[Congressional Record Volume 164, Number 161 (Friday, September 28, 2018)]
[Senate]
[Pages S6391-S6397]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  PRACTICAL REFORMS AND OTHER GOALS TO REINFORCE THE EFFECTIVENESS OF 
  SELF-GOVERNANCE AND SELF-DETERMINATION FOR INDIAN TRIBES ACT OF 2018

  Mr. McCONNELL. Mr. President, I ask unanimous consent that the Senate 
proceed to the immediate consideration of Calendar No. 567, S. 2515.
  The ACTING PRESIDENT pro tempore. The clerk will report the bill by 
title.
  The senior assistant legislative clerk read as follows:

       A bill (S. 2515) to amend the Indian Self-Determination and 
     Education Assistance Act to provide further self-governance 
     by Indian Tribes, and for other purposes.

  There being no objection, the Senate proceeded to consider the bill.
  Mr. McCONNELL. I ask unanimous consent that the bill be considered 
read the third time.
  The bill was ordered to be engrossed for a third reading and was read 
the third time.
  Mr. McCONNELL. I know of no further debate on the bill.
  The ACTING PRESIDENT pro tempore. Is there further debate?
  Hearing none, the question is, Shall the bill pass?
  The bill (S. 2515) was passed, as follows:

                                S. 2515

       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 2018'' 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. 458bb) 
     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, two or more otherwise eligible 
     Indian Tribes may be treated as a single Indian Tribe for the 
     purpose of participating in self-governance.
       ``(2) Other authorized indian tribe or tribal 
     organization.--If an Indian Tribe authorizes another Indian 
     Tribe or a Tribal organization to plan for or carry out a 
     program on its behalf under this title, the authorized Indian 
     Tribe or Tribal organization shall have the rights and 
     responsibilities of the authorizing Indian Tribe (except as 
     otherwise provided in the authorizing resolution).
       ``(3) Joint participation 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

[[Page S6392]]

     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); and
       (4) 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

[[Page S6393]]

     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. 5304 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.

[[Page S6394]]

       ``(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 (42 U.S.C. 4321 
     et seq.), the National Historic Preservation Act (16 U.S.C. 
     470 et seq.), 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;

[[Page S6395]]

       ``(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

[[Page S6396]]

     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, 2019, 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

[[Page S6397]]

     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 
     405(b)(1) 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''.

  Mr. McCONNELL. Mr. President, I ask unanimous consent that the motion 
to reconsider be considered made and laid upon the table.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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