[Congressional Record (Bound Edition), Volume 156 (2010), Part 11]
[House]
[Pages 16183-16191]
[From the U.S. Government Publishing Office, www.gpo.gov]




     DEPARTMENT OF THE INTERIOR TRIBAL SELF-GOVERNANCE ACT OF 2010

  Mrs. CHRISTENSEN. Mr. Speaker, I move to suspend the rules and pass 
the bill (H.R. 4347) to amend the Indian Self-Determination and 
Education Assistance Act to provide further self-governance by Indian 
tribes, and for other purposes, as amended.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 4347

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

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

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

Sec. 1. Short title; table of contents.

                   TITLE I--INDIAN SELF-DETERMINATION

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

                    TITLE II--TRIBAL SELF-GOVERNANCE

Sec. 201. Tribal self-governance.

                   TITLE I--INDIAN SELF-DETERMINATION

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

       (a) Definitions.--Section 4 of the Indian Self-
     Determination and Education Assistance Act (25 U.S.C. 450b) 
     is amended by striking subsection (j) and inserting the 
     following:
       ``(j) `self-determination contract' means a contract 
     entered into 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);''.
       (b) Reporting and Audit Requirements.--Section 5(b) of the 
     Indian Self-Determination and Education Assistance Act (25 
     U.S.C. 450c(b)) is amended--
       (1) 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
       (2) by adding at the end the following: ``The retention 
     period shall be defined in regulations promulgated by the 
     Secretary pursuant to section 415.''
       (c) Application of Other Provisions.--Sections 4, 5, 6, 7, 
     102(c) 104, 105(a)(1), 105(f), 110, and 111 of the Indian 
     Self-Determination and Education Assistance Act, as amended, 
     (25 U.S.C. 450 et seq.) (Public Law 93-638; 88 Stat. 2203) 
     and section 314 of the Department of the Interior and Related 
     Agencies Appropriations Act, 1991 (Public Law 101-512; 104 
     Stat. 1959), apply to compacts and funding agreements entered 
     into under title IV.

     SEC. 102. CONTRACTS BY SECRETARY OF INTERIOR.

       Section 102 of the Indian Self-Determination and Education 
     Assistance Act (25 U.S.C. 450f) is amended--
       (1) in subsection (c)(2), by striking ``economic 
     enterprises'' and all that follows through ``except that'' 
     and inserting ``economic enterprises (as defined in section 3 
     of the Indian Financing Act of 1974 (25 U.S.C. 1452)), except 
     that''; 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 the purposes specified in section 3.
       ``(g) Rule of Construction.--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. 103. ADMINISTRATIVE PROVISIONS.

       Section 105 of the Indian Self-Determination and Education 
     Assistance Act (25 U.S.C. 450j) is amended--
       (1) in subsection (b), in the first sentence, by striking 
     ``pursuant to'' and all that follows through ``of this Act'' 
     and inserting ``pursuant to sections 102 and 103''; and
       (2) by adding at the end the following:
       ``(m) Interpretation by Secretary.--Except as otherwise 
     provided by law, the Secretary shall interpret all Federal 
     laws (including regulations) and Executive orders in a manner 
     that facilitates, to the maximum extent practicable--
       ``(1) the inclusion in self-determination contracts and 
     funding agreements of--
       ``(A) applicable programs, services, functions, and 
     activities (or portions thereof); and
       ``(B) funds associated with those programs, services, 
     functions, and activities;
       ``(2) the implementation of self-determination contracts 
     and funding agreements; and
       ``(3) the achievement of tribal health objectives.''.

     SEC. 104. CONTRACT FUNDING AND INDIRECT COSTS.

       Section 106(a)(3) of the Indian Self-Determination and 
     Education Assistance Act (25 U.S.C. 450j-1(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

[[Page 16184]]

       (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. 105. CONTRACT OR GRANT SPECIFICATIONS.

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

                    TITLE II--TRIBAL SELF-GOVERNANCE

     SEC. 201. TRIBAL SELF-GOVERNANCE.

       Title IV of the Indian Self-Determination and Education 
     Assistance Act (25 U.S.C. 458aa et seq.) is amended to read 
     as follows:

                   ``TITLE IV--TRIBAL SELF-GOVERNANCE

     ``SEC. 401. DEFINITIONS.

       ``In this title:
       ``(1) Compact.--The term `compact' means a self-governance 
     compact entered into under section 404.
       ``(2) Construction program; 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 405.
       ``(5) Gross mismanagement.--The term `gross mismanagement' 
     means a significant violation, shown by a preponderance of 
     the evidence, of a compact, funding agreement, or statutory 
     or regulatory requirement applicable to Federal funds--
       ``(A) for a program administered by an Indian tribe; or
       ``(B) under a compact or funding agreement that results in 
     a significant reduction of funds available for the programs 
     assumed by an Indian tribe.
       ``(6) Inherent federal function.--The term `inherent 
     Federal function' means a Federal function that may not 
     legally be delegated to an Indian tribe.
       ``(7) Program.--The term `program' means any program, 
     function, service, or activity (or portion thereof) within 
     the Department that is included in a funding agreement.
       ``(8) Secretary.--The term `Secretary' means the Secretary 
     of the Interior.
       ``(9) Self-governance.--The term `self-governance' means 
     the Tribal Self-Governance Program established under section 
     402.
       ``(10) Tribal share.--The term `tribal share' means an 
     Indian tribe's portion of all funds and resources that--
       ``(A) support any program within the Bureau of Indian 
     Affairs, the Office of Special Trustee, 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.

     ``SEC. 402. ESTABLISHMENT.

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

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

       ``(a) In General.--
       ``(1) Participants.--
       ``(A) In general.--The Secretary, acting through the 
     Director of the Office of Self-Governance, may select up to 
     50 new Indian tribes per year from those eligible under 
     subsection (b) to participate in self-governance.
       ``(B) Joint participation.--On the request of each 
     participating Indian tribe, 2 or more otherwise eligible 
     Indian tribes may be treated as a single Indian tribe for the 
     purpose of participating in self-governance.
       ``(2) Other authorized indian tribe or tribal 
     organization.--If an Indian tribe authorizes another Indian 
     tribe or a tribal organization to plan for or carry out a 
     program on its behalf under this title, the authorized Indian 
     tribe or tribal organization shall have the rights and 
     responsibilities of the authorizing Indian tribe (except as 
     otherwise provided in the authorizing resolution).
       ``(3) Joint participation.--2 or more Indian tribes that 
     are not otherwise eligible under subsection (b) may be 
     treated as a single Indian tribe for the purpose of 
     participating in self-governance as a tribal organization 
     if--
       ``(A) each Indian tribe so requests; and
       ``(B) the tribal organization itself, or at least 1 of the 
     Indian tribes participating in the tribal organization, is 
     eligible under subsection (b).
       ``(4) Tribal withdrawal from a tribal organization.--
       ``(A) In general.--An Indian tribe that withdraws from 
     participation in a tribal organization, in whole or in part, 
     shall be entitled to participate in self-governance if the 
     Indian tribe is eligible under subsection (b).
       ``(B) Effect of withdrawal.--If an Indian tribe withdraws 
     from participation in a tribal organization, the Indian tribe 
     shall be entitled to its tribal share of funds and resources 
     supporting the programs that the Indian tribe is entitled to 
     carry out under the compact and funding agreement of the 
     Indian tribe.
       ``(C) Participation in self-governance.--The withdrawal of 
     an Indian tribe from a tribal organization shall not affect 
     the eligibility of the tribal organization to participate in 
     self-governance on behalf of 1 or more other Indian tribes, 
     if the tribal organization still qualifies under subsection 
     (b).
       ``(D) Withdrawal process.--
       ``(i) In general.--An Indian tribe may, by tribal 
     resolution, fully or partially withdraw its tribal share of 
     any program in a funding agreement from a participating 
     tribal organization.
       ``(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 under title I or a compact or funding agreement 
     under this title fully or partially withdraws from a 
     participating tribal organization, the withdrawing Indian 
     tribe--
       ``(i) may elect to enter 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).
       ``(b) Eligibility.--To be eligible to participate in self-
     governance, an Indian tribe shall--
       ``(1) successfully complete the planning phase described in 
     subsection (c);
       ``(2) request participation in self-governance by 
     resolution or other official action by the tribal governing 
     body; and
       ``(3) demonstrate, for the 3 fiscal years preceding the 
     date on which the Indian tribe requests participation, 
     financial stability and financial management capability as 
     evidenced by the Indian tribe having no uncorrected 
     significant and material audit exceptions in the required 
     annual audit of its self-determination or self-governance 
     agreements with any Federal agency.
       ``(c) Planning Phase.--
       ``(1) In general.--An Indian tribe seeking to begin 
     participation in self-governance shall complete a planning 
     phase as provided in this subsection.

[[Page 16185]]

       ``(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.
       ``(d) Grants.--
       ``(1) In general.--Subject to the availability of 
     appropriations, an Indian tribe or tribal organization that 
     meets the requirements of paragraphs (2) and (3) of 
     subsection (b) shall be eligible for grants--
       ``(A) to plan for participation in self-governance; and
       ``(B) to negotiate the terms of participation by the Indian 
     tribe or tribal organization in self-governance, as set forth 
     in a compact and a funding agreement.
       ``(2) Receipt of grant not required.--Receipt of a grant 
     under paragraph (1) shall not be a requirement of 
     participation in self-governance.

     ``SEC. 404. COMPACTS.

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

     ``SEC. 405. FUNDING AGREEMENTS.

       ``(a) In General.--The Secretary shall negotiate and enter 
     into a written funding agreement with the governing body of 
     an Indian tribe or tribal organization in a manner consistent 
     with the trust responsibility of the Federal Government, 
     treaty obligations, and the government-to-government 
     relationship between Indian tribes and the United States.
       ``(b) Included Programs.--
       ``(1) Bureau of indian affairs and office of special 
     trustee.--
       ``(A) In general.--A funding agreement shall, as determined 
     by the Indian tribe, authorize the Indian tribe to plan, 
     conduct, consolidate, administer, and receive full tribal 
     share funding for all programs carried out by the Bureau of 
     Indian Affairs, the Office of the Assistant Secretary for 
     Indian Affairs, and the Office of the Special Trustee, 
     without regard to the agency or office within which the 
     program is performed (including funding for agency, area, and 
     central office functions in accordance with section 409(c)), 
     that--
       ``(i) are provided for in the Act of April 16, 1934 (25 
     U.S.C. 452 et seq.);
       ``(ii) the Secretary administers for the benefit of Indians 
     under the Act of November 2, 1921 (25 U.S.C. 13), or any 
     subsequent Act;
       ``(iii) the Secretary administers for the benefit of 
     Indians with appropriations made to agencies other than the 
     Department of the Interior; or
       ``(iv) are provided for the benefit of Indians because of 
     their status as Indians.
       ``(B) Inclusions.--Programs described in subparagraph (A) 
     shall include all programs with respect to which Indian 
     tribes or Indians are primary or significant beneficiaries.
       ``(2) Discretionary programs of special significance.--
       ``(A) In general.--A funding agreement under subsection (a) 
     may, in accordance with such additional terms as the parties 
     consider to be appropriate, include programs, services, 
     functions, and activities (or portions thereof), administered 
     by the Secretary, in addition to programs described in 
     paragraphs (1) and (3), that are of special geographical, 
     historical, or cultural significance to the Indian tribe.
       ``(B) Governing provisions.--A funding agreement described 
     in subparagraph (A), including the additional terms, shall be 
     governed by this title, except that, subject to the 
     discretion of the Secretary--
       ``(i) in accordance with section 406(d), the Indian tribe 
     may have reallocation, consolidation, and redesign authority 
     over any program assumed under this paragraph;
       ``(ii) notwithstanding section 408, the Secretary may 
     require special terms and conditions regarding a construction 
     program or project assumed under this paragraph;
       ``(iii) all Federal regulations that otherwise govern the 
     operation of any program assumed under this paragraph apply 
     to the Indian tribe, unless a specific regulation is waived 
     by the Secretary under the procedures set forth in section 
     410(b)(2), which waiver request may be denied upon a specific 
     finding by the Secretary that the waiver is prohibited by 
     Federal law or is inconsistent with the express provisions of 
     the funding agreement; and
       ``(iv) a stable base budget, as described in paragraph 
     (7)(B), may be provided for any program assumed under this 
     paragraph.
       ``(3) Programs otherwise available.--A funding agreement 
     shall, as determined by the Indian tribe, authorize the 
     Indian tribe to plan, conduct, consolidate, administer, and 
     receive full tribal share funding for any program 
     administered by the Department other than through the Bureau 
     of Indian Affairs, the Office of the Assistant Secretary for 
     Indian Affairs, or the Office of the Special Trustee, that 
     the Secretary has determined is otherwise available to Indian 
     tribes or Indians under section 102. Nothing in this 
     paragraph may be construed to provide any Indian tribe with a 
     preference with respect to the opportunity of that Indian 
     tribe to administer programs, services, functions, or 
     activities, or portions thereof, unless that preference is 
     otherwise provided for by law.
       ``(4) Competitive bidding.--Nothing in this section--
       ``(A) supersedes any express statutory requirement for 
     competitive bidding; or
       ``(B) prohibits the inclusion in a funding agreement of a 
     program in which non-Indians have an incidental or legally 
     identifiable interest.
       ``(5) Excluded funding.--A funding agreement shall not 
     authorize an Indian tribe to plan, conduct, administer, or 
     receive tribal share funding under any program that--
       ``(A) is provided under the Tribally Controlled Colleges 
     and Universities Assistance Act of 1978 (25 U.S.C. 1801 et 
     seq.); and
       ``(B) is provided for elementary and secondary schools 
     under the formula developed under section 1127 of the 
     Education Amendments of 1978 (25 U.S.C. 2007).
       ``(6) Services, functions, and responsibilities.--A funding 
     agreement shall specify--
       ``(A) the services to be provided under the funding 
     agreement;
       ``(B) the functions to be performed under the funding 
     agreement; and
       ``(C) the responsibilities of the Indian tribe and the 
     Secretary under the funding agreement.
       ``(7) Base budget.--
       ``(A) In general.--A funding agreement pursuant to 
     paragraphs (1) and (3) 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) Discretionary programs of special significance.--Upon 
     agreement by the Secretary, a funding agreement under 
     paragraph (2) may also provide for a stable base budget.
       ``(8) No waiver of trust responsibility.--A funding 
     agreement shall prohibit the Secretary from waiving, 
     modifying, or diminishing in any way the trust responsibility 
     of the United States with respect to Indian tribes and 
     individual Indians that exists under treaties, Executive 
     orders, court decisions, and other laws.
       ``(c) Amendment.--The Secretary shall not revise, amend, or 
     require additional terms in a new or subsequent funding 
     agreement without the consent of the Indian tribe, unless 
     such terms are required by Federal law.
       ``(d) Effective Date.--A funding agreement shall become 
     effective on the date specified in the funding agreement.
       ``(e) Existing and Subsequent Funding Agreements.--
       ``(1) Subsequent funding agreements.--Absent notification 
     from an Indian tribe that the Indian tribe is withdrawing or 
     retroceding the operation of 1 or more programs identified in 
     a funding agreement under paragraph (1) or (3) of subsection 
     (b), 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 407(c).
       ``(3) Existing funding agreements.--An Indian tribe that 
     was participating in self-

[[Page 16186]]

     governance under this title on the date of enactment of the 
     Department of the Interior Tribal Self-Governance Act of 2010 
     shall have the option at any time after that date--
       ``(A) to retain its existing funding agreement (in whole or 
     in part) to the extent that the provisions of that funding 
     agreement are not directly contrary to any express provision 
     of this title; or
       ``(B) to negotiate a new funding agreement in a manner 
     consistent with this title.
       ``(4) Multiyear funding agreements.--An Indian tribe may, 
     at the discretion of the Indian tribe, negotiate with the 
     Secretary for a funding agreement with a term that exceeds 1 
     year.

     ``SEC. 406. GENERAL PROVISIONS.

       ``(a) Applicability.--An Indian tribe and the Secretary 
     shall include in any compact or funding agreement provisions 
     that reflect the requirements of this title.
       ``(b) Conflicts of Interest.--An Indian tribe participating 
     in self-governance shall ensure that internal measures are in 
     place to address, pursuant to tribal law and procedures, 
     conflicts of interest in the administration of programs.
       ``(c) Audits.--
       ``(1) Single agency audit act.--Chapter 75 of title 31, 
     United States Code, shall apply to a funding agreement under 
     this title.
       ``(2) Cost principles.--An Indian tribe shall apply cost 
     principles under the applicable Office of Management and 
     Budget circular, except as modified by--
       ``(A) any provision of law, including section 106; 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.--An Indian tribe may 
     redesign or consolidate programs or reallocate funds for 
     programs in any manner that the Indian tribe determines to be 
     in the best interest of the Indian community being served, so 
     long as that the redesign or consolidation does not have the 
     effect of denying eligibility for services to population 
     groups otherwise eligible to be served under applicable 
     Federal law, except that, with respect to the reallocation, 
     consolidation, and redesign of programs described in section 
     405(b)(2), a joint agreement between the Secretary and the 
     Indian tribe shall be required.
       ``(e) Retrocession.--
       ``(1) In general.--An Indian tribe may fully or partially 
     retrocede to the Secretary any program under a compact or 
     funding agreement.
       ``(2) Effective date.--
       ``(A) Agreement.--Unless 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. 407. PROVISIONS RELATED TO THE SECRETARY.

       ``(a) Trust Evaluations.--A funding agreement shall include 
     a provision to monitor the performance of trust functions by 
     the Indian tribe through the annual trust evaluation.
       ``(b) Reassumption.--
       ``(1) In general.--A compact or funding agreement shall 
     include provisions for the Secretary to reassume a program 
     and associated funding if there is a specific finding 
     relating to that program of--
       ``(A) imminent jeopardy to a trust asset, natural 
     resources, or public health and safety that--
       ``(i) is caused by an act or omission of the Indian tribe; 
     and
       ``(ii) arises out of a failure to carry out the compact or 
     funding agreement; or
       ``(B) gross mismanagement with respect to funds transferred 
     to an Indian tribe under a compact or funding agreement, as 
     determined by the Secretary in consultation with the 
     Inspector General, as appropriate.
       ``(2) Prohibition.--The Secretary shall not reassume 
     operation of a program, in whole or part, unless--
       ``(A) the Secretary first provides written notice and a 
     hearing on the record to the Indian tribe; and
       ``(B) the Indian tribe does not take corrective action to 
     remedy the mismanagement of the funds or programs, or the 
     imminent jeopardy to a trust asset, natural resource, or 
     public health and safety.
       ``(3) Exception.--
       ``(A) In general.--Notwithstanding paragraph (2), the 
     Secretary may, on written notice to the Indian tribe, 
     immediately reassume operation of a program if--
       ``(i) the Secretary makes a finding of imminent and 
     substantial jeopardy and irreparable harm to a trust asset, a 
     natural resource, or the public health and safety caused by 
     an act or omission of the Indian tribe; and
       ``(ii) the imminent and substantial jeopardy, and 
     irreparable harm to the trust asset, natural resource, or 
     public health and safety arises out of a failure by the 
     Indian tribe to carry out the terms of an applicable compact 
     or funding agreement.
       ``(B) Reassumption.--If the Secretary reassumes operation 
     of a program under subparagraph (A), the Secretary shall 
     provide the Indian tribe with a hearing on the record not 
     later than 10 days after the date of reassumption.
       ``(c) Inability to Agree on Compact or Funding Agreement.--
       ``(1) Final offer.--If the Secretary and a participating 
     Indian tribe are unable to agree, in whole or in part, on the 
     terms of a compact or funding agreement (including funding 
     levels), the Indian tribe may submit a final offer to the 
     Secretary.
       ``(2) Determination.--Not more than 60 days after the date 
     of delivery of a final offer to the designated officials 
     under paragraph (4), the Secretary shall review and make a 
     determination with respect to the final offer.
       ``(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 
     1 or more appropriate officials in the Department to receive 
     a copy of the final offer described in paragraph (1).
       ``(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), the Secretary shall be 
     deemed to have agreed to the offer.
       ``(6) Rejection of final offer.--
       ``(A) In general.--If the Secretary rejects a final offer 
     (or 1 or more provisions or funding levels in a final offer), 
     the Secretary shall--
       ``(i) provide timely written notification to the Indian 
     tribe that contains a specific finding that clearly 
     demonstrates, or that is supported by a controlling legal 
     authority, that--

       ``(I) the amount of funds proposed in the final offer 
     exceeds the applicable funding level to which the Indian 
     tribe is entitled under this title because the final offer 
     would reduce the funds that any other Indian tribe or tribal 
     organization is entitled to receive under Federal law;
       ``(II) the program that is the subject of the final offer 
     is an inherent Federal function or is subject to the 
     discretion of the Secretary under section 405(b)(2);
       ``(III) the Indian tribe cannot carry out the program in a 
     manner that would not result in significant danger or risk to 
     the public health;
       ``(IV) the Indian tribe is not eligible to participate in 
     self-governance under section 403(b); or
       ``(V) the funding agreement would violate a Federal statute 
     or regulation;

       ``(ii) provide technical assistance to overcome the 
     objections stated in the notification required by clause (i);
       ``(iii) provide the Indian tribe with--

       ``(I) a hearing on the record with the right to engage in 
     full discovery relevant to any issue raised in the matter; 
     and
       ``(II) 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

[[Page 16187]]

       ``(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, or appeal or civil action brought under this 
     section, the Secretary shall have the burden of 
     demonstrating--
       ``(1) by a preponderance of the evidence, the validity of 
     the grounds for a reassumption under subsection (b); and
       ``(2) by clear and convincing evidence, 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 409(c), except for 
     funding agreements entered into for programs under section 
     405(b)(2), the Secretary shall make such savings available to 
     the Indian tribes or tribal organizations for the provision 
     of additional services to program beneficiaries in a manner 
     equitable to directly served, contracted, and compacted 
     programs.
       ``(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 405(b)(2), such 
     savings shall be made available to that Indian tribe.
       ``(g) Trust Responsibility.--The Secretary may not waive, 
     modify, or diminish in any way the trust responsibility of 
     the United States with respect to Indian tribes and 
     individual Indians that exists under treaties, Executive 
     orders, other laws, or court decisions.
       ``(h) Decisionmaker.--A decision that constitutes final 
     agency action and relates to an appeal within the Department 
     conducted under subsection (c)(4) may be made 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.--Each provision of this title 
     and each provision of a compact or funding agreement shall be 
     liberally construed for the benefit of the Indian tribe 
     participating in self-governance, and any ambiguity shall be 
     resolved in favor of the Indian tribe.

     ``SEC. 408. CONSTRUCTION PROGRAMS AND PROJECTS.

       ``(a) In General.--Indian tribes participating in tribal 
     self-governance may carry out construction projects under 
     this title.
       ``(b) Tribal Option to Carry Out Certain Federal 
     Environmental Activities.--In carrying out a construction 
     project under this title, an Indian tribe may, subject to the 
     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.), the National Historic 
     Preservation Act (16 U.S.C. 470 et seq.), and related 
     provisions of law and regulations that would apply if the 
     Secretary were to undertake a construction project, by 
     adopting a resolution--
       ``(1) designating a certifying tribal officer to represent 
     the Indian tribe and to assume the status of a responsible 
     Federal official under those Acts 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 or regulations.
       ``(c) Savings Clause.--Notwithstanding subsection (b), 
     nothing in this Act authorizes the Secretary to include in 
     any compact or funding agreement duties of the Secretary 
     under the National Environmental Policy Act (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 1 or more years;
       ``(B) a general description of the project, including the 
     scope of work, references to design criteria, and other terms 
     and conditions;
       ``(C) the responsibilities of the Indian tribe and the 
     Secretary for the project;
       ``(D) how project-related environmental considerations will 
     be addressed;
       ``(E) the amount of funds provided for the project;
       ``(F) the obligations of the Indian tribe to comply with 
     the codes referenced in subsection (c)(1) and applicable 
     Federal laws 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.--The Secretary shall have--
       ``(A) at least 1 opportunity to review and verify, to the 
     satisfaction of the Secretary, that project planning and 
     design documents prepared by the Indian tribe in advance of 
     initial construction are in conformity with the obligations 
     of the Indian tribe under subsection (c); and
       ``(B) before the project planning and design documents are 
     implemented, at least 1 opportunity to review and verify to 
     the satisfaction of the Secretary that subsequent document 
     amendments which result in a significant change in 
     construction are in conformity with the obligations of the 
     Indian tribe under subsection (c).
       ``(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 the Office of Federal Procurement 
     Policy Act (41 U.S.C. 401 et seq.), the Federal Acquisition 
     Regulations issued pursuant to that Act, or any other law or 
     regulation pertaining to Federal procurement (including 
     Executive orders) shall apply to any construction program or 
     project carried out under this title.
       ``(j) Future Funding.--Upon completion of a facility 
     constructed under this title, the Secretary shall include the 
     facility among those eligible for annual operation and 
     maintenance funding support comparable to that provided for 
     similar facilities funded by the Department as annual 
     appropriations are available and to the extent that the 
     facility size and complexity and other factors do not exceed 
     the funding formula criteria for comparable buildings.

     ``SEC. 409. PAYMENT.

       ``(a) In General.--At the request of the governing body of 
     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 
     405 and 406, the Secretary shall

[[Page 16188]]

     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 Department of the Interior Tribal Self-
     Governance Act of 2010, 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 (3) of section 405(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 1 year to the next, the carryover 
     shall not diminish the amount of funds the Indian tribe is 
     entitled to receive under a funding agreement in that fiscal 
     year or any subsequent fiscal year.
       ``(l) Limitation of Costs.--
       ``(1) In general.--An Indian tribe shall not be obligated 
     to continue performance that requires an expenditure of funds 
     in excess of the amount of funds transferred under a compact 
     or funding agreement.
       ``(2) Notice of insufficiency.--If at any time the Indian 
     tribe has reason to believe that the total amount provided 
     for a specific activity under a compact or funding agreement 
     is insufficient, the Indian tribe shall provide reasonable 
     notice of such insufficiency to the Secretary.
       ``(3) Suspension of performance.--If, after notice under 
     paragraph (2), the Secretary does not increase the amount of 
     funds transferred under the funding agreement, the Indian 
     tribe may suspend performance of the activity until such time 
     as additional funds are transferred.
       ``(4) Savings clause.--Nothing in this section reduces any 
     programs, services, or funds of, or provided to, another 
     Indian tribe.
       ``(m) Distribution of Funds.--The Office of Self-Governance 
     shall be responsible for distribution of all Bureau of Indian 
     Affairs funds provided under this title unless otherwise 
     agreed by the parties to an applicable funding agreement.

     ``SEC. 410. FACILITATION.

       ``(a) In General.--Except as otherwise provided by law, the 
     Secretary shall interpret each Federal law and regulation in 
     a manner that facilitates--
       ``(1) the inclusion of programs in funding agreements; and
       ``(2) the implementation of funding agreements.
       ``(b) Regulation Waiver.--
       ``(1) Request.--An Indian tribe may submit 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 
     1 or more appropriate officials in the Department to receive 
     a copy of the waiver request described in paragraph (1).
       ``(5) Ground for denial.--The Secretary may deny a request 
     under paragraph (1)--
       ``(A) for a program eligible under paragraph (1) or (3) of 
     section 405(b), only upon a specific finding by the Secretary 
     that the identified text in the regulation may not be waived 
     because such a waiver is prohibited by Federal law; and
       ``(B) for a program eligible under section 405(b)(2), upon 
     a specific finding by the Secretary that the waiver is 
     prohibited by Federal law or is inconsistent with the express 
     provisions of the funding agreement.
       ``(6) Failure to make determination.--If the Secretary 
     fails to approve or deny a waiver request within the period 
     required under paragraph (2), the Secretary shall be deemed 
     to have approved the request.
       ``(7) Finality.--A decision of the Secretary under this 
     section shall be final for the Department.

     ``SEC. 411. DISCLAIMERS.

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

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

       ``(a) In General.--Except as otherwise provided in section 
     101(c), 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.

[[Page 16189]]

       ``(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. 413. FUNDING NEEDS.

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

     ``SEC. 414. REPORTS.

       ``(a) In General.--
       ``(1) Requirement.--Not later than February 1 of each year, 
     the Secretary shall submit to Congress a report regarding the 
     administration of this title.
       ``(2) Analysis.--A report under paragraph (1) shall include 
     a detailed analysis of unmet need for each Indian tribe, 
     regardless of whether the Indian tribe is served directly by 
     the Secretary, under self-determination contracts under title 
     I, or under compacts and funding agreements authorized under 
     this title.
       ``(3) No additional reporting requirements.--In preparing 
     reports under paragraph (1), the Secretary may not impose any 
     reporting requirements on participating Indian tribes not 
     otherwise provided by this title.
       ``(b) Contents.--Each report under subsection (a)(1) 
     shall--
       ``(1) be compiled from information contained in funding 
     agreements, annual audit reports, and data of the Secretary 
     regarding the disposition of Federal funds;
       ``(2) identify--
       ``(A) the relative costs and benefits of self-governance;
       ``(B) with particularity, all funds that are specifically 
     or functionally related to the provision by the Secretary of 
     services and benefits to self-governance Indian tribes and 
     members of Indian tribes;
       ``(C) the funds transferred to each Indian tribe and the 
     corresponding reduction in the Federal employees and 
     workload;
       ``(D) the funding formula for individual tribal shares of 
     all Central Office funds, together with the comments of 
     affected Indian tribes, developed under subsection (d); and
       ``(E) amounts expended in the preceding fiscal year to 
     carry out inherent Federal functions, including an 
     identification of inherent Federal functions;
       ``(3) contain a description of the methods used to 
     determine the individual tribal share of funds controlled by 
     all components of the Department (including funds assessed by 
     any other Federal agency) for inclusion in compacts or 
     funding agreements;
       ``(4) before being submitted to Congress, be distributed to 
     the Indian tribes for comment (with a comment period of not 
     less than 30 days); and
       ``(5) include the separate views and comments of each 
     Indian tribe or tribal organization.
       ``(c) Report on Non-BIA, Non-OST Programs.--
       ``(1) In general.--In order to optimize opportunities for 
     Indian tribes participating in self-governance under this 
     title, the Secretary shall--
       ``(A) review all programs administered by the Department, 
     other than through the Bureau of Indian Affairs, the Office 
     of the Assistant Secretary for Indian Affairs, or the Office 
     of Special Trustee, without regard to the agency or office 
     concerned; and
       ``(B) not later than January 1 of each year, submit to 
     Congress--
       ``(i) a list of all such programs that the Secretary 
     determines, with the concurrence of Indian tribes 
     participating in self-governance under this title, are 
     eligible to be included in a funding agreement at the request 
     of a participating Indian tribe; and
       ``(ii) a list of all such programs for which Indian tribes 
     have requested to include in a funding agreement under 
     paragraph (2) or (3) of section 405(b), indicating whether 
     each request was granted or denied, and stating the grounds 
     for any denial.
       ``(2) Programmatic targets.--The Secretary shall establish 
     programmatic targets, after consultation with Indian tribes 
     participating in self-governance, to encourage bureaus of the 
     Department to ensure that a significant portion of the 
     programs identified in paragraph (1) are included in funding 
     agreements.
       ``(3) Publication.--The lists and targets under paragraphs 
     (1) and (2) shall be--
       ``(A) published in the Federal Register; and
       ``(B) made available to Indian tribes.
       ``(4) Annual review.--
       ``(A) In general.--The Secretary shall annually review and 
     publish in the Federal Register, after consultation with 
     Indian tribes participating in self-governance, revised lists 
     and programmatic targets.
       ``(B) Contents.--The revised lists and programmatic targets 
     shall include all programs that were eligible for contracting 
     in the original list published in the Federal Register in 
     1995, except for programs specifically determined not to be 
     contractible as a matter of law.
       ``(d) Report on Central Office Funds.--Not later than 
     February 1, 2012, the Secretary shall, in consultation with 
     Indian tribes, develop a funding formula to determine the 
     individual tribal share of funds controlled by the Central 
     Office of the Bureau of Indian Affairs, the Office of the 
     Special Trustee, and the Office of the Assistant Secretary 
     for Indian Affairs for inclusion in the compacts.

     ``SEC. 415. REGULATIONS.

       ``(a) In General.--
       ``(1) Promulgation.--Not later than 90 days after the date 
     of enactment of the Department of the Interior Tribal Self-
     Governance Act of 2010, 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 18 months after the date of 
     enactment of the Department of the Interior Tribal Self-
     Governance Act of 2010.
       ``(3) Expiration of authority.--The authority to promulgate 
     regulations under paragraph (1) shall expire on the date that 
     is 24 months after the date of enactment of the Department of 
     the Interior Tribal Self-Governance Act of 2010.
       ``(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.--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. 416. EFFECT OF CIRCULARS, POLICIES, MANUALS, 
                   GUIDANCES, 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 415.

     ``SEC. 417. APPEALS.

       ``Except as provided in section 407(d), in any 
     administrative action, appeal, or civil action for judicial 
     review of any decision made by the Secretary under this 
     title, the Secretary shall have the burden of proof of 
     demonstrating by a preponderance of the evidence--

[[Page 16190]]

       ``(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. 418. 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. 419. AUTHORIZATION OF APPROPRIATIONS.

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

  The SPEAKER pro tempore. Pursuant to the rule, the gentlewoman from 
the Virgin Islands (Mrs. Christensen) and the gentleman from Washington 
(Mr. Hastings) each will control 20 minutes.
  The Chair now recognizes the gentlewoman from the Virgin Islands.


                             General Leave

  Mrs. CHRISTENSEN. Mr. Speaker, I ask unanimous consent that all 
Members may have 5 legislative days in which to revise and extend their 
remarks and include extraneous material on the bill under 
consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentlewoman from the Virgin Islands?
  There was no objection.
  Mrs. CHRISTENSEN. I yield myself such time as I may consume.
  Mr. Speaker, under self-governance, Indian tribes assume the duties 
of the Federal Government for certain programs within the Department of 
the Interior and the Department of Health and Human Services. Self-
governance empowers tribes to exercise their inherent sovereignty and 
make key decisions that will impact their nations. The widespread 
success of self-governance since its inception demonstrates that when 
tribes make the decisions that directly impact their tribal citizens, 
the outcomes are far greater.
  Introduced by our colleague from Oklahoma (Mr. Boren), H.R. 4347 
would amend the self-determination contracting program to allow title 1 
tribes to become familiar with the self-governance compacting program. 
This legislation would also amend the Department of the Interior self-
governance program to make it consistent with the self-governance 
program at the Department of Health and Human Services. It allows 
Indian tribes to step into the shoes of the Federal Government to 
administer programs at the Department of the Interior using rules and 
procedures similar to those used at the Indian Health Service.
  I would like to commend Mr. Boren from Oklahoma for his leadership on 
this issue, and I urge my colleagues to support this measure.
  Mr. Speaker, I reserve the balance of my time.
  Mr. HASTINGS of Washington. Mr. Speaker, I yield myself such time as 
I may consume.
  Mr. Speaker, the bill under consideration today is an amended version 
of the bill as reported, and I thank the chairman of the committee and 
the sponsor of the legislation for their willingness to engage the 
Republicans on a bipartisan basis in what is a rather complex body of 
law.
  The Republicans hope this bill accomplishes its primary goal, which 
is to increase the outsourcing to tribes of programs and functions of 
the Department of the Interior that are provided to Indians because of 
their status as Indians.
  At the core of H.R. 4347 is the principle that Washington, DC, is not 
capable of managing tribal programs as effectively as the governments 
of Indian people--the Indian tribes. This bill could be a template for 
proposals to outsource Federal programs, where appropriate, to States, 
tribes, and the private sector.
  I must say, Mr. Speaker, I'm disappointed that the Obama 
administration has not provided a formal statement on the position of 
H.R. 4347, as amended.

                              {time}  1430

  Bipartisan staff sought to address concerns expressed by the 
Department of the Interior in its testimony on the bill as introduced. 
For this reason, I think the House is owed something in writing from 
the Department clarifying its views on the amended bill. Regardless, I 
do not see this silence from the administration as a reason to hold up 
the progress on the bill.
  Ms. RICHARDSON. Mr. Speaker, I rise today in support of H.R. 4347, 
which authorizes the Secretary of the Department of the Interior to 
select up to 50 new Indian tribes per year to participate in self-
governance programs. I am proud to co-sponsor the Department of the 
Interior Tribal Self-Governance Act, and I thank my colleague, 
Congressman Boren for introducing this legislation.
  As a member of the Native American Caucus, I have worked with my 
colleagues in Congress to address the needs of Native Americans. This 
legislation will allow eligible tribes to assume the duties of the 
Federal Government for certain programs within the Department of the 
Interior and the Department of Health and Human Services.
  Mr. Speaker, the Government Accounting Office has shown that tribes 
that participate in self-governance have seen greater gains in 
employment than tribes that do not. The passage of this legislation 
will allow more tribes to participate in self-governance programs and 
increase the financial prospects for its members.
  California is home to over 100 federally recognized tribes. These 
tribes deserve the opportunity to participate in self-governance 
programs should they desire to do so.
  Mr. Speaker, I urge my colleagues to join me in supporting H.R. 4347 
and allow Native American tribes the opportunity to enter into self-
governance agreements. Native Americans should be afforded the 
opportunity to administer their programs and increase employment among 
its members.
  Mr. HONDA. Mr. Speaker, I rise to express my support for H.R. 4347, 
``The Department of the Interior Tribal Self-Governance Act.'' This 
legislation gets us much closer to fulfilling our special nation-to-
nation relationship with Native American people and tribes in our 
country. H.R. 4347 includes critical amendments to the Indian Self-
Determination and Education Assistance Act that essentially allow for 
greater self-governance by Indian tribes; it directs the Secretaries of 
the Departments of the Interior and Health and Human Services to 
implement criteria that make it possible for more tribes to learn about 
and eventually enter into self-governance compacts or agreements to 
administer whole programs currently performed by the Federal 
Government. In addition to enhancing their sovereignty, this 
legislation has the potential to significantly improve the 
effectiveness of social, education, and health programs because leaders 
within specific Indian Tribes are often in the best position to 
determine the needs of their communities. Additionally, as suggested by 
a 2004 report by the Government Accountability Office (GAO), Indian 
tribes that participated in self-governance agreements often 
experienced greater growth in employment levels from 1990 to 2000 
compared to those that had either lower or no participation in these 
programs.
  I have been an ardent supporter of tribal sovereignty throughout my 
career as an elected official, and advocated to ensure that the Federal 
Government is accountable for exercising its full fiduciary 
responsibility. During my early career as an educator, I traveled 
through Indian Country doing educational research for Stanford 
University. Over the past 15 years serving in the California State 
Assembly and U.S. Congress, I have authored legislation and voted to 
support measures that respect and protect tribal sovereignty.
  As a member of the Congressional Native American Caucus since coming 
to Congress in 2001, I have been a strong supporter of full respect and 
recognition of tribal jurisdictions, for the expansion of tribal 
courts, the protection of Indian water and fishing rights, increased 
funding for the Bureau of Indian Affairs and key programs serving 
Indian Country. As a member of the House Appropriations Committee, I 
have fought to increase funding for vital self-governance programs and 
funding for programs serving Indian Country.
  Once again, Mr. Speaker, I am proud that the House of Representatives 
has taken a significant step in the right direction!
  Mr. HASTINGS of Washington. Mr. Speaker, I have no further requests 
for time, and I yield back the balance of my time.
  Mrs. CHRISTENSEN. Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentlewoman from the Virgin Islands (Mrs. Christensen) that the House 
suspend the rules and pass the bill, H.R. 4347, as amended.
  The question was taken; and (two-thirds being in the affirmative) the 
rules were suspended and the bill, as amended, was passed.
  A motion to reconsider was laid on the table.

[[Page 16191]]



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