Secretary, elect 
to assume some Federal responsibilities under the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), division A 
of subtitle III of title 54, United States Code, and related provisions 
of other 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 those Acts, laws, or regulations; and
        ``(2) accepting the jurisdiction of the United States courts 
    for the purpose of enforcing the responsibilities of the certifying 
    Tribal officer assuming the status of a responsible Federal 
    official under those Acts, laws, or regulations.
    ``(c) Savings Clause.--Notwithstanding subsection (b), nothing in 
this section authorizes the Secretary to include in any compact or 
funding agreement duties of the Secretary under the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), division A 
of subtitle III of title 54, United States Code, 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--
            ``(A) are licensed to practice in the State in which the 
        facility will be built; and
            ``(B) certify that--
                ``(i) they are qualified to perform the work required 
            by the specific construction involved; and
                ``(ii) upon completion of design, the plans and 
            specifications meet or exceed the applicable construction 
            and safety codes.
    ``(e) Tribal Accountability.--
        ``(1) In general.--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 the Indian Tribe received 
    funding.
        ``(2) Requirements.--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 (d)(1) and applicable 
        Federal laws 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 Tribe, based upon the 
        review and verification by the Secretary, to the satisfaction 
        of the Secretary, 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.--
        ``(1) In general.--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.
        ``(2) Advance payments.--The Secretary shall include all 
    associated project contingency funds with each advance payment, and 
    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 105, and any resulting construction 
project agreement shall be incorporated into the funding agreement as 
addenda.
    ``(h) Federal Review and Verification.--
        ``(1) In general.--On a schedule negotiated by the Secretary 
    and the Indian Tribe--
            ``(A) the Secretary shall 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 (d); and
            ``(B) before the project planning and design documents are 
        implemented, the Secretary shall 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 (d).
        ``(2) Reports.--The Indian Tribe shall provide the Secretary 
    with project progress and financial reports not less than 
    semiannually.
        ``(3) Oversight visits.--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 and except as otherwise provided in this Act, no provision 
of title 41, United States Code, the Federal Acquisition Regulation, 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. 408. PAYMENT.
    ``(a) In General.--At the request of the governing body of an 
Indian Tribe and under the terms of an applicable funding 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 403 
    and 405, 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 at which the programs are carried out.
        ``(2) Savings clause.--Nothing in this section reduces 
    programs, services, or funds of, or provided to, another Indian 
    Tribe.
    ``(d) Timing.--
        ``(1) 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 
    resolution.
        ``(2) Transfers.--Not later than 1 year after the date of 
    enactment of the PROGRESS for Indian Tribes Act, in any instance in 
    which 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 
    paragraph (1) or (2) of section 403(b), 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, acquire and 
transfer such personnel, 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 that are not 
    otherwise guaranteed or insured by the Federal Government.
    ``(k) Carryover of Funds.--
        ``(1) In general.--Notwithstanding any provision of an 
    appropriations Act, 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 one 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.
        ``(4) Savings clause.--Nothing in this section reduces any 
    programs, services, or funds of, or provided to, another Indian 
    Tribe.
    ``(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 to an 
applicable funding agreement.
    ``(n) Applicability.--Notwithstanding any other provision of this 
section, section 101(a) of the PROGRESS for Indian Tribes Act applies 
to subsections (a) through (m).
    ``SEC. 409. FACILITATION.
    ``(a) In General.--Except as otherwise provided by law (including 
section 101(a) of the PROGRESS for Indian Tribes Act), 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 to the Secretary a 
    written request for a waiver of applicability of a Federal 
    regulation, including--
            ``(A) an identification of the specific text in the 
        regulation sought to be waived; and
            ``(B) the basis for the request.
        ``(2) Determination by the secretary.--Not later than 120 days 
    after receipt by the Secretary and the designated officials under 
    paragraph (4) of a request under paragraph (1), the Secretary shall 
    approve or deny the requested waiver in writing to the Indian 
    Tribe.
        ``(3) Extensions.--The deadline described in paragraph (2) may 
    be extended for any length of time, as agreed upon by both the 
    Indian Tribe and the Secretary.
        ``(4) Designated officials.--The Secretary shall designate one 
    or more appropriate officials in the Department to receive a copy 
    of the waiver request described in paragraph (1).
        ``(5) Grounds for denial.--The Secretary may deny a request 
    under paragraph (1) 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.
        ``(6) Failure to make determination.--If the Secretary fails to 
    make a determination with respect to a waiver request within the 
    period specified in paragraph (2) (including any extension agreed 
    to under paragraph (3)), the Secretary shall be deemed to have 
    agreed to the request, except that for a waiver request relating to 
    programs eligible under section 403(b)(2) or section 403(c), the 
    Secretary shall be deemed to have denied the request.
        ``(7) Finality.--A decision of the Secretary under this section 
    shall be final for the Department.
    ``SEC. 410. DISCRETIONARY APPLICATION OF OTHER SECTIONS.
    ``(a) In General.--Except as otherwise provided in section 201(d) 
of the PROGRESS for Indian Tribes Act, at the option of a participating 
Indian Tribe or Indian Tribes, any of the provisions of title I may be 
incorporated in any compact or funding agreement under this title. The 
inclusion of any such provision shall be subject to, and shall not 
conflict with, section 101(a) of such Act.
    ``(b) Effect.--Each incorporated provision under subsection (a) 
shall--
        ``(1) have the same force and effect as if set out in full in 
    this title;
        ``(2) supplement or replace any related provision in this 
    title; and
        ``(3) 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 shall--
        ``(1) be effective immediately; and
        ``(2) control the negotiation and resulting compact and funding 
    agreement.
    ``SEC. 411. ANNUAL BUDGET LIST.
    ``The Secretary shall list, in the annual budget request submitted 
to Congress under section 1105 of title 31, United States Code, any 
funds proposed to be included in funding agreements authorized under 
this title.
    ``SEC. 412. REPORTS.
    ``(a) In General.--
        ``(1) Requirement.--On January 1 of each year, the Secretary 
    shall submit to Congress a report regarding the administration of 
    this title.
        ``(2) Analysis.--Any Indian Tribe may submit to the Office of 
    Self-Governance and to the appropriate committees of Congress a 
    detailed annual analysis of unmet Tribal needs for funding 
    agreements under 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; 
        and
            ``(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);
        ``(3) before being submitted to Congress, be distributed to the 
    Indian Tribes for comment (with a comment period of not less than 
    30 days);
        ``(4) include the separate views and comments of each Indian 
    Tribe or Tribal organization; and
        ``(5) include a list of--
            ``(A) all such programs that the Secretary determines, in 
        consultation with Indian Tribes participating in self-
        governance, are eligible for negotiation to be included in a 
        funding agreement at the request of a participating Indian 
        Tribe; and
            ``(B) all such programs which Indian Tribes have formally 
        requested to include in a funding agreement under section 
        403(c) due to the special geographic, historical, or cultural 
        significance of the program to the Indian Tribe, indicating 
        whether each request was granted or denied, and stating the 
        grounds for any denial.
    ``(c) Report on Non-BIA Programs.--
        ``(1) In general.--In order to optimize opportunities for 
    including non-BIA programs in agreements with Indian Tribes 
    participating in self-governance under this title, the Secretary 
    shall 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 the 
    Special Trustee for American Indians, without regard to the agency 
    or office concerned.
        ``(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 an appropriate portion of those programs 
    are available to be included in funding agreements.
        ``(3) Publication.--The lists under subsection (b)(5) and 
    targets under paragraph (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.--In preparing the revised lists and 
        programmatic targets, the Secretary shall consider 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 January 1, 
2020, 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 for inclusion in the compacts.
    ``SEC. 413. REGULATIONS.
    ``(a) In General.--
        ``(1) Promulgation.--Not later than 90 days after the date of 
    enactment of the PROGRESS for Indian Tribes Act, 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 not later than 21 months after the date of 
    enactment of the PROGRESS for Indian Tribes Act.
        ``(3) Expiration of authority.--The authority to promulgate 
    regulations under paragraph (1) shall expire on the date that is 30 
    months after the date of enactment of the PROGRESS for Indian 
    Tribes Act.
    ``(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 
    representatives of the Federal Government and Tribal government.
        ``(2) Lead agency.--Among the Federal representatives described 
    in paragraph (1), 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 may repeal any regulation that is 
    inconsistent with this Act.
        ``(2) Conflicting provisions.--Subject to section 101(a) of the 
    PROGRESS for Indian Tribes Act and except with respect to programs 
    described under section 403(c), this title shall supersede any 
    conflicting provision 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 
    implementation of this title.
    ``SEC. 414. EFFECT OF CIRCULARS, POLICIES, MANUALS, GUIDANCE, AND 
      RULES.
    ``Unless expressly agreed to by a participating Indian Tribe in a 
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 pursuant to section 413.
    ``SEC. 415. APPEALS.
    ``Except as provided in section 406(d), in any administrative 
action, 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 requirements and 
    policies of this title.
    ``SEC. 416. APPLICATION OF OTHER PROVISIONS.
    ``Section 314 of the Department of the Interior and Related 
Agencies Appropriations Act, 1991 (Public Law 101-512; 104 Stat. 1959), 
shall apply to compacts and funding agreements entered into under this 
title.
    ``SEC. 417. AUTHORIZATION OF APPROPRIATIONS.
    ``There are authorized to be appropriated such sums as may be 
necessary to carry out this title.''.

                  TITLE II--INDIAN SELF-DETERMINATION

    SEC. 201. DEFINITIONS; REPORTING AND AUDIT REQUIREMENTS; 
      APPLICATION OF PROVISIONS.
    (a) Definitions.--
        (1) In general.--Section 4 of the Indian Self-Determination and 
    Education Assistance Act (25 U.S.C. 5304) is amended by striking 
    subsection (j) and inserting the following:
    ``(j) `self-determination contract' means a contract entered into 
under title I (or a grant or cooperative agreement used under section 
9) 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 under title I 
(or grant or cooperative agreement used under section 9) shall be--
        ``(1) considered to be a procurement contract; or
        ``(2) except as provided in section 107(a)(1), subject to any 
    Federal procurement law (including regulations);''.
        (2) Technical amendments.--Section 4 of the Indian Self-
    Determination and Education Assistance Act (25 U.S.C. 5304), as 
    amended by paragraph (1), is further amended--
            (A) in subsection (e), by striking ```Indian tribe' means'' 
        and inserting ```Indian tribe' or `Indian Tribe' means''; and
            (B) in subsection (l), by striking ```tribal organization' 
        means'' and inserting ```Tribal organization' or `tribal 
        organization' means''.
    (b) Reporting and Audit Requirements.--Section 5 of the Indian 
Self-Determination and Education Assistance Act (25 U.S.C. 5305) is 
amended--
        (1) in subsection (b)--
            (A) by striking ``after completion of the project or 
        undertaking referred to in the preceding subsection of this 
        section'' and inserting ``after the retention period for the 
        report that is submitted to the Secretary under subsection 
        (a)''; and
            (B) by adding at the end the following: ``The retention 
        period shall be defined in regulations promulgated by the 
        Secretary pursuant to section 413.''; and
        (2) in subsection (f)(1), by inserting ``if the Indian Tribal 
    organization expends $500,000 or more in Federal awards during such 
    fiscal year'' after ``under this Act,''.
    (c) Effective Date.--The amendment made by subsection (b)(2) shall 
not take effect until 14 months after the date of enactment of this 
Act.
    (d) 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 (25 U.S.C. 5304, 5305, 5306, 5307, 
5321(c), 5323, 5324(a)(1), 5324(f), 5331, and 5332) 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 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 5361 et seq.).
    SEC. 202. CONTRACTS BY SECRETARY OF THE INTERIOR.
    Section 102 of the Indian Self-Determination and Education 
Assistance Act (25 U.S.C. 5321) 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''; and
        (2) by adding at the end the following:
    ``(f) Good Faith Requirement.--In the negotiation of contracts and 
funding agreements, the Secretary shall--
        ``(1) at all times negotiate in good faith to maximize 
    implementation of the self-determination policy; and
        ``(2) carry out this Act in a manner that maximizes the policy 
    of Tribal self-determination, in a manner consistent with--
            ``(A) the purposes specified in section 3; and
            ``(B) the PROGRESS for Indian Tribes Act.
    ``(g) Rule of Construction.--Subject to section 101(a) of the 
PROGRESS for Indian Tribes Act, each provision of this Act and each 
provision of a contract or funding agreement shall be liberally 
construed for the benefit of the Indian Tribe participating in self-
determination, and any ambiguity shall be resolved in favor of the 
Indian Tribe.''.
    SEC. 203. ADMINISTRATIVE PROVISIONS.
    Section 105 of the Indian Self-Determination and Education 
Assistance Act (25 U.S.C. 5324) 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''; and
        (2) 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.
    ``(q)(1) Technical Assistance for Internal Controls.--In 
considering proposals for, amendments to, or in the course of, a 
contract under this title and compacts under titles IV and V of this 
Act, if the Secretary determines that the Indian Tribe lacks adequate 
internal controls necessary to manage the contracted program or 
programs, the Secretary shall, as soon as practicable, provide the 
necessary technical assistance to assist the Indian Tribe in developing 
adequate internal controls. As part of that technical assistance, the 
Secretary and the Tribe shall develop a plan for assessing the 
subsequent effectiveness of such technical assistance. The inability of 
the Secretary to provide technical assistance or lack of a plan under 
this subsection shall not result in the reassumption of an existing 
agreement, contract, or compact, or declination or rejection of a new 
agreement, contract, or compact.
    ``(2) The Secretary shall prepare a report to be included in the 
information required for the reports under sections 412(b)(2)(A) and 
514(b)(2)(A). The Secretary shall include in this report, in the 
aggregate, a description of the internal controls that were inadequate, 
the technical assistance provided, and a description of Secretarial 
actions taken to address any remaining inadequate internal controls 
after the provision of technical assistance and implementation of the 
plan required by paragraph (1).''.
    SEC. 204. CONTRACT FUNDING AND INDIRECT COSTS.
    Section 106(a)(3) of the Indian Self-Determination and Education 
Assistance Act (25 U.S.C. 5325(a)(3)) is amended--
        (1) in subparagraph (A)--
            (A) in clause (i), by striking ``, and'' and inserting ``; 
        and''; and
            (B) in clause (ii), by striking ``expense related to the 
        overhead incurred'' and inserting ``expense incurred by the 
        governing body of the Indian Tribe or Tribal organization and 
        any overhead expense incurred'';
        (2) by redesignating subparagraph (B) as subparagraph (C); and
        (3) by inserting after subparagraph (A) the following:
            ``(B) In calculating the reimbursement rate for expenses 
        described in subparagraph (A)(ii), not less than 50 percent of 
        the expenses described in subparagraph (A)(ii) that are 
        incurred by the governing body of an Indian Tribe or Tribal 
        organization relating to a Federal program, function, service, 
        or activity carried out pursuant to the contract shall be 
        considered to be reasonable and allowable.''.
    SEC. 205. CONTRACT OR GRANT SPECIFICATIONS.
    Section 108 of the Indian Self-Determination and Education 
Assistance Act (25 U.S.C. 5329) is amended--
        (1) in subsection (a)(2), by inserting ``subject to subsections 
    (a) and (b) of section 102,'' before ``contain'';
        (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. 5321),'' before ``such other 
    provisions''; and
        (3) in subsection (b)(7)(C) of the model agreement contained in 
    subsection (c), in the second sentence of the matter preceding 
    clause (i), by striking ``one performance monitoring visit'' and 
    inserting ``two performance monitoring visits''.

                               Speaker of the House of Representatives.

                            Vice President of the United States and    
                                               President of the Senate.