[House Report 111-603]
[From the U.S. Government Publishing Office]


111th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     111-603

======================================================================



 
     DEPARTMENT OF THE INTERIOR TRIBAL SELF-GOVERNANCE ACT OF 2010

                                _______
                                

 September 16, 2010.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

  Mr. Rahall, from the Committee on Natural Resources,  submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 4347]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Natural Resources, to whom was referred the 
bill (H.R. 4347) to amend the Indian Self-Determination and 
Education Assistance Act to provide further self-governance by 
Indian tribes, and for other purposes, having considered the 
same, report favorably thereon with an amendment and recommend 
that the bill as amended do pass.

  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

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

Sec. 1. Short title; table of contents.

                   TITLE I--INDIAN SELF-DETERMINATION

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

                    TITLE II--TRIBAL SELF-GOVERNANCE

Sec. 201. Tribal self-governance.

                   TITLE I--INDIAN SELF-DETERMINATION

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

  (a) Definitions.--Section 4 of the Indian Self-Determination and 
Education Assistance Act (25 U.S.C. 450b) is amended by striking 
subsection (j) and inserting the following:
          ``(j) `self-determination contract' means a contract entered 
        into (or a grant or cooperative agreement used under section 9) 
        under title I between a tribal organization and the appropriate 
        Secretary for the planning, conduct, and administration of 
        programs or services that are otherwise provided to Indian 
        tribes and members of Indian tribes pursuant to Federal law, 
        subject to the condition that, except as provided in section 
        105(a)(3), no contract entered into (or grant or cooperative 
        agreement used under section 9) under title I shall be--
          ``(1) considered to be a procurement contract; or
          ``(2) subject to any Federal procurement law (including 
        regulations);''.
  (b) Reporting and Audit Requirements.--Section 5(b) of the Indian 
Self-Determination and Education Assistance Act (25 U.S.C. 450c(b)) is 
amended by striking ``after completion of the project or undertaking 
referred to in the preceding subsection of this section'' and inserting 
``after the date on which a report is submitted to the Secretary under 
subsection (a)''.
  (c) Application of Other Provisions.--Sections 4, 5, 6, 7, 102(c), 
104, 105(a)(1), 105(f), 110 and 111 of the Indian Self-Determination 
and Education Assistance Act, as amended (25 U.S.C. 450 et seq.) 
(Public Law 93-638, as amended, 88 Stat. 2203) and section 314 of the 
Department of the Interior and Related Agencies Appropriations Act, 
1991 (Public Law 101-512; 104 Stat. 1959), apply to compacts and 
funding agreements entered into under title IV.

SEC. 102. CONTRACTS BY SECRETARY OF INTERIOR.

  Section 102 of the Indian Self-Determination and Education Assistance 
Act (25 U.S.C. 450f) is amended--
          (1) in subsection (c)(2), by striking ``economic 
        enterprises'' and all that follows through ``except that'' and 
        inserting ``economic enterprises (as defined in section 3 of 
        the Indian Financing Act of 1974 (25 U.S.C. 1452)), except 
        that'';
          (2) by striking subsection (e) and inserting the following:
  ``(e) 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 a preponderance of the 
evidence--
          ``(1) the validity of the grounds for the decision made; and
          ``(2) that the decision is fully consistent with the 
        provisions and policies of this title.''; and
          (3) by adding at the end the following:
  ``(f) Good Faith Requirement.--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 2000 (Public Law 106-260; 25 U.S.C. 458aaa note).''.

SEC. 103. ADMINISTRATIVE PROVISIONS.

  Section 105 of the Indian Self-Determination and Education Assistance 
Act (25 U.S.C. 450j) is amended--
          (1) in subsection (b) in the first sentence, by striking 
        ``pursuant to'' and all that follows through ``of this Act'' 
        and inserting ``pursuant to sections 102 and 103'';
          (2) by striking subsection (j) and inserting the following:
  ``(j) Redesign and Consolidation.--If an Indian tribe can 
demonstrate, for the previous three fiscal years, the financial 
stability and financial management capability as evidenced by the 
Indian tribe having no material audit exceptions in the required annual 
audit of the self-determination contracts of the Indian tribe, then the 
Indian tribe may redesign or consolidate programs, services, functions, 
and activities (or portions thereof) included in a funding agreement 
under this title and reallocate or redirect funds for such programs, 
services, functions, and activities (or portions thereof) that are 
eligible to be included in Consolidated Tribal Government Programs in 
any manner that the Indian tribe determines 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 applicable Federal law.''; and
          (3) by adding at the end the following:
  ``(p) Interpretation by Secretary.--Except as otherwise provided by 
law, the Secretary shall interpret all Federal laws (including 
regulations) and Executive orders in a manner that facilitates, to the 
maximum extent practicable--
          ``(1) the inclusion in self-determination contracts and 
        funding agreements of--
                  ``(A) applicable programs, services, functions, and 
                activities (or portions thereof); and
                  ``(B) funds associated with those programs, services, 
                functions, and activities;
          ``(2) the implementation of self-determination contracts and 
        funding agreements; and
          ``(3) the achievement of tribal health objectives.''.

SEC. 104. CONTRACT FUNDING AND INDIRECT COSTS.

  Section 106(a)(3)(A) of the Indian Self-Determination and Education 
Assistance Act (25 U.S.C. 450j-1(a)(3)(A)) is amended--
          (1) in clause (i), by striking ``, and'' at the end and 
        inserting a semicolon;
          (2) in clause (ii), by striking ``expense related to the 
        overhead incurred'' and inserting in lieu thereof ``expenses 
        incurred by the governing body of the Indian tribe or tribal 
        organization and overhead incurred'';
          (3) in clause (ii), by striking the comma at the end and 
        inserting ``; and''; and
          (4) by inserting after clause (ii) the following:
          ``(iii) not less than 50 percent of the expenses incurred by 
        the governing body of a Indian tribe or tribal organization 
        relating to a Federal program, function, service, or activity 
        pursuant to the contract (which expenses shall be considered to 
        be reasonable and allowable without documentation for the 
        purpose of this paragraph), except that in the case of a Indian 
        tribe or tribal organization which derives all or substantially 
        all of its program revenue from other governments or 
        organizations, not less than 100 percent of such expenses shall 
        be considered to be reasonable and allowable without 
        documentation.''.

SEC. 105. CONTRACT OR GRANT SPECIFICATIONS.

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

                    TITLE II--TRIBAL SELF-GOVERNANCE

SEC. 201. TRIBAL SELF-GOVERNANCE.

  Title IV of the Indian Self-Determination and Education Assistance 
Act (25 U.S.C. 450 et seq.) is amended to read as follows:

                   ``TITLE IV--TRIBAL SELF-GOVERNANCE

``SEC. 401. DEFINITIONS.

  ``In this title:
          ``(1) Compact.--The term `compact' means a self-governance 
        compact entered into under section 404.
          ``(2) Construction program.--The term `construction program' 
        or `construction project' means a tribal undertaking relating 
        to the administration, planning, environmental determination, 
        design, construction, repair, improvement, or expansion of 
        roads, bridges, buildings, structures, systems, or other 
        facilities for purposes of housing, law enforcement, detention, 
        sanitation, water supply, education, administration, community, 
        health, irrigation, agriculture, conservation, flood control, 
        transportation, or port facilities, or for other tribal 
        purposes.
          ``(3) Department.--The term `Department' means the Department 
        of the Interior.
          ``(4) Funding agreement.--The term `funding agreement' means 
        a funding agreement entered into under section 405.
          ``(5) Gross mismanagement.--The term `gross mismanagement' 
        means a significant violation, shown by a preponderance of the 
        evidence, of a compact, funding agreement, or statutory or 
        regulatory requirement applicable to Federal funds--
                  ``(A) for a program administered by an Indian tribe; 
                or
                  ``(B) under a compact or funding agreement that 
                results in a significant reduction of funds available 
                for the programs assumed by an Indian tribe.
          ``(6) Program.--The term `program' means any program, 
        function, service, or activity (or portion thereof) within the 
        Department of the Interior that is included in a funding 
        agreement.
          ``(7) Inherent federal function.--The term `inherent Federal 
        function' means a Federal function that may not legally be 
        delegated to an Indian tribe.
          ``(8) Secretary.--The term `Secretary' means the Secretary of 
        the Interior.
          ``(9) Self-governance.--The term `self-governance' means the 
        program of self-governance established under section 402.
          ``(10) Tribal share.--The term `tribal share' means an Indian 
        tribe's portion of all funds and resources that support any 
        program within the Bureau of Indian Affairs, the Office of 
        Special Trustee, and the Office of the Assistant Secretary for 
        Indian Affairs and that are not required by the Secretary for 
        the performance of an inherent Federal function.

``SEC. 402. ESTABLISHMENT.

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

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

  ``(a) In General.--
          ``(1) Participants.--
                  ``(A) The Secretary, acting through the Director of 
                the Office of Self-Governance, may select up to 50 new 
                Indian tribes per year from those eligible under 
                subsection (b) to participate in self-governance.
                  ``(B) If each Indian tribe requests, two or more 
                otherwise eligible Indian tribes may be treated as a 
                single Indian tribe for the purpose of participating in 
                self-governance.
          ``(2) Other authorized indian tribe or tribal organization.--
        If an Indian tribe authorizes another Indian tribe or a tribal 
        organization to plan for or carry out a program on its behalf 
        under this title, the authorized Indian tribe or tribal 
        organization shall have the rights and responsibilities of the 
        authorizing Indian tribe (except as otherwise provided in the 
        authorizing resolution).
          ``(3) Joint participation.--Two or more Indian tribes that 
        are not otherwise eligible under subsection (b) may be treated 
        as a single Indian tribe for the purpose of participating in 
        self-governance as a tribal organization if--
                  ``(A) each Indian tribe so requests; and
                  ``(B) the tribal organization itself or at least one 
                of the Indian tribes participating in the tribal 
                organization is eligible under subsection (b).
          ``(4) Tribal withdrawal from a tribal organization.--
                  ``(A) In general.--An Indian tribe that withdraws 
                from participation in a tribal organization, in whole 
                or in part, shall be entitled to participate in self-
                governance if the Indian tribe is eligible under 
                subsection (b).
                  ``(B) Effect of withdrawal.--If an Indian tribe 
                withdraws from participation in a tribal organization, 
                the Indian tribe shall be entitled to its tribal share 
                of funds and resources supporting the programs that the 
                Indian tribe is entitled to carry out under the compact 
                and funding agreement of the Indian tribe.
                  ``(C) Participation in self-governance.--The 
                withdrawal of an Indian tribe from a tribal 
                organization shall not affect the eligibility of the 
                tribal organization to participate in self-governance 
                on behalf of one or more other Indian tribes provided 
                that the tribal organization still qualifies under 
                subsection (b).
                  ``(D) Withdrawal process.--
                          ``(i) In general.--An Indian tribe may, by 
                        tribal resolution, fully or partially withdraw 
                        its tribal share of any program in a funding 
                        agreement from a participating tribal 
                        organization. The Indian tribe shall provide a 
                        copy of the tribal resolution to the Secretary.
                          ``(ii) Effective date.--
                                  ``(I) In general.--A withdrawal under 
                                clause (i) shall become effective on 
                                the date specified in the tribal 
                                resolution and that is mutually agreed 
                                upon by the Secretary, the withdrawing 
                                Indian tribe, and the tribal 
                                organization that signed the compact 
                                and funding agreement on behalf of the 
                                withdrawing Indian tribe or tribal 
                                organization.
                                  ``(II) No specified date.--In the 
                                absence of a date specified in the 
                                resolution, the withdrawal shall become 
                                effective on--
                                          ``(aa) the earlier of--
                                                  ``(AA) 1 year after 
                                                the date of submission 
                                                of the request; or
                                                  ``(BB) the date on 
                                                which the funding 
                                                agreement expires; or
                                          ``(bb) such date as may be 
                                        mutually agreed upon by the 
                                        Secretary, the withdrawing 
                                        Indian tribe, and the tribal 
                                        organization that signed the 
                                        compact and funding agreement 
                                        on behalf of the withdrawing 
                                        Indian tribe or tribal 
                                        organization.
                  ``(E) Distribution of funds.--If an Indian tribe or 
                tribal organization eligible to enter into a self-
                determination contract under title I or a compact or 
                funding agreement under this title fully or partially 
                withdraws from a participating tribal organization, the 
                withdrawing Indian tribe--
                          ``(i) may elect to enter a self-determination 
                        contract or compact, in which case--
                                  ``(I) the withdrawing Indian tribe or 
                                tribal organization shall be entitled 
                                to its tribal share of unexpended funds 
                                and resources supporting the programs 
                                that the Indian tribe will be carrying 
                                out under its own self-determination 
                                contract or compact and funding 
                                agreement (calculated on the same basis 
                                as the funds were initially allocated 
                                to the funding agreement of the tribal 
                                organization); and
                                  ``(II) the funds referred to in 
                                subclause (I) shall be withdrawn by the 
                                Secretary from the funding agreement of 
                                the tribal organization and transferred 
                                to the withdrawing Indian tribe, on the 
                                condition that the provisions of 
                                sections 102 and 105(i), as 
                                appropriate, shall apply to the 
                                withdrawing Indian tribe; or
                          ``(ii) may elect not to enter a self-
                        determination contract or compact, in which 
                        case all funds not obligated by the tribal 
                        organization associated with the withdrawing 
                        Indian tribe's returned programs, less close-
                        out costs, shall be returned by the tribal 
                        organization to the Secretary for operation of 
                        the programs included in the withdrawal.
                  ``(F) Return to mature contract status.--If an Indian 
                tribe elects to operate all or some programs carried 
                out under a compact or funding agreement under this 
                title through a self-determination contract under title 
                I, at the option of the Indian tribe, the resulting 
                self-determination contract shall be a mature self-
                determination contract as long as the Indian tribe 
                meets the requirements set forth in section 4(h) of 
                this Act.
  ``(b) Eligibility.--To be eligible to participate in self-governance, 
an Indian tribe shall--
          ``(1) successfully complete the planning phase described in 
        subsection (c);
          ``(2) request participation in self-governance by resolution 
        or other official action by the tribal governing body; and
          ``(3) demonstrate, for the 3 fiscal years preceding the date 
        on which the Indian tribe requests participation, financial 
        stability and financial management capability as evidenced by 
        the Indian tribe having no uncorrected significant and material 
        audit exceptions in the required annual audit of its self-
        determination or self-governance agreements with any Federal 
        agency.
  ``(c) Planning Phase.--
          ``(1) In general.--An Indian tribe seeking to begin 
        participation in self-governance shall complete a planning 
        phase in accordance with this subsection.
          ``(2) Activities.--The planning phase--
                  ``(A) shall be conducted to the satisfaction of the 
                Indian tribe; and
                  ``(B) shall include--
                          ``(i) legal and budgetary research; and
                          ``(ii) internal tribal government planning 
                        and organizational preparation.
  ``(d) Grants.--
          ``(1) In general.--Subject to the availability of 
        appropriations, an Indian tribe or tribal organization that 
        meets the requirements of paragraphs (2) and (3) of subsection 
        (b) shall be eligible for grants--
                  ``(A) to plan for participation in self-governance; 
                and
                  ``(B) to negotiate the terms of participation by the 
                Indian tribe or tribal organization in self-governance, 
                as set forth in a compact and a funding agreement.
          ``(2) Receipt of grant not required.--Receipt of a grant 
        under paragraph (1) shall not be a requirement of participation 
        in self-governance.

``SEC. 404. COMPACTS.

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

``SEC. 405. FUNDING AGREEMENTS.

  ``(a) In General.--The Secretary shall negotiate and enter into a 
written funding agreement with the governing body of an Indian tribe or 
tribal organization in a manner consistent with the trust 
responsibility of the Federal Government, treaty obligations, and the 
government-to-government relationship between Indian tribes and the 
United States.
  ``(b) Included Programs.--
          ``(1) Bureau of indian affairs and office of special 
        trustee.--
                  ``(A) In general.--A funding agreement shall, as 
                determined by the Indian tribe, authorize the Indian 
                tribe to plan, conduct, consolidate, administer, and 
                receive full tribal share funding for all programs 
                carried out by the Bureau of Indian Affairs, the Office 
                of the Assistant Secretary for Indian Affairs, and the 
                Office of Special Trustee, without regard to the agency 
                or office within which the program is performed 
                (including funding for agency, area, and central office 
                functions in accordance with subsection 409(c)), that--
                          ``(i) are provided for in the Act of April 
                        16, 1934 (25 U.S.C. 452 et seq.);
                          ``(ii) the Secretary administers for the 
                        benefit of Indians under the Act of November 2, 
                        1921 (25 U.S.C. 13), or any subsequent Act;
                          ``(iii) the Secretary administers for the 
                        benefit of Indians with appropriations made to 
                        agencies other than the Department of the 
                        Interior; or
                          ``(iv) are provided for the benefit of 
                        Indians because of their status as Indians.
                  ``(B) Inclusions.--Programs described in subparagraph 
                (A) shall include all programs with respect to which 
                Indian tribes or Indians are primary or significant 
                beneficiaries.
          ``(2) Discretionary programs of special significance.--A 
        funding agreement under subsection (a) may, in accordance with 
        such additional terms as the parties consider to be 
        appropriate, include programs, services, functions, and 
        activities (or portions thereof), administered by the 
        Secretary, in addition to programs described in paragraphs (1) 
        and (3), that are of special geographic, historical, or 
        cultural significance to the Indian tribe. Such agreements, 
        including the additional terms, shall be governed by the 
        provisions of this title, except that, subject to the 
        discretion of the Secretary--
                  ``(A) the Indian tribe may have reallocation, 
                consolidation, and redesign authority over any program 
                assumed under this paragraph (2);
                  ``(B) the Secretary may reassume any program and 
                associated funding assumed under this paragraph (2) 
                upon a specific finding by the Secretary of a gross 
                violation by the Indian tribe of the terms of the 
                funding agreement;
                  ``(C) the Secretary may require special terms and 
                conditions regarding a construction program or project 
                assumed under this paragraph (2) notwithstanding the 
                provisions of section 408;
                  ``(D) all Federal regulations that otherwise govern 
                the operation of any program assumed under this 
                paragraph (2) apply to the Indian tribe unless a 
                specific regulation is waived by the Secretary under 
                the procedures set forth in section 410(b)(2), which 
                waiver request may be denied upon a specific finding by 
                the Secretary that the waiver is prohibited by Federal 
                law or is inconsistent with the express provisions of 
                the funding agreement; and
                  ``(E) a stable base budget, as described in paragraph 
                (7), may be provided for any program assumed under this 
                paragraph (2).
          ``(3) Programs otherwise available.--A funding agreement 
        shall, as determined by the Indian tribe, authorize the Indian 
        tribe to plan, conduct, consolidate, administer, and receive 
        full tribal share funding for any program administered by the 
        Department of the Interior other than through the Bureau of 
        Indian Affairs, the Office of the Assistant Secretary for 
        Indian Affairs, or the Office of the Special Trustee, that is 
        otherwise available to Indian tribes or Indians under section 
        102 of this Act.
          ``(4) Competitive bidding.--Nothing in this section--
                  ``(A) supersedes any express statutory requirement 
                for competitive bidding; or
                  ``(B) prohibits the inclusion in a funding agreement 
                of a program in which non-Indians have an incidental or 
                legally identifiable interest.
          ``(5) Excluded funding.--A funding agreement shall not 
        authorize an Indian tribe to plan, conduct, administer, or 
        receive tribal share funding under any program that--
                  ``(A) is provided under the Tribally Controlled 
                College or University Assistance Act of 1978 (25 U.S.C. 
                1801 et seq.); and
                  ``(B) is provided for elementary and secondary 
                schools under the formula developed under section 1127 
                of the Education Amendments of 1978 (25 U.S.C. 2007).
          ``(6) Services, functions, and responsibilities.--A funding 
        agreement shall specify--
                  ``(A) the services to be provided under the funding 
                agreement;
                  ``(B) the functions to be performed under the funding 
                agreement; and
                  ``(C) the responsibilities of the Indian tribe and 
                the Secretary under the funding agreement.
          ``(7) Base budget.--A funding agreement pursuant to 
        subsections (b)(1) and (b)(3) shall, at the option of the 
        Indian tribe, provide for a stable base budget specifying the 
        recurring funds (including funds available under section 
        106(a)) to be transferred to the Indian tribe, for such period 
        as the Indian tribe specifies in the funding agreement, subject 
        to annual adjustment only to reflect changes in congressional 
        appropriations. Upon agreement by the Secretary, a funding 
        agreement under subsection (b)(2) may also provide for a stable 
        base budget subject to the terms of this provision.
          ``(8) No waiver of trust responsibility.--A funding agreement 
        shall prohibit the Secretary from waiving, modifying, or 
        diminishing in any way the trust responsibility of the United 
        States with respect to Indian tribes and individual Indians 
        that exists under treaties, Executive orders, court decisions, 
        and other laws.
  ``(c) Amendment.--The Secretary shall not revise, amend, or require 
additional terms in a new or subsequent funding agreement without the 
consent of the Indian tribe, unless such terms are required by Federal 
law.
  ``(d) Effective Date.--A funding agreement shall become effective on 
the date specified in the funding agreement.
  ``(e) Existing and Subsequent Funding Agreements.--
          ``(1) Subsequent funding agreements.--Absent notification 
        from an Indian tribe that it is withdrawing or retroceding the 
        operation of one or more programs identified in a funding 
        agreement under subsections (b)(1) or (b)(3), or unless 
        otherwise agreed to by the parties to the funding agreement--
                  ``(A) a funding agreement shall remain in full force 
                and effect until a subsequent funding agreement is 
                executed, with funding paid annually for each fiscal 
                year the agreement is in effect or by the nature of any 
                noncontinuing program, services, functions, or 
                activities contained in a funding agreement; and
                  ``(B) the term of the subsequent funding agreement 
                shall be retroactive to the end of the term of the 
                preceding funding agreement for the purposes of 
                calculating the amount of funding to which the Indian 
                tribe is entitled.
          ``(2) Disputes.--Disputes over the implementation of 
        paragraph (1)(A) shall be subject to section 407(c).
          ``(3) Existing funding agreements.--An Indian tribe that was 
        participating in self-governance under this title on the date 
        of enactment of the Department of the Interior Tribal Self-
        Governance Act of 2010 shall have the option at any time after 
        that date--
                  ``(A) to retain its existing funding agreement (in 
                whole or in part) to the extent that the provisions of 
                that funding agreement are not directly contrary to any 
                express provision of this title; or
                  ``(B) to negotiate a new funding agreement in a 
                manner consistent with this title.
          ``(4) Multiyear funding agreements.--An Indian tribe may, at 
        the discretion of the Indian tribe, negotiate with the 
        Secretary for a funding agreement with a term that exceeds one 
        year.

``SEC. 406. GENERAL PROVISIONS.

  ``(a) Applicability.--An Indian tribe and the Secretary shall include 
in any compact or funding agreement provisions that reflect the 
requirements of this title.
  ``(b) Conflicts of Interest.--An Indian tribe participating in self-
governance shall ensure that internal measures are in place to address, 
pursuant to tribal law and procedures, conflicts of interest in the 
administration of programs.
  ``(c) Audits.--
          ``(1) Single agency audit act.--Chapter 75 of title 31, 
        United States Code, shall apply to a funding agreement under 
        this title.
          ``(2) Cost principles.--An Indian tribe shall apply cost 
        principles under the applicable Office of Management and Budget 
        circular, except as modified by--
                  ``(A) any provision of law, including section 106 of 
                this Act; or
                  ``(B) any exemptions to applicable Office of 
                Management and Budget circulars subsequently granted by 
                the Office of Management and Budget.
          ``(3) Federal claims.--Any claim by the Federal Government 
        against 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) Redesign and Consolidation.--An Indian tribe may redesign or 
consolidate programs or reallocate funds for programs in any manner 
that the Indian tribe deems to be in the best interest of the Indian 
community being served, so long as the redesign or consolidation does 
not have the effect of denying eligibility for services to population 
groups otherwise eligible to be served under applicable Federal law, 
except that, with respect to the reallocation, consolidation, and 
redesign of programs described in section 405(b)(2), a joint agreement 
between the Secretary and the Indian tribe shall be required.
  ``(e) Retrocession.--
          ``(1) In general.--An Indian tribe may fully or partially 
        retrocede to the Secretary any program under a compact or 
        funding agreement.
          ``(2) Effective date.--
                  ``(A) Agreement.--Unless the Indian tribe rescinds 
                the request for retrocession, such retrocession shall 
                become effective on the date specified by the parties 
                in the compact or funding agreement.
                  ``(B) No agreement.--In the absence of a 
                specification of an effective date in the compact or 
                funding agreement, the retrocession shall become 
                effective on--
                          ``(i) the earlier of--
                                  ``(I) one 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 and the Indian tribe.
  ``(f) Nonduplication.--A funding agreement shall provide that, for 
the period for which, and to the extent to which, funding is provided 
to an Indian tribe under this title, the Indian tribe--
          ``(1) shall not be entitled to contract with the Secretary 
        for funds under section 102, except that such Indian tribe 
        shall be eligible for new programs on the same basis as other 
        Indian tribes; and
          ``(2) shall be responsible for the administration of programs 
        in accordance with the compact or funding agreement.
  ``(g) Records.--
          ``(1) In general.--Unless an Indian tribe specifies otherwise 
        in the compact or funding agreement, records of an Indian tribe 
        shall not be considered Federal records for purposes of chapter 
        5 of title 5, United States Code.
          ``(2) Recordkeeping system.--An Indian tribe shall--
                  ``(A) maintain a recordkeeping system; and
                  ``(B) on 30 days' notice, provide the Secretary with 
                reasonable access to the records to enable the 
                Department to meet the requirements of sections 3101 
                through 3106 of title 44, United States Code.

``SEC. 407. PROVISIONS RELATED TO THE SECRETARY.

  ``(a) Trust Evaluations.--A funding agreement shall include a 
provision to monitor the performance of trust functions by the Indian 
tribe through the annual trust evaluation.
  ``(b) Reassumption.--
          ``(1) In general.--A compact or funding agreement shall 
        include provisions for the Secretary to reassume a program and 
        associated funding if there is a specific finding relating to 
        that program of--
                  ``(A) imminent jeopardy to a trust asset, natural 
                resources, or public health and safety that--
                          ``(i) is caused by an act or omission of the 
                        Indian tribe; and
                          ``(ii) arises out of a failure to carry out 
                        the compact or funding agreement; or
                  ``(B) gross mismanagement with respect to funds 
                transferred to an Indian tribe under a compact or 
                funding agreement, as determined by the Secretary in 
                consultation with the Inspector General, as 
                appropriate.
          ``(2) Prohibition.--The Secretary shall not reassume 
        operation of a program in whole or part unless--
                  ``(A) the Secretary first provides written notice and 
                a hearing on the record to the Indian tribe; and
                  ``(B) the Indian tribe does not take corrective 
                action to remedy the mismanagement of the funds or 
                programs, or the imminent jeopardy to a trust asset, 
                natural resource, or public health and safety.
          ``(3) Exception.--
                  ``(A) In general.--Notwithstanding paragraph (2), the 
                Secretary may, on written notice to the Indian tribe, 
                immediately reassume operation of a program if--
                          ``(i) the Secretary makes a finding of both 
                        imminent and substantial jeopardy and 
                        irreparable harm to a trust asset, a natural 
                        resource, or the public health and safety 
                        caused by an act or omission of the Indian 
                        tribe; and
                          ``(ii) the imminent and substantial jeopardy, 
                        and irreparable harm to the trust asset, 
                        natural resource, or public health and safety 
                        arises out of a failure by the Indian tribe to 
                        carry out the terms of its compact or funding 
                        agreement.
                  ``(B) Reassumption.--If the Secretary reassumes 
                operation of a program under subparagraph (A), the 
                Secretary shall provide the Indian tribe with a hearing 
                on the record not later than 10 days after the date of 
                reassumption.
  ``(c) Inability to Agree on Compact or Funding Agreement.--
          ``(1) Final offer.--If the Secretary and a participating 
        Indian tribe are unable to agree, in whole or in part, on the 
        terms of a compact or funding agreement (including funding 
        levels), the Indian tribe may submit a final offer to the 
        Secretary.
          ``(2) Determination.--Not more than 45 days after the date of 
        submission of a final offer, or as otherwise agreed to by the 
        Indian tribe, the Secretary shall review and make a 
        determination with respect to the final offer.
          ``(3) No timely determination.--If the Secretary fails to 
        make a determination with respect to a final offer within the 
        time specified in paragraph (2), the Secretary shall be deemed 
        to have agreed to the offer.
          ``(4) Rejection of final offer.--
                  ``(A) In general.--If the Secretary rejects a final 
                offer (or one or more provisions or funding levels in a 
                final offer), the Secretary shall--
                          ``(i) provide timely written notification to 
                        the Indian tribe that contains a specific 
                        finding that clearly demonstrates, or that is 
                        supported by a controlling legal authority, 
                        that--
                                  ``(I) the amount of funds proposed in 
                                the final offer exceeds the applicable 
                                funding level to which the Indian tribe 
                                is entitled under this title because it 
                                would reduce the funds that any other 
                                Indian tribe or tribal organization is 
                                entitled to receive under Federal law;
                                  ``(II) the program that is the 
                                subject of the final offer is an 
                                inherent Federal function or is subject 
                                to the discretion of the Secretary 
                                under section 405(b)(2);
                                  ``(III) the Indian tribe cannot carry 
                                out the program in a manner that would 
                                not result in significant danger or 
                                risk to the public health;
                                  ``(IV) the Indian tribe is not 
                                eligible to participate in self-
                                governance under section 403(b); or
                                  ``(V) the funding agreement would 
                                violate Federal statute or regulation;
                          ``(ii) provide technical assistance to 
                        overcome the objections stated in the 
                        notification required by clause (i);
                          ``(iii) provide the Indian tribe with 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 under section 110(a)); 
                        and
                          ``(iv) provide the Indian tribe the option of 
                        entering into the severable portions of a final 
                        proposed compact or funding agreement 
                        (including a lesser funding amount, if any), 
                        that the Secretary did not reject, subject to 
                        any additional alterations necessary to conform 
                        the compact or funding agreement to the severed 
                        provisions.
                  ``(B) Effect of exercising certain option.--If an 
                Indian tribe exercises the option specified in 
                subparagraph (A)(iv)--
                          ``(i) the Indian tribe shall retain the right 
                        to appeal the rejection by the Secretary under 
                        this section; and
                          ``(ii) clauses (i), (ii), and (iii) of 
                        subparagraph (A) shall apply only to the 
                        portion of the proposed final compact or 
                        funding agreement that was rejected by the 
                        Secretary.
  ``(d) Burden of Proof.--In any administrative hearing or appeal or 
civil action brought under this section, the Secretary shall have the 
burden of demonstrating by a preponderance of the evidence the validity 
of the grounds for rejecting a final offer made under subsection (c) or 
the grounds for a reassumption under subsection (b).
  ``(e) Good Faith.--
          ``(1) In general.--In the negotiation of compacts and funding 
        agreements, the Secretary shall at all times negotiate in good 
        faith to maximize implementation of the self-governance policy.
          ``(2) Policy.--The Secretary shall carry out this title in a 
        manner that maximizes the policy of tribal self-governance.
  ``(f) Savings.--To the extent that programs carried out for the 
benefit of Indian tribes and tribal organizations under this title 
reduce the administrative or other responsibilities of the Secretary 
with respect to the operation of Indian programs and result in savings 
that have not otherwise been included in the amount of tribal shares 
and other funds determined under section 409(c), except for programs 
entered into funding agreements under section 405(b)(2), the Secretary 
shall make such savings available to the Indian tribes or tribal 
organizations for the provision of additional services to program 
beneficiaries in a manner equitable to directly served, contracted, and 
compacted programs. For any savings generated as a result of the 
assumption of a program by an Indian tribe under section 405(b)(2), 
such savings shall be made available to that Indian tribe.
  ``(g) Trust Responsibility.--The Secretary may not waive, modify, or 
diminish in any way the trust responsibility of the United States with 
respect to Indian tribes and individual Indians that exists under 
treaties, Executive orders, other laws, or court decisions.
  ``(h) Decisionmaker.--A decision that constitutes final agency action 
and relates to an appeal within the Department conducted under 
subsection (c)(4) may be made--
          ``(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 law judge.
  ``(i) Rules of Construction.--Each provision of this title and each 
provision of a compact or funding agreement shall be liberally 
construed for the benefit of the Indian tribe participating in self-
governance, and any ambiguity shall be resolved in favor of the Indian 
tribe.

``SEC. 408. CONSTRUCTION PROGRAMS AND PROJECTS.

  ``(a) In General.--Indian tribes participating in tribal self-
governance may carry out construction projects under this title.
  ``(b) Tribal Option to Carry Out Certain Federal Environmental 
Activities.--In carrying out a construction project under this title, 
an Indian tribe may, subject to the Secretary's agreement, elect to 
assume some Federal responsibilities under the National Environmental 
Policy Act of 1969 (42 U.S.C. 4321 et seq.), the National Historic 
Preservation Act (16 U.S.C. 470 et seq.), and related provisions of law 
and regulations that would apply if the Secretary were to undertake a 
construction project, by adopting a resolution--
          ``(1) designating a certifying tribal officer to represent 
        the Indian tribe and to assume the status of a responsible 
        Federal official under such laws; and
          ``(2) accepting the jurisdiction of the Federal courts for 
        the purpose of enforcing the responsibilities of the certifying 
        tribal officer assuming the status of a responsible Federal 
        official under such laws.
  ``(c) Savings Clause.--Notwithstanding subsection (b), nothing in 
this Act authorizes the Secretary to include in any compact or funding 
agreement duties of the Secretary under the National Environmental 
Policy Act, the National Historic Preservation Act, and other related 
provisions of law that are inherent Federal functions.
  ``(d) Codes and Standards.--In carrying out a construction project 
under this title, an Indian tribe shall--
          ``(1) adhere to applicable Federal, State, local, and tribal 
        building codes architectural and engineering standards and 
        applicable Federal guidelines regarding design, space, and 
        operational standards, appropriate for the particular project; 
        and
          ``(2) use only architects and engineers who are licensed to 
        practice in the State in which the facility will be built and 
        who certify--
                  ``(A) that they are qualified to perform the work 
                required by the specific construction involved; and
                  ``(B) upon completion of design, that the plans and 
                specifications meet or exceed the applicable 
                construction and safety codes.
  ``(e) Tribal Accountability.--
          ``(1) In carrying out a construction project under this 
        title, an Indian tribe shall assume responsibility for the 
        successful completion of the construction project and of a 
        facility that is usable for the purpose for which it was 
        funded.
          ``(2) For each construction project carried out by an Indian 
        tribe under this title, the Indian tribe and the Secretary 
        shall negotiate a provision to be included in the funding 
        agreement that identifies--
                  ``(A) the approximate start and completion dates for 
                the project, which may extend over a period of one or 
                more years;
                  ``(B) a general description of the project, including 
                the scope of work, references to design criteria, and 
                other terms and conditions;
                  ``(C) the responsibilities of the Indian tribe and 
                the Secretary for the project;
                  ``(D) how project-related environmental 
                considerations will be addressed;
                  ``(E) the amount of funds provided for the project;
                  ``(F) the obligations of the Indian tribe to comply 
                with the codes referenced in subsection (c)(1) and 
                applicable Federal laws, statutes, and regulations;
                  ``(G) the agreement of the parties over who will bear 
                any additional costs necessary to meet changes in 
                scope, or errors or omissions in design and 
                construction; and
                  ``(H) the agreement of the Secretary to issue a 
                certificate of occupancy, if requested by the Indian 
                tribes, based upon the review and verification by the 
                Secretary, to his or her satisfaction, that the Indian 
                tribe has secured upon completion the review and 
                approval of the plans and specifications, sufficiency 
                of design, life safety, and code compliance by 
                qualified, licensed, and independent architects and 
                engineers.
  ``(f) Funding.--Funding appropriated for construction projects 
carried out under this title shall be included in funding agreements as 
annual or semiannual advance payments at the option of the Indian 
tribe. The Secretary shall include all associated project contingency 
funds with each advance payment. The Indian tribe shall be responsible 
for the management of such contingency funds.
  ``(g) Negotiations.--At the option of the Indian tribe, construction 
project funding proposals shall be negotiated pursuant to the statutory 
process in section 450j(m) of title 25 and any resulting construction 
project agreement shall be incorporated into the funding agreement as 
addenda.
  ``(h) Federal Review and Verification.--The Secretary shall have at 
least one opportunity to review and verify, to the satisfaction of the 
Secretary, that project planning and design documents prepared by the 
Indian tribe in advance of initial construction are in conformity with 
the obligations of the Indian tribe under subsection (c) and, before 
they are implemented, at least one opportunity to review and verify to 
the satisfaction of the Secretary that subsequent document amendments 
which result in a significant change in construction are in conformity 
with the obligations of the Indian tribe under subsection (c). 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.
  ``(i) Application of Other Laws.--Unless otherwise agreed to by the 
Indian tribe, no provision of the Office of Federal Procurement Policy 
Act (41 U.S.C. 401 et seq.), 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 program or project carried out under this title.
  ``(j) Future Funding.--Upon completion of a facility constructed 
under this title, the Secretary shall include the facility among those 
eligible for annual operation and maintenance funding support 
comparable to that provided for similar facilities funded by the 
Department as annual appropriations are available and to the extent 
that the facility size and complexity and other factors do not exceed 
the funding formula criteria for comparable buildings.

``SEC. 409. PAYMENT.

  ``(a) In General.--At the request of the governing body of the Indian 
tribe and under the terms of an agreement, the Secretary shall provide 
funding to the Indian tribe to carry out the funding agreement.
  ``(b) Advance Annual Payment.--At the option of the Indian tribe, a 
funding agreement shall provide for an advance annual payment to an 
Indian tribe.
  ``(c) Amount.--
          ``(1) In general.--Subject to subsection (e) and sections 405 
        and 406, the Secretary shall provide funds to the Indian tribe 
        under a funding agreement for programs in an amount that is 
        equal to the amount that the Indian tribe would have been 
        entitled to receive under contracts and grants under this Act 
        (including amounts for direct program and contract support 
        costs and, in addition, any funds that are specifically or 
        functionally related to the provision by the Secretary of 
        services and benefits to the Indian tribe or its members) 
        without regard to the organization level within the Department 
        in which the programs are carried out.
          ``(2) Savings clause.--Nothing in this section shall be 
        construed to reduce funds of or provided to another Indian 
        tribe.
  ``(d) Timing.--Pursuant to the terms of any compact or funding 
agreement entered into under this part, the Secretary shall transfer to 
the Indian tribe all funds provided for in the funding agreement, 
pursuant to subsection (c), and provide funding for periods covered by 
joint resolution adopted by Congress making continuing appropriations, 
to the extent permitted by such resolution. Within 12 months from the 
date of enactment of this bill, 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.
  ``(e) Availability.--Funds for trust services to individual Indians 
shall be available under a funding agreement only to the extent that 
the same services that would have been provided by the Secretary are 
provided to individual Indians by the Indian tribe.
  ``(f) Multiyear Funding.--A funding agreement may provide for 
multiyear funding.
  ``(g) Limitations on Authority of the Secretary.--The Secretary shall 
not--
          ``(1) fail to transfer to an Indian tribe its full share of 
        any central, headquarters, regional, area, or service unit 
        office or other funds due under this title for programs 
        eligible under section 405(b)(1) or (b)(3), except as required 
        by Federal law;
          ``(2) withhold any portion of such funds for transfer over a 
        period of years; or
          ``(3) reduce the amount of funds required under this title--
                  ``(A) to make funding available for self-governance 
                monitoring or administration by the Secretary;
                  ``(B) in subsequent years, except as necessary as a 
                result of--
                          ``(i) a reduction in appropriations from the 
                        previous fiscal year for the program to be 
                        included in a compact or funding agreement;
                          ``(ii) a congressional directive in 
                        legislation or an accompanying report;
                          ``(iii) a tribal authorization;
                          ``(iv) a change in the amount of pass-through 
                        funds subject to the terms of the funding 
                        agreement; or
                          ``(v) completion of an activity under a 
                        program for which the funds were provided;
                  ``(C) to pay for Federal functions, including--
                          ``(i) Federal pay costs;
                          ``(ii) Federal employee retirement benefits;
                          ``(iii) automated data processing;
                          ``(iv) technical assistance; and
                          ``(v) monitoring of activities under this 
                        title; or
                  ``(D) to pay for costs of Federal personnel displaced 
                by self-determination contracts under this Act or self-
                governance under this title.
  ``(h) Federal Resources.--If an Indian tribe elects to carry out a 
compact or funding agreement with the use of Federal personnel, Federal 
supplies (including supplies available from Federal warehouse 
facilities), Federal supply sources (including lodging, airline 
transportation, and other means of transportation including the use of 
interagency motor pool vehicles), or other Federal resources (including 
supplies, services, and resources available to the Secretary under any 
procurement contracts in which the Department is eligible to 
participate), the Secretary shall, as soon as practicable, transfer 
such personnel, or acquire such supplies, or resources to the Indian 
tribe under this title.
  ``(i) Prompt Payment Act.--Chapter 39 of title 31, United States 
Code, shall apply to the transfer of funds due under a compact or 
funding agreement authorized under this title.
  ``(j) Interest or Other Income.--
          ``(1) In general.--An Indian tribe may retain interest or 
        income earned on any funds paid under a compact or funding 
        agreement to carry out governmental purposes.
          ``(2) No effect on other amounts.--The retention of interest 
        or income under paragraph (1) shall not diminish the amount of 
        funds an Indian tribe is entitled to receive under a funding 
        agreement in the year the interest or income is earned or in 
        any subsequent fiscal year.
          ``(3) Investment standard.--Funds transferred under this 
        title shall be managed by the Indian tribe using the prudent 
        investment standard, provided that the Secretary shall not be 
        liable for any investment losses of funds managed by the Indian 
        tribe which are not otherwise guaranteed or insured by the 
        Federal Government.
  ``(k) Carryover of Funds.--
          ``(1) In general.--Notwithstanding any provision of an Act of 
        appropriation, all funds paid to an Indian tribe in accordance 
        with a compact or funding agreement shall remain available 
        until expended.
          ``(2) Effect of carryover.--If an Indian tribe elects to 
        carry over funding from 1 year to the next, the carryover shall 
        not diminish the amount of funds the Indian tribe is entitled 
        to receive under a funding agreement in that fiscal year or any 
        subsequent fiscal year.
  ``(l) Limitation of Costs.--
          ``(1) In general.--An Indian tribe shall not be obligated to 
        continue performance that requires an expenditure of funds in 
        excess of the amount of funds transferred under a compact or 
        funding agreement.
          ``(2) Notice of insufficiency.--If at any time the Indian 
        tribe has reason to believe that the total amount provided for 
        a specific activity under a compact or funding agreement is 
        insufficient, the Indian tribe shall provide reasonable notice 
        of such insufficiency to the Secretary.
          ``(3) Suspension of performance.--If, after notice under 
        paragraph (2), the Secretary does not increase the amount of 
        funds transferred under the funding agreement, the Indian tribe 
        may suspend performance of the activity until such time as 
        additional funds are transferred.
  ``(m) Distribution of Funds.--The Office of Self-Governance shall be 
responsible for distribution of all Bureau of Indian Affairs funds 
provided under this title unless otherwise agreed by the parties.

``SEC. 410. FACILITATION.

  ``(a) In General.--Except as otherwise provided by law, the Secretary 
shall interpret each Federal law and regulation in a manner that 
facilitates--
          ``(1) the inclusion of programs in funding agreements; and
          ``(2) the implementation of funding agreements.
  ``(b) Regulation Waiver.--
          ``(1) Request.--An Indian tribe may submit a written request 
        for a waiver to the Secretary identifying the specific text in 
        regulation sought to be waived and the basis for the request.
          ``(2) Determination by the secretary.--Not later than 120 
        days after receipt by the Secretary of a request under 
        paragraph (1), the Secretary shall approve or deny the 
        requested waiver in writing to the Indian tribe.
          ``(3) Ground for denial.--The Secretary may deny a request 
        under paragraph (1)--
                  ``(A) for a program eligible under sections 405(b)(1) 
                and 405(b)(3) only upon a specific finding by the 
                Secretary that the identified text in the regulation 
                may not be waived because such a waiver is prohibited 
                by Federal law; and
                  ``(B) for a program eligible under section 405(b)(2), 
                on a specific finding by the Secretary that the 
                identified text in the regulation may not be waived 
                because such a waiver is prohibited under Federal law.
          ``(4) Failure to make determination.--If the Secretary fails 
        to approve or deny a waiver request within the time required 
        under paragraph (2), the Secretary shall be deemed to have 
        approved the request.
          ``(5) Finality.--The Secretary's decision shall be final for 
        the Department.

``SEC. 411. DISCLAIMERS.

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

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

  ``(a) In General.--At the option of a participating Indian tribe or 
Indian tribes, any of the provisions of title I shall be incorporated 
in any Department compact or funding agreement.
  ``(b) Effect.--Each incorporated provision--
          ``(1) shall have the same force and effect as if set out in 
        full in this title; and
          ``(2) shall be deemed to supplement or replace any related 
        provision in this title and to apply to any agency otherwise 
        governed by this title.
  ``(c) Effective Date.--If an Indian tribe requests incorporation at 
the negotiation stage of a compact or funding agreement, the 
incorporation--
          ``(1) shall be deemed effective immediately; and
          ``(2) shall control the negotiation and resulting compact and 
        funding agreement.

``SEC. 413. FUNDING NEEDS.

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

``SEC. 414. REPORTS.

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

``SEC. 415. REGULATIONS.

  ``(a) In General.--
          ``(1) Promulgation.--Not later than 90 days after the date of 
        the enactment of the Department of the Interior Tribal Self-
        Governance Act of 2009, 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 the amendments made by this title.
          ``(2) Publication of proposed regulations.--Proposed 
        regulations to implement the amendments shall be published in 
        the Federal Register not later than 18 months after the date of 
        the enactment of this title.
          ``(3) Expiration of authority.--The authority to promulgate 
        regulations under paragraph (1) shall expire on the date that 
        is 24 months after the date of the enactment of this title.
  ``(b) Committee.--
          ``(1) Membership.--A negotiated rulemaking committee 
        established pursuant to section 565 of title 5, United States 
        Code, to carry out this section shall have as its members only 
        Federal and tribal government representatives.
          ``(2) Lead agency.--Among the Federal representatives, the 
        Office of Self-Governance shall be the lead agency for the 
        Department.
  ``(c) Adaptation of Procedures.--The Secretary shall adapt the 
negotiated rulemaking procedures to the unique context of self-
governance and the government-to-government relationship between the 
United States and Indian tribes.
  ``(d) Effect.--
          ``(1) Repeal.--The Secretary is authorized to repeal any 
        regulation inconsistent with the provisions of this Act.
          ``(2) Conflicting provisions.--The provisions of this title 
        shall supersede any conflicting provisions of law (including 
        any conflicting regulations).
          ``(3) Effectiveness without regard to regulations.--The lack 
        of promulgated regulations on an issue shall not limit the 
        effect or the implementation of this title.

``SEC. 416. EFFECT OF CIRCULARS, POLICIES, MANUALS, GUIDANCES, AND 
                    RULES.

  ``Unless expressly agreed to by a participating Indian tribe in the 
compact or funding agreement, the participating Indian tribe shall not 
be subject to any agency circular, policy, manual, guidance, or rule 
adopted by the Department, except for--
          ``(1) the eligibility provisions of section 105(g); and
          ``(2) regulations promulgated under section 415.

``SEC. 417. APPEALS.

  ``In any administrative appeal or civil action for judicial review of 
any decision made by the Secretary under this title, the Secretary 
shall have the burden of proof of demonstrating by a preponderance of 
the evidence--
          ``(1) the validity of the grounds for the decision; and
          ``(2) the consistency of the decision with the provisions and 
        policies of this title.

``SEC. 418. AUTHORIZATION OF APPROPRIATIONS.

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

                          Purpose of the Bill

    The purpose of H.R. 4347 is to amend the Indian Self-
Determination and Education Assistance Act to provide further 
self-governance by Indian tribes, and for other purposes.

                  Background and Need for Legislation

    Indian tribes and Alaska Native villages are ``distinct, 
independent, political communities'' exercising powers of self-
government, not by virtue of any delegation of powers from the 
federal government, but rather by virtue of their own innate 
sovereignty. Tribal sovereignty predates the founding of the 
United States and the United States Constitution, and is the 
foundation from which the United States has continued its 
relationship with Indian tribes.

ISDEAA (P.L. 93-638)

    After acknowledging the failure of policies attempting to 
assimilate Indians and terminating the government-to-government 
relationship between the United States and Indian tribes, the 
United States in the early 1960s began expressing a policy of 
self-determination for Indian tribes. This was further realized 
in 1975 when Congress enacted the Indian Self-Determination and 
Education Assistance Act. This Act authorized Indian tribes and 
Alaska Native villages to enter into contracts (often referred 
to as ``638 contracts'') with the Bureau of Indian Affairs 
(BIA) and the IHS to receive funds and manage individual 
programs heretofore managed by the agency. The Act did so while 
retaining the United States' trust responsibility to Indian 
tribes.
    While the 638 contract program was seen as a good first 
step, it had several problems. Many long-time employees of the 
agencies were hesitant to give up authority, placing several 
obstacles in the way and requiring large amounts of paperwork 
from contracting Indian tribes. In addition, the program did 
not permit funds to be moved between programs to address 
unforeseen needs. The two biggest problems were attributed to 
the fact that the federal agency remained involved in many low-
level decisions and that payments were made to the tribes on a 
cost-reimbursement basis.

1988 ISDEAA Amendments (P.L. 100-472)

    In 1988, Congress enacted P.L. 100-472 establishing Title 
III of the ISDEAA, which authorized the Secretary of the 
Interior to negotiate self-governance compacts with 20 Indian 
tribes on a demonstration basis. For the first time, tribes 
were authorized to plan, administer, and consolidate programs 
and services that had always been administered by DOI. The 
programs compacted were those that were ``otherwise available 
to Indian tribes or Indians.'' The new compacts provided for a 
single Annual Funding Agreement, which would guarantee funding 
in one grant instead of funds coming from multiple contracts. 
In addition, tribes had the authority to design the programs to 
best meet the needs of their members.

1991 ISDEAA Amendments (P.L. 102-184)

    Continuing the program, in 1991, Congress enacted P.L. 102-
184 to expand the Title III program as well as the number of 
Indian tribes eligible to enter into self-governance compacts 
with DOI. Further, the Act directed IHS to study the 
feasibility of allowing self-governance compacts for IHS 
programs.
    In 1992, Congress amended section 314 of the Indian Health 
Care Improvement Act to authorize the Secretary of Health and 
Human Services to enter into self-governance compacts with 
Indian tribes pursuant to Title III of the ISDEAA.

1994 ISDEAA Amendments (P.L. 103-413)

    Congress enacted P.L. 103-413 in 1994, establishing Title 
IV of the ISDEAA. Title IV made permanent the self-governance 
program within the BIA and directed the Secretary of the 
Interior to negotiate annual funding agreements with Indian 
tribes in a manner consistent with the federal trust 
responsibility. In response to DOI's failure to promulgate 
regulations to that date, the Act included negotiated rule-
making between Indian tribes and DOI. Certain non-BIA programs 
were made eligible for compacting and the number of tribes 
eligible to participate in the self-governance program was 
again expanded.

2000 ISDEAA Amendments (P.L. 106-260)

    In 2000, Congress enacted P.L. 106-260, which made the 
self-governance program within IHS permanent, and once again 
expanded the number of eligible tribes. It made several 
changes, such as adding definitions, identifying mandatory and 
prohibited terms and conditions of compacts, funding 
agreements, and construction projects, and requiring studies 
and reports. Several of these changes are included in H.R. 4347 
in order to make the DOI self-governance program consistent 
with the IHS self-governance program.

Economic Development

    In 2004, the Government Accountability Office (GAO) 
prepared a report on Indian economic development. As part of 
the report, GAO looked at the impact the self-governance 
program had on tribal economic development. Although GAO did 
not look for a direct causal relationship between the self-
governance program and economic development, GAO noted that 
tribes that engaged in self-governance had greater gains in 
employment levels from 1990 to 2000 compared to tribes that 
participated less in the program. They also noted that self-
governance tribes experienced positive growth in employment 
levels and per capita income.
    Some tribal representatives have indicated that 
participation in the self-governance program provided other 
benefits, such as developing specific skills, which could be 
used in other tribal activities. Additionally, by having the 
ability to design their own programs, some tribes were able to 
exercise greater control and flexibility in the use of funds to 
set their own priorities.

H.R. 4347

    H.R. 4347 would amend Title I and Title IV of the Indian 
Self-Determination and Education Assistance Act (ISDEAA) (25 
U.S.C. Sec. 450 et seq.). Title I authorizes and sets forth 
criteria for the contracting program within the Department of 
the Interior and the Department of Health and Human Services 
while Title IV authorizes and sets forth criteria for the self-
governance program at the Department of the Interior (DOI).
    Pursuant to the Title I self-determination contracting 
program, Indian tribes enter into contracts to perform certain 
functions and activities currently performed by the federal 
government. The programs eligible for contracting are limited 
to programs that are authorized under specified laws or that 
are for the benefit of Indian tribes. This bill would amend 
Title I to make technical changes and to allow tribes to become 
familiar with some aspects of self-governance without requiring 
them to enter into self-governance compacts and undertaking the 
broader array of activities and duties required under Title IV.
    Similarly, Title IV authorizes Indian tribes to enter into 
self-governance compacts to perform whole programs, oftentimes 
several programs, which are currently performed by the federal 
government. Under both Title I and Title IV, the tribes act as 
if they are stepping into the shoes of the federal government 
when performing activities and administering programs. The 
Secretary of the Interior monitors the performance of trust 
functions and has the authority to reassume the activity or 
program in certain situations. Finally, this bill would amend 
Title IV to make the self-governance program at DOI consistent 
with Title V, which authorizes and sets forth criteria for the 
self-governance program at the Indian Health Service (IHS).

                            Committee Action

    H.R. 4347 was introduced on December 16, 2009, by Rep. Dan 
Boren (D-OK), cosponsored by Rep. Tim Walz (D-MN). The bill was 
referred to the Committee on Natural Resources. On June 9, 
2010, the Committee held a hearing on this legislation.
    On July 22, 2010, the Committee met to consider the bill. 
Rep. Boren offered an amendment in the nature of a substitute 
that would address the major concerns identified by DOI in 
their testimony at the June 9, 2010 hearing. The amendment in 
the nature of a substitute was adopted by voice vote. The bill, 
as amended, was then ordered favorably reported to the House of 
Representatives by voice vote.

                      Section-by-Section Analysis


Section 1. Short title; Table of Contents

    Section 1 provides that this Act may be cited as the 
``Department of the Interior Tribal Self-Governance Act of 
2010,'' and provides the table of contents.

Title I--Indian Self-Determination

            Section 101. Definitions; reporting and audit requirements; 
                    application of provisions
    Section 101 amends the Indian Self-Determination and 
Education Assistance Act (ISDEAA) (25 U.S.C. 450) to include 
the definition of ``self-determination contract.'' This section 
also revises the provision to say that: (1) no contract shall 
be considered to be a procurement contract, and (2) no contract 
shall be subject to any federal procurement law, including 
regulations. Construction contracts under Section 105(a)(3) are 
excepted because that provision allows the parties to agree to 
make certain procurement provisions applicable. The section 
further provides that certain sections of ISDEAA and the 
Department of the Interior and Related Agencies Appropriations 
Act, 1991 (Public Law 101-512) apply to certain compacts and 
Funding Agreements (FAs). The Committee's intent is to conform 
Title IV administration and authority to existing practice 
under a similar provision in Title V adopted by Congress in 
2000.
            Section 102. Contracts by the Secretary of the Interior
    Section 102 amends the ISDEAA to simplify a reference to 
the Indian Financing Act of 1974. This section also sets forth 
a ``preponderance of the evidence'' standard, and would require 
that decisions be consistent with the provisions and policies 
of ISDEAA. The section strikes existing language that requires 
that decisions that constitute final agency action and relate 
to an appeal of a refusal of request to contract be made either 
by a certain level of official within the Department of the 
Interior (DOI) or the Department of Health and Human Services 
or by an administrative judge. In addition, this section 
requires the Secretary of the Interior (Secretary) to negotiate 
compacts and FAs in good faith.
            Section 103. Administrative provisions
    Section 103 makes a minor correction to Section 105 of 
ISDEAA by substituting a reference to Sections 102 and 103 (as 
opposed to 450f and 450h of Title 25). The section also 
provides an Indian tribe meeting certain requirements with the 
opportunity to redesign or consolidate certain programs, 
services, functions, and activities. Further, this section 
would require the Secretary to interpret all federal laws and 
Executive Orders in a manner that benefits tribes and 
facilitates inclusion of programs, functions, services, and 
activities (PFSA) in self-determination contracts and FAs; 
implementation of self-determination contracts and FAs; and 
achievement of tribal objectives.
            Section 104. Contract funding and indirect costs
    Section 104 adds a category of expenses that are eligible 
costs for the purposes of receiving funding and would codify a 
recent decision by the Office of Management and Budget and DOI 
on documentation requirements. Under the change, eligible costs 
would include not less than 50% of the expenses incurred by the 
governing body of a tribe or tribal organization relating to a 
PFSA pursuant to the contract, or, in the case of a tribe or 
tribal organization which derives all or substantially all of 
its program revenue from other governments or organizations, 
not less than 100% of such expenses. Furthermore, such expenses 
of a tribal governing body shall be treated as reasonable and 
allowable without burdensome documentation requirements, 
because they are presumed to be related to the administration 
of federal responsibilities assumed by the tribal governing 
body.
            Section 105. Contract or grant specifications
    Section 105 clarifies that provisions in the model 
statutory agreement allowing the parties to agree to additional 
contract and FA terms do not make inapplicable the provisions 
in Section 102 of ISDEAA requiring proposals and declinations.

Title II--Tribal Self-Governance

            Section 201. Tribal self-governance.
    Section 201 amends ISDEAA to include a revised Title IV--
Tribal Self-Governance.

Title IV--Tribal Self-Governance

            Section 401. Definitions
    Section 401 provides definitions for key terms included in 
this title.
            Section 402. Establishment
    Section 402 directs the Secretary to establish the Tribal 
Self-Governance Program (Program).
            Section 403. Selection of participating Indian tribes
    Section 403 sets forth the terms of eligibility for 
participation in self-governance. An otherwise ineligible 
tribal organization is eligible to participate in self-
governance as a single entity upon each tribe's request when at 
least one member tribe is eligible. It also sets forth 
procedures for a tribe to withdraw from a tribal organization, 
in whole or in part, as well as provisions for distributing 
funds to a withdrawing tribe. To be eligible to participate in 
self-governance, a tribe must successfully complete a planning 
phase; request participation in self-governance by resolution 
or other official action by the tribal governing body; and 
demonstrate, for the previous three fiscal years, financial 
stability and financial management capability as evidenced by 
the tribe having no uncorrected significant and material audit 
exceptions in the required annual audit of its agreements with 
any federal agency. Tribes are eligible to receive grants for 
planning to participate, or negotiating the terms of 
participation, in the Program.
            Section 404. Compacts
    Section 404 directs the Secretary to negotiate and enter 
into a written compact with tribes participating in the 
Program. Tribes may retain existing compacts, in whole or in 
part, or negotiate new compacts.
            Section 405. Funding agreements
    Section 405 directs the Secretary to negotiate and enter 
into a FA with the governing body of an Indian tribe or tribal 
organization. It clarifies that a FA authorizes a tribe, at its 
option, to plan, conduct, consolidate, administer and receive 
full tribal share funding for all PFSAs of the Bureau of Indian 
Affairs (BIA), the Office of the Assistant Secretary for Indian 
Affairs (AS-IA), and the Office of the Special Trustee (OST). A 
FA may include PFSAs administered by the Secretary that are of 
special geographic, historical, or cultural significance to the 
tribe. However, for discretionary programs of special 
significance, the Secretary has discretion with respect to 
reallocation and consolidation, reassumption, terms and 
conditions regarding construction, and applicable regulations. 
In addition, this section provides the Secretary the discretion 
to reassume any program and associated funding upon certain 
findings.
    The section also provides that a FA shall authorize a 
tribe, at its option, to plan, conduct, consolidate, 
administer, and receive full tribal share funding for any 
program administered by DOI other than through the BIA, AS-IA, 
and OST, that is otherwise available to tribes or Indians under 
Section 102 of ISDEAA. With regard to discretionary programs of 
special significance, nothing in this section overrides the 
requirement in a FA for competitive bidding or bars the 
inclusion in a FA of a program where tribes have an interest. A 
tribe has discretion to include in its FA, with respect to BIA, 
AS-IA, OST, and programs otherwise available, a provision for a 
stable budget specifying recurring funds. For discretionary 
programs of special significance, a FA may provide for a stable 
base budget upon agreement by the Secretary. Absent tribal 
consent, the Secretary cannot amend the terms of a FA. This 
section also provides tribes with existing FAs more options 
with respect to subsequent FAs and negotiating multi-year FAs.
            Section 406. General provisions
    Section 406 provides that a tribe include in its FA or 
compact internal measures to address conflicts of interest. In 
addition, the Single Agency Audit Act applies to FAs and a 
tribe must comply with applicable Office of Management and 
Budget cost principles. This section gives tribes discretion to 
redesign and consolidate programs or reallocate funds so long 
as neither denies services to eligible Indians. With respect to 
discretionary programs of special significance, however, 
reallocation, consolidation, and redesign are only allowed when 
the Secretary and the tribe enter into a joint agreement. 
Tribal records are not subject to the Administrative Procedures 
Act, unless a tribe specifies otherwise in a FA or a compact. A 
tribe must provide the Secretary with reasonable access to its 
records with at least 30 days notice.
            Section 407. Provisions related to the Secretary
    Section 407 provides that a FA include a provision to 
monitor the performance of trust functions by the Indian tribe. 
A compact or a FA shall include provisions for the Secretary to 
reassume a program and associated funding upon certain 
findings. It requires the Secretary to provide notice, a 
hearing, and an opportunity for a tribe to take corrective 
action before reassuming a program. The Secretary must make a 
specific finding of imminent jeopardy to a trust asset, natural 
resources, or public health and safety; or gross mismanagement 
(under a preponderance of the evidence standard), to reassume a 
program and associated funding. However, there are 
circumstances under which the Secretary may, on written notice 
to the tribe, immediately reassume operation of a program.
    This section further provides that if the Secretary and a 
participating Indian tribe are unable to agree on the terms of 
a compact or funding agreement, the Indian tribe may submit a 
final offer to the Secretary. It further provides the 
Secretary's criteria and procedures for considering a tribe's 
final offer. The Secretary bears the burden to prove by a 
preponderance of the evidence the validity of the grounds for 
rejecting a final offer or reassuming a program.
    In addition, this section provides that the Secretary shall 
negotiate in good faith and may not waive, modify, or diminish 
the trust responsibility. Further, the Secretary must make 
savings available to a tribe for the provision of additional 
services to tribal beneficiaries. Finally, Section 407 requires 
that Title IV compacts and FAs be construed for the benefit of 
tribes and any ambiguities be resolved in favor of tribes.
            Section 408. Construction programs and projects
    Section 408 provides that Indian tribes participating in 
tribal self-governance may carry out construction projects 
under Title IV and sets forth the responsibilities and 
procedures of tribes undertaking these construction projects. 
Tribes may, subject to the Secretary's agreement, choose to 
carry out certain federal responsibilities under the National 
Environmental Policy Act, the National Historic Preservation 
Act, and related federal laws that are applicable if the 
Secretary undertakes a construction project. Further, tribes 
must adhere to building codes and standards in carrying out a 
construction project, and must be accountable for successful 
completion of a project. This section provides that funding for 
construction projects must be included in FAs as annual or 
semi-annual advance payments. Section 408 provides the 
Secretary with at least one opportunity to review and approve a 
tribe's project planning and design documents. Finally, federal 
laws pertaining to procurement do not apply to a construction 
program or project absent tribal consent.
            Section 409. Payment
    Section 409 authorizes multi-year FAs. It directs the 
Secretary to transfer tribal shares and resources to a tribe in 
a timely fashion. The Secretary may not reduce funding from 
year to year unless one of five narrowly defined exceptions 
applies. A tribe may carry over funding, interest, or income 
from year to year without diminishing its future entitlements. 
A tribe need not continue to perform a compact or a FA with 
insufficient funds and may suspend its performance (after 
providing reasonable notice of such insufficiency to the 
Secretary) until funds are adequate.
            Section 410. Facilitation
    Section 410 requires the Secretary to interpret federal 
laws in a manner that facilitates the implementation of, and 
the inclusion of programs in, FAs. It provides that an Indian 
tribe may submit a written request for a waiver of federal 
regulations to the Secretary. The Secretary must approve a 
tribe's request for a waiver if the waiver is not prohibited by 
statute. In addition, if the request is not approved or denied 
within 120 days, the waiver request is deemed approved.
            Section 411. Disclaimers
    Section 411 provides that Title IV neither expands nor 
alters the Secretary's statutory authority to enter into any FA 
with respect to an inherent federal function, in instances 
where a statute prohibits a tribe's participation in a program, 
or when the FA would limit or reduce services, contracts, or 
funds that any other tribe is eligible to receive under federal 
law.
            Section 412. Discretionary application of other sections
    Section 412 provides a tribe with the discretion to 
incorporate any provision of Title I into a compact or a FA.
            Section 413. Funding needs
    Section 413 requires the President to identify in a report 
to accompany the annual budget request submitted to Congress 
all amounts necessary to fully fund all FAs entered into under 
this Act. In addition, the Secretary shall identify in a report 
accompanying each budget request the amount of funds that are 
sufficient for planning and negotiation grants and sufficient 
to cover any shortfall in certain funding including direct 
program costs, tribal shares, and contract support costs.
            Section 414. Reports
    Section 414 requires the Secretary to submit an annual 
report to Congress regarding the administration of Title IV. 
This report is to include an analysis of unmet tribal needs, 
whether the tribe is served directly by the Secretary or under 
compacts and funding agreements. In addition, the Secretary may 
not impose any reporting requirements on participating tribes 
other than those provided for in Title IV. It provides that the 
reports be compiled from certain documents and identifies 
particular areas of interest. It further requires that reports 
include a description of methodologies used to determine 
individual tribal shares. Reports must be distributed to tribes 
for comment prior to submission.
    This section also requires the Secretary to submit an 
annual report to Congress on non-BIA and non-OST programs. 
Section 414 requires that the Secretary, in consultation with 
tribes, develop a funding formula to determine the individual 
tribal share of funds controlled by the Central Office of BIA, 
OST, and AS-IA for inclusion in compacts. The Committee intends 
this requirement to reverse a trend in recent years in which 
the Department has removed PFSAs from negotiation into tribal 
shares by unilaterally shifting them to offices and 
administrative levels under reorganization plans that purport 
to put them out of reach of tribal negotiation.
            Section 415. Regulations
    Section 415 requires negotiated rulemaking and the 
publication of proposed implementing regulations in the Federal 
Register. It sets forth the membership criteria for the 
negotiated rulemaking committee. This section further 
authorizes the Secretary to repeal any regulation inconsistent 
with the provisions of this Act. Finally, it provides that the 
lack of promulgated regulations shall not limit the effect or 
implementation of this title. The Committee intends the 
negotiated rulemaking to be conducted only with tribal 
government representatives, consistent with the unique 
government-to-government relationship between tribes and the 
United States.
            Section 416. Effect of circulars, policies, manuals, 
                    guidance, and rules
    Section 416 provides that except for the eligibility 
provisions of section 105(g) and regulations of section 415 of 
the ISDEAA, a tribe is not subject to any agency circular, 
policy, manual, or guidance absent the tribe's consent.
            Section 417. Appeals
    Section 417 provides that the Secretary has the burden to 
prove by a preponderance of the evidence the validity of 
grounds for his decisions, as well as their consistency with 
Title IV requirements and policies.
            Section 418. Authorization of appropriations
    Section 418 authorizes the appropriation of such sums as 
may be necessary to carry out Title IV.

            Committee Oversight Findings and Recommendations

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Natural Resources' oversight findings and 
recommendations are reflected in the body of this report.

                   Constitutional Authority Statement

    Article I, section 8 of the Constitution of the United 
States grants Congress the authority to enact this bill.

                    Compliance With House Rule XIII

    1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the 
Rules of the House of Representatives requires an estimate and 
a comparison by the Committee of the costs which would be 
incurred in carrying out this bill. However, clause 3(d)(3)(B) 
of that rule provides that this requirement does not apply when 
the Committee has included in its report a timely submitted 
cost estimate of the bill prepared by the Director of the 
Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974.
    2. Congressional Budget Act. As required by clause 3(c)(2) 
of rule XIII of the Rules of the House of Representatives and 
section 308(a) of the Congressional Budget Act of 1974, this 
bill does not contain any new budget authority, spending 
authority, credit authority, or an increase or decrease in 
revenues or tax expenditures.
    3. General Performance Goals and Objectives. As required by 
clause 3(c)(4) of rule XIII, the general performance goal or 
objective of this bill is to amend the Indian Self-
Determination and Education Assistance Act to provide further 
self-governance by Indian tribes, and for other purposes.
    4. Congressional Budget Office Cost Estimate. Under clause 
3(c)(3) of rule XIII of the Rules of the House of 
Representatives and section 403 of the Congressional Budget Act 
of 1974, the Committee has received the following cost estimate 
for this bill from the Director of the Congressional Budget 
Office:

H.R. 4347--Department of the Interior Tribal Self-Governance Act of 
        2010

    Summary: H.R. 4347 would amend certain provisions of the 
Indian Self-Determination and Education Assistance Act related 
to the Tribal Self-Governance Program. That program authorizes 
Indian tribes to assume responsibilities for certain programs, 
functions, and services or activities that would otherwise be 
carried out by the federal government. Based on information 
from the Department of the Interior (DOI), CBO estimates that 
implementing the legislation would cost $5 million over the 
2011-2015 period. Enacting H.R. 4347 would not affect direct 
spending or revenues; therefore, pay-as-you-go procedures do 
not apply.
    H.R. 4347 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would impose no costs on state, local, or tribal 
governments.
    Estimated cost to the Federal Government: The estimated 
budgetary impact of H.R. 4347 is shown in the following table. 
The costs of this legislation fall within budget function 450 
(community and regional development).

----------------------------------------------------------------------------------------------------------------
                                                                    By fiscal year, in millions of dollars--
                                                              --------------------------------------------------
                                                                2011    2012    2013    2014    2015   2011-2015
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated Authorization Level................................       1       1       1       1       1          5
Estimated Outlays............................................       1       1       1       1       1          5
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: For this estimate, CBO assumes that the 
legislation will be enacted near the end of 2010 and that the 
necessary amounts will be appropriated for each fiscal year.
    H.R. 4347 would amend current law related to DOI's Tribal 
Self-Governance Program. The bill would modify eligibility 
requirements for tribes participating in the program and would 
establish new guidelines for administering the program. Based 
on information provided by DOI, CBO expects that implementing 
the legislation would increase the agency's administrative 
responsibilities because more tribes would participate in the 
self-governance program and the agency would be subject to new 
requirements. Assuming appropriation of the necessary amounts, 
CBO estimates that implementing the legislation would cost $1 
million a year over the 2011-2015 period. DOI would use those 
funds to hire additional staff and to make technical upgrades 
to computer equipment to carry out the administrative 
activities required under the bill.
    Pay-as-you-go considerations: None.
    Intergovernmental and private-sector impact: H.R. 4347 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would impose no costs on state, local, or 
tribal governments. Many of the changes made by this 
legislation would benefit the tribes that participate in self-
governance compacts with the Department of the Interior.
    Estimate prepared by: Federal Costs: Jeff LaFave; Impact on 
State, Local, and Tribal Governments: Melissa Merrell; Impact 
on the Private Sector: Marin Randall.
    Estimate approved by: Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                    Compliance With Public Law 104-4

    This bill contains no unfunded mandates.

                           Earmark Statement

    H.R. 4347 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of rule XXI.

                Preemption of State, Local or Tribal Law

    This bill is not intended to preempt any State, local or 
tribal law.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACT

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  Sec. 4. For purposes of this Act, the term--
          (a) * * *

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          [(j) ``self-determination contract'' means a contract 
        (or grant or cooperative agreement utilized under 
        section 9 of this Act) entered into under title I of 
        this Act between a tribal organization and the 
        appropriate Secretary for the planning, conduct and 
        administration of programs or services which are 
        otherwise provided to Indian tribes and their members 
        pursuant to Federal law: Provided, That except as 
        provided the last proviso in section 105(a) of this 
        Act, no contract (or grant or cooperative agreement 
        utilized under section 9 of this Act) entered into 
        under title I of this Act shall be construed to be a 
        procurement contract;]
          (j) ``self-determination contract'' means a contract 
        entered into (or a grant or cooperative agreement used 
        under section 9) under title I between a tribal 
        organization and the appropriate Secretary for the 
        planning, conduct, and administration of programs or 
        services that are otherwise provided to Indian tribes 
        and members of Indian tribes pursuant to Federal law, 
        subject to the condition that, except as provided in 
        section 105(a)(3), no contract entered into (or grant 
        or cooperative agreement used under section 9) under 
        title I shall be--
                  (1) considered to be a procurement contract; 
                or
                  (2) subject to any Federal procurement law 
                (including regulations);

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                    REPORTING AND AUDIT REQUIREMENTS

  Sec. 5. (a) * * *
  (b) The Comptroller General and the appropriate Secretary, or 
any of their duly authorized representatives, shall, until the 
expiration of three years [after completion of the project or 
undertaking referred to in the preceding subsection of this 
section] after the date on which a report is submitted to the 
Secretary under subsection (a), have access (for the purpose of 
audit and examination) to any books, documents, papers, and 
records of such recipients which in the opinion of the 
Comptroller General or the appropriate Secretary may be related 
or pertinent to the grants, contracts, subcontracts, subgrants, 
or other arrangements referred to in the preceding subsection.

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TITLE I--INDIAN SELF-DETERMINATION ACT

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               CONTRACTS BY THE SECRETARY OF THE INTERIOR

  Sec. 102. (a) * * *

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  (c)(1) * * *
  (2) In obtaining or providing such coverage, the Secretary 
shall, to the greatest extent practicable, give a perference to 
coverage underwritten by Indian-owned [economic enterprises as 
defined in section 3 of the Indian Financing Act of 1974 (88 
Stat. 77; 25 U.S.C. 1451 et seq.), except that] economic 
enterprises (as defined in section 3 of the Indian Financing 
Act of 1974 (25 U.S.C. 1452)), except that, for the purposes of 
this subsection, such enterprises may include non-profit 
corporations.

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  [(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), 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) Notwithstanding any other provision of law, a decision 
by an official of the Department of the Interior or the 
Department of Health and Human Services, as appropriate 
(referred to in this paragraph as the ``Department'') that 
constitutes final agency action and that relates to an appeal 
within the Department that is conducted under subsection (b)(3) 
shall be made either--
          [(A) 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 
        (such as the Indian Health Service or the Bureau of 
        Indian Affairs) in which the decision that is the 
        subject of the appeal was made; or
          [(B) by an administrative judge.]
  (e) 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 a 
preponderance of the evidence--
          (1) the validity of the grounds for the decision 
        made; and
          (2) that the decision is fully consistent with the 
        provisions and policies of this title.
  (f) Good Faith Requirement.--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 2000 (Public Law 
106-260; 25 U.S.C. 458aaa note).

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                       ADMINISTRATIVE PROVISIONS

  Sec. 105. (a) * * *
  (b) Payments of any grants or under any contracts [pursuant 
to Sections 102 and 103 of this Act] pursuant to sections 102 
and 103 may be made in advance or by way of reimbursement and 
in such installments and on such conditions as the appropriate 
Secretary deems necessary to carry out the purposes of this 
title. The transfer of funds shall be scheduled consistent with 
program requirements and applicable Treasury regulations, so as 
to minimize the time elapsing between the transfer of such 
funds from the United States Treasury and the disbursement 
thereof by the tribal organization, whether such disbursement 
occurs prior to or subsequent to such transfer of funds. Tribal 
organizations shall not be held accountable for interest earned 
on such funds, pending their disbursement by such organization.

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  [(j) Upon providing notice to the Secretary, a tribal 
organization that carries out a nonconstruction self-
determination contract may propose a redesign of a program, 
activity, function, or service carried out by the tribal 
organization under the contract, including any nonstatutory 
program standard, in such manner as to best meet the local 
geographic, demographic, economic, cultural, health, and 
institutional needs of the Indian people and tribes served 
under the contract. The Secretary shall evaluate any proposal 
to redesign any program, activity, function, or service 
provided under the contract. With respect to declining to 
approve a redesigned program, activity, function, or service 
under this subsection, the Secretary shall apply the criteria 
and procedures set forth in section 102.]
  (j) Redesign and Consolidation.--If an Indian tribe can 
demonstrate, for the previous three fiscal years, the financial 
stability and financial management capability as evidenced by 
the Indian tribe having no material audit exceptions in the 
required annual audit of the self-determination contracts of 
the Indian tribe, then the Indian tribe may redesign or 
consolidate programs, services, functions, and activities (or 
portions thereof) included in a funding agreement under this 
title and reallocate or redirect funds for such programs, 
services, functions, and activities (or portions thereof) that 
are eligible to be included in Consolidated Tribal Government 
Programs in any manner that the Indian tribe determines 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 
applicable Federal law.

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  (p) Interpretation by Secretary.--Except as otherwise 
provided by law, the Secretary shall interpret all Federal laws 
(including regulations) and Executive orders in a manner that 
facilitates, to the maximum extent practicable--
          (1) the inclusion in self-determination contracts and 
        funding agreements of--
                  (A) applicable programs, services, functions, 
                and activities (or portions thereof); and
                  (B) funds associated with those programs, 
                services, functions, and activities;
          (2) the implementation of self-determination 
        contracts and funding agreements; and
          (3) the achievement of tribal health objectives.
  Sec. 106. (a)(1) * * *

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  (3)(A) The contract support costs that are eligible costs for 
the purposes of receiving funding under this Act shall include 
the costs of reimbursing each tribal contractor for reasonable 
and allowable costs of--
          (i) direct program expenses for the operation of the 
        Federal program that is the subject of the contract[, 
        and];
          (ii) any additional administrative or other [expense 
        related to the overhead incurred] expenses incurred by 
        the governing body of the Indian tribe or tribal 
        organization and overhead incurred by the tribal 
        contractor in connection with the operation of the 
        Federal program, function, service, or activity 
        pursuant to the contract[,]; and
          (iii) not less than 50 percent of the expenses 
        incurred by the governing body of a Indian tribe or 
        tribal organization relating to a Federal program, 
        function, service, or activity pursuant to the contract 
        (which expenses shall be considered to be reasonable 
        and allowable without documentation for the purpose of 
        this paragraph), except that in the case of a Indian 
        tribe or tribal organization which derives all or 
        substantially all of its program revenue from other 
        governments or organizations, not less than 100 percent 
        of such expenses shall be considered to be reasonable 
        and allowable without documentation.

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SEC. 108. CONTRACT OR GRANT SPECIFICATIONS.

  (a) Each self-determination contract entered into under this 
Act shall--
          (1) * * *
          (2) subject to subsections (a) and (b) of section 
        102, contain such other provisions as are agreed to by 
        the parties.

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  (c) The model agreement referred to in subsection (a)(1) 
reads as follows:

``SECTION 1. AGREEMENT BETWEEN THE SECRETARY AND THE __ TRIBAL 
                    GOVERNMENT.

  ``(a) * * *

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  ``(f) Attachments.--
          ``(1) * * *
          ``(2) Annual funding agreement.--
                  ``(A) In general.--The annual funding 
                agreement under this Contract shall only 
                contain--
                          ``(i) * * *
                          ``(ii) subject to subsections (a) and 
                        (b) of section 102 of the Indian Self-
                        Determination and Education Assistance 
                        Act (25 U.S.C. 450f), such other 
                        provisions, including a brief 
                        description of the programs, services, 
                        functions, and activities to be 
                        performed (including those supported by 
                        financial resources other than those 
                        provided by the Secretary), to which 
                        the parties agree.

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                   [TITLE IV--TRIBAL SELF-GOVERNANCE

[SEC. 401. ESTABLISHMENT.

  [The Secretary of the Interior (hereinafter in this title 
referred to as the ``Secretary'') shall establish and carry out 
a program within the Department of the Interior to be known as 
Tribal Self-Governance (hereinafter in this title referred to 
as ``Self-Governance'') in accordance with this title.

[SEC. 402. SELECTION OF PARTICIPATING INDIAN TRIBES.

  [(a) Continuing Participation.--Each Indian tribe that is 
participating in the Tribal Self-Governance Demonstration 
Project at the Department of the Interior under title III on 
the date of enactment of this title shall thereafter 
participate in Self-Governance under this title and cease 
participation in the Tribal Self-Governance Demonstration 
Project under title III with respect to the Department of the 
Interior.
  [(b) Additional Participants.--(1) In addition to those 
Indian tribes participating in self-governance under subsection 
(a) of this section, the Secretary, acting through the Director 
of the Office of Self-Governance, may select up to 50 new 
tribes per year from the applicant pool described in subsection 
(c) of this section to participate in self-governance.
  [(2) If each tribe requests, two or more otherwise eligible 
Indian tribes may be treated as a single Indian tribe for the 
purpose of participating in Self-Governance as a consortium.
  [(c) Applicant Pool.--The qualified applicant pool for Self-
Governance shall consist of each tribe that--
          [(1) successfully completes the planning phase 
        described in subsection (d);
          [(2) has requested participation in Self-Governance 
        by resolution or other official action by the tribal 
        governing body; and
          [(3) has demonstrated, for the previous three fiscal 
        years, financial stability and financial management 
        capability as evidenced by the tribe having no material 
        audit exceptions in the required annual audit of the 
        self-determination contracts of the tribe.
  [(d) Planning Phase.--Each Indian tribe seeking to begin 
participation in Self-Governance shall complete a planning 
phase in accordance with this subsection. The tribe shall be 
eligible for a grant to plan and negotiate participation in 
Self-Governance. The planning phase shall include--
          [(1) legal and budgetary research; and
          [(2) internal tribal government planning and 
        organizational preparation.

[SEC. 403. FUNDING AGREEMENTS.

  [(a) Authorization.--The Secretary shall negotiate and enter 
into an annual written funding agreement with the governing 
body of each participating tribal government in a manner 
consistent with the Federal Government's laws and trust 
relationship to and responsibility for the Indian people.
  [(b) Contents.--Each funding agreement shall--
          [(1) authorize the tribe to plan, conduct, 
        consolidate, and administer programs, services, 
        functions, and activities, or portions thereof, 
        administered by the Department of the Interior through 
        the Bureau of Indian Affairs, without regard to the 
        agency or office of the Bureau of Indian Affairs within 
        which the program, service, function, and activity, or 
        portion thereof, is performed, including funding for 
        agency, area, and central office functions in 
        accordance with subsection (g)(3), and including any 
        program, service, function, and activity, or portion 
        thereof, administered under the authority of--
                  [(A) the Act of April 16, 1934 (25 U.S.C. 452 
                et seq.);
                  [(B) the Act of November 2, 1921 (25 U.S.C. 
                13); and
                  [(C) programs, services, functions, and 
                activities or portions thereof administered by 
                the Secretary of the Interior that are 
                otherwise available to Indian tribes or Indians 
                for which appropriations are made to agencies 
                other than the Department of the Interior;
          [(2) subject to such terms as may be negotiated, 
        authorize the tribe to plan, conduct, consolidate, and 
        administer programs, services, functions, and 
        activities, or portions thereof, administered by the 
        Department of the Interior, other than through the 
        Bureau of Indian Affairs, that are otherwise available 
        to Indian tribes or Indians, as identified in section 
        405(c), except that nothing in this subsection may be 
        construed to provide any tribe with a preference with 
        respect to the opportunity of the tribe to administer 
        programs, services, functions, and activities, or 
        portions thereof, unless such preference is otherwise 
        provided for by law;
          [(3) subject to the terms of the agreement, authorize 
        the tribe to redesign or consolidate programs, 
        services, functions, and activities, or portions 
        thereof, and reallocate funds for such programs, 
        services, functions, and activities, or portions 
        thereof, except that, with respect to the reallocation, 
        consolidation, and redesign of programs described in 
        paragraph (2), a joint agreement between the Secretary 
        and the tribe shall be required;
          [(4) prohibit the inclusion of funds provided--
                  [(A) pursuant to the Tribally Controlled 
                Colleges and Universities Assistance Act of 
                1978 (25 U.S.C. 1801 et seq.);
                  [(B) for elementary and secondary schools 
                under the formula developed pursuant to section 
                1128 of the Education Amendments of 1978 (25 
                U.S.C. 2008); and
                  [(C) the Flathead Agency Irrigation Division 
                or the Flathead Agency Power Division, except 
                that nothing in this section shall affect the 
                contract authority of such divisions under 
                section 102;
          [(5) specify the services to be provided, the 
        functions to be performed, and the responsibilities of 
        the tribe and the Secretary pursuant to the agreement;
          [(6) authorize the tribe and the Secretary to 
        reallocate funds or modify budget allocations within 
        any year, and specify the procedures to be used;
          [(7) allow for retrocession of programs or portions 
        of programs pursuant to section 105(e);
          [(8) provide that, for the year for which, and to the 
        extent to which, funding is provided to a tribe under 
        this section, the tribe--
                  [(A) shall not be entitled to contract with 
                the Secretary for such funds under section 102, 
                except that such tribe shall be eligible for 
                new programs on the same basis as other tribes; 
                and
                  [(B) shall be responsible for the 
                administration of programs, services, 
                functions, and activities pursuant to 
                agreements entered into under this section; and
          [(9) prohibit the Secretary from waiving, modifying, 
        or diminishing in any way the trust responsibility of 
        the United States with respect to Indian tribes and 
        individual Indians that exists under treaties, 
        Executive orders, and other laws.
  [(c) Additional Activities.--Each funding agreement 
negotiated pursuant to subsections (a) and (b) may, in 
accordance to such additional terms as the parties deem 
appropriate, also include other programs, services, functions, 
and activities, or portions thereof, administered by the 
Secretary of the Interior which are of special geographic, 
historical, or cultural significance to the participating 
Indian tribe requesting a compact.
  [(d) Provisions Relating to the Secretary.--Funding 
agreements negotiated between the Secretary and an Indian tribe 
shall include provisions--
          [(1) to monitor the performance of trust functions by 
        the tribe through the annual trust evaluation, and
          [(2) for the Secretary to reassume a program, 
        service, function, or activity, or portions thereof, if 
        there is a finding of imminent jeopardy to a physical 
        trust asset, natural resources, or public health and 
        safety.
  [(e) Construction Projects.--(1) Regarding construction 
programs or projects, the Secretary and Indian tribes may 
negotiate for the inclusion of specific provisions of the 
Office of Federal Procurement and Policy Act and Federal 
acquisition regulations in any funding agreement entered into 
under this Act. Absent a negotiated agreement, such provisions 
and regulatory requirements shall not apply.
  [(2) In all construction projects performed pursuant to this 
title, the Secretary shall ensure that proper health and safety 
standards are provided for in the funding agreements.
  [(f) Submission for Review.--Not later than 90 days before 
the proposed effective date of an agreement entered into under 
this section, the Secretary shall submit a copy of such 
agreement to--
          [(1) each Indian tribe that is served by the Agency 
        that is serving the tribe that is a party to the 
        funding agreement;
          [(2) the Committee on Indian Affairs of the Senate; 
        and
          [(3) the Subcommittee on Native American Affairs of 
        the Committee on Natural Resources of the House of 
        Representatives.
  [(g) Payment.--(1) At the request of the governing body of 
the tribe and under the terms of an agreement entered into 
under this section, the Secretary shall provide funding to the 
tribe to carry out the agreement.
  [(2) The funding agreements authorized by this title and 
title III of this Act shall provide for advance payments to the 
tribes in the form of annual or semi-annual installments at the 
discretion of the tribes.
  [(3) Subject to paragraph (4) of this subsection and 
paragraphs (1) through (3) of subsection (b), the Secretary 
shall provide funds to the tribe under an agreement under this 
title for programs, services, functions, and activities, or 
portions thereof, in an amount equal to the amount that the 
tribe would have been eligible to receive under contracts and 
grants under this Act, including amounts for direct program and 
contract support costs and, in addition, any funds that are 
specifically or functionally related to the provision by the 
Secretary of services and benefits to the tribe or its members, 
without regard to the organization level within the Department 
where such functions are carried out.
  [(4) Funds for trust services to individual Indians shall be 
available under an agreement entered into under this section 
only to the extent that the same services that would have been 
provided by the Secretary are provided to individual Indians by 
the tribe.
  [(h) Civil Actions.--(1) Except as provided in paragraph (2), 
for the purposes of section 110, the term ``contract'' shall 
include agreements entered into under this title.
  [(2) For the period that an agreement entered into under this 
title is in effect, the provisions of section 2103 of the 
Revised Statutes of the United States (25 U.S.C. 81), section 
16 of the Act of June 18, 1934 (25 U.S.C. 476), and the Act of 
July 3, 1952 (25 U.S.C. 82a), shall not apply to attorney and 
other professional contracts by Indian tribal governments 
participating in Self-Governance under this title.
  [(i) Facilitation.--(1) Except as otherwise provided by law, 
the Secretary shall interpret each Federal law and regulation 
in a manner that will facilitate--
          [(A) the inclusion of programs, services, functions, 
        and activities in the agreements entered into under 
        this section; and
          [(B) the implementation of agreements entered into 
        under this section.
  [(2)(A) A tribe may submit a written request for a waiver to 
the Secretary identifying the regulation sought to be waived 
and the basis for the request.
  [(B) Not later than 60 days after receipt by the Secretary of 
a written request by a tribe to waive application of a Federal 
regulation for an agreement entered into under this section, 
the Secretary shall either approve or deny the requested waiver 
in writing to the tribe. 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. The Secretary's decision shall be 
final for the Department.
  [(j) Funds.--All funds provided under funding agreements 
entered into pursuant to this Act, and all funds provided under 
contracts or grants made pursuant to this Act, shall be treated 
as non-Federal funds for purposes of meeting matching 
requirements under any other Federal law.
  [(k) Disclaimer.--Nothing in this section is intended or 
shall be construed to expand or alter existing statutory 
authorities in the Secretary so as to authorize the Secretary 
to enter into any agreement under sections 403(b)(2) and 
405(c)(1) with respect to functions that are inherently Federal 
or where the statute establishing the existing program does not 
authorize the type of participation sought by the tribe: 
Provided, however an Indian tribe or tribes need not be 
identified in the authorizing statute in order for a program or 
element of a program to be included in a compact under section 
403(b)(2).
  [(l) Incorporate Self-Determination Provisions.--At the 
option of a participating tribe or tribes, any or all 
provisions of title I of this Act shall be made part of an 
agreement entered into under title III of this Act or this 
title. The Secretary is obligated to include such provisions at 
the option of the participating tribe or tribes. If such 
provision is incorporated it shall have the same force and 
effect as if set out in full in title III or this title.

[SEC. 404. BUDGET REQUEST.

  [The Secretary shall identify, in the annual budget request 
of the President to the Congress under section 1105 of title 
31, United States Code, any funds proposed to be included in 
agreements authorized under this title.

[SEC. 405. REPORTS.

  [(a) Requirement.--The Secretary shall submit to Congress a 
written report on January 1 of each year following the date of 
enactment of this title regarding the administration of this 
title.
  [(b) Contents.--The report shall--
          [(1) identify the relative costs and benefits of 
        Self-Governance;
          [(2) identify, with particularity, all funds that are 
        specifically or functionally related to the provision 
        by the Secretary of services and benefits to Self-
        Governance tribes and their members;
          [(3) identify the funds transferred to each Self-
        Governance tribe and the corresponding reduction in the 
        Federal bureaucracy;
          [(4) include the separate views of the tribes; and
          [(5) include the funding formula for individual 
        tribal shares of Central Office funds, together with 
        the comments of affected Indian tribes, developed under 
        subsection (d).
  [(c) Report on Non-BIA Programs.--(1) In order to optimize 
opportunities for including non-Bureau of Indian Affairs 
programs, services, functions, and activities, or portions 
thereof, in agreements with tribes participating in Self-
Governance under this title, the Secretary shall--
          [(A) review all programs, services, functions, and 
        activities, or portions thereof, administered by the 
        Department of the Interior, other than through the 
        Bureau of Indian Affairs, without regard to the agency 
        or office concerned; and
          [(B) not later than 90 days after the date of 
        enactment of this title, provide to the appropriate 
        committees of Congress a listing of all such programs, 
        services, functions, and activities, or portions 
        thereof, that the Secretary determines, with the 
        concurrence of tribes participating in Self-Governance 
        under this title, are eligible for inclusion in such 
        agreements at the request of a participating Indian 
        tribe.
  [(2) The Secretary shall establish programmatic targets, 
after consultation with tribes participating in Self-Governance 
under this title, to encourage bureaus of the Department to 
assure that a significant portion of such programs, services, 
functions, and activities are actually included in the 
agreements negotiated under section 403.
  [(3) The listing and targets under paragraphs (1) and (2) 
shall be published in the Federal Register and be made 
available to any Indian tribe participating in Self-Governance 
under this title. The list shall be published before January 1, 
1995, and annually thereafter by January 1 preceding the fiscal 
year in which the targets are to be met.
  [(4) Thereafter, the Secretary shall annually review and 
publish in the Federal Register, after consultation with tribes 
participating in Self-Governance under this title, a revised 
listing and programmatic targets.
  [(d) Report on Central Office Funds.--Within 90 days after 
the date of the enactment of this title, the Secretary shall, 
in consultation with Indian tribes, develop a funding formula 
to determine the individual tribal share of funds controlled by 
the Central Office of the Bureau of Indian Affairs for 
inclusion in the Self-Governance compacts. The Secretary shall 
include such formula in the annual report submitted to the 
Congress under subsection (b), together with the views of the 
affected Indian tribes.

[SEC. 406. DISCLAIMERS.

  [(a) Other Services, Contracts, and Funds.--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 or 
any other applicable Federal law.
  [(b) Federal Trust Responsibilities.--Nothing in this Act 
shall be construed to diminish the Federal trust responsibility 
to Indian tribes, individual Indians, or Indians with trust 
allotments.
  [(c) Application of Other Sections of Act.--All provisions of 
sections 6, 102(c), 104, 105(f), 110, and 111 of this Act shall 
apply to agreements provided under this title.

[SEC. 407. REGULATIONS.

  [(a) In General.--Not later than 90 days after the date of 
enactment of this title, at the request of a majority of the 
Indian tribes with agreements under this title, the Secretary 
shall initiate procedures under subchapter III of chapter 5 of 
title 5, United States Code, to negotiate and promulgate such 
regulations as are necessary to carry out this title.
  [(b) Committee.--A negotiated rulemaking committee 
established pursuant to section 565 of title 5, United States 
Code, to carry out this section shall have as its members only 
Federal and tribal government representatives, a majority of 
whom shall be representatives of Indian tribes with agreements 
under this title.
  [(c) Adaptation of Procedures.--The Secretary shall adapt the 
negotiated rulemaking procedures to the unique context of Self-
Governance and the government-to-government relationship 
between the United States and the Indian tribes.
  [(d) Effect.--The lack of promulgated regulations shall not 
limit the effect of this title.

[SEC. 408. AUTHORIZATION OF APPROPRIATIONS.

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

                    TITLE IV--TRIBAL SELF-GOVERNANCE

SEC. 401. DEFINITIONS.

  In this title:
          (1) Compact.--The term ``compact'' means a self-
        governance compact entered into under section 404.
          (2) Construction program.--The term ``construction 
        program'' or ``construction project'' means a tribal 
        undertaking relating to the administration, planning, 
        environmental determination, design, construction, 
        repair, improvement, or expansion of roads, bridges, 
        buildings, structures, systems, or other facilities for 
        purposes of housing, law enforcement, detention, 
        sanitation, water supply, education, administration, 
        community, health, irrigation, agriculture, 
        conservation, flood control, transportation, or port 
        facilities, or for other tribal purposes.
          (3) Department.--The term ``Department'' means the 
        Department of the Interior.
          (4) Funding agreement.--The term ``funding 
        agreement'' means a funding agreement entered into 
        under section 405.
          (5) Gross mismanagement.--The term ``gross 
        mismanagement'' means a significant violation, shown by 
        a preponderance of the evidence, of a compact, funding 
        agreement, or statutory or regulatory requirement 
        applicable to Federal funds--
                  (A) for a program administered by an Indian 
                tribe; or
                  (B) under a compact or funding agreement that 
                results in a significant reduction of funds 
                available for the programs assumed by an Indian 
                tribe.
          (6) Program.--The term ``program'' means any program, 
        function, service, or activity (or portion thereof) 
        within the Department of the Interior that is included 
        in a funding agreement.
          (7) Inherent federal function.--The term ``inherent 
        Federal function'' means a Federal function that may 
        not legally be delegated to an Indian tribe.
          (8) Secretary.--The term ``Secretary'' means the 
        Secretary of the Interior.
          (9) Self-governance.--The term ``self-governance'' 
        means the program of self-governance established under 
        section 402.
          (10) Tribal share.--The term ``tribal share'' means 
        an Indian tribe's portion of all funds and resources 
        that support any program within the Bureau of Indian 
        Affairs, the Office of Special Trustee, and the Office 
        of the Assistant Secretary for Indian Affairs and that 
        are not required by the Secretary for the performance 
        of an inherent Federal function.

SEC. 402. ESTABLISHMENT.

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

SEC. 403. SELECTION OF PARTICIPATING INDIAN TRIBES.

  (a) In General.--
          (1) Participants.--
                  (A) The Secretary, acting through the 
                Director of the Office of Self-Governance, may 
                select up to 50 new Indian tribes per year from 
                those eligible under subsection (b) to 
                participate in self-governance.
                  (B) If each Indian tribe requests, two or 
                more otherwise eligible Indian tribes may be 
                treated as a single Indian tribe for the 
                purpose of participating in self-governance.
          (2) Other authorized indian tribe or tribal 
        organization.--If an Indian tribe authorizes another 
        Indian tribe or a tribal organization to plan for or 
        carry out a program on its behalf under this title, the 
        authorized Indian tribe or tribal organization shall 
        have the rights and responsibilities of the authorizing 
        Indian tribe (except as otherwise provided in the 
        authorizing resolution).
          (3) Joint participation.--Two or more Indian tribes 
        that are not otherwise eligible under subsection (b) 
        may be treated as a single Indian tribe for the purpose 
        of participating in self-governance as a tribal 
        organization if--
                  (A) each Indian tribe so requests; and
                  (B) the tribal organization itself or at 
                least one of the Indian tribes participating in 
                the tribal organization is eligible under 
                subsection (b).
          (4) Tribal withdrawal from a tribal organization.--
                  (A) In general.--An Indian tribe that 
                withdraws from participation in a tribal 
                organization, in whole or in part, shall be 
                entitled to participate in self-governance if 
                the Indian tribe is eligible under subsection 
                (b).
                  (B) Effect of withdrawal.--If an Indian tribe 
                withdraws from participation in a tribal 
                organization, the Indian tribe shall be 
                entitled to its tribal share of funds and 
                resources supporting the programs that the 
                Indian tribe is entitled to carry out under the 
                compact and funding agreement of the Indian 
                tribe.
                  (C) Participation in self-governance.--The 
                withdrawal of an Indian tribe from a tribal 
                organization shall not affect the eligibility 
                of the tribal organization to participate in 
                self-governance on behalf of one or more other 
                Indian tribes provided that the tribal 
                organization still qualifies under subsection 
                (b).
                  (D) Withdrawal process.--
                          (i) In general.--An Indian tribe may, 
                        by tribal resolution, fully or 
                        partially withdraw its tribal share of 
                        any program in a funding agreement from 
                        a participating tribal organization. 
                        The Indian tribe shall provide a copy 
                        of the tribal resolution to the 
                        Secretary.
                          (ii) Effective date.--
                                  (I) In general.--A withdrawal 
                                under clause (i) shall become 
                                effective on the date specified 
                                in the tribal resolution and 
                                that is mutually agreed upon by 
                                the Secretary, the withdrawing 
                                Indian tribe, and the tribal 
                                organization that signed the 
                                compact and funding agreement 
                                on behalf of the withdrawing 
                                Indian tribe or tribal 
                                organization.
                                  (II) No specified date.--In 
                                the absence of a date specified 
                                in the resolution, the 
                                withdrawal shall become 
                                effective on--
                                          (aa) the earlier of--
                                                  (AA) 1 year 
                                                after the date 
                                                of submission 
                                                of the request; 
                                                or
                                                  (BB) the date 
                                                on which the 
                                                funding 
                                                agreement 
                                                expires; or
                                          (bb) such date as may 
                                        be mutually agreed upon 
                                        by the Secretary, the 
                                        withdrawing Indian 
                                        tribe, and the tribal 
                                        organization that 
                                        signed the compact and 
                                        funding agreement on 
                                        behalf of the 
                                        withdrawing Indian 
                                        tribe or tribal 
                                        organization.
                  (E) Distribution of funds.--If an Indian 
                tribe or tribal organization eligible to enter 
                into a self-determination contract under title 
                I or a compact or funding agreement under this 
                title fully or partially withdraws from a 
                participating tribal organization, the 
                withdrawing Indian tribe--
                          (i) may elect to enter a self-
                        determination contract or compact, in 
                        which case--
                                  (I) the withdrawing Indian 
                                tribe or tribal organization 
                                shall be entitled to its tribal 
                                share of unexpended funds and 
                                resources supporting the 
                                programs that the Indian tribe 
                                will be carrying out under its 
                                own self-determination contract 
                                or compact and funding 
                                agreement (calculated on the 
                                same basis as the funds were 
                                initially allocated to the 
                                funding agreement of the tribal 
                                organization); and
                                  (II) the funds referred to in 
                                subclause (I) shall be 
                                withdrawn by the Secretary from 
                                the funding agreement of the 
                                tribal organization and 
                                transferred to the withdrawing 
                                Indian tribe, on the condition 
                                that the provisions of sections 
                                102 and 105(i), as appropriate, 
                                shall apply to the withdrawing 
                                Indian tribe; or
                          (ii) may elect not to enter a self-
                        determination contract or compact, in 
                        which case all funds not obligated by 
                        the tribal organization associated with 
                        the withdrawing Indian tribe's returned 
                        programs, less close-out costs, shall 
                        be returned by the tribal organization 
                        to the Secretary for operation of the 
                        programs included in the withdrawal.
                  (F) Return to mature contract status.--If an 
                Indian tribe elects to operate all or some 
                programs carried out under a compact or funding 
                agreement under this title through a self-
                determination contract under title I, at the 
                option of the Indian tribe, the resulting self-
                determination contract shall be a mature self-
                determination contract as long as the Indian 
                tribe meets the requirements set forth in 
                section 4(h) of this Act.
  (b) Eligibility.--To be eligible to participate in self-
governance, an Indian tribe shall--
          (1) successfully complete the planning phase 
        described in subsection (c);
          (2) request participation in self-governance by 
        resolution or other official action by the tribal 
        governing body; and
          (3) demonstrate, for the 3 fiscal years preceding the 
        date on which the Indian tribe requests participation, 
        financial stability and financial management capability 
        as evidenced by the Indian tribe having no uncorrected 
        significant and material audit exceptions in the 
        required annual audit of its self-determination or 
        self-governance agreements with any Federal agency.
  (c) Planning Phase.--
          (1) In general.--An Indian tribe seeking to begin 
        participation in self-governance shall complete a 
        planning phase in accordance with this subsection.
          (2) Activities.--The planning phase--
                  (A) shall be conducted to the satisfaction of 
                the Indian tribe; and
                  (B) shall include--
                          (i) legal and budgetary research; and
                          (ii) internal tribal government 
                        planning and organizational 
                        preparation.
  (d) Grants.--
          (1) In general.--Subject to the availability of 
        appropriations, an Indian tribe or tribal organization 
        that meets the requirements of paragraphs (2) and (3) 
        of subsection (b) shall be eligible for grants--
                  (A) to plan for participation in self-
                governance; and
                  (B) to negotiate the terms of participation 
                by the Indian tribe or tribal organization in 
                self-governance, as set forth in a compact and 
                a funding agreement.
          (2) Receipt of grant not required.--Receipt of a 
        grant under paragraph (1) shall not be a requirement of 
        participation in self-governance.

SEC. 404. COMPACTS.

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

SEC. 405. FUNDING AGREEMENTS.

  (a) In General.--The Secretary shall negotiate and enter into 
a written funding agreement with the governing body of an 
Indian tribe or tribal organization in a manner consistent with 
the trust responsibility of the Federal Government, treaty 
obligations, and the government-to-government relationship 
between Indian tribes and the United States.
  (b) Included Programs.--
          (1) Bureau of indian affairs and office of special 
        trustee.--
                  (A) In general.--A funding agreement shall, 
                as determined by the Indian tribe, authorize 
                the Indian tribe to plan, conduct, consolidate, 
                administer, and receive full tribal share 
                funding for all programs carried out by the 
                Bureau of Indian Affairs, the Office of the 
                Assistant Secretary for Indian Affairs, and the 
                Office of Special Trustee, without regard to 
                the agency or office within which the program 
                is performed (including funding for agency, 
                area, and central office functions in 
                accordance with subsection 409(c)), that--
                          (i) are provided for in the Act of 
                        April 16, 1934 (25 U.S.C. 452 et seq.);
                          (ii) the Secretary administers for 
                        the benefit of Indians under the Act of 
                        November 2, 1921 (25 U.S.C. 13), or any 
                        subsequent Act;
                          (iii) the Secretary administers for 
                        the benefit of Indians with 
                        appropriations made to agencies other 
                        than the Department of the Interior; or
                          (iv) are provided for the benefit of 
                        Indians because of their status as 
                        Indians.
                  (B) Inclusions.--Programs described in 
                subparagraph (A) shall include all programs 
                with respect to which Indian tribes or Indians 
                are primary or significant beneficiaries.
          (2) Discretionary programs of special significance.--
        A funding agreement under subsection (a) may, in 
        accordance with such additional terms as the parties 
        consider to be appropriate, include programs, services, 
        functions, and activities (or portions thereof), 
        administered by the Secretary, in addition to programs 
        described in paragraphs (1) and (3), that are of 
        special geographic, historical, or cultural 
        significance to the Indian tribe. Such agreements, 
        including the additional terms, shall be governed by 
        the provisions of this title, except that, subject to 
        the discretion of the Secretary--
                  (A) the Indian tribe may have reallocation, 
                consolidation, and redesign authority over any 
                program assumed under this paragraph (2);
                  (B) the Secretary may reassume any program 
                and associated funding assumed under this 
                paragraph (2) upon a specific finding by the 
                Secretary of a gross violation by the Indian 
                tribe of the terms of the funding agreement;
                  (C) the Secretary may require special terms 
                and conditions regarding a construction program 
                or project assumed under this paragraph (2) 
                notwithstanding the provisions of section 408;
                  (D) all Federal regulations that otherwise 
                govern the operation of any program assumed 
                under this paragraph (2) apply to the Indian 
                tribe unless a specific regulation is waived by 
                the Secretary under the procedures set forth in 
                section 410(b)(2), which waiver request may be 
                denied upon a specific finding by the Secretary 
                that the waiver is prohibited by Federal law or 
                is inconsistent with the express provisions of 
                the funding agreement; and
                  (E) a stable base budget, as described in 
                paragraph (7), may be provided for any program 
                assumed under this paragraph (2).
          (3) Programs otherwise available.--A funding 
        agreement shall, as determined by the Indian tribe, 
        authorize the Indian tribe to plan, conduct, 
        consolidate, administer, and receive full tribal share 
        funding for any program administered by the Department 
        of the Interior other than through the Bureau of Indian 
        Affairs, the Office of the Assistant Secretary for 
        Indian Affairs, or the Office of the Special Trustee, 
        that is otherwise available to Indian tribes or Indians 
        under section 102 of this Act.
          (4) Competitive bidding.--Nothing in this section--
                  (A) supersedes any express statutory 
                requirement for competitive bidding; or
                  (B) prohibits the inclusion in a funding 
                agreement of a program in which non-Indians 
                have an incidental or legally identifiable 
                interest.
          (5) Excluded funding.--A funding agreement shall not 
        authorize an Indian tribe to plan, conduct, administer, 
        or receive tribal share funding under any program 
        that--
                  (A) is provided under the Tribally Controlled 
                College or University Assistance Act of 1978 
                (25 U.S.C. 1801 et seq.); and
                  (B) is provided for elementary and secondary 
                schools under the formula developed under 
                section 1127 of the Education Amendments of 
                1978 (25 U.S.C. 2007).
          (6) Services, functions, and responsibilities.--A 
        funding agreement shall specify--
                  (A) the services to be provided under the 
                funding agreement;
                  (B) the functions to be performed under the 
                funding agreement; and
                  (C) the responsibilities of the Indian tribe 
                and the Secretary under the funding agreement.
          (7) Base budget.--A funding agreement pursuant to 
        subsections (b)(1) and (b)(3) shall, at the option of 
        the Indian tribe, provide for a stable base budget 
        specifying the recurring funds (including funds 
        available under section 106(a)) to be transferred to 
        the Indian tribe, for such period as the Indian tribe 
        specifies in the funding agreement, subject to annual 
        adjustment only to reflect changes in congressional 
        appropriations. Upon agreement by the Secretary, a 
        funding agreement under subsection (b)(2) may also 
        provide for a stable base budget subject to the terms 
        of this provision.
          (8) No waiver of trust responsibility.--A funding 
        agreement shall prohibit the Secretary from waiving, 
        modifying, or diminishing in any way the trust 
        responsibility of the United States with respect to 
        Indian tribes and individual Indians that exists under 
        treaties, Executive orders, court decisions, and other 
        laws.
  (c) Amendment.--The Secretary shall not revise, amend, or 
require additional terms in a new or subsequent funding 
agreement without the consent of the Indian tribe, unless such 
terms are required by Federal law.
  (d) Effective Date.--A funding agreement shall become 
effective on the date specified in the funding agreement.
  (e) Existing and Subsequent Funding Agreements.--
          (1) Subsequent funding agreements.--Absent 
        notification from an Indian tribe that it is 
        withdrawing or retroceding the operation of one or more 
        programs identified in a funding agreement under 
        subsections (b)(1) or (b)(3), or unless otherwise 
        agreed to by the parties to the funding agreement--
                  (A) a funding agreement shall remain in full 
                force and effect until a subsequent funding 
                agreement is executed, with funding paid 
                annually for each fiscal year the agreement is 
                in effect or by the nature of any noncontinuing 
                program, services, functions, or activities 
                contained in a funding agreement; and
                  (B) the term of the subsequent funding 
                agreement shall be retroactive to the end of 
                the term of the preceding funding agreement for 
                the purposes of calculating the amount of 
                funding to which the Indian tribe is entitled.
          (2) Disputes.--Disputes over the implementation of 
        paragraph (1)(A) shall be subject to section 407(c).
          (3) Existing funding agreements.--An Indian tribe 
        that was participating in self-governance under this 
        title on the date of enactment of the Department of the 
        Interior Tribal Self-Governance Act of 2010 shall have 
        the option at any time after that date--
                  (A) to retain its existing funding agreement 
                (in whole or in part) to the extent that the 
                provisions of that funding agreement are not 
                directly contrary to any express provision of 
                this title; or
                  (B) to negotiate a new funding agreement in a 
                manner consistent with this title.
          (4) Multiyear funding agreements.--An Indian tribe 
        may, at the discretion of the Indian tribe, negotiate 
        with the Secretary for a funding agreement with a term 
        that exceeds one year.

SEC. 406. GENERAL PROVISIONS.

  (a) Applicability.--An Indian tribe and the Secretary shall 
include in any compact or funding agreement provisions that 
reflect the requirements of this title.
  (b) Conflicts of Interest.--An Indian tribe participating in 
self-governance shall ensure that internal measures are in 
place to address, pursuant to tribal law and procedures, 
conflicts of interest in the administration of programs.
  (c) Audits.--
          (1) Single agency audit act.--Chapter 75 of title 31, 
        United States Code, shall apply to a funding agreement 
        under this title.
          (2) Cost principles.--An Indian tribe shall apply 
        cost principles under the applicable Office of 
        Management and Budget circular, except as modified by--
                  (A) any provision of law, including section 
                106 of this Act; or
                  (B) any exemptions to applicable Office of 
                Management and Budget circulars subsequently 
                granted by the Office of Management and Budget.
          (3) Federal claims.--Any claim by the Federal 
        Government against 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) Redesign and Consolidation.--An Indian tribe may redesign 
or consolidate programs or reallocate funds for programs in any 
manner that the Indian tribe deems to be in the best interest 
of the Indian community being served, so long as the redesign 
or consolidation does not have the effect of denying 
eligibility for services to population groups otherwise 
eligible to be served under applicable Federal law, except 
that, with respect to the reallocation, consolidation, and 
redesign of programs described in section 405(b)(2), a joint 
agreement between the Secretary and the Indian tribe shall be 
required.
  (e) Retrocession.--
          (1) In general.--An Indian tribe may fully or 
        partially retrocede to the Secretary any program under 
        a compact or funding agreement.
          (2) Effective date.--
                  (A) Agreement.--Unless the Indian tribe 
                rescinds the request for retrocession, such 
                retrocession shall become effective on the date 
                specified by the parties in the compact or 
                funding agreement.
                  (B) No agreement.--In the absence of a 
                specification of an effective date in the 
                compact or funding agreement, the retrocession 
                shall become effective on--
                          (i) the earlier of--
                                  (I) one 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 and the 
                        Indian tribe.
  (f) Nonduplication.--A funding agreement shall provide that, 
for the period for which, and to the extent to which, funding 
is provided to an Indian tribe under this title, the Indian 
tribe--
          (1) shall not be entitled to contract with the 
        Secretary for funds under section 102, except that such 
        Indian tribe shall be eligible for new programs on the 
        same basis as other Indian tribes; and
          (2) shall be responsible for the administration of 
        programs in accordance with the compact or funding 
        agreement.
  (g) Records.--
          (1) In general.--Unless an Indian tribe specifies 
        otherwise in the compact or funding agreement, records 
        of an Indian tribe shall not be considered Federal 
        records for purposes of chapter 5 of title 5, United 
        States Code.
          (2) Recordkeeping system.--An Indian tribe shall--
                  (A) maintain a recordkeeping system; and
                  (B) on 30 days-- notice, provide the 
                Secretary with reasonable access to the records 
                to enable the Department to meet the 
                requirements of sections 3101 through 3106 of 
                title 44, United States Code.

SEC. 407. PROVISIONS RELATED TO THE SECRETARY.

  (a) Trust Evaluations.--A funding agreement shall include a 
provision to monitor the performance of trust functions by the 
Indian tribe through the annual trust evaluation.
  (b) Reassumption.--
          (1) In general.--A compact or funding agreement shall 
        include provisions for the Secretary to reassume a 
        program and associated funding if there is a specific 
        finding relating to that program of--
                  (A) imminent jeopardy to a trust asset, 
                natural resources, or public health and safety 
                that--
                          (i) is caused by an act or omission 
                        of the Indian tribe; and
                          (ii) arises out of a failure to carry 
                        out the compact or funding agreement; 
                        or
                  (B) gross mismanagement with respect to funds 
                transferred to an Indian tribe under a compact 
                or funding agreement, as determined by the 
                Secretary in consultation with the Inspector 
                General, as appropriate.
          (2) Prohibition.--The Secretary shall not reassume 
        operation of a program in whole or part unless--
                  (A) the Secretary first provides written 
                notice and a hearing on the record to the 
                Indian tribe; and
                  (B) the Indian tribe does not take corrective 
                action to remedy the mismanagement of the funds 
                or programs, or the imminent jeopardy to a 
                trust asset, natural resource, or public health 
                and safety.
          (3) Exception.--
                  (A) In general.--Notwithstanding paragraph 
                (2), the Secretary may, on written notice to 
                the Indian tribe, immediately reassume 
                operation of a program if--
                          (i) the Secretary makes a finding of 
                        both imminent and substantial jeopardy 
                        and irreparable harm to a trust asset, 
                        a natural resource, or the public 
                        health and safety caused by an act or 
                        omission of the Indian tribe; and
                          (ii) the imminent and substantial 
                        jeopardy, and irreparable harm to the 
                        trust asset, natural resource, or 
                        public health and safety arises out of 
                        a failure by the Indian tribe to carry 
                        out the terms of its compact or funding 
                        agreement.
                  (B) Reassumption.--If the Secretary reassumes 
                operation of a program under subparagraph (A), 
                the Secretary shall provide the Indian tribe 
                with a hearing on the record not later than 10 
                days after the date of reassumption.
  (c) Inability to Agree on Compact or Funding Agreement.--
          (1) Final offer.--If the Secretary and a 
        participating Indian tribe are unable to agree, in 
        whole or in part, on the terms of a compact or funding 
        agreement (including funding levels), the Indian tribe 
        may submit a final offer to the Secretary.
          (2) Determination.--Not more than 45 days after the 
        date of submission of a final offer, or as otherwise 
        agreed to by the Indian tribe, the Secretary shall 
        review and make a determination with respect to the 
        final offer.
          (3) No timely determination.--If the Secretary fails 
        to make a determination with respect to a final offer 
        within the time specified in paragraph (2), the 
        Secretary shall be deemed to have agreed to the offer.
          (4) Rejection of final offer.--
                  (A) In general.--If the Secretary rejects a 
                final offer (or one or more provisions or 
                funding levels in a final offer), the Secretary 
                shall--
                          (i) provide timely written 
                        notification to the Indian tribe that 
                        contains a specific finding that 
                        clearly demonstrates, or that is 
                        supported by a controlling legal 
                        authority, that--
                                  (I) the amount of funds 
                                proposed in the final offer 
                                exceeds the applicable funding 
                                level to which the Indian tribe 
                                is entitled under this title 
                                because it would reduce the 
                                funds that any other Indian 
                                tribe or tribal organization is 
                                entitled to receive under 
                                Federal law;
                                  (II) the program that is the 
                                subject of the final offer is 
                                an inherent Federal function or 
                                is subject to the discretion of 
                                the Secretary under section 
                                405(b)(2);
                                  (III) the Indian tribe cannot 
                                carry out the program in a 
                                manner that would not result in 
                                significant danger or risk to 
                                the public health;
                                  (IV) the Indian tribe is not 
                                eligible to participate in 
                                self-governance under section 
                                403(b); or
                                  (V) the funding agreement 
                                would violate Federal statute 
                                or regulation;
                          (ii) provide technical assistance to 
                        overcome the objections stated in the 
                        notification required by clause (i);
                          (iii) provide the Indian tribe with 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 under section 110(a)); 
                        and
                          (iv) provide the Indian tribe the 
                        option of entering into the severable 
                        portions of a final proposed compact or 
                        funding agreement (including a lesser 
                        funding amount, if any), that the 
                        Secretary did not reject, subject to 
                        any additional alterations necessary to 
                        conform the compact or funding 
                        agreement to the severed provisions.
                  (B) Effect of exercising certain option.--If 
                an Indian tribe exercises the option specified 
                in subparagraph (A)(iv)--
                          (i) the Indian tribe shall retain the 
                        right to appeal the rejection by the 
                        Secretary under this section; and
                          (ii) clauses (i), (ii), and (iii) of 
                        subparagraph (A) shall apply only to 
                        the portion of the proposed final 
                        compact or funding agreement that was 
                        rejected by the Secretary.
  (d) Burden of Proof.--In any administrative hearing or appeal 
or civil action brought under this section, the Secretary shall 
have the burden of demonstrating by a preponderance of the 
evidence the validity of the grounds for rejecting a final 
offer made under subsection (c) or the grounds for a 
reassumption under subsection (b).
  (e) Good Faith.--
          (1) In general.--In the negotiation of compacts and 
        funding agreements, the Secretary shall at all times 
        negotiate in good faith to maximize implementation of 
        the self-governance policy.
          (2) Policy.--The Secretary shall carry out this title 
        in a manner that maximizes the policy of tribal self-
        governance.
  (f) Savings.--To the extent that programs carried out for the 
benefit of Indian tribes and tribal organizations under this 
title reduce the administrative or other responsibilities of 
the Secretary with respect to the operation of Indian programs 
and result in savings that have not otherwise been included in 
the amount of tribal shares and other funds determined under 
section 409(c), except for programs entered into funding 
agreements under section 405(b)(2), the Secretary shall make 
such savings available to the Indian tribes or tribal 
organizations for the provision of additional services to 
program beneficiaries in a manner equitable to directly served, 
contracted, and compacted programs. For any savings generated 
as a result of the assumption of a program by an Indian tribe 
under section 405(b)(2), such savings shall be made available 
to that Indian tribe.
  (g) Trust Responsibility.--The Secretary may not waive, 
modify, or diminish in any way the trust responsibility of the 
United States with respect to Indian tribes and individual 
Indians that exists under treaties, Executive orders, other 
laws, or court decisions.
  (h) Decisionmaker.--A decision that constitutes final agency 
action and relates to an appeal within the Department conducted 
under subsection (c)(4) may be made--
          (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 law judge.
  (i) Rules of Construction.--Each provision of this title and 
each provision of a compact or funding agreement shall be 
liberally construed for the benefit of the Indian tribe 
participating in self-governance, and any ambiguity shall be 
resolved in favor of the Indian tribe.

SEC. 408. CONSTRUCTION PROGRAMS AND PROJECTS.

  (a) In General.--Indian tribes participating in tribal self-
governance may carry out construction projects under this 
title.
  (b) Tribal Option to Carry Out Certain Federal Environmental 
Activities.--In carrying out a construction project under this 
title, an Indian tribe may, subject to the Secretary's 
agreement, elect to assume some Federal responsibilities under 
the National Environmental Policy Act of 1969 (42 U.S.C. 4321 
et seq.), the National Historic Preservation Act (16 U.S.C. 470 
et seq.), and related provisions of law and regulations that 
would apply if the Secretary were to undertake a construction 
project, by adopting a resolution--
          (1) designating a certifying tribal officer to 
        represent the Indian tribe and to assume the status of 
        a responsible Federal official under such laws; and
          (2) accepting the jurisdiction of the Federal courts 
        for the purpose of enforcing the responsibilities of 
        the certifying tribal officer assuming the status of a 
        responsible Federal official under such laws.
  (c) Savings Clause.--Notwithstanding subsection (b), nothing 
in this Act authorizes the Secretary to include in any compact 
or funding agreement duties of the Secretary under the National 
Environmental Policy Act, the National Historic Preservation 
Act, and other related provisions of law that are inherent 
Federal functions.
  (d) Codes and Standards.--In carrying out a construction 
project under this title, an Indian tribe shall--
          (1) adhere to applicable Federal, State, local, and 
        tribal building codes architectural and engineering 
        standards and applicable Federal guidelines regarding 
        design, space, and operational standards, appropriate 
        for the particular project; and
          (2) use only architects and engineers who are 
        licensed to practice in the State in which the facility 
        will be built and who certify--
                  (A) that they are qualified to perform the 
                work required by the specific construction 
                involved; and
                  (B) upon completion of design, that the plans 
                and specifications meet or exceed the 
                applicable construction and safety codes.
  (e) Tribal Accountability.--
          (1) In carrying out a construction project under this 
        title, an Indian tribe shall assume responsibility for 
        the successful completion of the construction project 
        and of a facility that is usable for the purpose for 
        which it was funded.
          (2) For each construction project carried out by an 
        Indian tribe under this title, the Indian tribe and the 
        Secretary shall negotiate a provision to be included in 
        the funding agreement that identifies--
                  (A) the approximate start and completion 
                dates for the project, which may extend over a 
                period of one or more years;
                  (B) a general description of the project, 
                including the scope of work, references to 
                design criteria, and other terms and 
                conditions;
                  (C) the responsibilities of the Indian tribe 
                and the Secretary for the project;
                  (D) how project-related environmental 
                considerations will be addressed;
                  (E) the amount of funds provided for the 
                project;
                  (F) the obligations of the Indian tribe to 
                comply with the codes referenced in subsection 
                (c)(1) and applicable Federal laws, statutes, 
                and regulations;
                  (G) the agreement of the parties over who 
                will bear any additional costs necessary to 
                meet changes in scope, or errors or omissions 
                in design and construction; and
                  (H) the agreement of the Secretary to issue a 
                certificate of occupancy, if requested by the 
                Indian tribes, based upon the review and 
                verification by the Secretary, to his or her 
                satisfaction, that the Indian tribe has secured 
                upon completion the review and approval of the 
                plans and specifications, sufficiency of 
                design, life safety, and code compliance by 
                qualified, licensed, and independent architects 
                and engineers.
  (f) Funding.--Funding appropriated for construction projects 
carried out under this title shall be included in funding 
agreements as annual or semiannual advance payments at the 
option of the Indian tribe. The Secretary shall include all 
associated project contingency funds with each advance payment. 
The Indian tribe shall be responsible for the management of 
such contingency funds.
  (g) Negotiations.--At the option of the Indian tribe, 
construction project funding proposals shall be negotiated 
pursuant to the statutory process in section 450j(m) of title 
25 and any resulting construction project agreement shall be 
incorporated into the funding agreement as addenda.
  (h) Federal Review and Verification.--The Secretary shall 
have at least one opportunity to review and verify, to the 
satisfaction of the Secretary, that project planning and design 
documents prepared by the Indian tribe in advance of initial 
construction are in conformity with the obligations of the 
Indian tribe under subsection (c) and, before they are 
implemented, at least one opportunity to review and verify to 
the satisfaction of the Secretary that subsequent document 
amendments which result in a significant change in construction 
are in conformity with the obligations of the Indian tribe 
under subsection (c). 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.
  (i) Application of Other Laws.--Unless otherwise agreed to by 
the Indian tribe, no provision of the Office of Federal 
Procurement Policy Act (41 U.S.C. 401 et seq.), 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 program or 
project carried out under this title.
  (j) Future Funding.--Upon completion of a facility 
constructed under this title, the Secretary shall include the 
facility among those eligible for annual operation and 
maintenance funding support comparable to that provided for 
similar facilities funded by the Department as annual 
appropriations are available and to the extent that the 
facility size and complexity and other factors do not exceed 
the funding formula criteria for comparable buildings.

SEC. 409. PAYMENT.

  (a) In General.--At the request of the governing body of the 
Indian tribe and under the terms of an agreement, the Secretary 
shall provide funding to the Indian tribe to carry out the 
funding agreement.
  (b) Advance Annual Payment.--At the option of the Indian 
tribe, a funding agreement shall provide for an advance annual 
payment to an Indian tribe.
  (c) Amount.--
          (1) In general.--Subject to subsection (e) and 
        sections 405 and 406, the Secretary shall provide funds 
        to the Indian tribe under a funding agreement for 
        programs in an amount that is equal to the amount that 
        the Indian tribe would have been entitled to receive 
        under contracts and grants under this Act (including 
        amounts for direct program and contract support costs 
        and, in addition, any funds that are specifically or 
        functionally related to the provision by the Secretary 
        of services and benefits to the Indian tribe or its 
        members) without regard to the organization level 
        within the Department in which the programs are carried 
        out.
          (2) Savings clause.--Nothing in this section shall be 
        construed to reduce funds of or provided to another 
        Indian tribe.
  (d) Timing.--Pursuant to the terms of any compact or funding 
agreement entered into under this part, the Secretary shall 
transfer to the Indian tribe all funds provided for in the 
funding agreement, pursuant to subsection (c), and provide 
funding for periods covered by joint resolution adopted by 
Congress making continuing appropriations, to the extent 
permitted by such resolution. Within 12 months from the date of 
enactment of this bill, 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.
  (e) Availability.--Funds for trust services to individual 
Indians shall be available under a funding agreement only to 
the extent that the same services that would have been provided 
by the Secretary are provided to individual Indians by the 
Indian tribe.
  (f) Multiyear Funding.--A funding agreement may provide for 
multiyear funding.
  (g) Limitations on Authority of the Secretary.--The Secretary 
shall not--
          (1) fail to transfer to an Indian tribe its full 
        share of any central, headquarters, regional, area, or 
        service unit office or other funds due under this title 
        for programs eligible under section 405(b)(1) or 
        (b)(3), except as required by Federal law;
          (2) withhold any portion of such funds for transfer 
        over a period of years; or
          (3) reduce the amount of funds required under this 
        title--
                  (A) to make funding available for self-
                governance monitoring or administration by the 
                Secretary;
                  (B) in subsequent years, except as necessary 
                as a result of--
                          (i) a reduction in appropriations 
                        from the previous fiscal year for the 
                        program to be included in a compact or 
                        funding agreement;
                          (ii) a congressional directive in 
                        legislation or an accompanying report;
                          (iii) a tribal authorization;
                          (iv) a change in the amount of pass-
                        through funds subject to the terms of 
                        the funding agreement; or
                          (v) completion of an activity under a 
                        program for which the funds were 
                        provided;
                  (C) to pay for Federal functions, including--
                          (i) Federal pay costs;
                          (ii) Federal employee retirement 
                        benefits;
                          (iii) automated data processing;
                          (iv) technical assistance; and
                          (v) monitoring of activities under 
                        this title; or
                  (D) to pay for costs of Federal personnel 
                displaced by self-determination contracts under 
                this Act or self-governance under this title.
  (h) Federal Resources.--If an Indian tribe elects to carry 
out a compact or funding agreement with the use of Federal 
personnel, Federal supplies (including supplies available from 
Federal warehouse facilities), Federal supply sources 
(including lodging, airline transportation, and other means of 
transportation including the use of interagency motor pool 
vehicles), or other Federal resources (including supplies, 
services, and resources available to the Secretary under any 
procurement contracts in which the Department is eligible to 
participate), the Secretary shall, as soon as practicable, 
transfer such personnel, or acquire such supplies, or resources 
to the Indian tribe under this title.
  (i) Prompt Payment Act.--Chapter 39 of title 31, United 
States Code, shall apply to the transfer of funds due under a 
compact or funding agreement authorized under this title.
  (j) Interest or Other Income.--
          (1) In general.--An Indian tribe may retain interest 
        or income earned on any funds paid under a compact or 
        funding agreement to carry out governmental purposes.
          (2) No effect on other amounts.--The retention of 
        interest or income under paragraph (1) shall not 
        diminish the amount of funds an Indian tribe is 
        entitled to receive under a funding agreement in the 
        year the interest or income is earned or in any 
        subsequent fiscal year.
          (3) Investment standard.--Funds transferred under 
        this title shall be managed by the Indian tribe using 
        the prudent investment standard, provided that the 
        Secretary shall not be liable for any investment losses 
        of funds managed by the Indian tribe which are not 
        otherwise guaranteed or insured by the Federal 
        Government.
  (k) Carryover of Funds.--
          (1) In general.--Notwithstanding any provision of an 
        Act of appropriation, all funds paid to an Indian tribe 
        in accordance with a compact or funding agreement shall 
        remain available until expended.
          (2) Effect of carryover.--If an Indian tribe elects 
        to carry over funding from 1 year to the next, the 
        carryover shall not diminish the amount of funds the 
        Indian tribe is entitled to receive under a funding 
        agreement in that fiscal year or any subsequent fiscal 
        year.
  (l) Limitation of Costs.--
          (1) In general.--An Indian tribe shall not be 
        obligated to continue performance that requires an 
        expenditure of funds in excess of the amount of funds 
        transferred under a compact or funding agreement.
          (2) Notice of insufficiency.--If at any time the 
        Indian tribe has reason to believe that the total 
        amount provided for a specific activity under a compact 
        or funding agreement is insufficient, the Indian tribe 
        shall provide reasonable notice of such insufficiency 
        to the Secretary.
          (3) Suspension of performance.--If, after notice 
        under paragraph (2), the Secretary does not increase 
        the amount of funds transferred under the funding 
        agreement, the Indian tribe may suspend performance of 
        the activity until such time as additional funds are 
        transferred.
  (m) Distribution of Funds.--The Office of Self-Governance 
shall be responsible for distribution of all Bureau of Indian 
Affairs funds provided under this title unless otherwise agreed 
by the parties.

SEC. 410. FACILITATION.

  (a) In General.--Except as otherwise provided by law, the 
Secretary shall interpret each Federal law and regulation in a 
manner that facilitates--
          (1) the inclusion of programs in funding agreements; 
        and
          (2) the implementation of funding agreements.
  (b) Regulation Waiver.--
          (1) Request.--An Indian tribe may submit a written 
        request for a waiver to the Secretary identifying the 
        specific text in regulation sought to be waived and the 
        basis for the request.
          (2) Determination by the secretary.--Not later than 
        120 days after receipt by the Secretary of a request 
        under paragraph (1), the Secretary shall approve or 
        deny the requested waiver in writing to the Indian 
        tribe.
          (3) Ground for denial.--The Secretary may deny a 
        request under paragraph (1)--
                  (A) for a program eligible under sections 
                405(b)(1) and 405(b)(3) only upon a specific 
                finding by the Secretary that the identified 
                text in the regulation may not be waived 
                because such a waiver is prohibited by Federal 
                law; and
                  (B) for a program eligible under section 
                405(b)(2), on a specific finding by the 
                Secretary that the identified text in the 
                regulation may not be waived because such a 
                waiver is prohibited under Federal law.
          (4) Failure to make determination.--If the Secretary 
        fails to approve or deny a waiver request within the 
        time required under paragraph (2), the Secretary shall 
        be deemed to have approved the request.
          (5) Finality.--The Secretary's decision shall be 
        final for the Department.

SEC. 411. DISCLAIMERS.

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

SEC. 412. DISCRETIONARY APPLICATION OF OTHER SECTIONS.

  (a) In General.--At the option of a participating Indian 
tribe or Indian tribes, any of the provisions of title I shall 
be incorporated in any Department compact or funding agreement.
  (b) Effect.--Each incorporated provision--
          (1) shall have the same force and effect as if set 
        out in full in this title; and
          (2) shall be deemed to supplement or replace any 
        related provision in this title and to apply to any 
        agency otherwise governed by this title.
  (c) Effective Date.--If an Indian tribe requests 
incorporation at the negotiation stage of a compact or funding 
agreement, the incorporation--
          (1) shall be deemed effective immediately; and
          (2) shall control the negotiation and resulting 
        compact and funding agreement.

SEC. 413. FUNDING NEEDS.

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

SEC. 414. REPORTS.

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

SEC. 415. REGULATIONS.

  (a) In General.--
          (1) Promulgation.--Not later than 90 days after the 
        date of the enactment of the Department of the Interior 
        Tribal Self-Governance Act of 2009, 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 the amendments made by this title.
          (2) Publication of proposed regulations.--Proposed 
        regulations to implement the amendments shall be 
        published in the Federal Register not later than 18 
        months after the date of the enactment of this title.
          (3) Expiration of authority.--The authority to 
        promulgate regulations under paragraph (1) shall expire 
        on the date that is 24 months after the date of the 
        enactment of this title.
  (b) Committee.--
          (1) Membership.--A negotiated rulemaking committee 
        established pursuant to section 565 of title 5, United 
        States Code, to carry out this section shall have as 
        its members only Federal and tribal government 
        representatives.
          (2) Lead agency.--Among the Federal representatives, 
        the Office of Self-Governance shall be the lead agency 
        for the Department.
  (c) Adaptation of Procedures.--The Secretary shall adapt the 
negotiated rulemaking procedures to the unique context of self-
governance and the government-to-government relationship 
between the United States and Indian tribes.
  (d) Effect.--
          (1) Repeal.--The Secretary is authorized to repeal 
        any regulation inconsistent with the provisions of this 
        Act.
          (2) Conflicting provisions.--The provisions of this 
        title shall supersede any conflicting provisions of law 
        (including any conflicting regulations).
          (3) Effectiveness without regard to regulations.--The 
        lack of promulgated regulations on an issue shall not 
        limit the effect or the implementation of this title.

SEC. 416. EFFECT OF CIRCULARS, POLICIES, MANUALS, GUIDANCES, AND RULES.

  Unless expressly agreed to by a participating Indian tribe in 
the compact or funding agreement, the participating Indian 
tribe shall not be subject to any agency circular, policy, 
manual, guidance, or rule adopted by the Department, except 
for--
          (1) the eligibility provisions of section 105(g); and
          (2) regulations promulgated under section 415.

SEC. 417. APPEALS.

  In any administrative appeal or civil action for judicial 
review of any decision made by the Secretary under this title, 
the Secretary shall have the burden of proof of demonstrating 
by a preponderance of the evidence--
          (1) the validity of the grounds for the decision; and
          (2) the consistency of the decision with the 
        provisions and policies of this title.

SEC. 418. AUTHORIZATION OF APPROPRIATIONS.

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

                                  
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