[Congressional Record Volume 144, Number 137 (Monday, October 5, 1998)]
[House]
[Pages H9465-H9471]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


               TRIBAL SELF-GOVERNANCE AMENDMENTS OF 1998

  Mr. YOUNG of Alaska. Mr. Speaker, I move to suspend the rules and 
pass the bill (H.R. 1833) to amend the Indian Self-Determination and 
Education Assistance Act to provide for further self-governance by 
Indian tribes, and for other purposes, as amended.
  The Clerk read as follows:

                               H.R. 1833

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Tribal Self-Governance 
     Amendments of 1998''.

     SEC. 2. FINDINGS.

       Congress finds that--
       (1) the tribal right of self-government flows from the 
     inherent sovereignty of Indian tribes and nations;
       (2) the United States recognizes a special government-to-
     government relationship with Indian tribes, including the 
     right of the Indian tribes to self-governance, as reflected 
     in the Constitution, treaties, Federal statutes, and the 
     course of dealings of the United States with Indian tribes;
       (3) although progress has been made, the Federal 
     bureaucracy, with its centralized rules and regulations, has 
     eroded tribal self-governance and dominates tribal affairs;
       (4) the Tribal Self-Governance Demonstration Project, 
     established under title III of the Indian Self-Determination 
     and Education Assistance Act (25 U.S.C. 450f note) was 
     designed to improve and perpetuate the government-to-
     government relationship between Indian tribes and the United 
     States and to strengthen tribal control over Federal funding 
     and program management;
       (5) although the Federal Government has made considerable 
     strides in improving Indian health care, it has failed to 
     fully meet its trust responsibilities and to satisfy its 
     obligations to the Indian tribes under treaties and other 
     laws; and
       (6) Congress has reviewed the results of the Tribal Self-
     Governance Demonstration Project and finds that transferring 
     full control and funding to tribal governments, upon tribal 
     request, over decision making for Federal programs, services, 
     functions, and activities (or portions thereof)--
       (A) is an appropriate and effective means of implementing 
     the Federal policy of government-to-government relations with 
     Indian tribes; and
       (B) strengthens the Federal policy of Indian self-
     determination.

     SEC. 3. DECLARATION OF POLICY.

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

     SEC. 4. TRIBAL SELF-GOVERNANCE.

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

                   ``TITLE V--TRIBAL SELF-GOVERNANCE

     ``SEC. 501. ESTABLISHMENT.

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

     ``SEC. 502. DEFINITIONS.

       ``(a) In General.--For purposes of this title--
       ``(1) the term `construction project' means an organized 
     noncontinuous undertaking to complete a specific set of 
     predetermined objectives for the planning, environmental 
     determination, design, construction, repair, improvement, or 
     expansion of buildings or facilities, as described in a 
     construction project agreement. The term `construction 
     project' does not mean construction program administration 
     and activities described in paragraphs (1) through (3) of 
     section 4(m), which may otherwise be included in a funding 
     agreement under this title;
       ``(2) the term `construction project agreement' means a 
     negotiated agreement between the Secretary and an Indian 
     tribe which at a minimum--
       ``(A) establishes project phase start and completion dates;
       ``(B) defines a specific scope of work and standards by 
     which it will be accomplished;
       ``(C) identifies the responsibilities of the Indian tribe 
     and the Secretary;
       ``(D) addresses environmental considerations;
       ``(E) identifies the owner and operations/maintenance 
     entity of the proposed work;
       ``(F) provides a budget;
       ``(G) provides a payment process; and
       ``(H) establishes the duration of the agreement based on 
     the time necessary to complete the specified scope of work, 
     which may be 1 or more years;
       ``(3) the term `inherent Federal functions' means those 
     Federal functions which cannot legally be delegated to Indian 
     tribes;
       ``(4) the term `inter-tribal consortium' means a coalition 
     of two or more separate Indian tribes that join together for 
     the purpose of participating in self-governance, including, 
     but not limited to, a tribal organization;
       ``(5) the term `gross mismanagement' means a significant, 
     clear, and convincing violation of compact, funding 
     agreement, or regulatory, or statutory requirements 
     applicable to Federal funds transferred to a tribe by a 
     compact or funding agreement that results in a significant 
     reduction of funds available for the programs, services, 
     functions, or activities (or portions thereof) assumed by an 
     Indian tribe;
       ``(6) the term `tribal shares' means an Indian tribe's 
     portion of all funds and resources that support secretarial 
     programs, services, functions, and activities (or portions 
     thereof) that are not required by the Secretary for 
     performance of inherent Federal functions;
       ``(7) the term `Secretary' means the Secretary of Health 
     and Human Services; and
       ``(8) the term `self-governance' means the program 
     established pursuant to section 501.
       ``(b) Indian Tribe.--Where an Indian tribe has authorized 
     another Indian tribe, an inter-tribal consortium, or a tribal 
     organization to plan for or carry out programs, services, 
     functions, or activities (or portions thereof) on its behalf 
     under this title, the authorized Indian tribe, inter-tribal 
     consortium, or tribal organization shall have the rights and 
     responsibilities of the authorizing Indian tribe (except as 
     otherwise provided in the authorizing resolution or in this 
     title). In such event, the term `Indian tribe' as used in 
     this title shall include such other authorized Indian tribe, 
     inter-tribal consortium, or tribal organization.

     ``SEC. 503. SELECTION OF PARTICIPATING INDIAN TRIBES.

       ``(a) Continuing Participation.--Each Indian tribe that is 
     participating in the Tribal Self-Governance Demonstration 
     Project under title III on the date of enactment of this 
     title may elect to participate in self-governance under this 
     title under existing authority as reflected in tribal 
     resolutions.
       ``(b) Additional Participants.--
       ``(1) In addition to those Indian tribes participating in 
     self-governance under subsection (a), each year an additional 
     50 Indian tribes that meet the eligibility criteria specified 
     in subsection (c) shall be entitled to participate in self-
     governance.
       ``(2)(A) An Indian tribe that has withdrawn from 
     participation in an inter-tribal consortium or tribal 
     organization, in whole or in part, shall be entitled to 
     participate in self-governance provided the Indian tribe 
     meets the eligibility criteria specified in subsection (c).
       ``(B) If an Indian tribe has withdrawn from participation 
     in an inter-tribal consortium or tribal organization, it 
     shall be entitled to its tribal share of funds supporting 
     those programs, services, functions, and activities (or 
     portions thereof) that it will be carrying out under its 
     compact and funding agreement.
       ``(C) In no event shall the withdrawal of an Indian tribe 
     from an inter-tribal consortium or tribal organization affect 
     the eligibility of the inter-tribal consortium or tribal 
     organization to participate in self-governance.
       ``(c) Applicant Pool.--The qualified applicant pool for 
     self-governance shall consist of each Indian tribe that--
       ``(1) successfully completes the planning phase described 
     in subsection (d);
       ``(2) has requested participation in self-governance by 
     resolution or other official action by the governing body (or 
     bodies) of the Indian tribe or tribes to be served; and
       ``(3) has demonstrated, for the previous 3 fiscal years, 
     financial stability and financial management capability.


[[Page H9466]]


     Evidence that during such years the Indian tribe had no 
     uncorrected significant and material audit exceptions in the 
     required annual audit of the Indian tribe's self-
     determination contracts or self-governance funding agreements 
     shall be conclusive evidence of the required stability and 
     capability for the purposes of this subsection.
       ``(d) Planning Phase.--Each Indian tribe seeking 
     participation in self-governance shall complete a planning 
     phase. The planning phase shall be conducted to the 
     satisfaction of the Indian tribe and shall include--
       ``(1) legal and budgetary research; and
       ``(2) internal tribal government planning and 
     organizational preparation relating to the administration of 
     health care programs.
       ``(e) Grants.--Subject to the availability of 
     appropriations, any Indian tribe meeting the requirements of 
     paragraphs (2) and (3) of subsection (c) shall be eligible 
     for grants--
       ``(1) to plan for participation in self-governance; and
       ``(2) to negotiate the terms of participation by the Indian 
     tribe or tribal organization in self-governance, as set forth 
     in a compact and a funding agreement.
       ``(f) Receipt of Grant Not Required.--Receipt of a grant 
     under subsection (e) shall not be a requirement of 
     participation in self-governance.

     ``SEC. 504. COMPACTS.

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

     ``SEC. 505. FUNDING AGREEMENTS.

       ``(a) Funding Agreement Required.--The Secretary shall 
     negotiate and enter into a written funding agreement with 
     each Indian tribe participating in self-governance in a 
     manner consistent with the Federal Government's trust 
     responsibility, treaty obligations, and the government-to-
     government relationship between Indian tribes and the United 
     States.
       ``(b) Contents.--Each funding agreement required under 
     subsection (a) shall, as determined by the Indian tribe, 
     authorize the Indian tribe to plan, conduct, consolidate, 
     administer, and receive full tribal share funding, including 
     tribal shares of Indian Health Service competitive grants 
     (excluding congressionally earmarked competitive grants), for 
     all programs, services, functions, and activities (or 
     portions thereof), that are carried out for the benefit of 
     Indians because of their status as Indians without regard to 
     the agency or office of the Indian Health Service within 
     which the program, service, function, or activity (or portion 
     thereof) is performed. Such programs, services, functions, or 
     activities (or portions thereof) include all programs, 
     services, functions, activities (or portions thereof) where 
     Indian tribes or Indians are primary or significant 
     beneficiaries, administered by the Department of Health and 
     Human Services through the Indian Health Service and grants 
     (which may be added to a funding agreement after award of 
     such grants) and all local, field, service unit, area, 
     regional, and central headquarters or national office 
     functions administered under the authority of--
       ``(1) the Act of November 2, 1921 (25 U.S.C. 13);
       ``(2) the Act of April 16, 1934 (25 U.S.C. 452 et seq.);
       ``(3) the Act of August 5, 1954 (68 Stat. 674);
       ``(4) the Indian Health Care Improvement Act (25 U.S.C. 
     1601 et seq.); or
       ``(5) the Indian Alcohol and Substance Abuse Prevention and 
     Treatment Act of 1986 (25 U.S.C. 2401 et seq.).
       ``(c) Inclusion in Compact or Funding Agreement.--Indian 
     tribes or Indians need not be identified in the authorizing 
     statute for a program or element of a program to be eligible 
     for inclusion in a compact or funding agreement under this 
     title.
       ``(d) Funding Agreement Terms.--Each funding agreement 
     shall set forth terms that generally identify the programs, 
     services, functions, and activities (or portions thereof) to 
     be performed or administered, the general budget category 
     assigned, the funds to be provided, including those to be 
     provided on a recurring basis, the time and method of 
     transfer of the funds, the responsibilities of the Secretary, 
     and any other provisions to which the Indian tribe and the 
     Secretary agree.
       ``(e) Subsequent Funding Agreements.--Absent notification 
     from an Indian tribe that is withdrawing or retroceding the 
     operation of one or more programs, services, functions, or 
     activities (or portions thereof) identified in a funding 
     agreement, or unless otherwise agreed to by the parties, each 
     funding agreement shall remain in full force and effect until 
     a subsequent funding agreement is executed, and the terms of 
     the subsequent funding agreement shall be retroactive to the 
     end of the term of the preceding funding agreement.
       ``(f) Existing Funding Agreements.--Each Indian tribe 
     participating in the Tribal Self-Governance Demonstration 
     Project established under title III on the date of enactment 
     of this title shall have the option at any time thereafter 
     to--
       ``(1) retain its Tribal Self-Governance Demonstration 
     Project funding agreement (in whole or in part) to the extent 
     the provisions of such funding agreement are not directly 
     contrary to any express provision of this title; or
       ``(2) adopt in lieu thereof (in whole or in part) a new 
     funding agreement in conformity with this title.
       ``(g) Stable Base Funding.--At the option of an Indian 
     tribe, a funding agreement may provide for a stable base 
     budget specifying the recurring funds (including, for 
     purposes of this provision, funds available under section 
     106(a) of the Act) to be transferred to such Indian tribe, 
     for such period as may be specified in the funding agreement, 
     subject to annual adjustment only to reflect changes in 
     congressional appropriations by sub-sub activity excluding 
     earmarks.

     ``SEC. 506. GENERAL PROVISIONS.

       ``(a) Applicability.--The provisions of this section shall 
     apply to compacts and funding agreements negotiated under 
     this title and an Indian tribe may, at its option, include 
     provisions that reflect such requirements in a compact or 
     funding agreement.
       ``(b) Conflicts of Interest.--Indian tribes participating 
     in self-governance under this title shall ensure that 
     internal measures are in place to address conflicts of 
     interest in the administration of self-governance programs, 
     services, functions, or activities (or portions thereof).
       ``(c) Audits.--
       ``(1) Single agency audit act.--The provisions of chapter 
     75 of title 31, United States Code, requiring a single agency 
     audit report shall apply to funding agreements under this 
     title.
       ``(2) Cost principles.--An Indian tribe shall apply cost 
     principles under the applicable Office of Management and 
     Budget Circular, except as modified by section 106 or other 
     provisions of law, or by any exemptions to applicable Office 
     of Management and Budget Circulars subsequently granted by 
     Office of Management and Budget. No other audit or accounting 
     standards shall be required by the Secretary. Any claim by 
     the Federal Government against the Indian tribe relating to 
     funds received under a funding agreement based on any audit 
     under this subsection shall be subject to the provisions of 
     section 106(f).
       ``(d) Records.--
       ``(1) In general.--Unless an Indian tribe specifies 
     otherwise in the compact or funding agreement, records of the 
     Indian tribe shall not be considered Federal records for 
     purposes of chapter 5 of title 5, United States Code.
       ``(2) Recordkeeping system.--The Indian tribe shall 
     maintain a recordkeeping system, and, after 30 days advance 
     notice, provide the Secretary with reasonable access to such 
     records to enable the Department of Health and Human Services 
     to meet its minimum legal recordkeeping system requirements 
     under sections 3101 through 3106 of title 44, United States 
     Code.
       ``(e) Redesign and Consolidation.--An Indian tribe may 
     redesign or consolidate programs, services, functions, and 
     activities (or portions thereof) included in a funding 
     agreement under section 505 and reallocate or redirect funds 
     for such programs, services, functions, and activities (or 
     portions thereof) in any manner which the Indian tribe deems 
     to be in the best interest of the health and welfare of the 
     Indian community being served, only if the redesign or 
     consolidation does not have the effect of denying eligibility 
     for services to population groups otherwise eligible to be 
     served under Federal law.
       ``(f) Retrocession.--An Indian tribe may retrocede, fully 
     or partially, to the Secretary programs, services, functions, 
     or activities (or portions thereof) included in the compact 
     or funding agreement. Unless the Indian tribe rescinds the 
     request for retrocession, such retrocession will become 
     effective within the time frame specified by the parties in 
     the compact or funding agreement. In the absence of such a 
     specification, such retrocession shall become effective on--
       ``(1) the earlier of--
       ``(A) one year from the date of submission of such request; 
     or
       ``(B) the date on which the funding agreement expires; or
       ``(2) such date as may be mutually agreed by the Secretary 
     and the Indian tribe.
       ``(g) Withdrawal.--
       ``(1) Process.--An Indian tribe may fully or partially 
     withdraw from a participating

[[Page H9467]]

     inter-tribal consortium or tribal organization its share of 
     any program, function, service, or activity (or portions 
     thereof) included in a compact or funding agreement. Such 
     withdrawal shall become effective within the time frame 
     specified in the resolution which authorizes transfer to the 
     participating tribal organization or inter-tribal consortium. 
     In the absence of a specific time frame set forth in the 
     resolution, such withdrawal shall become effective on--
       ``(A) the earlier of--
       ``(i) one year from the date of submission of such request; 
     or
       ``(ii) the date on which the funding agreement expires; or
       ``(B) such date as may be mutually agreed upon by the 
     Secretary, the withdrawing Indian tribe, and the 
     participating tribal organization or inter-tribal consortium 
     that has signed the compact or funding agreement on behalf of 
     the withdrawing Indian tribe, inter-tribal consortium, or 
     tribal organization.
       ``(2) Distribution of funds.--When an Indian tribe or 
     tribal organization eligible to enter into a self-
     determination contract under title I or a compact or funding 
     agreement under this title fully or partially withdraws from 
     a participating inter-tribal consortium or tribal 
     organization, the withdrawing Indian tribe or tribal 
     organization shall be entitled to its tribal share of funds 
     supporting those programs, services, functions, or activities 
     (or portions thereof) which it will be carrying out under its 
     own self-determination contract or compact and funding 
     agreement (calculated on the same basis as the funds were 
     initially allocated in the funding agreement of the inter-
     tribal consortium or tribal organization), and such funds 
     shall be transferred from the funding agreement of the inter-
     tribal consortium or tribal organization, provided that the 
     provisions of sections 102 and 105(i), as appropriate, shall 
     apply to such withdrawing Indian tribe.
       ``(3) Regaining mature contract status.--If an Indian tribe 
     elects to operate all or some programs, services, functions, 
     or activities (or portions thereof) carried out under a 
     compact or funding agreement under this title through a self-
     determination contract under title I, at the option of the 
     Indian tribe, the resulting self-determination contract shall 
     be a mature self-determination contract.
       ``(h) Nonduplication.--For the period for which, and to the 
     extent to which, funding is provided under this title or 
     under the compact or funding agreement, the Indian tribe 
     shall not be entitled to contract with the Secretary for such 
     funds under section 102, except that such Indian tribe shall 
     be eligible for new programs on the same basis as other 
     Indian tribes.

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

       ``(a) Mandatory Provisions.--
       ``(1) Health status reports.--Compacts or funding 
     agreements negotiated between the Secretary and an Indian 
     tribe shall include a provision that requires the Indian 
     tribe to report on health status and service delivery--
       ``(A) to the extent such data is not otherwise available to 
     the Secretary and specific funds for this purpose are 
     provided by the Secretary under the funding agreement; and
       ``(B) if such reporting shall impose minimal burdens on the 
     participating Indian tribe and such requirements are 
     promulgated under section 517.
       ``(2) Reassumption--(A) Compacts and funding agreements 
     negotiated between the Secretary and an Indian tribe shall 
     include a provision authorizing the Secretary to reassume 
     operation of a program, service, function, or activity (or 
     portions thereof) and associated funding if there is a 
     specific finding relative to that program, service, function, 
     or activity (or portion thereof) of--
       ``(i) imminent endangerment of the public health caused by 
     an act or omission of the Indian tribe, and the imminent 
     endangerment arises out of a failure to carry out the compact 
     or funding agreement; or
       ``(ii) gross mismanagement with respect to funds 
     transferred to a tribe by a compact or funding agreement, as 
     determined by the Secretary in consultation with the 
     Inspector General, as appropriate.
       ``(B) The Secretary shall not reassume operation of a 
     program, service, function, or activity (or portions thereof) 
     unless (i) the Secretary has first provided written notice 
     and a hearing on the record to the Indian tribe; and (ii) the 
     Indian tribe has not taken corrective action to remedy the 
     imminent endangerment to public health or gross 
     mismanagement.
       ``(C) Notwithstanding subparagraph (B), the Secretary may, 
     upon written notification to the tribe, immediately reassume 
     operation of a program, service, function, or activity (or 
     portion thereof) and associated funding if (i) the Secretary 
     makes a finding of imminent substantial and irreparable 
     endangerment of the public health caused by an act or 
     omission of the Indian tribe; and (ii) the endangerment 
     arises out of a failure to carry out the compact or funding 
     agreement. If the Secretary reassumes operation of a program, 
     service, function, or activity (or portion thereof) under 
     this subparagraph, the Secretary shall provide the tribe with 
     a hearing on the record not later than 10 days after such 
     reassumption.
       ``(D) In any hearing or appeal involving a decision to 
     reassume operation of a program, service, function, or 
     activity (or portion thereof), the Secretary shall have the 
     burden of proof of demonstrating by clear and convincing 
     evidence the validity of the grounds for the reassumption.
       ``(b) Final Offer.--In the event the Secretary and a 
     participating Indian tribe are unable to agree, in whole or 
     in part, on the terms of a compact or funding agreement 
     (including funding levels), the Indian tribe may submit a 
     final offer to the Secretary. Not more than 45 days after 
     such submission, or within a longer time agreed upon by the 
     Indian tribe, the Secretary shall review and make a 
     determination with respect to such offer. In the absence of a 
     timely rejection of the offer, in whole or in part, made in 
     compliance with subsection (c), the offer shall be deemed 
     agreed to by the Secretary.
       ``(c) Rejection of Final Offers.--If the Secretary rejects 
     an offer made under subsection (b) (or one or more provisions 
     or funding levels in such offer), the Secretary shall 
     provide--
       ``(1) a timely written notification to the Indian tribe 
     that contains a specific finding that clearly demonstrates, 
     or that is supported by a controlling legal authority, that--
       ``(A) the amount of funds proposed in the final offer 
     exceeds the applicable funding level to which the Indian 
     tribe is entitled under this title;
       ``(B) the program, function, service, or activity (or 
     portion thereof) that is the subject of the final offer is an 
     inherent Federal function that cannot legally be delegated to 
     an Indian tribe;
       ``(C) the Indian tribe cannot carry out the program, 
     function, service, or activity (or portion thereof) in a 
     manner that would not result in significant danger or risk to 
     the public health; or
       ``(D) the tribe is not eligible to participate in self-
     governance under section 503;
       ``(2) technical assistance to overcome the objections 
     stated in the notification required by paragraph (1);
       ``(3) the Indian tribe with a hearing on the record with 
     the right to engage in full discovery relevant to any issue 
     raised in the matter and the opportunity for appeal on the 
     objections raised, provided that the Indian tribe may, in 
     lieu of filing such appeal, directly proceed to initiate an 
     action in a Federal district court pursuant to section 
     110(a); and
       ``(4) the Indian tribe with the option of entering into the 
     severable portions of a final proposed compact or funding 
     agreement, or provision thereof, (including lesser funding 
     amount, if any), that the Secretary did not reject, subject 
     to any additional alterations necessary to conform the 
     compact or funding agreement to the severed provisions. If an 
     Indian tribe exercises the option specified herein, it shall 
     retain the right to appeal the Secretary's rejection under 
     this section, and paragraphs (1), (2), and (3) shall only 
     apply to that portion of the proposed final compact, funding 
     agreement or provision thereof that was rejected by the 
     Secretary.
       ``(d) Burden of Proof.--With respect to any hearing or 
     appeal or civil action conducted pursuant to this section, 
     the Secretary shall have the burden of demonstrating by clear 
     and convincing evidence the validity of the grounds for 
     rejecting the offer (or a provision thereof) made under 
     subsection (b).
       ``(e) Good Faith.--In the negotiation of compacts and 
     funding agreements the Secretary shall at all times negotiate 
     in good faith to maximize implementation of the self-
     governance policy. The Secretary shall carry out this title 
     in a manner that maximizes the policy of tribal self-
     governance, consistent with section 3.
       ``(f) Savings.--To the extent that programs, functions, 
     services, or activities (or portions thereof) carried out by 
     Indian tribes under this title reduce the administrative or 
     other responsibilities of the Secretary with respect to the 
     operation of Indian programs and result in savings that have 
     not otherwise been included in the amount of tribal shares 
     and other funds determined under section 508(c), the 
     Secretary shall make such savings available to the Indian 
     tribes, inter-tribal consortia, or tribal organizations for 
     the provision of additional services to program beneficiaries 
     in a manner equitable to directly served, contracted, and 
     compacted programs.
       ``(g) Trust Responsibility.--The Secretary is prohibited 
     from waiving, modifying, or diminishing in any way the trust 
     responsibility of the United States with respect to Indian 
     tribes and individual Indians that exists under treaties, 
     Executive orders, other laws, or court decisions.
       ``(h) Decisionmaker.--A decision that constitutes final 
     agency action and relates to an appeal within the Department 
     of Health and Human Services conducted under subsection (c) 
     shall be made either--
       ``(1) by an official of the Department who holds a position 
     at a higher organizational level within the Department than 
     the level of the departmental agency in which the decision 
     that is the subject of the appeal was made; or
       ``(2) by an administrative judge.

     ``SEC. 508. TRANSFER OF FUNDS.

       ``(a) In General.--Pursuant to the terms of any compact or 
     funding agreement entered into under this title, the 
     Secretary shall transfer to the Indian tribe all funds 
     provided for in the funding agreement, pursuant to subsection 
     (c), and provide funding for periods covered by joint 
     resolution adopted by Congress making continuing 
     appropriations, to the extent permitted by such

[[Page H9468]]

     resolutions. In any instance where a funding agreement 
     requires an annual transfer of funding to be made at the 
     beginning of a fiscal year, or requires semiannual or other 
     periodic transfers of funding to be made commencing at the 
     beginning of a fiscal year, the first such transfer shall be 
     made not later than 10 days after the apportionment of such 
     funds by the Office of Management and Budget to the 
     Department, unless the funding agreement provides otherwise.
       ``(b) MultiYear Funding.--The Secretary is hereby 
     authorized to employ, upon tribal request, multiyear funding 
     agreements, and references in this title to funding 
     agreements shall include such multiyear agreements.
       ``(c) Amount of Funding.--The Secretary shall provide funds 
     under a funding agreement under this title in an amount equal 
     to the amount that the Indian tribe would have been entitled 
     to receive under self-determination contracts under this Act, 
     including amounts for direct program costs specified under 
     section 106(a)(1) and amounts for contract support costs 
     specified under sections 106(a)(2), (a)(3), (a)(5), and 
     (a)(6), including any funds that are specifically or 
     functionally related to the provision by the Secretary of 
     services and benefits to the Indian tribe or its members, all 
     without regard to the organizational level within the 
     Department where such functions are carried out.
       ``(d) Prohibitions.--The Secretary is expressly prohibited 
     from--
       ``(1) failing or refusing to transfer to an Indian tribe 
     its full share of any central, headquarters, regional, area, 
     or service unit office or other funds due under this Act, 
     except as required by Federal law;
       ``(2) withholding portions of such funds for transfer over 
     a period of years; and
       ``(3) reducing the amount of funds required herein--
       ``(A) to make funding available for self-governance 
     monitoring or administration by the Secretary;
       ``(B) in subsequent years, except pursuant to--
       ``(i) a reduction in appropriations from the previous 
     fiscal year for the program or function to be included in a 
     compact or funding agreement;
       ``(ii) a congressional directive in legislation or 
     accompanying report;
       ``(iii) a tribal authorization;
       ``(iv) a change in the amount of pass-through funds subject 
     to the terms of the funding agreement; or
       ``(v) completion of a project, activity, or program for 
     which such funds were provided;
       ``(C) to pay for Federal functions, including Federal pay 
     costs, Federal employee retirement benefits, automated data 
     processing, technical assistance, and monitoring of 
     activities under this Act; or
       ``(D) to pay for costs of Federal personnel displaced by 
     self-determination contracts under this Act or self-
     governance;

     except that such funds may be increased by the Secretary if 
     necessary to carry out this Act or as provided in section 
     105(c)(2).
       ``(e) Other Resources.--In the event an Indian tribe elects 
     to carry out a compact or funding agreement with the use of 
     Federal personnel, Federal supplies (including supplies 
     available from Federal warehouse facilities), Federal supply 
     sources (including lodging, airline transportation, and other 
     means of transportation including the use of interagency 
     motor pool vehicles) or other Federal resources (including 
     supplies, services, and resources available to the Secretary 
     under any procurement contracts in which the Department is 
     eligible to participate), the Secretary is authorized to 
     transfer such personnel, supplies, or resources to the Indian 
     tribe.
       ``(f) Reimbursement to Indian Health Service.--With respect 
     to functions transferred by the Indian Health Service to an 
     Indian tribe, the Indian Health Service is authorized to 
     provide goods and services to the Indian tribe, on a 
     reimbursable basis, including payment in advance with 
     subsequent adjustment, and the reimbursements received 
     therefrom, along with the funds received from the Indian 
     tribe pursuant to this title, may be credited to the same or 
     subsequent appropriation account which provided the funding, 
     such amounts to remain available until expended.
       ``(g) Prompt Payment Act.--Chapter 39 of title 31, United 
     States Code, shall apply to the transfer of funds due under a 
     compact or funding agreement authorized under this title.
       ``(h) Interest or Other Income on Transfers.--An Indian 
     tribe is entitled to retain interest earned on any funds paid 
     under a compact or funding agreement to carry out 
     governmental or health purposes and such interest shall not 
     diminish the amount of funds the Indian tribe is authorized 
     to receive under its funding agreement in the year the 
     interest is earned or in any subsequent fiscal year. Funds 
     transferred under this Act shall be managed using the prudent 
     investment standard.
       ``(i) Carryover of Funds.--All funds paid to an Indian 
     tribe in accordance with a compact or funding agreement shall 
     remain available until expended. In the event that an Indian 
     tribe elects to carry over funding from one year to the next, 
     such carryover shall not diminish the amount of funds the 
     Indian tribe is authorized to receive under its funding 
     agreement in that or any subsequent fiscal year.
       ``(j) Program Income.--All medicare, medicaid, or other 
     program income earned by an Indian tribe shall be treated as 
     supplemental funding to that negotiated in the funding 
     agreement and the Indian tribe may retain all such income and 
     expend such funds in the current year or in future years 
     except to the extent that the Indian Health Care Improvement 
     Act (25 U.S.C. 1601 et seq.) provides otherwise for medicare 
     and medicaid receipts, and such funds shall not result in any 
     offset or reduction in the amount of funds the Indian tribe 
     is authorized to receive under its funding agreement in the 
     year the program income is received or for any subsequent 
     fiscal year.
       ``(k) Limitation of Costs.--An Indian tribe shall not be 
     obligated to continue performance that requires an 
     expenditure of funds in excess of the amount of funds 
     transferred under a compact or funding agreement. If at any 
     time the Indian tribe has reason to believe that the total 
     amount provided for a specific activity in the compact or 
     funding agreement is insufficient the Indian tribe shall 
     provide reasonable notice of such insufficiency to the 
     Secretary. If the Secretary does not increase the amount of 
     funds transferred under the funding agreement, the Indian 
     tribe may suspend performance of the activity until such time 
     as additional funds are transferred.

     ``SEC. 509. CONSTRUCTION PROJECTS.

       ``(a) In General.--Indian tribes participating in tribal 
     self-governance may carry out construction projects under 
     this title if they elect to assume all Federal 
     responsibilities under the National Environmental Policy Act 
     of 1969, the Historic Preservation Act , and related 
     provisions of law that would apply if the Secretary were to 
     undertake a construction project, by adopting a resolution 
     (1) designating a certifying officer to represent the Indian 
     tribe and to assume the status of a responsible Federal 
     official under such laws, and (2) accepting the jurisdiction 
     of the Federal court for the purpose of enforcement of the 
     responsibilities of the responsible Federal official under 
     such environmental laws.
       ``(b) Negotiations.--Construction project proposals shall 
     be negotiated pursuant to the statutory process in section 
     105(m) and resulting construction project agreements shall be 
     incorporated into funding agreements as addenda.
       ``(c) Codes and Standards.--The Indian tribe and the 
     Secretary shall agree upon and specify appropriate buildings 
     codes and architectural/engineering standards (including 
     health and safety) which shall be in conformity with 
     nationally recognized standards for comparable projects.
       ``(d) Responsibility for Completion.--The Indian tribe 
     shall assume responsibility for the successful completion of 
     the construction project in accordance with the negotiated 
     construction project agreement.
       ``(e) Funding.--Funding for construction projects carried 
     out under this title shall be included in funding agreements 
     as annual advance payments, with semiannual payments at the 
     option of the Indian tribe. Annual advance and semiannual 
     payment amounts shall be determined based on mutually 
     agreeable project schedules reflecting work to be 
     accomplished within the advance payment period, work 
     accomplished and funds expended in previous payment periods, 
     and the total prior payments. The Secretary shall include 
     associated project contingency funds with each advance 
     payment installment. The Indian tribe shall be responsible 
     for the management of the contingency funds included in 
     funding agreements.
       ``(f) Approval.--The Secretary shall have at least one 
     opportunity to approve project planning and design documents 
     prepared by the Indian tribe in advance of construction of 
     the facilities specified in the scope of work for each 
     negotiated construction project agreement or amendment 
     thereof which results in a significant change in the original 
     scope of work. The Indian tribe shall provide the Secretary 
     with project progress and financial reports not less than 
     semiannually. The Secretary may conduct on-site project 
     oversight visits semiannually or on an alternate schedule 
     agreed to by the Secretary and the Indian tribe.
       ``(g) Wages.--All laborers and mechanics employed by 
     contractors and subcontractors in the construction, 
     alteration, or repair, including painting or decorating of 
     building or other facilities in connection with construction 
     projects undertaken by self-governance Indian tribes under 
     this Act, shall be paid wages at not less than those 
     prevailing wages on similar construction in the locality as 
     determined by the Secretary of Labor in accordance with the 
     Davis-Bacon Act of March 3, 1931 (46 Stat. 1494). With 
     respect to construction, alteration, or repair work to which 
     the Act of March 3, 1921, is applicable under the terms of 
     this section, the Secretary of Labor shall have the authority 
     and functions set forth in Reorganization Plan Numbered 14, 
     of 1950, and section 2 of the Act of June 13, 1934 (48 Stat. 
     948).
       ``(h) Application of Other Laws.--Unless otherwise agreed 
     to by the Indian tribe, no provision of the Office of Federal 
     Procurement Policy Act, the Federal Acquisition Regulations 
     issued pursuant thereto, or any other law or regulation 
     pertaining to Federal procurement (including Executive 
     orders) shall apply to any construction project conducted 
     under this title.

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

       ``Notwithstanding any other provision of law, unless 
     expressly agreed to by the participating Indian tribe, the 
     compacts and funding agreements entered into under this

[[Page H9469]]

     title shall not be subject to Federal contracting or 
     cooperative agreement laws and regulations (including 
     Executive orders and the Secretary's regulations), except to 
     the extent that such laws expressly apply to Indian tribes.

     ``SEC. 511. CIVIL ACTIONS.

       ``(a) Contract Defined.--For the purposes of section 110, 
     the term `contract' shall include compacts and funding 
     agreements entered into under this title.
       ``(b) Applicability of Certain Laws.--Section 2103 of the 
     Revised Statutes of the United States Code (25 U.S.C. 81) and 
     section 16 of the Act of June 18, 1934 (25 U.S.C. 476), shall 
     not apply to attorney and other professional contracts 
     entered into by Indian tribes participating in self-
     governance under this title.
       ``(c) References.--All references in the Indian Self-
     Determination and Education Assistance Act (25 U.S.C. 450 et 
     seq.) to section 1 of the Act of June 26, 1936 (25 U.S.C. 81) 
     are hereby deemed to include section 1 of the Act of July 3, 
     1952 (25 U.S.C. 82a).

     ``SEC. 512. FACILITATION.

       ``(a) Secretarial Interpretation.--Except as otherwise 
     provided by law, the Secretary shall interpret all Federal 
     laws, Executive orders and regulations in a manner that will 
     facilitate--
       ``(1) the inclusion of programs, services, functions, and 
     activities (or portions thereof) and funds associated 
     therewith, in the agreements entered into under this section;
       ``(2) the implementation of compacts and funding agreements 
     entered into under this title; and
       ``(3) the achievement of tribal health goals and 
     objectives.
       ``(b) Regulation Waiver.--
       ``(1) An Indian tribe may submit a written request to waive 
     application of a regulation promulgated under this Act for a 
     compact or funding agreement entered into with the Indian 
     Health Service under this title, to the Secretary identifying 
     the applicable Federal regulation sought to be waived and the 
     basis for the request.
       ``(2) Not later than 90 days after receipt by the Secretary 
     of a written request by an Indian tribe to waive application 
     of a regulation for a compact or funding agreement entered 
     into under this title, the Secretary shall either approve or 
     deny the requested waiver in writing. A denial may be made 
     only upon a specific finding by the Secretary that identified 
     language in the regulation may not be waived because such 
     waiver is prohibited by Federal law. A failure to approve or 
     deny a waiver request not later than 90 days after receipt 
     shall be deemed an approval of such request. The Secretary's 
     decision shall be final for the Department.
       ``(c) Access to Federal Property.--In connection with any 
     compact or funding agreement executed pursuant to this title 
     or an agreement negotiated under the Tribal Self-Governance 
     Demonstration Project established under title III, as in 
     effect before the enactment of the Tribal Self-Governance 
     Amendments of 1998, upon the request of an Indian tribe, the 
     Secretary--
       ``(1) shall permit an Indian tribe to use existing school 
     buildings, hospitals, and other facilities and all equipment 
     therein or appertaining thereto and other personal property 
     owned by the Government within the Secretary's jurisdiction 
     under such terms and conditions as may be agreed upon by the 
     Secretary and the tribe for their use and maintenance;
       ``(2) may donate to an Indian tribe title to any personal 
     or real property found to be excess to the needs of any 
     agency of the Department, or the General Services 
     Administration, except that--
       ``(A) subject to the provisions of subparagraph (B), title 
     to property and equipment furnished by the Federal Government 
     for use in the performance of the compact or funding 
     agreement or purchased with funds under any compact or 
     funding agreement shall, unless otherwise requested by the 
     Indian tribe, vest in the appropriate Indian tribe;
       ``(B) if property described in subparagraph (A) has a value 
     in excess of $5,000 at the time of retrocession, withdrawal, 
     or reassumption, at the option of the Secretary upon the 
     retrocession, withdrawal, or reassumption, title to such 
     property and equipment shall revert to the Department of 
     Health and Human Services; and
       ``(C) all property referred to in subparagraph (A) shall 
     remain eligible for replacement, maintenance, and improvement 
     on the same basis as if title to such property were vested in 
     the United States; and
       ``(3) shall acquire excess or surplus Government personal 
     or real property for donation to an Indian tribe if the 
     Secretary determines the property is appropriate for use by 
     the Indian tribe for any purpose for which a compact or 
     funding agreement is authorized under this title.
       ``(d) Matching or Cost-Participation Requirement.--All 
     funds provided under compacts, funding agreements, or grants 
     made pursuant to this Act, shall be treated as non-Federal 
     funds for purposes of meeting matching or cost participation 
     requirements under any other Federal or non-Federal program.
       ``(e) State Facilitation.--States are hereby authorized and 
     encouraged to enact legislation, and to enter into agreements 
     with Indian tribes to facilitate and supplement the 
     initiatives, programs, and policies authorized by this title 
     and other Federal laws benefiting Indians and Indian tribes.
       ``(f) Rules of Construction.--Each provision of this title 
     and each provision of a compact or funding agreement shall be 
     liberally construed for the benefit of the Indian tribe 
     participating in self-governance and any ambiguity shall be 
     resolved in favor of the Indian tribe.

     ``SEC. 513. BUDGET REQUEST.

       ``(a) In General.--The President shall identify in the 
     annual budget request submitted to the Congress under section 
     1105 of title 31, United States Code, all funds necessary to 
     fully fund all funding agreements authorized under this 
     title, including funds specifically identified to fund tribal 
     base budgets. All funds so appropriated shall be apportioned 
     to the Indian Health Service. Such funds shall be provided to 
     the Office of Tribal Self-Governance which shall be 
     responsible for distribution of all funds provided under 
     section 505. Nothing in this provision shall be construed to 
     authorize the Indian Health Service to reduce the amount of 
     funds that a self-governance tribe is otherwise entitled to 
     receive under its funding agreement or other applicable law, 
     whether or not such funds are made available to the Office of 
     Tribal Self-Governance under this section.
       ``(b) Present Funding; Shortfalls.--In such budget request, 
     the President shall identify the level of need presently 
     funded and any shortfall in funding (including direct program 
     and contract support costs) for each Indian tribe, either 
     directly by the Secretary, under self-determination 
     contracts, or under compacts and funding agreements 
     authorized under this title.

     ``SEC. 514. REPORTS.

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

     ``SEC. 515. DISCLAIMERS.

       ``(a) No Funding Reduction.--Nothing in this title shall be 
     construed to limit or reduce in any way the funding for any 
     program, project, or activity serving an Indian tribe under 
     this or other applicable Federal law. Any Indian tribe that 
     alleges that a compact or funding agreement is in violation 
     of this section may apply the provisions of section 110.
       ``(b) Federal Trust and Treaty Responsibilities.--Nothing 
     in this Act shall be construed to diminish in any way the 
     trust responsibility of the United States to Indian tribes 
     and individual Indians that exists under treaties, Executive 
     orders, or other laws and court decisions.
       ``(c) Tribal Employment.--For purposes of section 2(2) of 
     the Act of July 5, 1935 (49 Stat. 450, chapter 372) (commonly 
     known as the National Labor Relations Act), an Indian

[[Page H9470]]

     tribe carrying out a self-determination contract, compact, 
     annual funding agreement, grant, or cooperative agreement 
     under this Act shall not be considered an employer.
       ``(d) Obligations of the United States.--The Indian Health 
     Service under this Act shall neither bill nor charge those 
     Indians who may have the economic means to pay for services, 
     nor require any Indian tribe to do so.

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

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

     ``SEC. 517. REGULATIONS.

       ``(a) In General.--
       ``(1) Not later than 90 days after the date of enactment of 
     this title, the Secretary shall initiate procedures under 
     subchapter III of chapter 5 of title 5, United States Code, 
     to negotiate and promulgate such regulations as are necessary 
     to carry out this title.
       ``(2) Proposed regulations to implement this title shall be 
     published in the Federal Register by the Secretary no later 
     than 1 year after the date of enactment of this title.
       ``(3) The authority to promulgate regulations under this 
     title shall expire 21 months after the date of enactment of 
     this title.
       ``(b) Committee.--A negotiated rulemaking committee 
     established pursuant to section 565 of title 5, United States 
     Code, to carry out this section shall have as its members 
     only Federal and tribal government representatives, a 
     majority of whom shall be nominated by and be representatives 
     of Indian tribes with funding agreements under this Act, and 
     the Committee shall confer with, and accommodate 
     participation by, representatives of Indian tribes, inter-
     tribal consortia, tribal organizations, and individual tribal 
     members.
       ``(c) Adaptation of Procedures.--The Secretary shall adapt 
     the negotiated rulemaking procedures to the unique context of 
     self-governance and the government-to-government relationship 
     between the United States and Indian tribes.
       ``(d) Effect.--The lack of promulgated regulations shall 
     not limit the effect of this title.
       ``(e) Effect of Circulars, Policies, Manuals, Guidances, 
     and Rules.--Unless expressly agreed to by the participating 
     Indian tribe in the compact or funding agreement, the 
     participating Indian tribe shall not be subject to any agency 
     circular, policy, manual, guidance, or rule adopted by the 
     Indian Health Service and the eligibility provisions of 
     section 105(g).

     ``SEC. 518. APPEALS.

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

     ``SEC. 519. AUTHORIZATION OF APPROPRIATIONS.

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

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

     ``SEC. 601. DEMONSTRATION PROJECT FEASIBILITY.

       ``(a) Study.--The Secretary shall conduct a study to 
     determine the feasibility a Tribal Self-Governance 
     Demonstration Project for appropriate programs, services, 
     functions, and activities (or portions thereof) of the 
     agency.
       ``(b) Considerations.--When conducting the study, the 
     Secretary shall consider--
       ``(1) the probable effects on specific programs and program 
     beneficiaries of such a demonstration project;
       ``(2) statutory, regulatory, or other impediments to 
     implementation of such a demonstration project;
       ``(3) strategies for implementing such a demonstration 
     project;
       ``(4) probable costs or savings associated with such a 
     demonstration project;
       ``(5) methods to assure quality and accountability in such 
     a demonstration project; and
       ``(6) such other issues that may be determined by the 
     Secretary or developed through consultation pursuant to 
     section 602.
       ``(c) Report.--Not later than 18 months after the enactment 
     of this title, the Secretary shall submit a report to the 
     Committee on Resources of the House of Representatives and 
     the Committee on Indian Affairs of the Senate. The report 
     shall contain--
       ``(1) the results of the study;
       ``(2) a list of programs, services, functions, and 
     activities (or portions thereof) within the agency which it 
     would be feasible to include in a Tribal Self-Governance 
     Demonstration Project;
       ``(3) a list of programs, services, functions, and 
     activities (or portions thereof) included in the list 
     provided pursuant to paragraph (2) which could be included in 
     a Tribal Self-Governance Demonstration Project without 
     amending statutes, or waiving regulations that the Secretary 
     may not waive;
       ``(4) a list of legislative actions required in order to 
     include those programs, services, functions, and activities 
     (or portions thereof) included in the list provided pursuant 
     to paragraph (2) but not included in the list provided 
     pursuant to paragraph (3) in a Tribal Self-Governance 
     Demonstration Project; and
       ``(5) any separate views of tribes and other entities 
     consulted pursuant to section 602 related to the information 
     provided pursuant to paragraph (1) through (4).

     ``SEC. 602. CONSULTATION.

       ``(a) Study Protocol.--
       ``(1) Consultation with indian tribes.--The Secretary shall 
     consult with Indian tribes to determine a protocol for 
     consultation under subsection (b) prior to consultation under 
     such subsection with the other entities described in such 
     subsection. The protocol shall require, at a minimum, that--
       ``(A) the government-to-government relationship with Indian 
     tribes forms the basis for the consultation process;
       ``(B) the Indian tribes and the Secretary jointly conduct 
     the consultations required by this section; and
       ``(C) the consultation process allow for separate and 
     direct recommendations from the Indian tribes and other 
     entities described in subsection (b).
       ``(2) Opportunity for public comment.--In determining the 
     protocol described in paragraph (1),the Secretary shall 
     publish the proposed protocol and allow a period of not less 
     than 30 days for comment by entities described in subsection 
     (b) and other interested individuals, and shall take comments 
     received into account in determining the final protocol.
       ``(b) Conducting Study.--In conducting the study under this 
     title, the Secretary shall consult with Indian tribes,States, 
     counties, municipalities, program beneficiaries, and 
     interested public interest groups, and may consult with other 
     entities as appropriate.

     ``SEC. 603. DEFINITIONS.

       ``(a) In General.--For purposes of this title, the 
     Secretary may use definitions provided in title V.
       ``(b) Agency.--For purposes of this title, the term 
     `agency' shall mean any agency or other organizational unit 
     of the Department of Health and Human Services, other than 
     the Indian Health Service.

     ``SEC. 604. AUTHORIZATION OF APPROPRIATIONS.

       ``There are authorized to be appropriated for fiscal years 
     1999 and 2000 such sums as may be necessary to carry out this 
     title. Such sums shall remain available until expended.''.

     SEC. 5. AMENDMENTS CLARIFYING CIVIL PROCEEDINGS.

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

     SEC. 6. SPEEDY ACQUISITION OF GOODS, SERVICES, OR SUPPLIES.

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

     SEC. 7. PATIENT RECORDS.

       Section 105 of the Indian Self-Determination and Education 
     Assistance Act (25 U.S.C. 450j) is amended by adding at the 
     end the following new subsection:
       ``(o) At the option of an Indian tribe or tribal 
     organization, Indian patient records may be deemed to be 
     Federal records under the Federal Records Act of 1950 for the 
     limited purposes of making such records eligible for storage 
     by Federal Records Centers to the same extent and in the same 
     manner as other Department of Health and Human Services 
     patient records.''.

     SEC. 8. REPEAL.

       Title III of the Indian Self-Determination and Education 
     Assistance Act (25 U.S.C. 450f note) is hereby repealed.

[[Page H9471]]

     SEC. 9. SAVINGS PROVISION.

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

     SEC. 10. EFFECTIVE DATE.

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

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Alaska (Mr. Young) and the gentleman from American Samoa (Mr. 
Faleomavaega) each will control 20 minutes.
  The Chair recognizes the gentleman from Alaska (Mr. Young).
  (Mr. YOUNG of Alaska asked and was given permission to revise and 
extend his remarks.)
  Mr. YOUNG of Alaska. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, H.R. 1833, the proposed Tribal Self-Governance 
Amendments Act of 1998, would make permanent the Indian Health Service 
Self-Governance demonstration program.
  Thereby, Indian and Alaska Native tribes would be able to contract 
for the operation, control, and redesign of various IHS activities on a 
permanent basis.
  Pursuant to H.R. 1833, tribes which have already contracted for IHS 
activities would continue under the provisions of their demonstration 
compacts, while an additional 50 tribes would be selected each year to 
enter into compacts.
  H.R. 1833 also allows for the tribal contracting of programs outside 
the IHS, but within the Department of Health and Human Services on a 
demonstration-project basis.
  Mr. Speaker, H.R. 1833 is a major piece of Native American 
legislation which we have been working on for months and months. This 
bill lays out 55 pages of findings, Secretarial obligations, 
Secretarial prohibitions, rulemaking requirements, reporting 
requirements, and tribal obligations.
  The gentleman from California (Mr. Miller), and his staff, and the 
gentleman from Michigan (Mr. Kildee), and his staff, along with my 
staff, have worked extensively on this legislation. I commend them and 
their staffs for their perseverance through the scores of meetings 
which were needed to craft this bill.
  This is a landmark piece of legislation in the field of self-
governance. Mr. Speaker, I am honored to have had a part in its 
movement through Congress. I support H.R. 1833 and ask my colleagues to 
vote for this legislation and urge the passage by my colleagues.
  Mr. Speaker, I reserve the balance of my time.
  Mr. FALEOMAVAEGA. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, I again commend the gentleman from Alaska (Chairman 
Young) for his management of this important legislation.
  Mr. Speaker, I fully support this bill, the Tribal Self-Governance 
Amendments of 1998, which I believe will mark yet another milestone in 
the history of Indian self-determination.
  This major legislation is the product of more than 2 years of hard 
work and consultation with Indian tribes and the administration. We 
have worked diligently with the tribes and the Department of Health and 
Human Services to make this bill as fair as possible.
  I would like to extend my appreciation to the tribal leaders, their 
representatives, and the Department staff who have made passage of this 
bill possible.
  Mr. Speaker, it is important to note that subsequent to the full 
committee markup that occurred in the spring, the tribes and the 
Department were able to work out additional differences. Thus, there 
have been several changes that I want to highlight.
  We were able to come to agreement on issues regarding reassumption, 
regulation waiver, trial de novo, rejection of final order, and the 
creation of a new title VI to carry out the non-Indian Health Service 
demonstration project study.
  Mr. Speaker, let me briefly explain what this bill does. The bill, 
the Tribal Self-Governance Amendments Act of 1998, would create two new 
titles in the 1975 Indian Self-Determination and Education Assistance 
Act. The 1975 act allows Indian tribes to contract for or take over the 
administration and operation of certain Federal programs which provide 
service to Indian tribes.
  Subsequent amendments to the 1975 Act created title III of the act, 
which provided for a self-governance demonstration project that allows 
for large-scale tribal self-governance compacts and funding agreements 
on a demonstration basis.
  Mr. Speaker, this bill is important especially for the Indian 
communities, but more importantly, the responsibility the Congress 
should take to provide for the needs of the Indian nations.
  I also want to, again, commend my good friend, the gentleman from 
Alaska (Mr. Young) for his work on solving the problem that we have had 
over the years in giving proper recognition to Indian tribes. I want to 
make a note of this to my colleagues. There is nowhere in the current 
bill that provides better streamlining of the Indian community if they 
were to apply to the Federal Government that gaming of any form is ever 
at all involved. I want to reassure my colleagues that that is the 
basis of that bill that has taken this Member over 6 years to help 
develop with the administration, with the staffs, with the majority 
party Members as well as the members of the committee on this side of 
the aisle.
  So, again, I plead with my colleagues, that bill to better streamline 
the recognition of Indian tribes, given the fact that California was 
not even a member of this Nation until 72 years. Seventy-two years when 
America was founded, and California was not even a State.
  And where is fairness, Mr. Speaker, if I were to elaborate a little 
further on this issue? But the fact that this bill should be approved, 
again I want to commend the gentleman from Alaska. Give tribute and 
credence to the fact that the recognition process has failed miserably, 
and we should vote in support of H.R. 1154.
  Mr. Speaker, I yield back the balance of my time.
  Mr. YOUNG of Alaska. Mr. Speaker, I yield back the balance of my 
time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from Alaska (Mr. Young) that the House suspend the rules and 
pass the bill, H.R. 1833, as amended.
  The question was taken; and (two-thirds having voted in favor 
thereof) the rules were suspended and the bill, as amended, was passed.
  A motion to reconsider was laid on the table.

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