[Senate Report 106-221]
[From the U.S. Government Publishing Office]
Calendar No. 412
106th Congress Report
SENATE
1st Session 106-221
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AMENDING THE INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACT TO
PROVIDE FOR FURTHER SELF-GOVERNANCE BY INDIAN TRIBES, AND FOR OTHER
PURPOSES
_______
November 9, 1999.--Ordered to be printed
_______
Mr. Campbell, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany S. 979]
The Committee on Indian Affairs, to which was referred the
bill, S. 979, to amend the Indian Self-Determination and
Education Assistance Act to provide for further self-governance
by Indian tribes, and for other purposes, having considered the
same, reports favorably thereon with an amendment in the nature
of a substitute and recommends that the bill as amended do
pass.
Purpose
The purpose of S. 979, the Tribal Self-Governance
Amendments of 1999, is to create two new titles in the 1975
Self-Determination and Education Assistance Act (``ISDEA'' or
``the Act''), in order to make permanent the Self-Governance
Demonstration Project for Indian Health Service (IHS) programs
with the Department of Health and Human Services (HHS), and to
establish a demonstration project for non-IHS services within
the HHS after a feasibility study has been undertaken to
identify which, if any, non-IHS programs within the HHS should
be subject to self-governance.
Background
In 1970, President Nixon delivered his now-famous ``Message
to Congress on Indian Affairs'' in which he laid the foundation
for a change in federal Indian policy for termination and
assimilation to Indian self-determination. The ISDEA was
enacted in 1975 as an outgrowth of this policy and continues to
be one of the guiding tenets of federal Indian policy.
As enacted, the ISDEA authorizes the Secretary of the
Department of the Interior to contract with Indian tribes for
the provision of various services and programs that would
otherwise be performed by the Department with the tribes acting
as end-line service providers to their citizens.
Building on the successes of the original Act, in 1988
Congress amended the Act and created the Self-Governance
Demonstration Project in the DHHS. The Demonstration Project
authorizes tribes to administer health care programs and
enables participating tribes to redesign programs and
reallocate funds among the different programs they operate.
Program design and implementation flexibility provide some of
the major benefits to participating tribes.
In 1994, Congress enacted the Tribal Self-Governance Act,
Pub. L. 103-413, which made Self-Governance permanent with
regard to the Interior Department. The IHS Self-Governance
Project continues to operate as a demonstration project. S. 979
would make the Demonstration Project in the HHS permanent and
expand the program to other, non-IHS programs within the HHS,
but only after a feasibility study is conducted to determine
whether other non-IHS programs should be brought into the Act's
scope.
health care delivery in native communities
As of FY1999 there were 557 federally recognized Indian
tribes in the United States. Of those, 146 tribes were provided
health care services directly by the Indian Health Service
(IHS); and 431 were either contracting or compacting tribes
under the ISDEA. Tribal participation in contracting or
compacting is strictly voluntary and is carried out through a
negotiation conducted between a federal agency and tribal
representatives.
Charged with delivering health care to 1.3 million American
Indians and Alaska Natives (AI/AN), in FY1999, the IHS budget
was $2.24 billion. The IHS delivered these services through 150
service units composed of 543 direct health care delivery
facilities, 49 hospitals, 209 health centers, 6 school health
centers, and 279 health stations, satellite clinics, and Alaska
village clinics.
1. Self-Governance Compacting. In FY1999, the IHS
negotiated 42 self-governance compacts with 254 tribes
involving the transfer of $508 million to 213 tribes in Alaska
and 41 tribes in the lower 48 states. In FY2000, it is
projected that $564 million will be transferred to tribes
pursuant to 57 compacts. Self-governance tribes receive 42% of
the IHS budget in 12 hospitals, 149 health centers, 3 school
health centers, and 233 health stations and Alaska Native
village clinics.
Since 1993, there has been a reduction in IHS Headquarters
Staff (-57% to 406) and IHS Area Office Staff (-55% to 1,213),
but there has also been an increase in IHS Service Unit Staff
(+10% to 12,963). In addition to staff reassignments and
reductions due to cuts in administrative funding, the transfer
of Area Office functions and funding to tribes under Self-
Governance has helped re-shape health care delivery in Indian
country.
2. IHS-Provided Health Care. Participation under the Act is
voluntary and tribes that have elected to retain federal
administration of their health services collectively receive
some 58% of the IHS budget in 37 hospitals, 60 health centers,
3 school health centers and 46 health stations.
3. Urban Indian Care. Various health care and referral
services are provided to Native people in off-reservation
settings through 34 urban Indian health care programs
authorized by the Indian Health Care Improvement Act (Pub. L.
94-437). Approximately 150,000 American Indians utilize urban
Indian health care program services because they are not able
to access hospitals, health clinics or contract health services
administered by the IHS or tribal providers either because they
fail to meet IHS eligibility criteria or reside outside IHS or
tribal service areas.
4. The Impact of Self-Governance on Indian Health Care.
Because self-governance transfers programming and budgeting
authority for health programs from the federal government to
tribal governments, participating tribes have benefitted from
the flexibility inherent in the program that enables them to
tailor the programs to local needs. Participating tribes report
that self-governance has had a significant and positive impact
on the health and well-being of their members.
Significant improvements are reported in program
administration as well as in the quality, quantity and
accessibility of services provided to health care recipients
resulting in a more efficient use of federal funds. A 1998
study by the National Indian Health Board (NIHB) \1\ reported
that improved health goes hand in hand with tribal contracting
and compacting for health care services.
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\1\ See attached Tribal Perspectives on Indian Self-Determination
and Self-Governance in Health Care Management, 1998.
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The ISDEA authorizes Indian tribes and tribal organizations
to contract for the administration and operation of certain
federal programs which provide services to Indian tribes and
their members. Subsequent amendments to the ISDEA created Title
III of the Act which provided for a Self-Governance
Demonstration Project that allows for large-scale tribal Self-
Governance compacts and funding agreements on a
``demonstration'' basis.
The new title V created by S. 979 would make this
contracting by tribes permanent authority for programs
contracted for within the Indian Health Service (IHS). Thus,
Indian tribes and tribal organizations would be able to
contract for the operation, control, and redesign of various
IHS activities on a permanent basis. In short, what was a
demonstration project would become a permanent IHS Self-
Governance program.
Under the terms of S. 979, Indian tribes or tribal
organizations which have already contracted for IHS activities
would have the option of continuing under the provisions of
their existing contracts or, alternatively, could negotiate
under the authority provided by S. 979. Mirroring existing law,
the bill authorizes an additional 50 new tribes each year to
enter into self governance compacts.
The amendments contained in S. 979 continue the
requirements of the existing Self-Governance law which requires
that before any tribe or organization can enter the Self-
Governance program they must fulfill certain criteria--that the
tribe have experience in government contracting, a record of
clean audits, and a demonstrated management capability--in
order to exercise the right to compact for the operation of IHS
functions, including the funds necessary to run them.
S. 979 also adds a new title VI to the Act which authorizes
a feasibility study regarding the execution of tribal Self-
Governance compacts and funding agreements of Indian-related
programs outside the IHS but within the Department of Health
and Human Services on a demonstration project basis.
The Self-Governance program recognizes that Indian tribes
care for the health, safety, and welfare of their own members
as well as that of non-Indians who either live on their
reservations or conduct business with the tribes and are thus
committed to safe and fair working conditions and practices.
Legislative History
S. 979, the Tribal Self Governance Amendments of 1999, was
introduced on May 6, 1999 by Chairman Campbell, for himself and
for Senator McCain. Senator Inhofe was added as cosponsor on
July 19, 1999. S. 979 was referred to the Committee on Indian
Affairs, where a hearing was held on July 19, 1999.
Committee Recommendation and Tabulation of Vote
On October 27, 1999 the Committee on Indian Affairs, in an
open business session, adopted an amendment in the nature of a
substitute to S. 979 by a unanimous vote of the members present
and ordered the substitute amendment reported favorably to the
Senate.
Section-by-Section Analysis
Section 1. Short title
This section sets forth the short title, ``The Tribal Self-
Governance Amendments of 1999.''
Section 2. Findings
This section sets forth the findings of Congress which
reaffirm the inherent sovereignty of Indian tribes and the
unique government-to-government relationship between the United
States and Indian tribes. The findings make clear that while
progress has been made, the federal bureaucracy has eroded
tribal self-governance. The findings state that the federal
government has failed to fully meet its trust responsibility
and to satisfy its obligations under treaties and other laws.
The findings explain that Congress has reviewed the tribal
self-governance demonstration project and concluded that self-
governance is an effective mechanism to implement and
strengthen the federal policy of government-to-government
relations with Indian tribes by transferring to Indian tribes
full control and funding for federal programs, functions,
services, or activities, or portions thereof.
Section 3. Declaration of policy
This section provides that it is Congress' policy to
permanently establish and implement tribal self-governance
within the Department of Health and Human Services with the
full cooperation of its agencies. Among the key policy
objectives Congress seeks to achieve through the self-
governance program are to (1) maintain and continue the United
States' unique relationship with Indian tribes; (2) allow
Indian tribes the flexibility to choose whether they wish to
participate in self-governance; (3) ensure the continuation and
fulfillment of the United States' trust responsibility and
other responsibilities towards Indian tribes that are contained
in treaties and other laws; (4) permit a transition to tribal
control and authority over programs, functions, services, or
activities, (or portions thereof); and (5) encourage and
provide a corresponding parallel reduction in the federal
bureaucracy.
Section 4. Tribal self governance
This section sets out the substantive provisions of the
Self-Governance program within the Indian Health Service and
authorizes a feasibility study of the applicability of Self-
Governance to other HHS agencies by adding Titles V and VI to
the Indian Self-Determination and Education Assistance Act of
1975, as amended.
Section 501. Establishment
This section directs the Secretary of HHS to establish a
permanent Tribal Self-Governance Program in the Indian Health
Service.
Section 502. Definitions
Subsection (a)(1) defines the term ``construction
project''. The Committee does not intend this legislation to
preclude agreements between self-governance tribes and the
Indian Health Service for carrying out sanitary facilities
construction projects pursuant to a ``Project Funding
Agreement'' or ``Memorandum of Agreement'' executed as an
addendum of a Title V Annual Funding Agreement as authorized by
Section 7(a)(3) of Pub. L. 86-121, 73 Stat. 267 (42 U.S.C.
Sec. 2004(a)).
Subsection (a)(2) provides that a ``construction project
agreement'' is one between the Secretary and the Indian tribe
that, at a minimum, establishes start and completion dates,
scope of work and standards, identifies party responsibilities,
addresses environmental considerations, identifies the owner
and maintenance entity of the proposed work, provides a budget,
provides a payment process, and establishes a duration of the
construction project agreement.
Subsection (a)(3) defines ``inherent federal functions'' as
those functions which cannot be legally delegated to Indian
tribes. This definition states the obvious. Inherent federal
functions are functions which the Executive Branch cannot by
law delegate to other branches of government, or non-
governmental entities. The Committee's definition is consistent
with the Department of the Interior Solicitor's Memorandum of
May 17, 1996 entitled ``Inherently Federal Functions under the
Tribal Self-Governance Act of 1994.''
The Committee's definition is expressly intended to provide
flexibility so as to allow the Secretary and the tribes to come
to agreement on which functions are inherently federal on a
case-by-case basis. It is important to note that, in the tribal
procurement context, there is another factor the Committee has
considered. When the federal government ``restores'' tribal
governmental powers and functions that are inherent in tribes'
governmental status such as those possessed by tribes before
the establishment of the federal Indian bureaucracy, the scope
of this restored authority is broader than in the transfer of
federal governmental powers to private or other governmental
entities.
Subsection (a)(4) defines ``inter-tribal consortium''. The
Committee notes that during the Title III Demonstration Project
the IHS authorized inter-tribal consortia, such as the co-
signers to the Alaska Tribal Health Compact, to participate in
the Project and that participation has experienced great
success. The definition of ``inter-tribal consortium'' is
intended to include ``tribal organizations'' as that term is
defined in Section 4(l) of the Indian Self-Determination Act,
Pub.L. No. 93-638. This would include consortia such as those
involved in the Alaska Tribal Health Consortium. It is the
Committee's intent that inter-tribal consortia and tribal
organizations shall count as one tribe for purposes of the 50-
tribe-per-year-limitation contained in section 503 (a).
Subsection (a)(5) defines ``gross mismanagement''. The
inclusion of this term is intended to govern one of the
criteria that the Secretary is to consider in the reassumption
of a tribally-operated program. The Secretary will be given the
authority to reassume programs that pose an imminent
endangerment to the public health where the danger arises out
of a compact or funding agreement violation.
The Committee believes that the inclusion of a performance
standard, in this case gross mismanagement, is also an
appropriate grounds for reassumption. Gross mismanagement is
defined as a significant, clear, and convincing violation of
compact, funding agreement, regulatory or statutory
requirements related to the transfer of Self-Governance funds
to the tribe that results in a significant reduction of funds
to the tribe's Self-Governance program. The Committee's
definition of gross mismanagement is narrowly tailored and will
require a high degree of proof by the Secretary. The Committee
is will aware of tribal concerns and agrees that the inclusion
of this performance standard must not be utilized by the
Secretary in such a manner as to needlessly impose monitoring
and auditing requirements that hinder the efficient operation
of tribal programs. Requiring intrusive and over burdensome
monitoring and auditing activities are antithetical to the
goals of Self-Governance and the intent of the Committee.
Subsection (a)(6) defines ``tribal shares''. This
definition is consistent with the Title IV Rulemaking
Committee's determination that residual funds are those
``necessary to carry out the inherently federal functions that
must be performed by federal officials if all tribes assume
responsibilities for all BIA programs.'' Fed. Reg. Vol. 63, No.
29, 7325, (Fed. 12, 1998) (Proposed Rule, 25 CFR Sec. 1000.91).
All funds appropriated under the Indian Self-Determination and
Education Assistance Act are either tribal shares or Agency
residual.
Subsection (a)(7) defines ``Secretary'' as the Secretary of
the Department of Health and Human Services.
Subsection (a)(8) defines ``Self-Governance'' as the
program established under this title.
Section (b) defines ``Indian Tribe''. This definition
enables and Indian tribe to authorize another Indian tribe,
inter-tribal consortium or tribal organization to participate
in self-governance on its behalf. The authorized Indian Tribe,
inter-consortium or tribal organization may exercise the
authorizing Indian tribe's rights as specified by Tribe
resolution.
Section 503. Selection of participating tribes
This section describes the eligibility criteria that must
be satisfied by any Indian tribe interested in participating in
the Self-Governance program.
(a) Continuing Participation. All tribes presently
participating in the Tribal Self-Governance Demonstration
Project under Title III of the Indian Self-Determination Act
may elect to participate in the permanent Self-Governance
program. Tribes must do so through tribal resolution. Tribes
may also choose to ``roll over'' and renegotiate their compacts
under the authority provided by S. 979.
(b) Additional Participants. (1) This section allows an
additional 50 tribes a year to participate in self-governance
program.
(2) This section authorizes an Indian tribe that chooses to
withdraw from an inter-tribal consortium or tribal organization
to participate in self-governance provided that the tribe
independently meets the eligibility criteria in Title V. Tribes
and tribal organizations that withdraw from tribal
organizations and inter-tribal consortia under this section
shall be entitled to participate in the permanent program under
section 503 (b) (2) and such participation shall not be counted
against the 50 tribe a year limitation contained in section 503
(a).
(c) Applicant Pool. The eligibility criteria for self-
governance tribes are the same as those that apply under Title
IV. To participate, an Indian tribe must successfully complete
a planning phase, must request participation in the program
through a resolution or official action of the governing body,
and must have demonstrated financial stability and financial
management capability for the past three years. Proof of no
material audit exceptions in the tribe's self determination
contracts or Self Governance funding agreements is conclusive
proof of such qualification. The Committee notes that the
financial examination addressed in subsection 503(c)(3) refers
solely to funds managed by the tribe under Title I and Title IV
of the Indian Self-Determination Act. The bill has been
deliberately crafted to make clear that a tribe's activities in
other economic endeavors are not to be the subject of the
Section 503(c) examination. Similarly, the ``budgetary
research'' referred to in section 503(d)(1) of the bill
requires a tribe to research only budgetary issues related to
the administration of the programs the tribe anticipates
transferring to tribal operation under Self-Governance.
(d) Planning Phase. Every Indian tribe interested in
participating in the self-governance program shall complete a
planning phase prior to participating in the program. The
planning phase is to include legal and budgetary research and
internal tribal government planning and organizational
preparation. The planning phase is to be completed to the
satisfaction of the tribe.
(e) Grants. Subject to available appropriations, any Indian
tribe interested in participating in self-governance is
eligible to receive a grant to plan for participation in the
program or to negotiate the terms of a compact and funding
agreement.
(f) Receipt of Grant not Required. This section provides
that receipt of a grant from HHS is not required to participate
in the permanent self-governance program.
Section 504. Compacts
This section authorizes Indian tribes to negotiate compacts
with the Secretary and identifies generally the contents of
compacts. While the compact process was not specifically part
of prior legislative enactment, the committee understands that
compacts have developed as an integral part of the Self
Governance program. The committee believes that compacts serve
an important and necessary function in establishing government-
to-government relations, which is noted earlier, is the
keystone of modern federal Indian policy.
(a) Compact Required. The Secretary is required to
negotiate and enter into a written compact consistent with the
trust responsibility, treaty obligations and the government-to-
government relationship between the United States and each
participating tribe.
(b) Contents. This section requires that compacts state the
terms of the government-to-government relationship between the
Indian tribe and the United States. Compacts may only be
amended by agreement of both parties.
(c) Existing Compacts. Upon enactment of Title V, Indian
tribes have the option of retaining their existing compacts, or
any portion of the compacts that are not inconsistent with the
provisions of Title V.
(d) Term and Effective Date. The date of approval and
execution by the Indian Tribe is generally the effective date
of a compact, unless otherwise agreed to by the parties. A
compact will remain in effect as long as permitted by federal
law or until terminated by written agreement of the parties, or
by retrocession or reassumption.
Section 505. Funding agreements
This section authorizes Indian tribes to negotiate funding
agreements with the Secretary and identifies generally the
contents of those agreements.
(a) Funding Agreement Required. The Secretary is required
to negotiate and enter into a written funding agreement
consistent with the trust responsibility, treaty obligations
and the government-to-government relationship between the
United States and each participating tribe.
(b) Contents. An Indian tribe may include in a funding
agreement all programs, functions, services, or activities, (or
portions thereof) that it is authorized to carry out under
Title I of the Act. Funding agreements may, at the option of
the Indian tribe, authorize the Tribe to plan and carry-out all
programs, functions, services, or activities, (or portion
thereof) administered by the IHS that are carried out for the
benefit of Indians because of their status as Indians or where
Indian tribes or Indian beneficiaries are the primary or
significant beneficiaries, as set forth in statutes. For each
program, function, service, or activity (or portion thereof)
included in a funding agreement, an Indian tribe is entitled to
receive its full tribal share of funding, including funding for
all local, field, service unit, area, regional, and central/
headquarters or national office locations. Available funding
includes the Indian tribe's share of discretionary IHS
competitive grants but not statutorily mandated competitive
grants.
The Committee is concerned with the reluctance of the
Indian Health Service to include all available federal health
funding in self governance funding agreements. We note, as an
example, the refusal of the IHS to so include the Diabetes
Prevention Initiative funding. As a result, funding was delayed
and undue administrative requirements diverted resources from
direct services. This section is intended to directly remedy
this situation.
The Committee has received ample testimony demonstrating
the benefits of self governance. In 1998, the National Indian
Health Board released it's ``National Study on Self-
Determination and Self-Governance,'' providing empirical
evidence that self-governance leads to more efficient
management of tribal health service delivery, especially
preventive services. This study consistently observed an
overall improvement in quality of care when tribes operate
their own Health Care systems. Less than full funding of
agreements will result in less than maximum use of federal
resources to address the health care in Indian country.
Accordingly, this section is to be interpreted broadly by
affording a presumption in favor of including in a tribe's
self-governance funding agreement any federal funding
administered by that Agency.
(c) Inclusion in Compact or Funding Agreement. The
eligibility of Indian tribes does not need to be specifically
identified in authorizing legislation for a program to be
eligible for inclusion in a compact or funding agreement.
(d) Funding Agreement Terms. Each funding agreement should
generally set out the programs, functions, services, or
activities, (or portions thereof) to be performed by the Indian
tribe, the general budget category assigned to each program,
function, service, or activity (or portion thereof), the funds
to be transferred, the time and method of payment and other
provisions that the parties agree to.
(e) Subsequent Funding Agreements. Each funding agreement
remains in full force and effect unless the Secretary receives
notice from the Indian tribe that it will no longer operate one
or more of the programs, functions, services, or activities,
(or portions thereof) included in the funding agreement or
until a new funding agreement is executed by the parties.
The Committee is concerned with reports that the IHS has
been able to use the annual negotiations provisions of Section
303(a) of the Act to obtain an unfair bargaining advantage
during negotiations by threatening to suspend application of
the Act to a tribe if it does not sign an Annual funding
agreement. This subsection is meant to facilitate negotiation
between the tribes and the Indian Health Service on a true
government-to-government basis. The Committee believes
theretroactive provision is fair because this assures that no act or
omission of the federal government endangers the health and welfare of
tribal members.
(f) Existing Funding Agreements. Upon enactment of Title V,
Indian tribes may either retain their existing annual funding
agreements, or any portion thereof, that do not conflict with
provisions of Title V, or negotiate new funding agreements that
conform to Title V.
(g) Stable Base Funding. An Indian tribe may include a
stable base budget in its funding agreement. A stable base
budget contains the tribe's recurring funding amounts and
provides for transfer of the funds in a predictable and
consistent manner over a specific period of time. Adjustments
are made annually only if there are changes in the level of
funds appropriated by Congress. Non-recurring funds are not
included and must be negotiated on an annual basis. The
Committee intends this section to codify the existing Agency
policy guidance on stable base funding.
Section 506. General provisions
(a) Applicability. The provisions in this section may, at a
tribe's option, be included in a Compact or funding agreement
negotiated under Title V.
(b) Conflicts of Interest. Indian tribes are to assure that
internal measures are in place to address conflicts of interest
in the administration of programs, functions, services, or
activities, (or portions thereof).
(c) Audits. The single Agency Audit Act applies to title V
funding agreements. Indian tribes are required to apply cost
principles set out in applicable OMB Circulars, as modified by
section 106 of Title I or by any exemptions that may be
applicable to future OMB Circulars. No other audit or
accounting standards are required. Claims against Indian tribes
by the federal government based on any audit of funds received
under a Title V funding agreement are subject to the provisions
of section 106(f) of Title I.
Records. An Indian tribe's records are not considered
federal records for purposes of the Federal Privacy Act, unless
otherwise stated in the compact or funding agreement. Indian
tribes are required to maintain a record keeping system and,
upon reasonable advance request, provide the Secretary with
reasonable access to records to enable HHS to meet it minimum
legal record keeping requirements under the Federal Records
Act.
(e) Redesign and Consolidation. An Indian tribe may
redesign or consolidate programs, functions, services, or
activities, (or portions thereof) and reallocate or redirect
funds in any way the Indian tribe considers to be in the best
interest of the Indian community. Any redesign or
consolidation, however, must not have the effect of unfairly
denying eligibility to people otherwise eligible to be served
under federal law.
(f) Retrocession. An Indian tribe may fully or partially
retrocede back to the Secretary any program, function, service,
or activity (or portion thereof) included in a compact or
funding agreement. A retrocession request becomes effective
within the time frame specified in the compact or funding
agreement, one year from the date the request was made, the
date the funding agreement expires, or any date mutually agreed
to by the parties, whichever occurs first.
(g) Withdrawal. An Indian tribe that participates in self-
governance through an inter-tribal consortium or tribal
organization can withdraw from the consortium or organization.
The withdrawal becomes effective within the time frame set out
in the tribe's authorizing resolution. If a time frame is not
specified, withdrawal becomes effective one year from the
submission of the request or on the date the funding agreement
expires, whichever occurs first. An alternative date can be
agreed to by the parties, including the Secretary.
When an Indian tribe withdraws from an inter-tribal
consortium or tribal organization and wishes to enter into a
Title I contract or Title V agreement on its own, it is
entitled to receive its share of funds supporting the program,
function, service, or activity, (or portion thereof) that it
will carry out under its new status The funds must be removed
from the funding agreement of the participating organization or
inter-tribal consortium and included in the withdrawing tribe's
agreement or contract. If the withdrawing tribe is to receive
services directly from the Secretary, the tribe's share of
funds must be removed from the funding agreement of the
participating organization or inter-tribal consortium and
retained by the Secretary to provide services. Finally, an
Indian tribe that chooses to terminate its participation in the
self-governance program may, at its option, carry out programs,
functions, services, or activities, (or portions thereof) in a
Title I contract or Self-Governance funding agreement and
retain its mature contractor status.
(h) Nonduplication. This section provides that a tribe
operating programs under a Self-Governance compact may not
contract under Title I (a ``638 contract'') for the same
programs.
Section 507. Provisions relating to the secretary
This section sets out mandatory and non-mandatory
provisions relating to the Secretary's obligations.
(a) Mandatory Provisions.
(1) Health Status Reports. To the extent that the data is
not otherwise available to the Secretary, compacts and funding
agreements must include a provision requiring the Indian tribe
to report data on health status and service delivery. The
Secretary is to use this data in the Secretary's annual reports
to congress. The Secretary is required to provide funding to an
Indian tribe to compile such data. Reporting requirements can
only impose minimal burdens on an Indian tribe and may only be
imposed if they are contained in regulations developed under
negotiated rulemaking.
(2) Reassumption. Compacts or funding agreements must
include a provision authorizing the Secretary to reassume a
program, function, service, or activity, (or portion thereof)
if the Secretary makes a finding of imminent endangerment of
the public health caused by the Indian tribe's failure to carry
out the compact or funding agreement or gross mismanagement
that causes a significant reduction in available funding. The
Secretary is required to provide the Indian tribe with notice
of a finding and a hearing on the record. The Indian tribe may
take action to correct the problem identified in the notice.
The Secretary has the burden at the hearing of demonstrating by
clear and convincing evidence the validity of the grounds for
reassumption. In cases where the Secretary finds imminent
substantial and irreparable endangerment of the public health
caused by the tribe's failure to carry out the compact or
funding agreement, the Secretary may immediately reassume the
program but is required to provide the tribe with a hearing on
the record within ten days after reassumption.
(b) Final offer. If the parties cannot agree on the terms
of a compact or funding agreement, the Indian tribe may submit
a final offer to the Secretary. The Secretary has 45 days to
determine if the offer will be accepted or rejected. The 45
days can be extended by the Indian tribe. If the Secretary
takes no action the offer is deemed accepted by the Secretary.
(c) Rejection of Final Offers. This provision describes the
only circumstances under which the Secretary may reject an
Indian tribe's final offer.
A rejection requires written notice to the Indian tribe
within 45 days of receipt with specific findings that clearly
demonstrate or are supported by controlling legal authority
that: (1) the amount of funds proposed exceeds the funding
level that the Indian tribe is entitled to: (2) the program,
function, service, or activity (or portion thereof) that is the
subject of the offer is an inherent federal function that only
can be carried out by the Secretary; (3) the applicant is not
eligible to participate in self-governance; or (4) the Indian
tribe cannot carry out the program, function, service or
activity, (or portion thereof) without a significant danger or
risk to the public health. The Committee believes the fourth
provision appropriately balances the Secretary's trust
responsibility to assure the delivery of health care services
to Indian beneficiaries, with the equally important goal of
fostering maximum tribal self-determination in the
administration of health care programs transferred under Title
V. The Committee has included the requirement of a ``specific
finding'' to avoid rejections which merely state conclusory
statements that provide no analysis or determination of facts
supporting the rejection.
The Secretary must also offer assistance to the Indian
tribe to overcome the stated objections, and must provide the
Indian tribe with an opportunity to appeal the rejection and
have a hearing on the record. In any hearing the Indian tribe
has the right to engage in full discovery. The Indian tribe
also has the option of proceeding directly to federal district
court under section 110 of Title I of the Act in lieu of an
administrative hearing.
The Secretary may only reject these portions of a ``final
offer'' that are supported by the findings and must agree to
all severable portions of a ``final offer'' which do not
justify a rejection. By entering into a partial compact or
funding agreement the Indian tribe does not waive its right to
appeal the Secretary's decision for the rejected portions of
the offer.
(d) Burden of Proof. The Secretary has the burden of
demonstrating by clear and convincing evidence the validity of
a rejection of a final offer in any hearing, appeal or civil
action. A decision relating to an appeal within the Department
is considered a final agency action if it was made by an
administrative judge or by an official of the Department whose
position is at a higher level than the level of the
departmental agency in which the decision that is the subject
of the appeal was made.
(e) Good Faith. The Secretary is required to negotiate in
good faith and carry out his discretion under title V in a
manner that maximizes the implementation of self-governance.
(f) Reduction of Secretarial Responsibilities. Any savings
in the Department's administrative costs that result from the
transfer of programs, functions, services, or activities, (or
portions thereof) to Indian tribes in self-governance
agreements that are not otherwise transferred to Indian tribes
under Title V must be made available to Indian tribes for
inclusion in their compacts of funding agreements. The
Committee has consistently indicated that Self Governance
should achieve reductions in federal bureaucracy and create
resultant cost savings. This subsection makes clear that such
savings are for the benefit of the Indian tribes. Savings are
not to be utilized for other agency purposes, but rather are to
be provided as additional funds or services to all tribes,
inter-tribal consortia, and tribal organizations in a fair and
equitable manner.
(g) Trust Responsibility. The Secretary is prohibited from
waiving, modifying or diminishing the trust responsibilities or
other responsibilities as established in treaties, executive
orders or other laws and court decisions of the United States
to Indian tribes and individual Indians. The Committee
reaffirms that the protection of the federal trust
responsibility to Indian tribes and individuals is a key
element of Self Governance. The ultimate and legal
responsibility for the management and preservation of trust
resources resides with the United States as Trustee. The
Committee believes that health care is a trust resource
consistent with federal court decisions. This subsection
continues the practice of permitting substantial tribal
management of its trust resources provided that tribal
activities do not replace the trustee's specific legal
responsibilities. Section 507 (a)(2) (reassumption) with its
concept of imminent endangerment of the public health provides
guidance in defining the Secretary trust obligation in the
health context.
(h) Decisionmaker. Final agency action is a decision by
either an official from the Department at any higher
organizational level than the initial decision maker or an
administrative law judge. Subparagraph (h)(2) is included to
assure that the persons deciding an administrative appeal are
not the same individuals who made the initial decision to
reject a tribe's ``final offer.''
Section 508. Transfer of funds
(a) In General. The Secretary is required to transfer all
funds provided for in a funding agreement, pursuant to Section
509(c) below. Funds are also required to be provided for
periods covered bycontinuing resolutions adopted by Congress,
to the extent permitted by such resolutions. When a funding agreement
requires that funds be transferred at the beginning of the fiscal year,
the transfer is to be made within 10 days after the Office of
Management and Budget apportions the funds, unless the funding
agreement provides otherwise.
(b) Multi-Year Funding. The Secretary is authorized to
negotiate multi-year funding agreements.
(c) Amount of Funding. The Secretary is required to provide
an Indian tribe with the same funding for a program, function,
service, or activity (or portion thereof) under self-governance
that the tribe would have received under Title I. This includes
all Secretarial resources that support the transferred program,
and all contract support costs (including indirect costs) that
are not available from the Secretary but are reasonably
necessary to operate the program. The bill requires that the
transfer of funds occur along with the transfer of the program.
Thus the bill states that ``the Secretary shall provide'' the
funds specified, and the Secretary is not authorized to phase-
in funds in any manner that is not voluntarily agreed to by a
Self-Governance tribe.
(d) Prohibitions. The Secretary is specifically prohibited
from withholding, refusing to transfer or reducing any portion
of an Indian tribe's full share of funds during a Compact or
funding agreement year, or for a period of years. The Committee
is aware that for the first twenty-one years of administration
of the Indian Self-Determination Act, the Department had never
taken the position that it has the discretion to delay funding
for any program transferred under the Act absent tribal
consent. However, a 1996 IHS circular purported to do just
that. Since this circular was issued, several Area offices have
refused to turn over substantial program funds to tribal
operation. In one instance both an Area office and Headquarters
refused to transfer portions of programs for several years, and
with respect to several Headquarters functions the IHS refused
to transfer the functions altogether. A recent Oregon Federal
district court decision declared the Indian Health Service's
actions in these instances illegal and the Committee agrees.
Additionally, funds that an Indian tribe is entitled to
receive may not be reduced to make funds available to the
Secretary for monitoring or administration; may not be used to
pay for federal functions (such as pay costs or retirement
benefits); and, may not be used to pay costs associated with
federal personnel displaced by self-governance or Title I
contracting.
In subsequent years, funds may only be reduced in very
limited circumstances: if Congress reduces the amount available
from the prior year's appropriation; if there is a directive in
the statement of managers which accompanies an appropriation;
if the Indian tribe agrees; if there is a change in the amount
of pass-through funds; or, if the project contained in the
funding agreement has been completed.
(e) Other Resources. If an Indian tribe elects to carry out
a compact or funding agreement using federal personnel,
supplies, supply sources or other resources that the Secretary
has available under procurement contracts, the Secretary is
required to acquire and transfer the personnel, supplies or
resources to the Indian tribe.
(f) Reimbursement to Indian Health Service. The Indian
Health Service is authorized to provide goods and services to
tribes on a reimbursable basis. Reimbursements are to be
credited to the same or subsequent appropriation account which
provided the initial funding. The Secretary is authorized to
receive and retain the reimbursed amounts until expended
without remitting them to the Treasury.
(g) Prompt Payment Act. This subsection makes the Prompt
Payment Act (31 U.S.C. Chapter 39) applicable to the transfer
of all funds due to a tribe under a compact or funding
agreement. The first annual or semi-annual transfer due under a
funding agreement must be made within 10 calendar days of the
date the Office of Management and Budget apportions the
appropriations for that fiscal year. Under this section, the
Secretary is obligated to pay interest to a Self-Governance
tribe, as calculated under the Prompt Payment Act, for any late
payment under a funding agreement.
(h) Interest or Other Income on Transfers. An Indian tribe
may retain interest earned or other income realized on funds
transferred under a Compact or funding agreement. Interest
earned must not reduce the amount of funds the tribe is
entitled to receive during the year the interest was earned or
in subsequent years. An Indian tribe may invest funds received
in a funding agreement as it wishes, provided it follows the
``prudent investment standard'', a commonly utilized fiduciary
standard, that the Committee believes is sufficiently stringent
to ensure that funds are invested wisely and safely yet provide
a reasonable yield on investment.
Eligible investments under the prudent investment standard
may include the following: (1) cash and cash equivalents
(including bank checking accounts, savings accounts, and
brokerage account free cash balances that carry a quality
rating A1 P1, or AA or higher), (2) money market accounts with
an A rating or higher, (3) certificates of deposit where the
amounts qualify for insurance ($100,000 or less) or where the
issuing bank has delivered a specific assignment, (4) bank
repossession certificates where the amounts qualify for
insurance ($100,000 or less) or where the issuing bank has
delivered a specific assignment, (5) U.S. Government or Agency
Securities, (6) commercial paper rated A1 P1 at time of
purchase and which cannot exceed 10% of portfolio at time of
purchase with any one issuer (short term paper--under 90 days--
may be treated as a cash equivalent, (7) auction rate preferred
instruments that are issued by substantial issuers, are rated
AA or better, and may be utilized with auction maturities of 28
to 90 days, (8) corporate bonds of U.S. corporations that have
Moody's, Standard and Poor's, or Fitch's rating of A or
equivalent and where no more than 10% of the portfolio at time
of purchase is invested in the securities of any one issuer,
(9) dollar denominated short term bonds of the G7 Nations or
World Bank only if the yields exceed those of U.S. instruments
of equivalent maturity and quality, and where no more than 25%
of portfolio at time of purchase is invested in this asset
category, (10) properly registered short term no-load
government or corporate bond mutual funds with a safety rating
and average fund quality of A or higher, which demonstrate low
volatility, and where no more than 25% of portfolio at time of
purchase is invested in any one fund.
(i) Carryover of Funds. All funds paid to an Indian tribe
under a compact or funding agreement are ``no year'' funds and
may be spent in the year they are received or in any future
fiscal year. Carryover funds are not to reduce the amount of
funds that the tribe may receive in subsequent years.
(j) Program Income. All program income (including Medicare/
Medicaid) reimbursements earned by an Indian tribe is
supplemental to the funding that is included in its funding
agreement. The Secretary may not reduce the amount of funds
that the Indian tribe may receive under its funding agreement
for future fiscal years. The Indian tribe may retain such
income and spend it either in the current or future years.
(k) Limitation of Costs. An Indian tribe is not required to
continue performance of a Program, function, service, or
activity (or portion thereof) included in a funding agreement
if doing so requires more funds than were provided under the
funding agreement. If an Indian tribe believes that the amount
of funds transferred is not enough to carry out a program,
function, service, or activity, (or portion thereof) for the
full year, the Indian tribe may so notify the Secretary. If the
Secretary does not supply additional funds the tribe may
suspend performance of the program, function, service, or
activity (or portion thereof) until additional funds are
provided.
Section 509. Construction projects
(a) In General. Indian tribes are authorized to conduct
construction projects authorized under this section. The tribes
are to assume full responsibility for the projects, including
responsibility for enforcement and compliance with all relevant
federal laws, including the National Historic Preservation Act
of 1966 and the National Environmental Policy Act of 1969. A
tribe undertaking a construction project must designate a
certifying officer to represent the tribe and accept federal
court jurisdiction for purposes of the enforcement of federal
environmental laws.
(b) Negotiations. This subsection provides that negotiation
of construction projects are negotiated pursuant to section
105(m) of the Act and construction project agreements included
in the funding agreement as an addendum.
(c) Codes and Standards. The tribe and the IHS must agree
to standards and codes for the construction project. The
agreement is to conform with nationally accepted standards for
comparable projects.
(d) Responsibility for Completion. This subsection provides
that the Indian tribe must assume responsibility for the
successful completion of the project according to the terms of
the construction project agreement.
(e) Funding. This subsection provides that funding of
construction projects will be through advance payments, on
either an annual or semi-annual basis. Payment amounts will be
determined by project schedules, work already completed, and
the amount of funds already expended. Flexibility in payment
schedules will be maintained by the IHS through contingency
funds to take account of exigent circumstances such as weather
and supply.
(f) Approval. This subsection allows the Secretary to have
at least one opportunity to approve tribal project planning and
design documents or significant amendments to the original
scope of work before construction. The tribe is to provide at
least semiannual progress and financial reports to the
Secretary. The Secretary is allowed to conduct semiannual site
visits or on another basis if agreed to by the tribe.
(g) Wages. This subsection mirrors section 7(a) of the
Indian Self-Determination and Education Assistance Act which
incorporates federal Davis-Bacon Act wage protections for
workers.
(h) Application of Other Laws. This subsection provides
that provisions of the Office of Federal Procurement Policy
Act, the Federal Acquisition Regulations, and other federal
procurement laws and regulations do not apply to construction
projects, unless agreed to by the participating tribe.
Section 510. Federal procurement laws and program regulations
This section provides that unless otherwise agreed to by
the parties, compacts and funding agreements are not subject to
federal contracting or cooperative agreement laws and
regulations (including executive orders) unless those laws
expressly apply to Indian tribes. Compacts and funding
agreements are also not subject to program regulations that
apply to the Secretary's operations.
Section 511. Civil actions
(a) Contract Defined. The Committee intends that Section
110 of Title I of the Act, which grants tribes access to
federal district court to challenge a decision by the
Secretary, shall apply to this title.
(b) Applicability of Certain Laws. This subsection provides
that Department of Interior approval of tribal contracts (25
U.S.C. 81) and section 16 of the Indian Reorganization Act (25
U.S.C. 476) shall not apply to attorney and other professional
contracts with Self-Governance tribes.
Section 512. Facilitation
(a) Secretarial Interpretation. This section requires the
Secretary to interpret all executive orders, regulations and
federal laws in a manner that will facilitate the inclusion of
programs, functions, services, or activities, (or portions
thereof) and funds associated therewith under Title V,
implementation of Title V compacts and funding agreements, and
the achievement of tribal health goals and objectives where
they are not inconsistent with federal law. This section
reinforces the Secretary's obligation not merely to provide
health care services to Native American tribes, but to
facilitate the efforts of tribes to manage those programs for
the maximum benefit of their communities.
(b) Regulation Waiver. An Indian tribe participating in the
Self-governance program under title V may seek a waiver of an
applicable Indian Self-Determination Act regulation by
submitting a written waiver request to the Secretary. The
Secretary has 90 days to respond and a failure to act within
that period is deemed an approval of the request by operation
of law. Action on a waiverrequest is final for the Department.
Denials may be made upon a specific finding that the waiver is
prohibited by federal law.
(c) Access to Federal Property. This subsection addresses
tribal use of federal buildings, hospitals and other
facilities, as well as the transfer to tribes of title to
excess personal or real property. At the request of an Indian
tribe the Secretary is required to permit the Indian tribe to
use government-owned real or personal property under the
Secretary's jurisdiction under such terms as the parties may
agree to.
The Secretary is required to donate title to personal or
real property that is excess to the needs of any federal agency
or the General Services Administration as long as the Secretary
has determined that the property is appropriate for any purpose
for which a compact is authorized, irrespective of whether a
tribe is in fact administering a particular program that
matches that purpose. For instance, if a tribe is not
administering a mental health program under its IHS compact or
funding agreement, but is administering a mental health program
under other authority or funding agreement, the Secretary may
nonetheless acquire excess or surplus property and donate such
property to the tribe so long as the Secretary determines that
the tribe will be using the property to administer mental
health services.
Title to property furnished by the government or purchased
with funds received under a compact or funding agreement vests
in the Indian tribe if it so chooses. Such property also
remains eligible for replacement, maintenance or improvement on
the same terms as if the United States had title to it. Any
property that is worth $5,000 or more at the time of a
retrocession, withdrawal or reassumption may revert back to the
United States at the option of the Secretary.
(d) Matching or Cost-Participation Requirement. Funds
transferred under compacts and funding agreements are to be
considered non-federal funds for purposes of meeting matching
or cost participation requirements under federal or non-federal
programs.
(e) State Facilitation. This section encourages and
authorizes States to enter agreements with tribes supplementing
and facilitating Title V and other federal laws that benefit
Indians and Indian tribes, for example, welfare reform. it is
designed to provide federal authority so as to remove equal
protection objections where states enter into special
arrangements with tribes.
The Committee wants to foster enlightened and productive
partnerships between state and local governments, on the one
hand, and Indian tribes on the other; and, the Committee wants
to be sure that states are authorized by the federal government
to undertake such initiatives, as a delegation of the federal
government's constitutional authority to deal with Indian
tribes as political entities, irrespective of any limitations
which have from time to time been argued might otherwise exist
with respect to state action under either state constitutional
provisions or other provisions of the Constitution. Many state
and tribal governments have undertaken positive initiatives
both in health care issues and in natural resource management,
and it is the Committee's strong desire to fully support,
authorize and encourage such cooperative efforts.
(f) Rules of Construction. Provisions in this title and in
compacts and funding agreements shall be liberally construed
and ambiguities decided for the benefit of the Indian tribe
participating in the program.
Section 513. Budget request
(a) The President is required to annually identify in his/
her budget all funds needed to fully fund all Title V compacts
and funding agreements. These funds are to be apportioned to
the Indian Health Service and will then be transferred to the
Office of Tribal Self-Governance. The IHS may not thereafter
reduce the funds a tribe is otherwise entitled to receive
whether or not such funds have been apportioned to the Office
of Tribal Self-Governance.
The Committee has been made aware that the current system
for payment and approval of funding and amendments for annual
funding agreements for self-governance demonstration tribes is
inefficient and time consuming. In addition, by leaving
authority and responsibility for distributions to Area Offices,
there have been reported instances of excessive and unwarranted
assertion of authority by Area Offices over self governance
tribes. This includes Area Offices retaining shares of funds
not authorized to be retained by the tribe's annual funding
agreement. The Committee concludes that by requiring a report
on self-governance expenditures, and by moving all self-
governance funding onto a single line, the Congress will be
able to achieve the following ends: more accurately gauge the
amount of funding flowing directly to tribes through
participation in self governance; generate savings through
decreasing the bureaucratic burden on the payment and approval
process in the Indian Health Service; expedite the transferal
of funding to tribal operating units; and, aid in the
implementation of true government-to-government relations and
tribal self determination.
(b) The budget must identify the present level of need and
any shortfalls in funding for every Indian tribe in the United
States that receives services directly from the Secretary,
through a Title I contract or in a Title V compact and funding
agreement.
Section 514. Reports
(a) Annual Report. The Secretary is required to submit to
Congress on January 1 of every year a written report on the
Self-Governance program. The report is to include the level of
need presently funded or unfunded for every Indian tribe in the
United States that receives services directly from the
Secretary, through a Title I contract or in a Title V compact
and funding agreement. The Secretary may not impose reporting
requirements on Indian tribes unless specified in Title V.
(b) Contents. The Secretary's report must identify: (1) the
costs and benefits of self-governance; (2) all funds related to
the Secretary's provision of services and benefits to self-
governance tribes and their members; (3) all funds transferred
to self-governance tribes and the corresponding reduction in
the federal bureaucracy; (4) the funding formula for individual
tribal shares; (5) the amount expended by the Secretary during
the preceding fiscal year to carry out inherent federal
functions; and (6) contain a description of the method used to
determine tribal shares. The Secretary's reportmust be
distributed to Indian tribes for comment no less than 30 days prior to
its submission to Congress and include the separate views of Indian
tribes.
(c) Report on IHS Funds. This section requires the
Secretary to consult with Indian tribes and report, within 180
days after this title is enacted, on funding formulae used to
determine tribal shares of funds controlled by IHS. The
formulae are to become a part of the annual report to Congress
discussed above in Section 514(d). This provision is not
intended to relieve HHS from its obligation under Title V to
make all funds controlled by the central office, national,
headquarters or regional offices available to Indian tribes.
This provision is also not intended to require reopening
funding formulae that are already being used by HHS to
distribute funds to Indian tribes. Any new formulae or revision
of existing formulae should be determined only after
significant regional and national tribal consultation.
Section 515. Declaimers
(a) No Funding Reduction. This provision states that
nothing in Title V shall be interpreted to limit or reduce the
funding for any program, project or activity that any other
Indian tribe may receive under Title I or other applicable
federal laws. A tribe that alleges that a compact or funding
agreement violates this section may rely on section 110 of the
Act to seek judicial review of the allegation.
(b) Federal Trust and Treaty Responsibilities. This section
clarifies that the trust responsibility of the United States to
Indian tribes and individual Indians which exists under
treaties, Executive Orders, laws and court decisions shall not
be reduced by any provision of Title V.
(c) Tribal Employment. This provision excludes Indian
tribes carrying out responsibilities under a compact or funding
agreement from falling under the definition of ``employer'' as
that term is used in the National Labor Relations Act.
(d) Obligations of the United States. The IHS is prohibited
from billing, or requiring Indian tribes from billing,
individual Indians who have the economic means to pay for
services. For many years the Interior and Related Agencies
appropriations bills included language that prohibited the
Indian Health Service, without explicit direction from
Congress, from billing or charging Indians who have the
economic means to pay. In 1997 the language was removed from
the appropriation bills and it has not been included since.
This section reflects the Committee's intent that the IHS is
prohibited from billing Indians for services, and is further
prohibited from requiring any Indian tribe to do so.
Section 516. Application of other sections of the Act
(a) This section expressly incorporates a number of
provisions from other areas of the Indian Self-Determination
and Education Assistance Act into Title V. These sections
include: 5(b) (access for three years to tribal records), 6
(setting out penalties that apply if an individual embezzles or
otherwise misappropriates funds under Title V); 7 (federal
Davis-Bacon Act wage and labor standards and Indian preference
requirements); 102(c) and (d) (relating to Federal Tort Claims
Act coverage); 104 (relating to the right to use federal
personnel to carry out responsibilities in a compact or funding
agreement); 105(k) (access to federal supplies); 111
(clarifying that Title V shall have no impact on existing
sovereign immunity and the United States' trust
responsibility); and section 314 Public Law No. 101-512
(coverage under the Federal Tort Claims Act).
(b) At the request of an Indian tribe, other provisions of
Title I of the Indian Self-Determination Act which do not
conflict with provisions in Title V may be incorporated into a
compact or funding agreement. If incorporation is requested
during negotiations it will be considered effective
immediately.
Section 517. Regulations
This section gives the Secretary limited authority to
promulgate regulations implementing Title V.
(a) In General. The Secretary is required to initiate
procedures to negotiate and promulgate regulations necessary to
carry out Title V within 90 days of enactment of Title V. The
procedures must be developed under the Federal Advisory
Committee Act. The Secretary is required to publish proposed
regulations no later than one year after the date of enactment
of Title V. The authority to promulgate final regulations under
Title V expires 21 months after enactment. The Committee is
aware of the success of the Title I negotiated rulemaking and
believes that one reason for its success is a similar
limitation of rulemaking authority contained in section 107(a)
of the Indian Self-Determination Act, which this section is
modeled after.
(b) Committee. This provision requires that a negotiated
rulemaking committee made up of federal and tribal government
members be formed in accordance with the Negotiated Rulemaking
Act. A majority of the tribal committee members must be
representatives of and must have been nominated by Indian
tribes with Title V compacts and funding agreements. The
committee will confer with and allow representatives of Indian
tribes, inter-tribal consortiums, tribal organizations and
individual tribal members to actively participate in the
rulemaking process.
(c) Adaptation of Procedures. The negotiated rulemaking
procedures may be modified by the Secretary to ensure that the
unique context of self-governance and the government-to-
government relationship between the United States and Indian
tribes is accommodated.
(d) Effect. The effect of Title V shall not be limited if
regulations are not published.
(e) Effect of Circulars, Policies, Manuals, Guidances and
Rules. Unless an Indian tribe agrees otherwise in a Compact or
funding agreement, no agency circulars, policies, manuals,
guidances program regulations or rules adopted by the IHS apply
to the tribe.
Section 518. Appeals
In any appeal (including civil actions) involving a
decision by the Secretary under Title V, the Secretary carries
the burden of proof. To satisfy this burden the Secretary must
establish by clearand convincing evidence the validity of the
grounds for the decision made and that the decision is fully consistent
with provisions an policies of Title V.
Section 519. Authorization of appropriations
This section authorizes Congress to appropriate such funds
as are necessary to carry out Title V.
The Committee is aware of and concerned with the many
lawsuits that have been filed against the United States for
failure to pay full contract support costs to tribal
contractors under the Act. Amounts appropriated in recent years
for contract support have failed to keep pace with the demand
as tribes assume greater responsibility for health care
services. The result has been the filing of several lawsuits
with significant liability for the United States.
At the same time, the Committee is concerned with the
moratorium that has been placed on any new or expanded
contracts or compacts--effectively frustrating the purpose of
the Act and stopping Indian self determination in its tracks.
Because of these factors, the amendment in the nature of a
substitute contained a provision that lifts the moratorium for
new or expanded contracts and compacts, but conditions the
Secretary's ability to enter such agreements on two
eventualities: (1) the availability of sufficient
appropriations for such new agreements; and (2) a determination
by the IHS that the level of contract support cost funding for
existing contractors will not be diminished as a result of any
new or expanded contract or compact.
Section 601. Demonstration project feasibility
This provision requires an 18 month study to determine the
feasibility of creating a Tribal Self-Governance Demonstration
Project for other agencies, programs and services in the
Department of Health and Human Services.
(a) Study. This subsection authorizes the feasibility
study.
(b) Considerations. This subsection requires the Secretary
to consider (1) the effects of a Demonstration Project on
specific programs and beneficiaries, (2) statutory, regulatory
or other impediments, (3) strategies for implementing the
Demonstration Project, (4) associated costs or savings, (5)
methods to assure Demonstration Project quality and
accountability, and (6) such other issues that may be raised
during the consultation process.
Report. This subsection provides that the Secretary is to
submit a report to Congress on the results of the study, which
programs and agencies are feasible to be included in a
Demonstration Project, which programs would not require
statutory changes or regulatory waivers, a list of legislative
recommendations for programs that are feasible but which would
require statutory changes, and any separate views of Indian
tribes or other entities involved in the consultation process.
The Committee has deferred to the Secretary's request not
to provide for a demonstration or pilot project component to
the Feasibility Study to determine how to best apply Self-
Governance to agencies other than the Indian Health Service
within HHS. The Secretary has pledged to work in a cooperative
spirit with the Indian tribes to quickly identify those
programs outside the IHS that are suitable for Self-Governance.
The Committee believes that there are agencies and programs
outside of the IHS that should be ready to participate in the
Self-Governance program at the conclusion of the study and
anticipates the introduction of legislation at that time to
authorize such participation.
Section 602. Consultation
(a) Study Protocol. This provision requires the Secretary
to consult with Indian tribes to determine a protocol for
conducting the study. The protocol shall require that the
government-to-government relationship between the United States
and the Indian tribes forms the basis for the study, that
consultations are jointly conducted by the tribes and the
Secretary, and that the consultation process allows for input
from Indian tribes and other entities who wish to comment.
(b) Conducting Study. This provision requires that when the
Secretary conducts the study, the Secretary is to consult with
Indian tribes, states, counties, municipalities, program
beneficiaries, and interested public interest groups.
Section 603. Definitions
(a) This subsection is intended to incorporate into Title
VI the definitions used in Title V.
(b) This subsection defines ``agency'' to mean any agency
in the Department of Health and Human Services other than the
Indian Health Service.
Section 604. Authorization of appropriations
This section authorizes the appropriation of such sums as
necessary for fiscal years 2000 and 2001 in order to carry out
Title VI.
Section 5. Amendments clarifying civil proceedings.
(a) This provision amends section 102(e)(1) of the Act to
clarify that the Secretary has the burden of proof in any civil
action pursuant to section 110(a).
(b) The provision provides that the amendment to sections
102(e) (1) set out in subsection (a) shall apply to any
proceeding commenced after October 25, 1994.
Section 6. Speedy acquisition of goods and services
This section requires the Secretary to enter into
agreements for the acquisition of goods and services for
tribes, including pharmaceuticals at the best price and in as
fast a manner as is possible, similar to those obtained by
agreement by the Veterans Administration.
Section 7. Patient records
This section provides that Indian patient records may be
deemed to be federal records under the Federal Records Acts in
order to allow tribes to store patient records in the Federal
Records Center.
Section 8. Repeals
This section repeals Title III of the Indian Self-
Determination and Education Assistance Act which authorizes the
Demonstration Project replaced by this Act.
Section 9. Savings provision
This section provides that funds already appropriated for
Title III of the Indian Self-Determination and Education
Assistance Act shall remain available for use under the new
Title V.
Section 10. Effective date
This section provides that the Act shall take effect on the
date of enactment.
Congressional Budget Office Estimate
The cost estimate for S. 979 as calculated by the
Congressional Budget Office is set forth below:
U.S. Congress,
Congressional Budget Office,
Washington, DC, November 9, 1999.
Hon. Ben Nighthorse Campbell,
Chairman, Committee on Indian Affairs,
U.S. Senate,
Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 979, the Tribal
Self-Governance Amendments of 1999.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Dorothy
Rosenbaum.
Sincerely,
Barry B. Anderson
(For Dan L. Crippen, Director).
Enclosure.
S. 979--Tribal Self-Governance Amendments of 1999
CBO estimates that implementing S. 979 would cost less than
$500,000 in each of fiscal years 2000 through 2004, assuming
appropriation of the necessary funds. Because enacting the bill
would not affect direct spending or receipts, pay-as-you-go
procedures would not apply. The legislation contains no
intergovernmental or new private-sector mandates as defined in
the Unfunded Mandates Reform Act and would impose no costs on
state, local, or tribal governments.
S. 979 would amend the Indian Self-Determination and
Education Assistance Act to establish a permanent tribal self-
governance program within the Indian Health Service (IHS).
Under existing demonstration authority, the IHS and tribes
enter into funding agreements whereby a tribe assumes
administrative and programmatic duties that were previously
performed by the Federal Government. Because the current
demonstration authority does not end until 2006, and because
the provisions of the new permanent program would not be
significantly different from those governing the demonstration
program, CBO estimates that establishing a permanent program
would have no federal budgetary impact during fiscal years 2000
through 2004. Under the existing demonstration program, the IHS
may select 30 new tribes each year to participate. S. 979 would
raise that number to 50. Because in recent years fewer than 10
new tribes each year have become eligible to participate, CBO
expects that the change in law would have no effect on
participation.
S. 979 would authorize appropriations for fiscal years 2000
and 2001 for the IHS to conduct a study and report to the
Congress on the feasibility of a demonstration project that
would expand self-governance compacts to include programs
operated by other agencies of the Department of Health and
Human Services (HHS). CBO estimates that this study would cost
less than $250,000. In addition, the bill would require the
Secretary of HHS to submit an annual report on the
implementation of the Indian Self-Determination and Education
Assistance Act, with an emphasis on contract support costs.
Because the Secretary already prepares this report each year,
CBO estimates that the requirement would not result in
additional costs.
S. 979 would allow Indian tribes to store their patient
records at Federal Records Centers. CBO expects that very few
tribes would take advantage of this option and that increased
costs to the Federal Records Centers would be less than
$500,000 in each of fiscal years 2000 through 2004.
Finally, S. 979 would give Indian tribes carrying out self-
governance contracts the same right as the United States under
the Medical Care Recovery Act (42 U.S.C. 2651) to recover from
liable third parties the reasonable value of care the tribe
provided. The bill also specifies that amounts recovered under
that authority would be retained by the tribe (an authority
that exists in current law under section 207(a) of the Indian
Health Care Improvement Act). CBO assumes that any additional
amounts the tribes recover and the related spending of these
amounts would not be considered part of the federal budget.
The CBO staff contact is Dorothy Rosenbaum. This estimate
was approved by Robert A. Sunshine, Assistant Director for
Budget Analysis.
Regulatory Impact Statement
Paragraph 11(b) of rule XXVI of the Standing rules of the
Senate requires that each report accompanying a bill evaluate
the regulatory paperwork impact that would be incurred in
implementing the legislation. The Committee has concluded that
enactment of S. 979 will create only de minimis regulatory or
paper work burdens.
Executive Communications
At the hearing on S. 979 on July 19, 1999, Mr. Michael
Lincoln, Deputy Director of the Indian Health Service (IHS)
appeared and testified before the Committee in support of S.
979. The statement of Mr. Lincoln follows:
Statement of the Indian Health Service
Mr. Chairman and Members of the Committee: Good morning. I
am Michael E. Lincoln, Deputy Director, Indian Health Service
(IHS). Accompanying me today is Paula K. Williams, Director,
Office of Tribal Self-Governance, and Douglas Black, Director,
Office of Tribal Programs. We are pleased to be here today to
discuss S. 979, the ``Tribal Self-Governance Amendments of
1999.''
The IHS goal is to raise the health status of American
Indians and Alaska Natives (AI/ANs) to the highest possible
level. The mission is to provide a comprehensive health
services delivery system for AI/ANs with opportunity for
maximum Tribal involvement in developing and managing programs
to meet their health needs. The provision of Federal health
services to American Indians and Alaska Natives is based upon a
special government-to-government relationship between Indian
tribes and the United States, which has been reaffirmed
throughout the history of this Nation by all three branches of
this Nation's government. In 1994, the President issued an
Executive Memorandum directing all Federal Departments and
Agencies to implement policies and procedures for consulting
with Indian Tribes on matters that affect Indian people.
The IHS Self-Governance Demonstration Project (SGDP) was
authorized in October 1992 pursuant to Public Law 102-573, the
Indian Health Amendments of 1992. In May 1993, IHS began its
first compact negotiations with tribes under the demonstration
authority. Since that time, the Agency has entered into 42
Self-Governance (SG) Compacts and 59 Annual Funding Agreements
(AFA) through Fiscal Year (FY) 1998. These compacts transfer
approximately $549 million to 216 tribes in Alaska and 43
tribes in the lower 48 states participating in the SGDP. These
negotiated agreements transfer the funding associated with
programs, functions, services and activities assumed by the
tribes, from Area and Headquarters budgets to those tribes.
The 259 tribes participating in this project constitute
46.5% of the federally recognized tribes and they collectively
serve over 32% of the total IHS users. This Project has
provided Tribal Governments the needed local control of their
health programs and allows Tribal leadership to implement
aggressive and successful health promotion and disease
prevention initiatives which are truly responsive to the health
needs of their service population. Local control has also
provided more ownership by local leadership which has resulted
in significant improvements in the quality and quantity of
health services. Tribes have been able to increase the number
of physicians and clinic sites to make health care more
accessible to the people. Some have implemented special
services to address the unique needs of the elderly. The
Mississippi Band of Choctaw Indians Health Center's Radiology
Department has been awarded the Nashville Area Radiology
Technologist of the Year Award for two consecutive years. In
addition, their Health Center's Women's Wellness Center and
Choctaw Community Integrated Service System has been recognized
by the Department of Health and Human Services, Maternal and
Children's Health Bureau, as a ``model'' for State Health
Departments nationwide. And, most impressive, tribally operated
health facilities are scoring higher in their accreditation
reviews than they did under Agency administration. For example,
the Chippewa Cree Health Center and laboratory each scored a
perfect 100 points and their Chemical Dependency Center scored
98 points in the accreditation review conducted by the Joint
Commission on Accreditation of Health Care Organizations.
The Self-Governance Demonstration Project has been a
success. We do need to continue to assess the impact of
continued transfers of funds upon the Agency's ability to carry
out its residual functions and to continue providing direct
health services to tribes who choose not to contract or
compact. The Agency is taking steps to downsize and reorganize
in order to free up resources for transfer to tribes, but these
efforts could be out paced by increased compacting and certain
provisions of this bill.
The challenge before the Tribes, Indian health programs,
the IHS and the Congress is to retain the applied expertise of
the Indian Health Service in core public health functions that
are critical to elevating the health status of American
Indians/Alaska Natives and reducing the disparity in the health
status of AI/ANs compared with the general population. We, who
are involved in Indian Health care, must deal with a changing
external environment with new demands, new needs, and new
priorities. The Indian Health Service supports the spirit and
intent of the Tribal Self-Governance Amendments. S. 979 is
consistent with our goal of providing maximum participation of
tribes in the development and management of Indian health
programs.
In the 105th Congress, the Department closely worked with
Congress and the tribes on H.R. 1833, the predecessor
legislation to S. 979 and H.R. 1167. Agreement was reached on
many points, as was reflected in the version of H.R. 1833 that
passed the House on October 5, 1998. The Department testified
favorably on H.R. 1833 before this Committee after it passed
the House and, with a few exceptions, supported the bill. We
would like to highlight for you our major concerns with certain
provisions contained in S. 979. In fact, some were concerns we
raised with H.R. 1833 last year and again appear in S. 979.
While these represent our significant concerns, we acknowledge
that there has been a great deal of hard work and a spirit of
compromise on the part of all parties that brought us this far.
In this same manner, we believe that we will continue to move
forward.
Proposed sec. 512(b)--Facilitation: regulation waiver
S. 979 appears to have inadvertently dropped the language
``promulgated under this act,'' from Section 512(b)(1), the
effect of which is that the applicability of the provision
becomes overly broad applying to regulations promulgated by HHS
as well as other Departments thereby creating the potential for
unforeseen consequences outside of HHS' control. As a result of
this omission, we have serious concerns with Section 512(b)(1),
particularly in the context of language found in the next
paragraph, (b) (2), which specifies that the Secretary shall
only deny a waiver if it is otherwise prohibited by Federal
law. Taken together, these two provisions are a significant
concern.
Title VI, Section 5--Amendments clarifying civil proceedings
Last year, H.R. 1833 contained a de novo standard of
judicial review which would have retroactively overruled
judicial determinations applying the Administrative Procedures
Act (APA) standard of review in ISDA cases. After negotiations
with Tribal representatives, the House Committee on Resources
and Administration Officials, the de novo provision was
removed. We appreciate that this provision has remained out of
the current House and Senate bills. However, we continue to
have concerns about the remaining section concerning judicial
proceedings. As this provision is currently drafted, its impact
extends well beyond the scope of self-governance affecting any
litigation that is currently on-going between tribes and HHS or
the Department of the Interior. It would change the burden of
proof in favor of the tribes in the middle of such litigation.
This change would be in addition to the change effected by
Section 507(d) of the bill, which already increases the
Secretary's burden of proof to ``clear and convincing
evidence'' prospectively for litigation involving self-
governance funding agreements. It is important that the
legislation remain litigation neutral. The entire Section 6 in
Title VI contained in S. 979 should be removed.
Title V, Section 516--Application of other sections of the Act
The proposed section 516 of the new Title V seems to make
an inadvertent drafting error which makes it unclear whether
funding is subject to the availability of appropriations or is
an entitlement irrespective of the funding level of
appropriations. We believe that this issue is easily resolved
and we will work with Committee staff to address this error. We
also will continue to work with the tribes and the Authorizing
and Appropriations Committee to address the ever-growing
contract support funding within the annual appropriations. In
doing so, we will work collectively to ensure that funding for
contract support costs will not adversely affect funding for
other IHS programs, including services delivered to non-
contracting and non-compacting tribes.
Title V, Section 505--Funding agreements
Section 505 establishes the scope of IHS programs,
services, functions and activities (PFSAs) that are subject to
self-governance funding agreements. Last year, Title VI was
added to H.R. 1833 to address the Administration's concerns
about moving too quickly to include non-IHS PFSAs without first
determining whether other Department of Health and Human
Services (HHS) programs should be brought within the scope of
this self-governance legislation. Hence, Title VI was added to
H.R. 1833, and also is included in both S. 979 and H.R. 1167 to
authorize a study to asses the feasibility of expanding the
scope of this legislation to other HHS programs. We believe
that the two provisions of Section 505, (F) and (G), would
expand the scope of the PFSAs subject to funding agreements
under this legislation to programs outside the IHS, even while
the Title VI study is underway. We believe that before any
potential expansion of the scope of self-governance funding
agreements is authorized, the study authorized in Title VI
should be completed and the results analyzed. We will work with
you to make sure that different provisions of the bill work
together.
In general, we will be happy to work with the Committee to
address any of the concerns we have raised as well as any
others that may arise. We note that other Feral Departments may
have concerns about S. 979. For example, we have been advised
by the Department of the Interior that it has serious concerns
regarding the definition of the term ``inherent Federal
functions'', and recommends that the term not be defined in the
bill. It is our understanding that the Department of the
Interior plans to send a letter to the Committee setting forth
its concerns in greater detail.
I want to express my appreciation to the Title V Tribal
Workgroup and to commend their cooperative spirit in working
with the IHS and other components of the Department in the
evolution of S. 979. The version of S. 979 that we are
discussing today is the result of many in-depth discussions and
a great deal of analysis.
We are pleased to note that the IHS and tribal
representatives have successfully negotiated provisions in the
bill for tribal assumption of construction projects. The
negotiated provisions of the bill authorize a specific process
for tribes to elect to carry out construction of health and
sanitation facilities as a self-governance activity.
Competitive grant programs such as the Indian Health
Professions Scholarships and the Tribal Management Grant
Program have been established for specific public purposes.
Likewise, the Department and IHS have agency-wide initiatives
that address national concerns and are carried out under
general grant authorities from general agency funds. All
competitive grant programs, including those that support
national needs and benefit all Tribes, should be exempted from
Tribal shares. We believe that this bill sufficiently addresses
our concerns in this area.
In conclusion, we support making self-governance authority
permanent within the IHS so long as these changes continue to
allow the Department and the IHS to perform its inherent
functions and to maintain its trust responsibility to all
Tribes. We also support exploring the expansion of self-
governance demonstration authority to non-IHS programs of the
Department, but only after consultation with all stakeholders
and more specific guidance from Congress.
I commend you for your commitment to rights of the Nation's
Indian Tribes and to providing them opportunities to administer
those federal programs affecting the health and welfare of
their people. The Indian Health Service and the Department of
Health and Human Services stand ready to work collaboratively
with this Committee, the Congress, and the Tribes to ensure
that such efforts are successful.
Mr. Chairman, this concludes my statement. We will be
pleased to answer any questions that you may have. Thank you.
Changes in Existing Law
In compliance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, changes to existing law made by
the bill are required to be set out in the accompanying
Committee report. The Committee finds that enactment of S. 979
will result in the following changes in existing law. The
matter to be deleted is indicated in brackets [] and bold face
type. The matter to be inserted is indicated in italic.
1. Section 102(e)(1) of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450f(e)(1)) is amended as
follows:
(e)(1) With respect to any hearing or appeal conducted
pursuant to subsection (b)(3) or any civil action conducted
pursuant to section 110(a) of this section, the Secretary
shall have the burden of proof to establish by clearly
demonstrating the validity of the grounds for declining the
contract proposal (or portion thereof).
2. Section 105 of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450j) is amended as
follows:
(k) For purposes of section 201(a) of the Federal Property
and Administrative Services Act of 1949 (40 U.S.C. 481(a))
(relating to Federal sources of supply, including lodging
providers, airlines and other transportation providers), a
tribal organization carrying out a contract, grant, or
cooperative agreement under this subchapter shall be [deemed an
executive agency] deemed an executive agency and part of the
Indian Health Service when carrying out such contract, grant,
or agreement and the employees of the tribal organization shall
be eligible to have access to such sources of supply on the
same basis as employees of an executive agency have such
access. At the request of an Indian tribe, the Secretary shall
enter into an agreement for the acquisition, on behalf of the
Indian tribe, of any goods, services, or supplies available to
the Secretary from the General Services Administration or other
Federal agencies that are not directly available to the Indian
tribe under this section or any other Federal law, including
acquisitions from prime vendors. All such acquisitions shall be
undertaken through the most efficient and speedy means
practicable, including electronic ordering arrangements.
* * * * * * *
(o) At the option of a tribe or tribal organization,
patient records may be deemed to be Federal records under the
Federal Records Act of 1950 for the limited purposes of making
such records eligible for storage by Federal Records Centers to
the same extent and in the same manner as other Department of
Health and Human Services patient records. Patient records that
are deemed to be Federal records under the Federal Records Act
of 1950 pursuant to this subsection shall not be considered
Federal records for the purposes of chapter 5 of title 5,
United States Code.
* * * * * * *
(p)(1) All funds recovered under 42 U.S.C. 2651 associated
with health care provided by a tribally-administered facility
or program of the Indian Health Service, whether provided
before or after the facility's or program's transfer to tribal
administration, shall be credited to the account of the
facility or program providing the service and shall be
available without fiscal year limitation.
(2) For purposes of 42 U.S.C. 2651, a tribe or tribal
organization carrying out a contract, compact, grant or
cooperative agreement pursuant to this Act shall be deemed to
be the United States and shall have the same right to recover
as the United States for the reasonable value of past or future
care and treatment provided under such contract, compact,
grant, or cooperative agreement. Nothing herein shall be
construed to affect a tribe's or tribal organization's right to
recover under any other applicable federal, state or tribal
law.
3. Section 106 of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. Sec. 450j-1) is amended:
(c) The Secretary shall provide an annual report in writing
on or before May 15 of each year to the Congress on the
implementation of this Act. Such report shall include--
(1) an accounting of the total amounts of funds
provided for each program and budget activity for
direct program costs and contract support costs of
tribal organizations under self-determination;
(2) an accounting of any deficiency of funds needed
to provide required contract support costs to all
contractors for the current fiscal year;
(3) the indirect costs rate and type of rate for each
tribal organization negotiated with the appropriate
Secretary;
(4) the direct cost base and type of base from which
the indirect cost rate is determined for each tribal
organization;
(5) the indirect cost pool amounts and the types of
costs included in the indirect costs pools; and
(6) an accounting of any deficiency of funds needed
to maintain the preexisting level of services to any
tribes affected by contracting activities under this
Act, and a statement of the amount of funds needed for
transitional purposes to enable contractors to convert
from a Federal fiscal year accounting cycle, as
authorized by section 105(d).
* * * * * * *
(d)[(c)] Treatment in shortfalls in indirect cost
recoveries.
* * * * * * *
(e)[(d)] Liability for indebtedness incurred before fiscal
year 1992.
* * * * * * *
(f)[(e)] Limitation on remedies relating to cost
disallowances.
* * * * * * *
(g)[(f)] Addition to contract of full amount contractor
entitled.
* * * * * * *
(h)[(g)] Indirect costs for contracts for construction
projects.
* * * * * * *
(i)[(h)] Indian Health Service and Bureau of Indian Affairs
budget consultations.
* * * * * * *
(j)[(i)] Use of funds for matching or cost participation
requirements.
* * * * * * *
(k)[(j)] Allowable uses of funds without approval of
Secretary.
* * * * * * *
(l)[(k)] Suspension, withholding, or delay in payment of
funds.
* * * * * * *
(m)[(l)] Use of program income earned.
* * * * * * *
(n)[(m)] Reduction of administrative and other
responsibilities of Secretary; use of savings.
* * * * * * *
(o)[(n)] Rebudgeting by tribal organization.
4. Title III of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450f note) is hereby repealed.
[TITLE III--TRIBAL SELF-GOVERNANCE DEMONSTRATION PROJECT
Sec. 301. The Secretary of the Interior and the Secretary
of Health and Human Services (hereafter in this title referred
to as the ``Secretaries'') each shall, for a period not to
exceed 18 years following enactment of this title (Oct. 5,
1988), conduct a research and demonstration project to be known
as the Tribal Self-Governance Project according to the
provisions of this title.
Sec. 302. (a) For each fiscal year, the Secretaries shall
select thirty tribes to participate in the demonstration
project as follows:
(1) a tribe that successfully completes a Self-
Governance Planning Grant, authorized by Conference
Report 100-498 to accompany H.J. Res. 395, One
Hundredth Congress, first session (Pub. L. 100-202)
shall be selected to participate in the demonstration
project; and
(2) the Secretaries shall select, in such a manner as
to achieve geographic representation, the remaining
tribal participants from the pool of qualified
applicants. In order to be in the pool of qualified
applicants--
(A) the governing body of the tribe shall
request participation in the demonstration
project;
(B) such tribe shall have operated two or
more mature contracts; and
(C) such tribe shall have demonstrated, for
the previous three fiscal years, financial
stability and financial management capability
as evidenced by such tribe having no
significant and material audit exceptions in
the required annual audit of such tribe's self-
determination contracts.
Sec. 303. (a) The Secretaries is (sic) directed to
negotiate, and to enter into, an annual written funding
agreement with the governing body of a participating tribal
government that successfully completes its Self-Governance
Planning Grant. Such annual written funding agreement--
(1) shall authorize the tribe to plan, conduct,
consolidate, and administer programs, services and
functions of the Department of the Interior and the
Indian Health Service of the Department of Health and
Human Services that are otherwise available to Indian
tribes or Indians, including but not limited to the Act
of April 16, 1934 (48 Stat. 596) (25 U.S.C. 452 et
seq.), as amended, and the Act of November 2, 1921 (42
Stat. 208) (25 U.S.C. 13).
(2) subject to the terms of the written agreement
authorized by this title, shall authorize the tribe to
redesign programs, activities, functions or services
and to reallocate funds for such programs, activities,
functions or services;
(3) shall not include funds provided pursuant to the
Tribally Controlled Community College Assistance Act
(Public Law 95-471) (25 U.S.C. 1801 et seq.), for
elementary and secondary schools under the Indian
School Equalization Formula pursuant to title XI of the
Education Amendments of 1978 (Public Law 95-561, as
amended) (25 U.S.C. 2001 et seq.), or for either the
Flathead Agency Irrigation Division or the Flathead
Agency Power Division: Provided, That nothing in this
section shall affect the contractability of such
divisions under section 102 of this Act (25 U.S.C.
450f);
(4) shall specify the services to be provided, the
functions to be performed, and the responsibilities of
the tribe and the Secretaries pursuant to this
agreement;
(5) shall specify the authority of the tribe and the
Secretaries, and the procedures to be used, to
reallocate funds or modify budget allocations within
any project year;
(6) shall, except as provided in paragraphs (1) and
(2), provide for payment by the Secretaries to the
tribe of funds from one or more programs, services,
functions, or activities in an amount equal to that
which the tribe would have been eligible to receive
under contracts and grants under this Act (Pub. L. 93-
638, see Short Title note under section 450 of this
title), including direct program costs and indirect
costs, and for any funds which are specifically related
to the provision by the Secretaries of services and
benefits to the tribe and its members: Provided,
however, That funds for trust services to individual
Indians are available under this written agreement only
to the extent that the same services which would have
been provided by the Secretaries are provided to
individual Indians by the tribe:
(7) shall not allow the Secretaries to waive, modify
or diminish in any way the trust responsibility of the
United States with respect to Indian tribes and
individual Indians which exists under treaties,
Executive Orders and Acts of Congress;
(8) shall allow for retrocession of programs or
portions thereof pursuant to section 105(e) of this Act
(25 U.S.C. 450j(e)); and
(9) shall be submitted by the Secretaries ninety days
in advance of the proposed effective date of the
agreement to each tribe which is served by the agency
which is serving the tribe which is a party to the
funding agreement and to the Congress for review by the
Committee on Indian Affairs of the Senate and the
Committee on Natural Resources (now Committee on
Resources) of the House of Representatives.
(b) For the year for which, and to the extent to which,
funding is provided to a tribe pursuant to this title, such
tribe--
(1) shall not be entitled to contract with the
Secretaries for such funds under section 102 (25 U.S.C.
450f), except that such tribe shall be eligible for new
programs on the same basis as other tribes; and
(2) shall be responsible for the administration of
programs, services and activities pursuant to
agreements under this title.
(c) At the request of the governing body of the tribe and
under the terms of an agreement pursuant to subsectoin (a), the
Secretaries shall provide funding to such tribe to implement
the agreement.
(d) For the purpose of section 110 of this Act (25 U.S.C.
450m-1) the term ``contract'' shall also include agreements
authorized by this title; except that for the term of the
authorized agreements under this title; the provisionsof
section 2103 of the Revised Statutes of the United States (25 U.S.C.
81), and section 16 of the Act of June 18, 1934 (25 U.S.C. 476), shall
not apply to attorney and other professional contracts by participating
Indian tribal governments operating under the provisions of this title.
(e) To the extent feasible, the Secretaries shall interpret
Federal laws and regulations in a manner that will facilitate
the agreements authorized by this title.
(f) To the extent feasible, the Secretaries shall interpret
Federal laws and regulations in a manner that will facilitate
the inclusion of activities, programs, services, and functions
in the agreements authorized by this title.
Sec. 304. The Secretaries shall identify, in the
President's annual budget request to the Congress, any funds
proposed to be included in the Tribal Self-Governance Project.
The use of funds pursuant to this title shall be subject to
specific directives or limitations as may be included in
applicable appropriations Acts.
Sec. 305. The Secretaries shall submit to the Congress a
written report on July 1 and January 1 of each of the five
years following the date of enactment of this title (Oct. 5,
1988) on the relative costs and benefits of the Tribal Self-
Governance Project. Such report shall be based on mutually
determined baseline measurements jointly developed by the
Secretaries and participating tribes, and shall separately
include the views of the tribes.
Sec. 306. Nothing in this title shall be construed to limit
or reduce in any way the services, contracts or funds that any
other Indian tribe or tribal organization is eligible to
receive under section 102 (25 U.S.C. 450f) or any other
applicable Federal law and the provisions of section 110 of
this Act (25 U.S.C. 450m-1) shall be available to any tribe or
Indian organization which alleges that a funding agreement is
in violation of this section.
Sec. 307. For the purpose of providing planning and
negotiation grants to the ten tribes added by section 3 of the
Tribal Self-Governance Demonstration Project Act to the number
of tribes set forth by section 302 of the Act (as in effect
before the date of enactment of this section (Dec. 4, 1991)),
there is authorized to be appropriated $700,000.
Sec. 308. (a) The Secretary of Health and Human Services,
in consultation with the Secretary of the Interior and Indian
tribal governments participating in the demonstration project
under this title, shall conduct a study for the purpose of
determining the feasibility of extending the demonstration
project under this title to the activities, programs,
functions, and services of the Indian Health Service. The
Secretary shall report the results of such study, together with
his recommendations, to the Congress within the 12-month period
following the date of the enactment of the Tribal Self-
Governance Demonstration Project Act (Dec. 4, 1991).
(b) The Secretary of Health and Human Services may
establish within the Indian Health Service an office of self-
governance to be responsible for coordinating the activities
necessary to carry out the study required under subsection (a).
Sec. 309. The Secretary of the Interior shall conduct a
study for the purpose of determining the feasibility of
including in the demonstration project under this title those
programs and activities excluded under section 303(a)(3). The
Secretary of the Interior shall report the results of such
study, together with his recommendations, to the Congress
within the 12-month period following the date of the enactment
of the Tribal Self-Governance Demonstration Project Act (Dec.
4, 1991).
Sec. 310. For the purposes of providing one year planning
and negotiations grants to the Indian tribes identified by
section 302, with respect to the programs, activities,
functions, or services of the Indian Health Service, there are
authorized to be appropriated such sums as may be necessary to
carry out such purposes. Upon completion of an authorized
planning activity or a comparable planning activity by a tribe,
the Secretary is authorized to negotiate and implement a
Compact of Self-Governance and Annual Funding Agreement with
such tribe.]
5. The Indian Self-Determination and Education Assistance
Act (25 U.S.C. 450 et seq.) is amended by adding at the end:
TITLE V--TRIBAL SELF-GOVERNANCE
SEC. 501. DEFINITIONS.
(a) In General.--In this title:
(1) Construction project.--The term ``construction
project''--
(A) means an organized noncontinuous
undertaking to complete a specific set of
predetermined objectives for the planning,
environmental determination, design,
construction, repair, improvement, or expansion
of buildings or facilities, as described in a
construction project agreement; and
(B) does not include construction program
administration and activities described in
paragraphs (1) through (3) of section 4(m),
that may otherwise be included in a funding
agreement under this title.
(2) Construction project agreement.--The term
``construction project agreement'' means a negotiated
agreement between the Secretary and an Indian tribe,
that at a minimum--
(A) establishes project phase start and
completion dates;
(B) defines a specific scope of work and
standards by which it will be accomplished;
(C) identifies the responsibilities of the
Indian tribe and the Secretary;
(D) addresses environmental considerations;
(E) identifies the owner and operations and
maintenance entity of the proposed work;
(F) provides a budget;
(G) provides a payment process; and
(H) establishes the duration of the agreement
based on the time necessary to complete the
specified scope of work, which may be 1 or more
years.
(3) Gross mismanagement.--The term ``gross
mismanagement'' means a significant, clear, and
convincing violation of a compact, funding agreement,
or regulatory, or statutory requirements applicable to
Federal funds transferred to an Indian tribe by a
compact or funding agreement that results in a
significant reduction of funds available for the
programs, services, functions, or activities (or
portions thereof) assumed by an Indian tribe
(4) Inherent federal functions.--The term ``inherent
Federal functions' means those Federal functions which
cannot legally be delegated to Indian tribes.
(5) Inter-tribal consortium.--The term ``inter-tribal
consortium'' means a coalition of 2 or more separate
Indian tribes that join together for the purpose of
participating in self-governance, including tribal
organizations.
(6) Secretary.--The term ``Secretary'' means the
Secretary of Health and Human Services.
(7) Self-Governance.--The term ``self-governance''
means the program of self-governance established under
section 502.
(8) Tribal share.--The term ``tribal share'' means an
Indian tribe's portion of all funds and resources that
support secretarial programs, services functions, and
activities (or portions thereof) that are not required
by the Secretary for performance of inherent Federal
functions.
(b) Indian tribe.--In any case in which an Indian tribe
has authorized another Indian tribe, an inter-tribal
consortium, or a tribal organization to plan for or carry out
programs, services, functions, or activities (or portions
thereof) on its behalf under this title, the authorized Indian
tribe, inter-tribal consortium, or tribal organization shall
have the rights and responsibilities of the authorizing Indian
tribe (except as otherwise provided in the authorizing
resolution or in this title). In such event, the term ``Indian
tribe'' as used in this title shall include such other
authorized Indian tribe, inter-tribal consortium, or tribal
organization.
SEC. 502. ESTABLISHMENT.
The Secretary of Health and Human Services shall establish
and carry out a program within the Indian Health Service of the
Department of Health and Human Services to be known as the
``Tribal Self-Governance Program'' in accordance with this
title.
SEC. 503. SELECTION OF PARTICIPATING INDIAN TRIBES.
(A) Continuing Participation.--Each Indian tribe that is
participating in the Tribal Self-Governance Demonstration
Project under title III on the date of enactment of this title
may elect to participate in self-governance under this title
under existing authority as reflected in tribal resolution.
(b) Additional Participants.--
(1) In general.--In addition to those Indian tribes
participating in self-governance under subsection (a),
each year an additional 50 Indian tribes that meet the
eligibility criteria specified in subsection (c) shall
be entitled to participate in self-governance.
(2) Treatment of certain indian tribes.--
(A) In general.--An Indian tribe that has
withdraw from participation in an inter-tribal
consortium or tribal organization, in whole or
in part, shall be entitled to participate in
self-governance provided the Indian tribe meets
the eligibility criteria specified in
subsection (c).
(B) Effect of withdrawal.--If an Indian tribe
has withdrawn from participation in an inter-
tribal consortium or tribal organization, that
Indian tribe shall be entitled to its tribal
share of funds supporting those programs,
services, functions, and activities (or
portions thereof) that the Indian tribe will be
carrying out under the compact and funding
agreement of the Indian tribe.
(C) Participation in self-governance.--In no
event shall the withdrawal of an Indian tribe
from an inter-tribal consortium or tribal
organization affect the eligibility of the
inter-tribal consortium or tribal organization
to participate in self-governance.
(c) Applicant Pool.--
(1) In general.--The qualified applicant pool for
self-governance shall consist of each Indian tribe
that--
(A) successfully completes the planning phase
described in subsection (d);
(b) has requested participation in self-
governance by resolution or other official
action by the governing body of each Indian
tribe to be served; and
(C) has demonstrated, for 3 fiscal years,
financial stability and financial management
capability.
(2) Criteria for determining financial stability and
financial management capacity.--For purposes of this
subsection, evidence that, during the 3-year period
referred to in paragraph (1)(C), an Indian tribe had no
uncorrected significant and material audit exceptions
in the required annual audit of the Indian tribe's
self-determination contracts or self-governance funding
agreements with any Federal agency shall be conclusive
evidence of the required stability and capability.
(d) Planning Phase.--Each Indian tribe seeking
participation in self-governance shall complete a planning
phase. The planning phase shall be conducted to the
satisfaction of the Indian tribe and shall include--
(1) legal and budgetary research; and
(2) internal tribal government planning and
organizational preparation relating to the
administration of health care programs.
(e) Grants.--Subject to the availability of appropriations,
any Indian tribe meeting the requirements of paragraphs (1)(B)
and (C) of subsection (c) shall be eligible for grants--
(1) to plan for participating in self-governance; and
(2) to negotiate the terms of participation by the
Indian tribe or tribal organization in self-governance,
as set forth in a compact and a funding agreement.
(f) Receipt of Grant Not Required.--Receipt of a grant
under subsection (e) shall not be a requirement of
participation in self-governance.
SEC. 504. COMPACTS.
(a) Compact Required.--The Secretary shall negotiate and
enter into a written compact with each Indian tribe
participating in self-governance in a manner consistent with
the Federal Government's trust responsibility, treaty
obligations, and the government-to-government relationship
between Indian tribes and the United States.
(b) Contents.--Each compact required under subsection (a)
shall set forth the general terms of the government-to-
government relationship between the Indian tribe and the
Secretary, including such terms as the parties intend shall
control year after year. Such compacts may only be amended by
mutual agreement of the parties.
(c) Existing Compacts.--An Indian tribe participating in
the Tribal Self-Governance Demonstration Project under title
III on the date of enactment of this title shall have the
option at any time after the date of enactment of this title
to--
(1) retain the Tribal Self-Governance Demonstration
Project compact of that Indian tribe (in whole or in
part) to the extent that the provisions of that compact
are not directly contrary to any express provision of
this title; or
(2) instead of retaining a compact or portion thereof
under paragraph (1), negotiate a new compact in a
manner consistent with the requirements of this title.
(d) Term and Effective Date.--The effective date of a
compact shall be the date of the approval and execution by the
Indian tribe or another date agreed upon by the parties, and
shall remain in effect for so long as permitted by Federal law
or until terminated by mutual written agreement, retrocession,
or reassumption.
SEC. 505. FUNDING AGREEMENTS.
(a) Funding Agreement Required.--The Secretary shall
negotiate and enter into a written funding agreement with each
Indian tribe participating in self-governance in a manner
consistent with the Federal Government's trust responsibility,
treaty obligations, and the government-to-government
relationship between Indian tribes and the United States.
(b) Contents.--
(1) In General.--Each funding agreement required
under subsection (a) shall, as determined by the Indian
tribe, authorize the Indian tribe to plan, conduct,
consolidate, administer, and receive full tribal share
funding, including tribal shares of discretionary
Indian Health Service competitive grants (excluding
congressionally earmarked competitive grants) for all
programs, services, functions, and activities (or
portions thereof), that are carried out for the benefit
of Indians because of their status as Indians without
regard to the agency or office of the Indian Health
Service (or of such other agency) within which the
program, service, function, or activity (or portion
thereof) is performed.
(2) Inclusion of Certain Programs, Services,
Functions, and Activities.--Such programs, services,
functions, or activities (or portions thereof) include
all programs, services, functions, activities (or
portions thereof), including grants (which may be added
to a funding agreement after award of such grants),
with respect to which Indian tribes or Indians are
primary or significant beneficiaries, administered by
the Department of Health and Human Services through the
Indian Health Service and grants (which may be added to
a funding agreement after award of such grants) and all
local, field, service unit, area, regional, and central
headquarters or national office functions administered
under the authority of--
(A) the Act of November 2, 1921 (42 Stat.
208, chapter 115; 25 U.S.C. 13);
(B) the Act of April 16, 1934 (48 Stat. 596,
chapter 147; 25 U.S.C. 452 et seq.);
(C) the Act of August 5, 1954 (68 Stat. 674,
chapter 658);
(D) the Indian Health Care Improvement Act
(25 U.S.C. 1601 et seq.);
(E) The Indian Alcohol and Substance Abuse
Prevention and Treatment Act of 1986 (25 U.S.C.
2401 et seq.);
(F) any other Act of Congress authorizing any
agency of the Department of Health and Human
Services to administer, carry out, or provide
financial assistance to such a program,
service, function or activity (or portions
thereof) described in this section that is
carried out for the benefit of Indians because
of their status as Indians; or
(G) any other Act of Congress authorizing
such a program, service, function, or activity
(or portions thereof) carried out for
the benefit of Indians under which appropriations
are made available to any agency other than an agency
within the Department of Health and Human Services,
in any case in which the Secretary administers that
program, service, function, or activity (or portion
thereof).
(c) Inclusion in Compact or Funding Agreement.--It shall
not be a requirement that an Indian tribe or Indians be
identified in the authorizing statute for a program or element
of a program to be eligible for inclusion in a compact or
funding agreement under this title.
(d) Funding Agreement Terms.--Each funding agreement under
this title shall set forth--
(1) terms that generally identify the programs,
services, functions, and activities (or portions
thereof) to be performed or administered; and
(2) for the items identified in paragraph (1)--
(A) the general budget category assigned;
(B) the funds to be provided, including those
funds to be provided on a recurring basis;
(C) the time and method of transfer of the
funds;
(D) the responsibilities of the Secretary;
and
(E) any other provision with respect to which
the Indian tribe and the Secretary agree.
(e) Subsequent Funding Agreements.--Absent notification
from an Indian tribe that is withdrawing or retroceding the
operation of 1 or more programs, services, functions, or
activities (or portions thereof) identified in a funding
agreement, or unless otherwise agreed to by the parties, each
funding agreement shall remain in full force and effect until a
subsequent funding agreement is executed, and the terms of the
subsequent funding agreement shall be retroactive to the end of
the term of the preceding funding agreement.
(f) Existing Funding Agreements.--Each Indian tribe
participating in the Tribal Self-Governance Demonstration
Project established under title III on the date of enactment of
this title shall have the option at any time thereafter to--
(1) retain the Tribal Self-Governance Demonstration
Project funding agreement of that Indian tribe (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
(2) instead of retaining a funding agreement or
portion thereof under paragraph (1), negotiate a new
funding agreement in a manner consistent with the
requirements of this title.
(g) Stable Base Funding.--At the option of an Indian tribe,
a funding agreement may provide for a stable base budget
specifying the recurring funds (including, for purposes of this
provision, funds available under section 106(a)) to be
transferred to such Indian tribe, for such period as may be
specified in the funding agreement, subject to annual
adjustment only to reflect changes in congressional
appropriations by sub-sub activity excluding earmarks.
SEC. 506. GENERAL PROVISIONS.
(a) Applicability.--The provisions of this section shall
apply to compacts and funding agreements negotiated under this
title and an Indian tribe may, at its option, include
provisions that reflect such requirements in a compact or
funding agreement.
(b) Conflicts of Interest.--Indian tribes participating in
self-governance under this title shall ensure that internal
measures are in place to address conflicts of interest in the
administration of self-governance programs, services,
functions, or activities (or portions thereof).
(c) Audits.--
(1) Single agency audit act.--The provisions of
chapter 75 of title 31, United States Code, requiring a
single agency audit report shall apply to funding
agreements under this title.
(2) Cost principles.--An Indian tribe shall apply
cost principles under the applicable Office of
Management and Budget Circular, except as modified by
section 106, or by any exemptions to applicable Office
of Management and Budget Circulars subsequently granted
by the Office of Management and Budget. No other audit
or accounting standards shall be required by the
Secretary. Any claim by the Federal Government against
the Indian tribe relating to funds received under a
funding agreement based on any audit under this
subsection shall be subject to the provisions of
section 106(f).
(d) Records.--
(1) In general.--Unless an Indian tribe specifies
otherwise in the compact or funding agreement, records
of the Indian tribe shall not be considered Federal
records for purposes of chapter 5 of title 5, United
States Code.
(2) Recordkeeping system.--The Indian tribe shall
maintain a recordkeeping system, and, after 30 days
advance notice, provide the Secretary with reasonable
access to such records to enable the Department of
Health and Human Services to meet its minimum legal
recordkeeping system requirements under sections 3101
through 3106 of title 44, United States Code.
(e) Redesign and Consolidation.--An Indian tribe may
redesign or consolidate programs, services, functions, and
activities (or portions thereof) included in a funding
agreement under section 505 and reallocate or redirect funds
for such programs, services, functions, and activities (or
portions thereof) in any manner which the Indian tribe deems to
be in the best interest of the health and welfare of the Indian
community being served, only if the redesign or consolidation
does not have the effect of denying eligibility for services to
population groups otherwise eligible to be served under Federal
law.
(f) Retrocession.--An Indian tribe may retrocede, fully or
partially, to the Secretary programs, services, functions, or
activities (or portions thereof) included in the compact or
funding agreement. Unless the Indian tribe rescinds the request
for retrocession, such retrocession will become effective
within the timeframespecified by the parties in the compact of
funding agreement. In the absence of such a specification, such
retrocession shall become effective on--
(1) the earlier of--
(A) 1 year after the date of submission of
such request; or
(B) the date on which the funding agreement
expires; or
(2) such date as may be mutually agreed upon by the
Secretary and the Indian tribe.
(g) Withdrawal.--
(1) Process.--
(A) In general.--An Indian tribe may fully or
partially withdraw from a participating inter-
tribal consortium or tribal organization its
share of any program, function, service, or
activity (or portions thereof) included in a
compact of funding agreement.
(B) Effective date.--The withdrawal referred
to in subparagraph (A) shall become effective
within the timeframe specified in the
resolution which authorizes transfer to the
participating tribal organization or inter-
tribal consortium. In the absence of a specific
timeframe set forth in the resolution, such
withdrawal shall become effective on--
(i) the earlier of--
(I) 1 year after the date of
submission of such request; or
(II) the date on which the
funding agreement expires; or
(ii) such date as may be mutually
agreed upon by the Secretary, the
withdrawing Indian tribe, and the
participating tribal organization or
inter-tribal consortium that has signed
the compact or funding agreement on
behalf of the withdrawing Indian tribe,
inter-tribal consortium, or tribal
organization.
(2) Distribution of funds.--When an Indian tribe or
tribal organization eligible to enter into a self-
determination contract under title I or a compact or
funding agreement under this title fully or partially
withdraws from a participating inter-tribal consortium
or tribal organization--
(A) the withdrawing Indian tribe or tribal
organization shall be entitled to its tribal
share of funds supporting those programs,
services, functions or activities (or portions
thereof) 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 in the funding agreement of the
inter-tribal consortium or tribal
organization); and
(B) the funds referred to in subparagraph (A)
shall be transferred from the funding agreement
of the inter-tribal consortium or tribal
organization, on the condition that the
provisions of sections 102 and 105(i), as
appropriate, shall apply to that withdrawing
Indian tribe.
(3) Regaining mature contract status.--If an Indian
tribe elects to operate all or some programs, services,
functions, or activities (or portions thereof) carried
out under a compact or funding agreement under this
title through a self-determination contract under title
I, at the option of the Indian tribe, the resulting
self-determination contract shall be a mature self-
determination contract.
(h) Nonduplication.--For the period for which, and to the
extent to which, funding is provided under this title or under
the compact of funding agreement, the Indian tribe shall not be
entitled to contract with the Secretary for such funds under
section 102, except that such Indian tribe shall be eligible
for new programs on the same basis as other Indian tribes.
SEC. 507. PROVISIONS RELATING TO THE SECRETARY.
(a) Mandatory Provisions.--
(1) Health status reports.--Compacts or funding
agreements negotiated between the Secretary and an
Indian tribe shall include a provision that requires
the Indian tribe to report on health status and service
delivery--
(A) to the extent such data is not otherwise
available to the Secretary and specific funds
for this purpose are provided by the Secretary
under the funding agreement; and
(B) if such reporting shall impose minimal
burdens on the participating Indian tribe and
such requirements are promulgated under section
517.
(2) Reassumption.--
(A) In general.--Compacts or funding
agreements negotiated between the Secretary and
an Indian tribe shall include a provision
authorizing the Secretary to reassume operation
of a program, service, function, or activity
(or portions thereof) and associated funding if
there is a specific funding relative to that
program, service, function, or activity (or
portion thereof) of--
(i) imminent endangerment of the
public health caused by an act or
omission of the Indian tribe, and the
imminent endangerment arises out of a
failure to carry out the compact or
funding agreement; or
(ii) gross mismanagement with respect
to funds transferred to a tribe by a
compact or funding agreement, as
determined by the Secretary in
consultation with the Inspector
General, as appropriate.
(B) Prohibition.--The Secretary shall not
reassume operation of a program, service,
function, or activity (or portions thereof)
unless--
(i) the Secretary has first provided
written notice and a hearing on the
record to the Indian tribe; and
(ii) the Indian tribe has not taken
corrective action to remedy the
imminent endangerment to public health
or gross mismanagement.
(C) Exception.--
(i) In general.--Notwithstanding
subparagraph (B), the Secretary may,
upon written notification to the Indian
tribe, immediately reassume operation
of a program, service, function, or
activity (or portion thereof) if--
(I) the Secretary makes a
finding of imminent substantial
and irreparable endangerment of
the public health caused by an
act or omission of the Indian
tribe; and
(II) the endangerment arises
out of a failure to carry out
the compact or funding
agreement.
(ii) Reassumption.--If the Secretary
reassumes operation of a program,
service, function, or activity (or
portion thereof) under this
subparagraph, the Secretary shall
provide the Indian tribe with a hearing
on the record not later than 10 days
after such reassumption.
(D) Hearings.--In any hearing or appeal
involving a decision to reassume operation of a
program, service, function, or activity (or
portion thereof), the Secretary shall have the
burden of proof of demonstrating by clear and
convincing evidence the validity of the grounds
for the reassumption.
(b) Final Offer.--In the event the Secretary and a
participating Indian tribe are unable to agree, in whole or in
part, on the terms of a compact or funding agreement (including
funding levels), the Indian tribe may submit a final offer to
the Secretary. Not more than 45 days after such submission, or
within a longer time agreed upon by the Indian tribe, the
Secretary shall review and make a determination with respect to
such offer. In the absence of a timely rejection of the offer,
in whole or in part, made in compliance with subsection (c),
the offer shall be deemed agreed to by the Secretary.
(c) Rejection of Final Offers.--
(1) In general.--If the Secretary rejects an offer
made under subsection (b)(or 1 or more provisions or
funding levels in such offer), the Secretary shall
provide--
(A) a timely written notification to the
Indian tribe that contains a specific finding
that clearly demonstrates, or that is supported
by a controlling legal authority, that--
(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;
(ii) the program, function, service,
or activity (or portion thereof) that
is the subject of the final offer is an
inherent Federal function that cannot
legally be delegated to an Indian
tribe;
(iii) the Indian tribe cannot carry
out the program, function, service, or
activity (or portion thereof) in a
manner that would not result in
significant danger or risk to the
public health; or
(iv) the Indian tribe is not eligible
to participate in self-governance under
section 503;
(B) technical assistance to overcome the
objections stated in the notification required
by subparagraph (A);
(C) the Indian tribe with a hearing on the
record with the right to engage in full
discovery relevant to any issue raised in the
matter and the opportunity for appeal on the
objections raised, except that the Indian tribe
may, in lieu of filing such appeal, directly
proceed to initiate an action in a Federal
district court pursuant to section 110(a); and
(D) the Indian tribe with the option of
entering into the severable portions of a final
proposed compact of funding agreement, or
provision thereof, (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.
(2) Effect of exercising certain option.--If an
Indian tribe exercises the option specified in
paragraph (1)(D), that Indian tribe shall retain the
right to appeal the Secretary's rejection under this
section, and subparagraphs (A), (B), and (C) of that
paragraph shall only apply to that portion of the
proposed final compact, funding agreement, or provision
thereof that was rejected by the Secretary.
(d) Burden of Proof.--With respect to any hearing or appeal
or civil action conducted pursuant to this section, the
Secretary shall have the burden of demonstrating by clear and
convincing evidence the validity of the grounds for rejecting
the offer (or a provision thereof) made under subsection (b).
(e) Good Faith.--In the negotiation of compacts and funding
agreements the Secretary shall at all times negotiate in good
faith to maximize implementation of the self-governance policy.
The Secretary shall carry out this title in a manner that
maximizes the policy of tribal self-governance, in a manner
consistent with the purposes specified in section 3 of the
Tribal Self-Governance Amendments of 1999.
(f) Savings.--To the extent that programs, functions,
services, or activities (or portions thereof) carried out by
Indian tribes under this title reduce the administrative or
other responsibilities of the Secretary with respect to the
operation of Indian programs and result in savings that have
not otherwise been included in the amount of tribal shares and
other funds determined under section 508(c), the Secretary
shall make such savings available to the Indian tribes, inter-
tribalconsortia, or tribal organizations for the provision of
additional services to program beneficiaries in a manner equitable to
directly served, contracted, and compacted programs.
(g) Trust Responsibility.--The Secretary is prohibited from
waving, modifying, or diminishing in any way the trust
responsibility of the United States with respect to Indian
tribes and individual Indians that exists under treaties,
Executive orders, other laws, or court decisions.
(h) Decisionmaker.--A decision that constitutes final
agency action and relates to an appeal within the Department of
Health and Human Services conducted under subsection (c) shall
be made either--
(1) by an official of the Department who holds a
position at a higher organizational level within the
Department than the level of the departmental agency in
which the decision that is the subject of the appeal
was made; or
(2) by an administrative judge.
SEC. 508. TRANSFER OF FUNDS.
(a) In general.--Pursuant to the terms of any compact or
funding agreement entered into under this title, the Secretary
shall transfer to the Indian tribe all funds provided for in
the funding agreement, pursuant to subsection (c), and provide
funding for periods covered by joint resolution adopted by
Congress making continuing appropriations, to the extent
permitted by such resolutions. In any instance where a funding
agreement requires an annual transfer of funding to be made at
the beginning of a fiscal year, or requires semiannual or other
periodic transfers of funding to be made commencing at the
beginning of a fiscal year, the first such transfer shall be
made not later than 10 days after the apportionment of such
funds by the Office of Management and Budget to the Department,
unless the funding agreement provides otherwise.
(b) Multiyear Funding.--The Secretary is authorized and may
employ, upon tribal request, multiyear funding agreements.
References in this title to funding agreements shall include
such multiyear funding agreements.
(c) Amount of Funding.--The Secretary shall provide funds
under a funding agreement under this title in an amount equal
to the amount that the Indian tribe would have been entitled to
receive under self-determination contracts under this Act,
including amounts for direct program costs specified under
section 106(a)(1) and amounts for contract support costs
specified under section 106(a)(2), (3), (5), and (6), including
any funds that are specifically or functionally related to the
provision by the Secretary of services and benefits to the
Indian tribe or its members, all without regard to the
organizational level within the Department where such functions
are carried out.
(d) Prohibitions.--
(1) In general.--Except as provided in paragraph (2),
the Secretary is expressly prohibited from--
(A) failing or refusing to transfer to an
Indian tribe is full share of any central,
headquarters, regional, area, or service unit
office or other funds due under this Act,
except as required by Federal law;
(B) withholding portions of such funds for
transfer over a period of years; and
(C) reducing the amount of funds required
herein--
(i) to make funding available for
self-governance monitoring or
administration by the Secretary;
(ii) in subsequent years, except
pursuant to--
(I) a reduction in
appropriations from the
previous fiscal year for the
program or function to be
included in a compact or
funding agreement;
(II) a congressional
directive in legislation or
accompanying report;
(III) a tribal authorization;
(IV) a change in the amount
of pass-through funds subject
to the terms of the funding
agreement; or
(V) completion of a project,
activity, or program for which
such funds were provided;
(iii) to pay for Federal functions,
including Federal pay costs. Federal
employee retirement benefits, automated
data processing, technical assistance,
and monitoring of activities under this
Act; or
(iv) to pay for costs of Federal
personnel displaced by self-
determination contracts under this Act
or self-governance;
(2) Exception.--The funds described in paragraph
(1)(C) may be increased by the Secretary if necessary
to carry out this Act or as provided in section
105(c)(2).
(e) Other Resources.--In the event an Indian tribe elects
to carry out a compact or funding agreement with the use of
Federal personnel, Federal supplies (including supplies
available from Federal warehouse facilities), Federal supply
sources (including lodging, airline transportation, and other
means of transportation including the use of interagency motor
pool vehicles) or other Federal resources (including supplies,
services, and resources available to the Secretary under any
procurement contracts in which the Department is eligible to
participate), the Secretary shall acquire and transfer such
personnel, supplies, or resources to the Indian tribe.
(f) Reimbursement to Indian Health Service.--With respect
to functions transferred by the Indian Health Service to an
Indian tribe, the Indian Health Service is authorized to
provide goods and services to the Indian tribe, on a
reimbursable basis, including payment in advance with
subsequent adjustment. The reimbursements received from those
goods and services, along with the funds received from the
Indian tribe pursuant to this title, may be credited to the
same orsubsequent appropriation account which provided the
funding, such amounts to remain available until expended.
(g) Prompt Payment Act.--Chapter 39 of title 31, United
States Code, shall apply to the transfer of funds due under a
compact or funding agreement authorized under this title.
(h) Interest or Other Income on Transfers.--An Indian tribe
is entitled to retain interest earned on any funds paid under a
compact or funding agreement to carry out governmental or
health purposes and such interest shall not diminish the amount
of funds, the Indian tribe is authorized to receive under its
funding agreement in the year the interest is earned or in any
subsequent fiscal year. Funds transferred under this title
shall be managed using the prudent investment standard.
(i) Carryover of Funds.--All funds paid to an Indian tribe
in accordance with a compact or funding agreement shall remain
available until expended. In the event that an Indian tribe
elects to carry over funding from 1 year to the next, such
carryover shall not diminish the amount of funds the Indian
tribe is authorized to receive under its funding agreement in
that or any subsequent fiscal year.
(j) Program Income.--All medicare, medicaid, or other
program income earned by an Indian tribe shall be treated as
supplemental funding to that negotiated in the funding
agreement. The Indian tribe may retain all such income and
expend such funds in the current year or in future years except
to the extent that the Indian Health Care Improvement Act (25
U.S.C. 1601 et seq.) provides otherwise for medicare and
medicaid receipts. Such funds shall not result in any offset or
reduction in the amount of funds the Indian tribe is authorized
to receive under its funding agreement in the year the program
income is received or for any subsequent fiscal year.
(k) Limitation of Costs.--All Indian tribe shall not be
obligated to continue performance that requires an expenditure
of funds in excess of the amount of funds transferred under a
compact or funding agreement. If at any time the Indian tribe
has reason to believe that the total amount provided for a
specific activity in the compact or funding agreement is
insufficient the Indian tribe shall provide reasonable notice
of such insufficiency to the Secretary. If the Secretary does
not increase the amount of funds transferred under the funding
agreement, the Indian tribe may suspend performance of the
activity until such time as additional funds are transferred.
SEC. 509. CONSTRUCTION PROJECTS.
(a) In General.--Indian tribes participating in tribal
self-governance may carry out construction projects under this
title if they elect to assume all Federal responsibilities
under the National Environmental Policy Act of 1969 (42 U.S.C.
4321 et seq.), the National Historic Preservation Act (16
U.S.C. 470 et seq.), and related provisions of law that would
apply if the Secretary were to undertake a construction
project, by adopting a resolution--
(1) designating or certifying officer to represent
the Indian tribe and to assume the status of a
responsible Federal official under such laws; and
(2) accepting the jurisdiction of the Federal court
for the purposes of enforcement of the responsibilities
of the responsible Federal official under such
environmental laws.
(b) Negotiations.--Construction project proposals shall be
negotiated pursuant to the statutory process in section 105(m)
and resulting construction project agreements shall be
incorporated into funding agreements as addenda.
(c) Codes and Standards.--The Indian tribe and the
Secretary shall agree upon and specify appropriate building
codes and architectural and engineering standards (including
health and safety) which shall be in conformity with nationally
recognized standards for comparable projects.
(d) Responsibility for Completion.--the Indian tribe shall
assume responsibility for the successful completion of the
construction project in accordance with the negotiated
construction project agreement.
(e) Funding.--Funding for construction projects carried out
under this title shall be included in funding agreements as
annual advance payments, with semiannual payments at the option
of the Indian tribe. Annual advance and semiannual payment
amounts shall be determined based on mutually agreeable project
schedules reflecting work to be accomplished within the advance
payment period, work accomplished and funds expended in
previous payment periods, and the total prior payments. The
Secretary shall include associated project contingency funds
with each advance payment installment. The Indian tribe shall
be responsible for the management of the contingency funds
included in funding agreements.
(f) Approval.--The Secretary shall have at least 1
opportunity to approve project planning and design documents
prepared by the Indian tribe in advance of construction of the
facilities specified in the scope of work for each negotiated
construction project agreement or amendment thereof which
results in a significant change in the original scope of work.
The Indian tribe shall provide the Secretary with project
progress and financial reports not less than semiannually. The
Secretary may conduct onsite project oversight visits
semiannually or on an alternate schedule agreed to by the
Secretary and the Indian tribe.
(g) Wages.--All laborers and mechanics employed by
contractors and subcontractors in the construction, alteration,
or repair, including painting or decorating of a building or
other facilities in connection with construction projects
undertaken by self-governance Indian tribes under this Act,
shall be paid wages at not less than those prevailing wages on
similar construction in the locality as determined by the
Indian tribe.
(h) Application of Other Law.--Unless otherwise agreed to
by the Indian tribe, no provision of the Office of Federal
Procurement Policy Act, the Federal Acquisition Regulations
issued pursuant thereto, or any other law or regulation
pertaining to Federal procurement (including Executive orders)
shall apply to any construction project conducted under this
title.
SEC. 510. FEDERAL PROCUREMENT LAWS AND REGULATIONS.
Notwithstanding any other provision of law, unless
expressly agreed to by the participating Indian tribe, the
compacts and funding agreements entered into under this title
shall not be subject to Federal contracting or cooperative
agreement laws and regulations (including Executive orders and
the regulations relating to procurement issued by the
Secretary), except to the extent that such laws expressly apply
to Indian tribes.
SEC. 511. CIVIL ACTIONS.
(a) Contract Defined.--For the purposes of section 110, the
term ``contract'' shall include compacts and funding agreements
entered into under this title.
(b) Applicability of Certain Laws.--Section 2103 of the
Revised Statutes (25 U.S.C. 81) and section 16 of the Act of
June 18, 1934 (48 Stat. 987; chapter 576; 25 U.S.C. 476), shall
not apply to attorney and other professional contracts entered
into by Indian tribes participating in self-governance under
this title.
(c) References.--All references in this Act to section 1 of
the Act of June 26, 1936 (49 Stat. 1967; chapter 831) are
hereby deemed to include the first section of the Act of July
3, 1952 (66 Stat. 323, chapter 549; 25 U.S.C. 82a).
SEC. 512. FACILITATION.
(a) Secretarial Interpretation.--Except as otherwise
provided by law, the Secretary shall interpret all Federal
laws, Executive orders and regulations in a manner that will
facilitate--
(1) the inclusion of programs, services, functions,
and activities (or portions thereof) and funds
associated therewith, in the agreements entered into
under this section;
(2) the implementation of compacts and funding
agreements entered into under this title; and
(3) the achievement of tribal health goals and
objectives.
(b) Regulation Waiver.--
(1) In general.--An Indian tribe may submit a written
request to waive application of a regulation
promulgated under section 517 or the authorities
specified in section 505(b) for a compact or funding
agreement entered into with the Indian Health Service
under this title, to the Secretary identifying the
applicable Federal regulation sought to be waived and
the basis for the request.
(2) Approval.--Not later than 90 days after receipt
by the Secretary of a written request by an Indian
tribe to waive application of a regulation for a
compact or funding agreement entered into under this
title, the Secretary shall either approve or deny the
requested waiver in writing. A denial may be made only
upon a specific finding by the Secretary that
identified language in the regulation may not be waived
because such waiver is prohibited by Federal law. A
failure to approve or deny a waiver request not later
than 90 days after receipt shall be deemed an approval
of such request. The Secretary's decision shall be
final for the Department.
(c) Access to Federal Property.--In connection with any
compact or funding agreement executed pursuant to this title or
an agreement negotiated under the Tribal Self-Governance
Demonstration Project established under title III, as in effect
before the enactment of the Tribal Self-Governance Amendments
of 1999, upon the request of an Indian tribe, the Secretary--
(1) shall permit an Indian tribe to use existing
school buildings, hospitals, and other facilities and
all equipment therein or appertaining thereto and other
personal property owned by the government within the
Secretary's jurisdiction under such terms and
conditions as may be agreed upon by the Secretary and
the Indian tribe for their use and maintenance;
(2) may donate to an Indian tribe title to any
personal or real property found to be excess to the
needs of any agency of the Department, or the General
Services Administration, except that--
(A) subject to the provisions of subparagraph
(B), title to property and equipment furnished
by the Federal Government for use in the
performance of the compact or funding agreement
or purchased with funds under any compact or
funding agreement shall, unless otherwise
requested by the Indian tribe, vest in the
appropriate Indian tribe;
(B) if property described in subparagraph (A)
has a value in excess of $5,000 at the time of
retrocession, withdrawal, or reassumption, at
the option of the Secretary upon the
retrocession, withdrawal, or reassumption,
title to such property and equipment shall
revert to the Department of Health and Human
Services; and
(C) all property referred to in subparagraph
(A) shall remain eligible for replacement,
maintenance, and improvement on the same basis
as if title to such property were vested in the
United States; and
(3) shall acquire excess or surplus Government
personal or real property for donation to an Indian
tribe if the Secretary determines the property is
appropriate for use by the Indian tribe for any purpose
for which a compact or funding agreement is authorized
under this title.
(d) Matching or Cost-Participation Requirement.--All funds
provided under compacts, funding agreements, or grants made
pursuant to this Act, shall be treated as non-Federal funds for
purposes of meeting matching or cost participation requirements
under any other Federal or non-Federal program.
(e) State Facilitation.--States are hereby authorized and
encouraged to enact legislation, and to enter into agreements
with Indian tribes to facilitate and supplement the
initiatives, programs, and policies authorized by this title
and other Federal laws benefitting Indians and Indian tribes.
(f) Rules of Construction.--Each provision of this title
and each provision of a compact or funding agreement shall be
liberally construed for the benefit of the Indian tribe
participating in self-governance and any ambiguity shall be
resolved in favor of the Indian tribe.
SEC. 513. BUDGET REQUEST.
(a) In General.--
(1) In general.--The President shall identify in the
annual budget request submitted to Congress under
section 1105 of title 31, United States Code, all funds
necessary to fully fund all funding agreements
authorized under this title, including funds
specifically identified to fund tribal base budgets.
All funds so appropriated shall be apportioned to the
Indian Health Service. Such funds shall be provided to
the Office of Tribal Self-Governance which shall be
responsible for distribution of all funds provided
under section 505.
(2) Rule of construction.--Nothing in this subsection
shall be construed to authorize the Indian Health
Service to reduce the amount of funds that a self-
governance tribe is otherwise entitled to receive under
its funding agreement or other applicable law, whether
or not such funds are apportioned to the Office of
Tribal Self-Governance under this section.
(b) Present Funding; Shortfalls.--In such budget request,
the President shall identify the level of need presently funded
and any shortfall in funding (including direct program and
contract support costs) for each Indian tribe, either directly
by the Secretary of Health and Human Services, under self-
determination contracts, or under compacts and funding
agreements authorized under this title.
SEC. 514. REPORTS.
(a) Annual Report.--
(1) In general.--Not later than January 1 of each
year after the date of enactment of the Tribal Self-
Governance Amendments of 1999, the Secretary shall
submit to the Committee on Indian Affairs of the Senate
and the Committee on Resources of the House of
Representatives a written report regarding the
administration of this title.
(2) Analysis.--The report under paragraph (1) shall
include a detailed analysis of the level of need being
presently funded or unfunded for each Indian tribe,
either directly by the Secretary, under self-
determination contracts under title I, or under compact
the level of need by being presently funded or unfunded
for each Indian tribe, either directly by the
Secretary, under self-determination contract under
title I, or under compacts and funding agreements
authorized under this Act. In compiling reports
pursuant to this section, the Secretary may not impose
any reporting requirements on participating Indian
tribes or tribal organizations, not otherwise provided
in this Act.
(b) Contents.--The report under subsection (a) shall--
(1) be compiled from information contained in funding
agreements, annual audit reports, and data of the
Secretary regarding the disposition of Federal funds;
and
(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
their members;
(C) the funds transferred to each self-
governance Indian tribe and the corresponding
reduction in the Federal bureaucracy;
(D) the funding formula for individual tribal
shares of all headquarters funds, together with
the comments of affected Indian tribes or
tribal organizations, developed under
subsection (c); and
(E) amounts expended in the preceding fiscal
year to carry out inherent Federal functions,
including an identification of those functions
by type and location;
(3) contain a description of the method or methods
(or any revisions thereof) used to determine the
individual tribal share of funds controlled by all
components of the Indian Health Service (including
funds assessed by any other Federal agency) for
inclusion in self-governance compacts or funding
agreements;
(4) before being submitted to Congress, be
distributed to the Indian tribes for comment (with a
comment period of no less than 30 days, beginning on
the date of distribution); and
(5) include the separate views and comments of the
Indian tribes or tribal organizations.
(c) Report on Fund Distribution Method.--Not later than 180
days after the date of enactment of the Tribal Self-Governance
Amendments of 1999, the Secretary shall, after consultation
with Indian tribes, submit a written report to the Committee on
Resources of the House of Representatives and the Committee on
Indian Affairs of the Senate which describes the method or
methods used to determine the individual tribal share of funds
controlled by all components of the Indian Health Service
(including funds assessed by any other Federal agency) for
inclusion in self-governance compacts or funding agreements.
SEC. 515. DISCLAIMERS.
(a) No Funding Reduction.--Nothing in this title shall be
construed to limit or reduce in any way the funding for any
program, project, or activity serving an Indian tribe under
this or other applicable Federal law. Any Indian tribe that
alleges that a compact or funding agreement is in violation of
this section may apply the provisions of section 110.
(b) Federal Trust and Treaty Responsibilities.--Nothing in
this Act shall be construed to diminish in any way the trust
responsibility of the United States to Indian tribes and
individual Indians that exists under treaties, Executive
orders, or other laws and court decisions.
(c) Tribal Employment.--For purposes of section 2(2) of the
Act of July 5, 1935 (49 Stat. 450, chapter 372) (commonly known
as the `National Labor Relations Act'), an Indian tribe
carrying out a self-determination contract, compact, annual
funding agreement, grant, or cooperative agreement under this
Act shall not be considered an employer.
(d) Obligations of the United States.--The Indian Health
Service under this Act shall neither bill nor charge those
Indians who may have the economic means to pay for services,
nor require any Indian tribe to do so.
SEC. 516. APPLICATION OF OTHER SECTIONS OF THE ACT.
(a) Mandatory Application.--All provisions of sections
5(b), 6, 7, 102 (c) and (d), 104, 105 (k) and (l), 106 (a)
through (k), and 111 of this Act and section 314 of Public Law
101-512 (coverage under chapter 171 of title 28, United States
Code, commonly known as the `Federal Tort Claims Act'), to the
extent not in conflict with this title, shall apply to compacts
and funding agreements authorized by this title.
(b) Discretionary Application.--At the request of a
participating Indian tribe, any other provision of title I, to
the extent such provision is not in conflict with this title,
shall be made a part of a funding agreement or compact entered
into under this title. The Secretary is obligated to include
such provision at the option of the participating Indian tribe
or tribes. If such provision is incorporated it shall have the
same force and effect as if it were set out in full in this
title. In the event an Indian tribe requests such incorporation
at the negotiation stage of a compact or funding agreement,
such incorporation shall be deemed effective immediately and
shall control the negotiation and resulting compact and funding
agreement.
SEC. 517. REGULATIONS.
(a) In General.--
(1) Promulgation.--Not later than 90 days after the
date of enactment of the Tribal Self-Governance
Amendments of 1999, 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 by the Secretary no later than
1 year after the date of enactment of the Tribal Self-
Governance Amendments of 1999.
(3) Expiration of authority.--The authority to
promulgate regulations under paragraph (1) shall expire
21 months after the date of enactment of the Tribal
Self-Governance Amendments of 1999.
(b) Committee.--
(1) In general.--A negotiated rulemaking committee
established pursuant to section 565 of title 5, United
States Code, to carry out this section shall have as
its members only Federal and tribal government
representatives,, a majority of whom shall be nominated
by and be representatives of Indian tribes with funding
agreements under this Act.
(2) Requirements.--The committee shall confer with,
and accommodate participation by, representatives of
Indian tribes, inter-tribal consortia, tribal
organizations, and individual tribal members.
(c) Adaptation of Procedures.--The Secretary of Health and
Human Services shall adopt the negotiated rulemaking procedures
to the unique context of self-governance and the government-to-
government relationship between the United States and Indian
tribes.
(d) Effect.--The lack of promulgated regulations shall not
limit the effect of this title.
(e) Effect of Circulars, Policies, Manuals, Guidances, and
Rules.--Unless expressly agreed to by the participating Indian
tribe in the compact or funding agreement, the participating
Indian tribe shall not be subject to any agency circular,
policy, manual, guidance, program regulation or rule adopted by
the Indian Health Service, except for the eligibility
provisions of section 105(g) and regulations promulgated under
section 517.
SEC. 518. APPEALS.
In any appeal (including civil actions) involving decisions
made by the Secretary under this title, the Secretary shall
have the burden of proof of demonstrating by clear and
convincing evidence--
(1) the validity of the grounds for the decision
made; and
(2) that the decision is fully consistent with
provisions and policies of this title.
SEC. 519. AUTHORIZATION OF APPROPRIATIONS.
(a) In General.--There are authorized to be appropriated
such sums as may be necessary to carry out this title.
(b) Assumption of New or Expanded Programs.--
(1) In general.--Notwithstanding any other provision
of law, in fiscal year 2000 the Secretary may enter
into contracts, compacts or annual funding agreements
with an Indian tribe or tribal organization to operate
a new or expanded program, service, function or
activity of the Indian Health Service pursuant to the
Indian Self-Determination and Education Assistance Act,
P.L. 93-638, as amended (25 U.S.C. 450 et seq.) only
if--
(A) and to the extent sufficient contract
support costs are appropriated and are
specifically earmarked for the assumption of
new or expanded programs, functions, services
or activities; and
(B) the Indian Health Service determines that
the percentage of contract support costs
provided to existing contractors will not be
reduced as a result of the assumption of any
new or expanded programs, functions, services
or activities under this title.
(2) Nothing in this section shall be construed to
affect the allocation of funds other than contract
support cost funds.
2. The Indian Self-Determination and Education Assistance
Act (25 U.S.C. 450 et seq.) is amended by adding at the end the
following:
TITLE VI--TRIBAL SELF-GOVERNANCE--DEPARTMENT OF HEALTH AND HUMAN
SERVICES
SEC. 601. DEFINITIONS.
(a) In General.--In this title, the Secretary may apply the
definitions contained in title V.
(b) Other Definitions.--In this title:
(1) Agency.--The term ``agency'' means any agency or
other organizational unit of the Department of Health
and Human Services, other than the Indian Health
Service.
(2) Secretary.--The term ``Secretary'' means the
Secretary of Health and Human Services.
SEC. 602. DEMONSTRATION PROJECT FEASIBILITY.
(a) Study.--The Secretary shall conduct a study to
determine the feasibility of a tribal self-governance
demonstration project for appropriate programs, services,
functions, and activities (or portions thereof) of the agency.
(b) Considerations.--In conducting the study, the Secretary
shall consider--
(1) the probable effects on specific programs and
program beneficiaries of such a demonstration project;
(2) statutory, regulatory, or other impediments to
implementation of such a demonstration project;
(3) strategies for implementing such a demonstration
project;
(4) probable costs or savings associated with such a
demonstration project;
(5) methods to assure quality and accountability in
such a demonstration project; and
(6) such other issues that may be determined by the
Secretary or developed through consultation pursuant to
section 603.
(c) Report.--Not later than 18 months after the date of
enactment of this title, the Secretary shall submit a report to
the Committee on Indian Affairs of the Senate an the Committee
on Resources of the House of Representatives. The report shall
contain--
(1) the results of the study under this section;
(2) a list of programs, services, functions, and
activities (or portions thereof) within each agency
with respect to which it would be feasible to include
in a tribal self-governance demonstration project;
(3) a list of programs, services, functions, and
activities (or portions thereof) included in the list
provided pursuant to paragraph (2) that could be
included in a tribal self-governance demonstration
project without amending statutes, or waiving
regulations that the Secretary may not waive;
(4) a list of legislative actions required in order
to include those programs, services, functions, and
activities (or portions thereof) included in the list
provided pursuant to paragraph (2) but not included in
the list provided pursuant to paragraph (3) in a tribal
self-governance demonstration project; and
(5) any separate views of tribes and other entities
consulted pursuant to section 603 related to the
information provided pursuant to paragraphs (1) through
(4).
SEC. 603. CONSULTATION.
(a) Study Protocol.--
(1) Consultation with Indian Tribes.--The Secretary
shall consult with Indian tribes to determine a
protocol for consultation under subsection (b) prior to
consultation under such subsection with the other
entities described in such subsection.
(2) Requirements for protocol.--The protocol shall
require, at a minimum, that--
(A) the government-to-government relationship
with Indian tribes forms the basis for the
consultation process;
(B) the Indian tribes and the Secretary
jointly conduct the consultations required by
this section; and
(C) the consultation process allows for
separate and direct recommendations from the
Indian tribes and other entities described in
subsection (b).
(b) Conducting Study.--In conducting the study under this
title, the Secretary shall consult with Indian tribes, State,
counties, municipalities, program beneficiaries, and interested
public interest groups, and may consult with other entities as
appropriate.
SEC. 604 AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated for fiscal years
2000 and 2001 such sums as may be necessary to carry out this
title. Such sums shall remain available until expended.