[Senate Report 114-60]
[From the U.S. Government Publishing Office]


                                                       Calendar No. 102
114th Congress          }                      {       Report
                                 SENATE
 1st Session            }                      {       114-060

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

 
AMENDING THE INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACT TO 
    PROVIDE FURTHER SELF-GOVERNANCE BY INDIAN TRIBES, AND FOR OTHER 
                                PURPOSES

                                _______
                                

                  May 22, 2015.--Ordered to be printed

                                _______
                                

          Mr. Barrasso, from the Committee on Indian Affairs, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 286]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 286) 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, reports favorably thereon without amendment and 
recommends that the bill do pass.

                                Purpose

    The purpose of S. 286 is to amend the Indian Self-
Determination and Education Assistance Act of 1975 (Act) to 
streamline the Department of the Interior's process for 
approving self-governance compacts and annual funding 
agreements. The bill would align the process used by the 
Department of the Interior to be similar to the processes used 
by the Indian Health Service.

                          Need for Legislation

    This legislation, S. 286, is needed to correct the 
bureaucratic processes and procedures that the Department of 
the Interior Self-Governance program has imposed which have 
discouraged the further compacting of Indian programs within 
the Department by Indian tribes or hindered negotiations 
between the Department and Indian tribes for renewing compacts 
or annual funding agreements. The provisions included in S. 286 
also provide greater certainty and more guidance from Congress 
on issues relating to decision-making timeframes, re-assumption 
of programs by the Department, construction projects, and 
timing of funding transfers.

                               Background

    The Indian Self-Determination and Education Assistance Act 
of 1975 (Act) is one of the most important legislative acts 
affecting Indian country of the last four decades. This Act has 
been a key driver in improving communities throughout Indian 
country.
    The Act originally authorized Indian tribes to enter into 
contracts with the Bureau of Indian Affairs (BIA) within the 
Department of the Interior, and the Indian Health Service (IHS) 
within the Department of Health and Human Services, to receive 
Federal funds and manage programs that would otherwise be 
managed by the Federal agencies. These contracts are commonly 
referred to as ``638 contracts'' after the Public Law Number 
93-638 for the Act.
    Expansion of this tribal administration approach has taken 
separate paths at these agencies. The Act was amended in 1988 
to establish the Department of the Interior Self-Governance 
Demonstration Program. For the first time, tribes were 
authorized to plan, administer, and consolidate multiple 
programs and services that had always been administered by the 
Department of the Interior.
    Indian tribes could administer these programs through 
compacts after demonstrating a higher level of accountability 
and fiscal responsibility, including three years of 
administering 638 contracts without material audit problems. 
Each 638 contract or self-governance compact identifies 
functions and activities to be carried out by the tribe, as 
well as any administrative, reporting, or other requirements 
that must be followed. However, these self-governance 
agreements allow tribal management of programs pursuant to one 
compact instead of requiring different contracts for each 
individual program.
    In 1992, the Act was amended to establish a self-governance 
demonstration program within the IHS as well. In 1994, the Act 
was again amended to make the Department of the Interior Self-
Governance Demonstration Program permanent. The 1994 amendments 
also made certain non-BIA programs within the Department of the 
Interior eligible for contracting or compacting.\1\
---------------------------------------------------------------------------
    \1\ Title IV of the Act mandates that all BIA programs are eligible 
for inclusion in self-governance compacts, but allows certain non-BIA 
programs in DOI to be subject to compacting under certain limited 
circumstances.
---------------------------------------------------------------------------
    When Congress made the IHS self-governance program 
permanent in 2000, several detailed improvements were enacted, 
such as adding specific definitions and identifying mandatory 
and prohibited terms and conditions of compacts, funding 
agreements, and construction projects. Tribes wanted to 
incorporate those improvements into the Department of the 
Interior self-governance program, in part, to gain consistency 
in the administration of their self-governance programs.
    In addition, Indian tribes contend that the Department 
bureaucracy has for many years resisted efforts by the tribes 
to further streamline compacting processes, and that, without 
additional reforms, the success of the Act's policy of tribal 
self-determination may not reach the full potential.

                          Legislative History

    In the 108th Congress, Senators Campbell and Inouye 
introduced the ``Department of the Interior Tribal Self-
Governance Act of 2004'', S. 1715. The Committee held a hearing 
on the bill on May 12, 2004. The Committee met to consider the 
bill on June 16, 2014. The Committee favorably ordered the bill 
to be reported, as amended, to the Senate. The bill did not 
pass the Senate.
    In the 109th and 110th Congresses, the Committee held 
oversight hearings relative to tribal self-governance, but no 
bill was introduced. In the 109th Congress on September 20, 
2006, the Committee held an oversight hearing on ``Tribal Self 
Governance''. During the 110th Congress, the Committee held an 
oversight hearing on the ``Successes and Shortfalls of Title IV 
of the Indian Self-Determination and Education Assistance Act: 
Twenty Years of Self-Governance'' on May 13, 2008.
    Even though no Senate bill was introduced in the 111th 
Congress, the Committee held a hearing on November 18, 2010 on 
a bill the House of Representatives passed, H.R. 4347, the 
``Department of the Interior Tribal Self-Governance Act of 
2010'' at which the Department of the Interior testified 
against the bill. While considerable work to address the 
Department's issues was undertaken by Congressional staff and 
tribal representatives, no further Committee action was taken 
on the bill.
    In the 112th Congress, Representative Boren introduced H.R. 
2444, the ``Department of the Interior Tribal Self-Governance 
Act of 2011.'' This bill contained several revisions to prior 
bills based on discussions between Congressional staff, the 
Department officials, and tribal representatives. The 
Subcommittee on Indian and Insular Affairs of the Committee on 
Natural Resources of the House of Representatives held a 
hearing on this bill on September 22, 2011. No further action 
was taken on this bill.
    Also in the 112th Congress, the Committee on Indian Affairs 
held an oversight hearing, ``Advancing the Federal-Tribal 
Relationship through Self-Governance and Self-Determination'', 
on September 20, 2012. On December 17, 2012, Senators Akaka and 
Barrasso introduced S. 3685, but no further action was taken by 
the Committee on the bill.
    In the 113th Congress, Senator Cantwell introduced S. 919, 
the ``Department of the Interior Tribal Self-Governance Act of 
2014'' on May 9, 2013. Senators Barrasso, Baucus, Crapo, 
Heinrich, Murray, Schatz, Tester, Udall (NM) and Wyden were 
original co-sponsors. Senators Murkowski, Begich, Warren and 
Walsh were later added as cosponsors. The Committee held a 
hearing on S. 919 on January 29, 2014. On June 11, 2014, the 
Committee met to consider the bill. One substitute amendment 
was offered and adopted, and the Committee then ordered the 
bill, as amended, to be reported favorably to the Senate by 
voice vote.
    The House companion bill, H.R. 4546 was sponsored by 
Representative DeFazio with six cosponsors. That bill was 
referred to the Committee on Natural Resources for the House of 
Representatives on May 1, 2014, with referrals to both 
Subcommittees on Indian and Alaska Native Affairs and on Water 
and Power. The Subcommittee on Indian and Alaska Native Affairs 
held a hearing on the bill on July 15, 2014. No further action 
was taken on this bill.
    In the 114th Congress, Senator Barrasso introduced S. 286 
on January 18, 2015. Senators Tester, Crapo, Franken, 
Murkowski, and Schatz co-sponsored the bill. On February 4, 
2015, the Committee met to consider the bill. The Committee 
ordered the bill, without amendments, to be reported favorably 
to the Senate by voice vote.

                          Overview of the Bill

    This legislation, S. 286, would amend the Act to streamline 
the Department of the Interior's process for approving self-
governance compacts and annual funding agreements for Indian 
programs. The bill would also align the process used by the 
Department of the Interior to be similar to the processes used 
by the IHS. Currently each tribe seeking a new compact or 
renewal of a compact (or annual funding agreement) must use two 
different negotiation processes.
    The bill, S. 286, contains two titles. The first title 
would amend the Pub. L. No. 93-638 contract negotiation process 
under Title I (i.e., the non-self-governance title) of the 
Indian Self-Determination and Education Assistance Act of 1975 
and add more flexibility in administering those contracts for 
tribes that either have not qualified for self-governance or 
have chosen to administer only a few BIA programs.
    The second title includes amendments to the self-governance 
provisions of Title IV of the Indian Self-Determination and 
Education Assistance Act of 1975 that would clarify procedures 
and limit the Secretary's ability to delay compacting or 
release of funding. These changes are meant to mirror the 
provisions that the tribes have found beneficial in the IHS 
compacting process.
    Section 202 of this legislation also makes clear that 
nothing in the bill expands or limits which non-BIA programs 
are eligible for inclusion in self-governance compacts beyond 
those already authorized to be included by current law. The 
section also clarifies that provisions of water settlements and 
their authorizing legislation are not affected by the self-
governance amendments.
    While the bill is not expanding the scope of Federal 
programs eligible for inclusion in self-governance agreements, 
current law does provide the Secretary with the discretion to 
include certain non-BIA programs in self-governance agreements 
as negotiated with tribes. These programs include those which 
have a special geographic, historical, or cultural significance 
to a petitioning tribe.
    Even though it has been in the Act for over twenty years, 
this authority has been used sparingly by the Secretary. The 
Committee commends the Department for its past efforts to 
include programs such as the National Bison Range Complex in 
Montana and the Yukon Flats National Wildlife Refuge in Alaska, 
both of which satisfy the requirements as eligible programs 
under existing law.

                  Summary of Key Provisions of S. 286

    This bill, S. 286, reflects the numerous changes that have 
been made over time during the debate on prior bills. Most 
notably, discussions between Congressional staff, tribal, and 
Federal officials led to greater clarity in several provisions 
for negotiating and renewing BIA compacts as well as the 
``savings'' clause set forth in Section 202.
    Title I. Other technical amendments were made in Title I of 
the bill, including the movement of references to the savings 
clause of the bill, changing dates, and clarifying the good 
faith negotiations requirement provisions.
    Section 101 clarifies that 638 contracts are subject to the 
Act's procurement rules, but remain exempt from other Federal 
procurement rules.
    Section 102 requires the Secretary to negotiate 638 
contracts in good faith.
    Section 104 codifies current Office of Management and 
Budget policy that not less than fifty percent of expenses of a 
tribal governing body for administering these Indian programs 
be deemed reasonable and allowable for determining ``indirect 
cost rates.'' \2\
---------------------------------------------------------------------------
    \2\ The ``indirect cost rate'' means a negotiated rate for such 
costs as utilities or administrative overhead, agreed to between an 
Indian tribe or tribal organization and the appropriate Federal agency. 
Indirect costs include reasonable and allowable costs of administrative 
or other expense related to the overhead incurred in connection with 
the operation of the Federal program (defined at 25 CFR 900.6).
---------------------------------------------------------------------------
    Title II. The second title of the bill is intended to 
mirror the IHS program in several respects by codifying several 
regulations, clarifying procedures, and minimizing 
opportunities for the Secretary to delay compacting or funding.
    Sections 404 and 405 set forth requirements and procedures 
for amendments to compacts, retrocession of programs \3\ and 
the types of programs that may be included in compacts. For the 
most part, many of these provisions are merely codifying 
existing regulations.
---------------------------------------------------------------------------
    \3\ Retrocession means to ``return'' a compacted program to the BIA 
to resume Federal management of the program. This retrocession rarely 
happens--but if it does, this section would provide certainty to that 
process.
---------------------------------------------------------------------------
    Section 408 authorizes, for construction contracts for 
buildings, roads, or infrastructure, tribes to assume some 
Federal responsibilities under the National Environmental 
Policy Act and National Historic Preservation Act. It further 
requires tribes to adhere to certain codes (similar to what 
tribes do under Indian housing laws).
    Section 409 sets forth an expedited process for funding 
transfers from the Secretary to the tribe and prohibit the 
Secretary from failing to transfer funds or reducing funding 
unless authorized by Federal law. Current law authorizes lump-
sum funding, but many tribes contend that the transfers have 
been obstructed in various ways by the Secretary, contrary to 
the Act. They further contend that the Secretary has been known 
to hold back funding as leverage in compact negotiations.
    Section 410 requires the Secretary to act on a compacting 
tribe's regulatory waiver request within 120 days or the waiver 
is deemed approved (current law provides no alternative for 
tribes when the Secretary fails to act, except to sue for 
performance).
    Section 414 requires an annual report to Congress regarding 
the needs of and funding to Indian tribes, funding formula 
methodology, list of non-BIA programs eligible for compacting, 
programmatic targets to encourage compacting, and views of 
tribes on this information. This provision essentially codifies 
existing regulations or imports IHS self-governance 
requirements to the BIA self-governance.
    Section 417 requires that, for judicial review of any 
appeals or administrative actions, the Secretary have the 
burden of proof demonstrating by a preponderance of the 
evidence the validity of the grounds for the decision, except 
for ``final offers'' to compact, which require a higher 
standard of clear and convincing evidence.
    Section 202 Amendments. One important change in S. 286 
(also included in S. 919 from the 113th Congress) from prior 
bills is a new section 202 that includes a ``savings clause.'' 
Section 202 states in this ``savings clause'' that nothing in 
the bill expands or limits which programs are eligible for 
inclusion in self-governance compacts beyond those already 
authorized to be included by current law. The section also 
clarifies that provisions of water settlements and their 
authorizing legislation are not affected by the self-governance 
amendments in the bill.
    The principal intended purpose of section 202 is to clarify 
and make more succinct that none of the amendments or 
provisions of the bill will affect current law relating to (1) 
contracting or compacting of non-BIA programs under the Act, or 
(2) Congressionally approved water settlements. With respect to 
contracting or compacting non-BIA programs, if a non-BIA 
program or function could not be contracted or compacted under 
the Act on the day before the enactment of the bill, that 
program or function cannot be compacted after the enactment of 
the bill. It also clarifies that the water settlements that are 
relevant are only those which have been ``expressly ratified or 
approved by an Act of Congress.''

        Section-by-Section Analysis of Bill as Ordered Reported


Section 1--Short Title; Table of contents

    Section 1 states that the Act may be cited as the 
`Department of the Interior Tribal Self-Governance Act of 
2015.'

                   TITLE I--INDIAN SELF-DETERMINATION

Section 101. Definitions; reporting and audit requirements; application 
        of provisions

    Section 101(a) amends the Indian Self-Determination and 
Education Assistance Act of 1975 (25 U.S.C. 450) by adding to 
the definition of `self-determination contract.' This section 
revises the definition to state that, except as provided in: 
(1) section 105(a)(3) of the Act, no contract shall be 
considered to be a procurement contract, and (2) section 
107(a)(1), no contract shall be subject to any Federal 
procurement law, including regulations (e.g., the Federal 
Acquisition Regulations).
    Section 105(a)(3) governs construction contracts and allows 
the Secretary and respective tribe to agree to make certain 
procurement provisions applicable to those contracts. Section 
107(a)(1) authorizes the Secretary to promulgate regulations 
governing procurement (and other matters) applicable to these 
contracts under this Act in accordance the rulemaking 
procedures under 5 U.S.C. 552, 553, and subchapter III.
    Section 101(b) provides for the retention period of records 
for auditing purposes to be defined in regulations promulgated 
by the Secretary.
    Section 101(c) provides that certain sections of Indian 
Self-Determination and Education Assistance Act relating to the 
definitions, reporting and auditing requirements, criminal 
penalties, wage and labor standards, liability insurance, 
retention of Federal employees, application of Federal 
contracting laws, and the use and acquisition of Federal 
property apply to compacts and funding agreements under Title 
IV of this Act.
    In addition, Section 314 of the Department of the Interior 
and Related Agencies Appropriations Act, 1991 (Pub. L. No. 101-
512) relating to Federal Tort Claim Act coverage also applies 
to compacts and funding agreements under Title IV of this Act.

Section 102. Contracts by the Secretary of Interior

    Section 102(1) amends the Act to simplify a reference to 
the Indian Financing Act of 1974. Section 102(2) provides that 
the Secretary shall at all times negotiate in good faith and, 
subject to section 202, that the provisions of contracts or 
funding agreements should be liberally construed for the 
benefit of the Indian tribe.

Section 103. Administrative provisions

    Section 103 makes a minor technical correction to Section 
105 of the Act by substituting a corrected reference to 
sections 102 and 103 (instead of referencing sections 450f and 
450h) of the Act. Further, this section would require, subject 
to section 202, 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 in self-determination contracts and funding 
agreements; implementation of self-determination contracts and 
funding agreements; 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 
decision by the Office of Management and Budget and the 
Department of the Interior regarding documentation 
requirements. Under this section, eligible costs would include 
not less than fifty percent of the expenses incurred by the 
governing body of a tribe or tribal organization relating to a 
program, function, service or activity pursuant to the 
contract. Furthermore, such expenses of a tribal governing body 
shall be treated as reasonable and allowable without burdensome 
documentation requirements because these costs 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 funding agreement terms are subject to the 
provisions in section 102 of the Act governing the negotiation 
process and declinations.

                                TITLE II

Section 201. Tribal self-governance

    Section 201 amends the Act by revising several provisions 
of Title IV which govern the tribal self-governance program.
    Section 201(a) provides definitions for key terms included 
in Title IV which, in addition to those in Title I, include 
`compact', `construction program and construction project', 
`Department', `funding agreement', `program', `self-governance' 
and `Secretary'.
    Section 201(b) amends Section 402 of the Act to provide for 
the establishment and eligibility requirements for the Tribal 
Self-Governance Program. 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 201(c) amends Section 403 of the Indian Self-
Determination and Education Assistance Act and directs the 
Secretary to negotiate and enter into a funding agreement with 
the governing body of an Indian tribe or tribal organization. 
It clarifies that a funding agreement authorizes a tribe, at 
its option, to plan, conduct, consolidate, administer and 
receive full tribal share funding for all programs, functions, 
services or activities of the BIA, the Office of the Assistant 
Secretary for Indian Affairs, and the Office of the Special 
Trustee. A funding agreement may include programs, functions, 
services or activities 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 funding agreement shall 
authorize a tribe, at its option, 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 BIA, Office of the Assistant-Secretary 
for Indian Affairs, and the Office of the Special Trustee, that 
is otherwise available to tribes or Indians under Section 102 
of Indian Self-Determination and Education Assistance Act. A 
tribe has discretion to include in its funding agreement, a 
stable budget specifying the recurring funds to be transferred 
to the tribe. Absent tribal consent, the Secretary cannot amend 
the terms of a funding agreement. This section also provides 
tribes with existing funding agreements more options with 
respect to subsequent funding agreements and negotiating 
multiyear funding agreements.
    Section 201(d) amends Title IV of the Indian Self-
Determination and Education Assistance Act by mirroring for the 
Department of the Interior those self-governance provisions 
found in Title V--Tribal Self-Governance-Indian Health Service, 
and clarifying any distinctions that are needed for Department 
of the Interior differences.
    The new ``Section 404'' of the Indian Self-Determination 
and Education Assistance Act 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'' provides for certain provisions that must 
be included in funding agreements. Conflicts of interest, 
auditing principles, tribal redesign and consolidation 
authority must be addressed. With respect to discretionary 
programs of special significance, however, tribal reallocation, 
consolidation, and redesign are only allowed when the Secretary 
and the tribe enter into a joint agreement.
    The section also provides that tribal records are not 
subject to the Freedom of Information Act, unless a tribe 
specifies otherwise in a funding agreement or a compact. A 
tribe must provide the Secretary with reasonable access to its 
records with at least 30 days' notice.
    ``Section 406'' provides that a funding agreement include a 
provision to monitor the performance of trust functions by the 
Indian tribe. A compact or a funding agreement 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, the Secretary may, on written notice to the 
tribe, immediately reassume operation of a program if there is 
a finding of imminent and substantial jeopardy and irreparable 
harm to a trust asset, a natural resource, or the public health 
and safety caused by an act or omission of the tribe.
    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 
reassuming a program and by clearly demonstrating the validity 
of the grounds for rejecting a final offer.
    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 406 requires 
that Title IV compacts and funding agreements be construed for 
the benefit of tribes and any ambiguities be resolved in favor 
of tribes.
    ``Section 407'' 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 
funding agreements as annual or semi-annual advance payments. 
Section 407 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 408'' authorizes multi-year funding agreements. 
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 funding agreement with insufficient funds and may 
suspend its performance (after providing reasonable notice of 
such insufficiency to the Secretary) until funds are adequate.
    ``Section 409'' requires the Secretary to interpret federal 
laws in a manner that facilitates the implementation of, and 
the inclusion of programs in, funding agreements. 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 410'' provides that Title IV neither expands nor 
alters the Secretary's statutory authority to enter into any 
funding agreement with respect to an inherent federal function, 
in instances where a statute prohibits a tribe's participation 
in a program, or when the funding agreement would limit or 
reduce services, contracts, or funds that any other tribe is 
eligible to receive under federal law.
    ``Section 411'' provides a tribe with the discretion to 
incorporate any provision of Title I into a compact or a 
funding agreement.
    ``Section 412'' requires the President to identify in a 
report to accompany the annual budget request submitted to 
Congress all amounts necessary to fully fund all funding 
agreements entered into under this Act.
    ``Section 413'' 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-Office of Special 
Trustee programs. Section 413 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 the BIA, the Office of the Special 
Trustee, and the Office of the Assistant Secretary for Indian 
Affairs for inclusion in compacts.
    ``Section 414'' 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.
    ``Section 415'' provides that except for the eligibility 
provisions of section 105(g) and regulations of section 414 of 
the Indian Self-Determination and Education Assistance Act, a 
tribe is not subject to any agency circular, policy, manual, or 
guidance absent the tribe's consent.
    ``Section 416'' provides that, except as described in the 
provisions in section 406, 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 417'' clarifies that ``Section 413 of the 
Department of the Interior and Related Agencies Appropriations 
Act, 1991'' shall apply to self-governance compacts and funding 
agreements.
    ``Section 418'' authorizes the appropriation of such sums 
as may be necessary to carry out Title IV--Tribal Self-
Governance.

Section 202. Effect of certain provisions

    This section provides that nothing in the Department of the 
Interior Tribal Self-Governance Act of 2015 increases, limits, 
or modifies the Secretary's authority held the day before the 
enactment of the Act. No program, function, service or activity 
that was not eligible to be included in a compact or funding 
agreement the day before the enactment of this Act becomes 
eligible due to its enactment. Further, no tribal water 
settlement or Congressional Act expressly ratifying or 
approving such water settlement is affected by the enactment of 
this Act.

                   Cost and Budgetary Considerations

    The following cost estimate, as provided by the 
Congressional Budget Office, dated February 10, 2015, was 
prepared for S. 286:

                                                 February 10, 2015.
Hon. John Barrasso,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 286, the Department 
of the Interior Tribal Self-Governance Act of 2015.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Martin von 
Gnechten.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

S. 286--Department of the Interior Tribal Self-Governance Act of 2015

    S. 286 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 responsibility for certain programs, 
functions, and services or activities that would otherwise be 
carried out by the federal government. The bill would amend how 
contracts are negotiated between the tribes and the Department 
of the Interior (DOI) and would establish new guidelines for 
administering the program. Based on information provided by 
DOI, CBO estimates that implementing the legislation would have 
no significant effect on the federal budget over the 2015-2020 
period. Enacting S. 286 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply.
    S. 286 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    The CBO staff contact for this estimate is Martin von 
Gnechten. The estimate was approved by Theresa Gullo, Deputy 
Assistant Director for Budget Analysis.

                        Executive Communications

    The Committee has received no communications from the 
Executive Branch regarding S. 286.

               Regulatory and Paperwork Impact Statement

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate requires each report accompanying a bill to evaluate the 
regulatory and paperwork impact that would be incurred in 
carrying out the bill. The Committee believes that S. 286 will 
have a minimal impact on regulatory or paperwork requirements.

                        Changes in Existing Law

    In accordance with subsection 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
S. 286, as ordered reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic):

25 U.S.C. Sec. 450b (Indian Self-Determination and Education Assistance 
                                  Act)


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

    [(j) ``self-determination contract'' means a contract (or 
grant or cooperative agreement utilized under section 450e-1 of 
this title) entered into under part A of this subchapter 
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 [FN1] the last proviso in section 450j(a) of this 
title, no contract (or grant or cooperative agreement utilized 
under section 450e-1 of this title) entered into under part A 
of this subchapter shall be construed to be a procurement 
contract;]
    (j) ``self-determination contract'' means a contract 
entered into under title I (or a grant or cooperative agreement 
used under section 9) between a tribal organization and the 
appropriate Secretary for the planning, conduct, and 
administration of programs or services that are otherwise 
provided to Indian tribes and members of Indian tribes pursuant 
to Federal law, subject to the condition that, except as 
provided in section 105(a)(3), no contract entered into under 
title I (or grant or cooperative agreement used under section 
9) shall be--
          (1) considered to be a procurement contract; or
          (2) except as provided in section 107(a)(1), subject 
        to any Federal procurement law (including regulations);

 25 U.S.C. 450c(b) (Indian Self-Determination and Education Assistance 
                                  Act)


SECTION 5(B). REPORTING AND AUDIT REQUIREMENTS FOR RECIPIENTS OF 
                    FEDERAL FINANCIAL ASSISTANCE.

    (b) Access to books, documents, papers, and records for 
audit and examination by Comptroller General, etc.--
    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 retention period for the report that 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. The retention period shall be defined 
in regulations promulgated by the Secretary pursuant to section 
414.

25 U.S.C. Sec. 450f (Indian Self-Determination and Education Assistance 
                                  Act)


SECTION 102. CONTRACTS BY SECRETARY OF THE INTERIOR.

    (c) Liability insurance; waiver of defense.--
          (2) In obtaining or providing such coverage, the 
        Secretary shall, to the greatest extent practicable, 
        give a preference to coverage underwritten by Indian-
        owned [economic enterprises as defined in section 1452 
        of this title, 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.
    (f) Good Faith Requirement.--In the negotiation of 
contracts and funding agreements, the Secretary shall--
          (1) at all times negotiate in good faith to maximize 
        implementation of the self-determination policy; and
          (2) carry out this Act in a manner that maximizes the 
        policy of tribal self-determination, in a manner 
        consistent with--
                (A) the purposes specified in section 3; and
                (B) the Department of the Interior Tribal Self-
                Governance Act of 2015.
    (g) Rule of Construction.--Subject to section 202 of the 
Department of the Interior Tribal Self-Governance Act of 2015, 
each provision of this Act and each provision of a contract or 
funding agreement shall be liberally construed for the benefit 
of the Indian tribe participating in self-determination, and 
any ambiguity shall be resolved in favor of the Indian tribe.

25 U.S.C. Sec. 450j (Indian Self-Determination and Education Assistance 
                                  Act)


SECTION 103. ADMINISTRATIVE PROVISIONS.

    (b) Payments; transfer of funds by Treasury for 
disbursement by tribal organization; accountability for 
interest accrued prior to disbursement Payments of any grants 
or under any contracts [pursuant to sections 450f and 450h of 
this title] 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 part. 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.
    (p) Interpretation by Secretary.--Except as otherwise 
provided by law (including section 202 of the Department of the 
Interior Tribal Self-Governance Act of 2015), 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.

    25 U.S.C. Sec. 450j-1 (Indian Self-Determination and Education 
                            Assistance Act)


SECTION 104. CONTRACT FUNDING AND INDIRECT COSTS.

          (3)(A) The contract support costs that are eligible 
        costs for the purposes of receiving funding under this 
        subchapter 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]; 
                        and
                          (ii) any additional administrative or 
                        other [expense related to the overhead 
                        incurred] expense incurred by the 
                        governing body of the Indian tribe or 
                        tribal organization and any overhead 
                        expense incurred by the tribal 
                        contractor in connection with the 
                        operation of the Federal program, 
                        function, service, or activity pursuant 
                        to the contract, except that such 
                        funding shall not duplicate any funding 
                        provided under subsection (a)(1) of 
                        this section.
                  (B) In calculating the reimbursement rate for 
                expenses described in subparagraph (A)(ii), not 
                less than 50 percent of the expenses described 
                in subparagraph (A)(ii) that are incurred by 
                the governing body of an Indian tribe or tribal 
                organization relating to a Federal program, 
                function, service, or activity carried out 
                pursuant to the contract shall be considered to 
                be reasonable and allowable.
                  [(B)](C) On an annual basis, during such 
                period as a tribe or tribal organization 
                operates a Federal program, function, service, 
                or activity pursuant to a contract entered into 
                under this subchapter, the tribe or tribal 
                organization shall have the option to negotiate 
                with the Secretary the amount of funds that the 
                tribe or tribal organization is entitled to 
                receive under such contract pursuant to this 
                paragraph.

25 U.S.C. Sec. 450l (Indian Self-Determination and Education Assistance 
                                  Act)


SECTION 105. CONTRACT OR GRANT SPECIFICATIONS.

    (a) Terms.--Each self-determination contract entered into 
under this subchapter shall--
          (1) contain, or incorporate by reference, the 
        provisions of the model agreement described in 
        subsection (c) of this section (with modifications 
        where indicated and the blanks appropriately filled 
        in), and
          (2) subject to subsections (a) and (b) of section 
        102, contain such other provisions as are agreed to by 
        the parties.
          ``(2) Annual funding agreement.--
                  ``(A) In general.--The annual funding 
                agreement under this Contract shall only 
                contain--
                          ``(i) terms that identify the 
                        programs, services, functions, and 
                        activities to be performed or 
                        administered, the general budget 
                        category assigned, the funds to be 
                        provided, and the time and method of 
                        payment; and
                          ``(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.

     25 U.S.C. Sec. 458aa (Indian Self-Determination and Education 
                            Assistance Act)


SECTION 201. TRIBAL SELF-GOVERNANCE.

SEC. 401. DEFINITIONS.

    In this title:
          (1) Compact.--The term `compact' means a self-
        governance compact entered into under section 404.
          (2) Construction program; construction project.--The 
        term `construction program' or `construction project' 
        means a tribal undertaking relating to the 
        administration, planning, environmental determination, 
        design, construction, repair, improvement, or expansion 
        of roads, bridges, buildings, structures, systems, or 
        other facilities for purposes of housing, law 
        enforcement, detention, sanitation, water supply, 
        education, administration, community, health, 
        irrigation, agriculture, conservation, flood control, 
        transportation, or port facilities, or for other tribal 
        purposes.
          (3) Department.--The term `Department' means the 
        Department of the Interior.
          (4) Funding agreement.--The term `funding agreement' 
        means a funding agreement entered into under section 
        403.
          (5) Gross mismanagement.--The term `gross 
        mismanagement' means a significant violation, shown by 
        a preponderance of the evidence, of a compact, funding 
        agreement, or statutory or regulatory requirement 
        applicable to Federal funds--
                  (A) for a program administered by an Indian 
                tribe; or
                  (B) under a compact or funding agreement that 
                results in a significant reduction of funds 
                available for the programs assumed by an Indian 
                tribe.
          (6) Inherent federal function.--The term `inherent 
        Federal function' means a Federal function that may not 
        legally be delegated to an Indian tribe.
          (7) Program.--The term `program' means any program, 
        function, service, or activity (or portion thereof) 
        within the Department that is included in a funding 
        agreement.
          (8) Secretary.--The term `Secretary' means the 
        Secretary of the Interior.
          (9) Self-governance.--The term `self-governance' 
        means the Tribal Self-Governance Program established 
        under section 402.
          (10) Tribal share.--The term `tribal share' means the 
        portion of all funds and resources of an Indian tribe 
        that--
                  (A) support any program within the Bureau of 
                Indian Affairs, the Office of the Special 
                Trustee, or the Office of the Assistant 
                Secretary for Indian Affairs; and
                  (B) are not required by the Secretary for the 
                performance of an inherent Federal function.

     25 U.S.C. Sec. 458bb (Indian Self-Determination and Education 
                            Assistance Act)


SEC. 402. TRIBAL SELF-GOVERNANCE PROGRAM.

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

    25 U.S.C. Sec.  458cc (Indian Self-Determination and Education 
                            Assistance Act)


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.]
    (a) Authorization.--The Secretary shall, on the request of 
any Indian tribe or tribal organization, enter into a written 
funding agreement with the governing body of the Indian tribe 
or the tribal organization in a manner consistent with--
          (1) the trust responsibility of the Federal 
        Government, treaty obligations, and the government-to 
        government relationship between Indian tribes and the 
        United States; and
          (2) subsection (b).
    (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] the 
        Office of Assistant Secretary for Indian Affairs, and 
        the Office of the Special Trustee without regard to the 
        agency or the office of that Bureau or those Offices 
        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) of this section, 
        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) section 13 of this title; [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 T3; 
                and
                  (D) any other programs, services, functions, 
                or activities (or portions thereof) that are 
                provided through the Bureau of Indian Affairs, 
                the Office of the Assistant Secretary for 
                Indian Affairs, or the Office of the Special 
                Trustee with respect to which Indian tribes or 
                Indians are primary or significant 
                beneficiaries; 
          (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)] section 413 (c) of this title, 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; and 
          (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 
                2008 of this title; 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 450f of this title;
          (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 450j(e) of this title;
          (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 450f 
                of this title, 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.]
    (m) Other Provisions.--
          (1) Excluded funding.--A funding agreement shall not 
        authorize an Indian tribe to plan, conduct, administer, 
        or receive tribal share funding under any program 
        that--
                  (A) is provided under the Tribally Controlled 
                Colleges and Universities Assistance Act of 
                1978 (25 U.S.C. 1801 et seq.); or
                  (B) is provided for elementary and secondary 
                schools under the formula developed under 
                section 1127 of the Education Amendments of 
                1978 (25 U.S.C. 2007).
          (2) Services, functions, and responsibilities.--A 
        funding agreement shall specify--
                  (A) the services to be provided under the 
                funding agreement;
                  (B) the functions to be performed under the 
                funding agreement; and
                  (C) the responsibilities of the Indian tribe 
                and the Secretary under the funding agreement.
          (3) Base budget.--A funding agreement shall, at the 
        option of the Indian tribe, provide for a stable base 
        budget specifying the recurring funds (which may 
        include funds available under section 106(a)) to be 
        transferred to the Indian tribe, for such period as the 
        Indian tribe specifies in the funding agreement, 
        subject to annual adjustment only to reflect changes in 
        congressional appropriations.
    (4) No waiver of trust responsibility.--A funding agreement 
shall prohibit the Secretary from waiving, modifying, or 
diminishing in any way the trust responsibility of the United 
States with respect to Indian tribes and individual Indians 
that exists under treaties, Executive orders, court decisions, 
and other laws.
    (n) Amendment.--The Secretary shall not revise, amend, or 
require additional terms in a new or subsequent funding 
agreement without the consent of the Indian tribe, unless such 
terms are required by Federal law.
    (o) Effective date.--A funding agreement shall become 
effective on the date specified in the funding agreement.
    (p) Existing and Subsequent Funding Agreements.--
          (1) Subsequent funding agreements.--Absent 
        notification from an Indian tribe that the Indian tribe 
        is withdrawing or retroceding the operation of one or 
        more programs identified in a funding agreement, or 
        unless otherwise agreed to by the parties to the 
        funding agreement or by the nature of any noncontinuing 
        program, service, function, or activity contained in a 
        funding agreement--
                  (A) a funding agreement shall remain in full 
                force and effect until a subsequent funding 
                agreement is executed, with funding paid 
                annually for each fiscal year the agreement is 
                in effect; and
                  (B) the term of the subsequent funding 
                agreement shall be retroactive to the end of 
                the term of the preceding funding agreement for 
                the purposes of calculating the amount of 
                funding to which the Indian tribe is entitled.
          (2) Disputes.--Disputes over the implementation of 
        paragraph (1)(A) shall be subject to section 406(c).
          (3) Existing funding agreements.--An Indian tribe 
        that was participating in self-governance under this 
        title on the date of enactment of the Department of the 
        Interior Tribal Self-Governance Act of 2015 shall have 
        the option at any time after that date--
                  (A) to retain its existing funding agreement 
                (in whole or in part) to the extent that the 
                provisions of that funding agreement are not 
                directly contrary to any express provision of 
                this title; or
                  (B) to negotiate a new funding agreement in a 
                manner consistent with this title.
          (4) Multiyear funding agreements.--An Indian tribe 
        may, at the discretion of the Indian tribe, negotiate 
        with the Secretary for a funding agreement with a term 
        that exceeds 1 year.

25 U.S.C. 458aa et seq. (Title IV of the Indian Self-Determination and 
                       Education Assistance Act)


[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.]

SEC. 404. COMPACTS.

    (a) In General.--The Secretary shall negotiate and enter 
into a written compact with each Indian tribe participating in 
self-governance in a manner consistent with the trust 
responsibility of the Federal Government, treaty obligations, 
and the government-to-government relationship between Indian 
tribes and the United States.
    (b) Contents.--A compact under subsection (a) shall--
          (1) specify and affirm the general terms of the 
        government-to-government relationship between the 
        Indian tribe and the Secretary; and
          (2) include such terms as the parties intend shall 
        control during the term of the compact.
    (c) Amendment.--A compact under subsection (a) may be 
amended only by agreement of the parties.
    (d) Effective Date.--The effective date of a compact under 
subsection (a) shall be--
          (1) the date of the execution of the compact by the 
        parties; or
          (2) such date as is mutually agreed upon by the 
        parties.
    (e) Duration.--A compact under subsection (a) shall remain 
in effect--
          (1) for so long as permitted by Federal law; or
          (2) until termination by written agreement, 
        retrocession, or reassumption.
    (f) Existing Compacts.--An Indian tribe participating in 
self-governance under this title, as in effect on the date of 
enactment of the Department of the Interior Tribal Self-
Governance Act of 2015, shall have the option at any time after 
that date--
          (1) to retain its negotiated compact (in whole or in 
        part) to the extent that the provisions of the compact 
        are not directly contrary to any express provision of 
        this title; or
          (2) to negotiate a new compact in a manner consistent 
        with this title.

SEC. 405. GENERAL PROVISIONS.

    (a) Applicability.--An Indian tribe and the Secretary shall 
include in any compact or funding agreement provisions that 
reflect the requirements of this title.
    (b) Conflicts of Interest.--An Indian tribe participating 
in self-governance shall ensure that internal measures are in 
place to address, pursuant to tribal law and procedures, 
conflicts of interest in the administration of programs.
    (c) Audits.--
          (1) Single agency audit act.--Chapter 75 of title 31, 
        United States Code, shall apply to a funding agreement 
        under this title.
          (2) Cost principles.--An Indian tribe shall apply 
        cost principles under the applicable Office of 
        Management and Budget circular, except as modified by--
                  (A) any provision of law, including section 
                106; or
                  (B) any exemptions to applicable Office of 
                Management and Budget circulars subsequently 
                granted by the Office of Management and Budget.
          (3) Federal claims.--Any claim by the Federal 
        Government against an Indian tribe relating to funds 
        received under a funding agreement based on any audit 
        under this subsection shall be subject to section 
        106(f).
    (d) Redesign and Consolidation.--Except as provided in 
section 407, an Indian tribe may redesign or consolidate 
programs or reallocate funds for programs in any manner that 
the Indian tribe determines to be in the best interest of the 
Indian community being served, so long as that the redesign or 
consolidation does not have the effect of denying eligibility 
for services to population groups otherwise eligible to be 
served under applicable Federal law, except that, with respect 
to the reallocation, consolidation, and redesign of programs 
described in subsection (b)(2) or (c) of section 403, a joint 
agreement between the Secretary and the Indian tribe shall be 
required.
    (e) Retrocession.--
          (1) In general.--An Indian tribe may fully or 
        partially retrocede to the Secretary any program under 
        a compact or funding agreement.
          (2) Effective date.--
                  (A) Agreement.--Unless an Indian tribe 
                rescinds a request for retrocession under 
                paragraph (1), the retrocession shall become 
                effective on the date specified by the parties 
                in the compact or funding agreement.
                  (B) No agreement.--In the absence of a 
                specification of an effective date in the 
                compact or funding agreement, the retrocession 
                shall become effective on--
                          (i) the earlier of--
                                  (I) 1 year after the date on 
                                which the request is submitted; 
                                and
                                  (II) the date on which the 
                                funding agreement expires; or
                          (ii) such date as may be mutually 
                        agreed upon by the Secretary and the 
                        Indian tribe.
    (f) Nonduplication.--A funding agreement shall provide 
that, for the period for which, and to the extent to which, 
funding is provided to an Indian tribe under this title, the 
Indian tribe--
          (1) shall not be entitled to contract with the 
        Secretary for funds under section 102, except that the 
        Indian tribe shall be eligible for new programs on the 
        same basis as other Indian tribes; and
          (2) shall be responsible for the administration of 
        programs in accordance with the compact or funding 
        agreement.
    (g) Records.--
          (1) In general.--Unless an Indian tribe specifies 
        otherwise in the compact or funding agreement, records 
        of an Indian tribe shall not be considered to be 
        Federal records for purposes of chapter 5 of title 5, 
        United States Code.
          (2) Recordkeeping system.--An Indian tribe shall--
                  (A) maintain a recordkeeping system; and
                  (B) on a notice period of not less than 30 
                days, provide the Secretary with reasonable 
                access to the records to enable the Department 
                to meet the requirements of sections 3101 
                through 3106 of title 44, United States Code.

SEC. 406. PROVISIONS RELATING TO THE SECRETARY.

    (a) Trust Evaluations.--A funding agreement shall include a 
provision to monitor the performance of trust functions by the 
Indian tribe through the annual trust evaluation.
    (b) Reassumption.--
          (1) In general.--A compact or funding agreement shall 
        include provisions for the Secretary to reassume a 
        program and associated funding if there is a specific 
        finding relating to that program of--
                  (A) imminent jeopardy to a trust asset, a 
                natural resource, or public health and safety 
                that--
                          (i) is caused by an act or omission 
                        of the Indian tribe; and
                          (ii) arises out of a failure to carry 
                        out the compact or funding agreement; 
                        or
                  (B) gross mismanagement with respect to funds 
                transferred to an Indian tribe under a compact 
                or funding agreement, as determined by the 
                Secretary in consultation with the Inspector 
                General, as appropriate.
          (2) Prohibition.--The Secretary shall not reassume 
        operation of a program, in whole or part, unless--
                  (A) the Secretary first provides written 
                notice and a hearing on the record to the 
                Indian tribe; and
                  (B) the Indian tribe does not take corrective 
                action to remedy the mismanagement of the funds 
                or programs, or the imminent jeopardy to a 
                trust asset, natural resource, or public health 
                and safety.
          (3) Exception.--
                  (A) In general.--Notwithstanding paragraph 
                (2), the Secretary may, on written notice to 
                the Indian tribe, immediately reassume 
                operation of a program if--
                          (i) the Secretary makes a finding of 
                        imminent and substantial jeopardy and 
                        irreparable harm to a trust asset, a 
                        natural resource, or the public health 
                        and safety caused by an act or omission 
                        of the Indian tribe; and
                          (ii) the imminent and substantial 
                        jeopardy, and irreparable harm to the 
                        trust asset, natural resource, or 
                        public health and safety arises out of 
                        a failure by the Indian tribe to carry 
                        out the terms of an applicable compact 
                        or funding agreement.
                  (B) Reassumption.--If the Secretary reassumes 
                operation of a program under subparagraph (A), 
                the Secretary shall provide the Indian tribe 
                with a hearing on the record not later than 10 
                days after the date of reassumption.
    (c) Inability To Agree on Compact or Funding Agreement.--
          (1) Final Offer.--If the Secretary and a 
        participating Indian tribe are unable to agree, in 
        whole or in part, on the terms of a compact or funding 
        agreement (including funding levels), the Indian tribe 
        may submit a final offer to the Secretary.
          (2) Determination.--Not more than 60 days after the 
        date of receipt of a final offer by the one or more 
        officials designated pursuant to paragraph (4), the 
        Secretary shall review and make a determination with 
        respect to the final offer.
          (3) Extensions.--The deadline described in paragraph 
        (2) may be extended for any length of time, as agreed 
        upon by both the Indian tribe and the Secretary.
          (4) Designated officials.--
                  (A) In general.--The Secretary shall 
                designate one or more appropriate officials in 
                the Department to receive a copy of the final 
                offer described in paragraph (1).
                  (B) No designation.--If no official is 
                designated, the Executive Secretariat of the 
                Secretary shall be the designated official.
          (5) No timely determination.--Except as otherwise 
        provided in section 202 of the Department of the 
        Interior Tribal Self-Governance Act of 2015, if the 
        Secretary fails to make a determination with respect to 
        a final offer within the period specified in paragraph 
        (2), the Secretary shall be deemed to have agreed to 
        the offer.
          (6) Rejection of final offer.--
                  (A) In general.--If the Secretary rejects a 
                final offer (or one or more provisions or 
                funding levels in a final offer), the Secretary 
                shall--
                          (i) provide timely written 
                        notification to the Indian tribe that 
                        contains a specific finding that 
                        clearly demonstrates, or that is 
                        supported by a controlling legal 
                        authority, that--
                                  (I) the amount of funds 
                                proposed in the final offer 
                                exceeds the applicable funding 
                                level as determined under 
                                section 106(a)(1);
                                  (II) the program that is the 
                                subject of the final offer is 
                                an inherent Federal function or 
                                is subject to the discretion of 
                                the Secretary under section 
                                403(c);
                                  (III) the Indian tribe cannot 
                                carry out the program in a 
                                manner that would not result in 
                                significant danger or risk to 
                                the public health or safety, to 
                                natural resources, or to trust 
                                resources;
                                  (IV) the Indian tribe is not 
                                eligible to participate in 
                                self-governance under section 
                                402(c);
                                  (V) the funding agreement 
                                would violate a Federal statute 
                                or regulation; or
                                  (VI) with respect to a 
                                program or portion of a program 
                                included in a final offer 
                                pursuant to section 403(b)(2), 
                                the program or the portion of 
                                the program is not otherwise 
                                available to Indian tribes or 
                                Indians under section 
                                102(a)(1)(E);
                          (ii) provide technical assistance to 
                        overcome the objections stated in the 
                        notification required by clause (i);
                          (iii) provide the Indian tribe with--
                                  (I) a hearing on the record 
                                with the right to engage in 
                                full discovery relevant to any 
                                issue raised in the matter; and
                                  (II) the opportunity for 
                                appeal on the objections raised 
                                (except that the Indian tribe 
                                may, in lieu of filing such 
                                appeal, directly proceed to 
                                initiate an action in a United 
                                States district court under 
                                section 110(a)); and
                          (iv) provide the Indian tribe the 
                        option of entering into the severable 
                        portions of a final proposed compact or 
                        funding agreement (including a lesser 
                        funding amount, if any), that the 
                        Secretary did not reject, subject to 
                        any additional alterations necessary to 
                        conform the compact or funding 
                        agreement to the severed provisions.
                  (B) Effect of exercising certain option.--If 
                an Indian tribe exercises the option specified 
                in subparagraph (A)(iv)--
                          (i) the Indian tribe shall retain the 
                        right to appeal the rejection by the 
                        Secretary under this section; and
                          (ii) clauses (i), (ii), and (iii) of 
                        subparagraph (A) shall apply only to 
                        the portion of the proposed final 
                        compact or funding agreement that was 
                        rejected by the Secretary.
    (d) Burden of Proof.--In any administrative action, 
hearing, or appeal or civil action brought under this section, 
the Secretary shall have the burden of proof--
          (1) of demonstrating, by a preponderance of the 
        evidence, the validity of the grounds for a 
        reassumption under subsection (b); and
          (2) of clearly demonstrating the validity of the 
        grounds for rejecting a final offer made under 
        subsection (c).
    (e) Good Faith.--
          (1) In General.--In the negotiation of compacts and 
        funding agreements, the Secretary shall at all times 
        negotiate in good faith to maximize implementation of 
        the self-governance policy.
          (2) Policy.--The Secretary shall carry out this title 
        in a manner that maximizes the policy of tribal self-
        governance.
    (f) Savings.--
          (1) In General.--To the extent that programs carried 
        out for the benefit of Indian tribes and tribal 
        organizations under this title reduce the 
        administrative or other responsibilities of the 
        Secretary with respect to the operation of Indian 
        programs and result in savings that have not otherwise 
        been included in the amount of tribal shares and other 
        funds determined under section 408(c), except for 
        funding agreements entered into for programs under 
        section 403(c), the Secretary shall make such savings 
        available to the Indian tribes or tribal organizations 
        for the provision of additional services to program 
        beneficiaries in a manner equitable to directly served, 
        contracted, and compacted programs.
          (2) Discretionary programs of special significance.--
        For any savings generated as a result of the assumption 
        of a program by an Indian tribe under section 403(c), 
        such savings shall be made available to that Indian 
        tribe.
    (g) Trust Responsibility.--The Secretary may not waive, 
modify, or diminish in any way the trust responsibility of the 
United States with respect to Indian tribes and individual 
Indians that exists under treaties, Executive orders, other 
laws, or court decisions.
    (h) Decisionmaker.--A decision that constitutes final 
agency action and relates to an appeal within the Department 
conducted under subsection (c)(4) may be made by--
          (1) an official of the Department who holds a 
        position at a higher organizational level within the 
        Department than the level of the departmental agency in 
        which the decision that is the subject of the appeal 
        was made; or
          (2) an administrative law judge.
    (i) Rules of Construction.--Subject to section 202 of the 
Department of the Interior Tribal Self-Governance Act of 2015, 
each provision of this title and each provision of a compact or 
funding agreement shall be liberally construed for the benefit 
of the Indian tribe participating in self-governance, and any 
ambiguity shall be resolved in favor of the Indian tribe.

SEC. 407. CONSTRUCTION PROGRAMS AND PROJECTS.

    (a) In General.--Indian tribes participating in tribal 
self-governance may carry out construction projects under this 
title.
    (b) Tribal Option To Carry Out Certain Federal 
Environmental Activities.--In carrying out a construction 
project under this title, an Indian tribe may, subject to the 
agreement of the Secretary, elect to assume some Federal 
responsibilities under the National Environmental Policy Act of 
1969 (42 U.S.C. 4321 et seq.), the National Historic 
Preservation Act (16 U.S.C. 470 et seq.), and related 
provisions of law and regulations that would apply if the 
Secretary were to undertake a construction project, by adopting 
a resolution--
          (1) designating a certifying tribal officer to 
        represent the Indian tribe and to assume the status of 
        a responsible Federal official under those Acts or 
        regulations; and
          (2) accepting the jurisdiction of the United States 
        courts for the purpose of enforcing the 
        responsibilities of the certifying tribal officer 
        assuming the status of a responsible Federal official 
        under those Acts or regulations.
    (c) Savings Clause.--Notwithstanding subsection (b), 
nothing in this section authorizes the Secretary to include in 
any compact or funding agreement duties of the Secretary under 
the National Environmental Policy Act (42 U.S.C. 4321 et seq.), 
the National Historic Preservation Act (16 U.S.C. 470 et seq.), 
and other related provisions of law that are inherent Federal 
functions.
    (d) Codes and Standards.--In carrying out a construction 
project under this title, an Indian tribe shall--
          (1) adhere to applicable Federal, State, local, and 
        tribal building codes, architectural and engineering 
        standards, and applicable Federal guidelines regarding 
        design, space, and operational standards, appropriate 
        for the particular project; and
          (2) use only architects and engineers who--
                  (A) are licensed to practice in the State in 
                which the facility will be built; and
                  (B) certify that--
                          (i) they are qualified to perform the 
                        work required by the specific 
                        construction involved; and
                          (ii) upon completion of design, the 
                        plans and specifications meet or exceed 
                        the applicable construction and safety 
                        codes.
    (e) Tribal Accountability.--
          (1) In general.--In carrying out a construction 
        project under this title, an Indian tribe shall assume 
        responsibility for the successful completion of the 
        construction project and of a facility that is usable 
        for the purpose for which the Indian tribe received 
        funding.
          (2) Requirements.--For each construction project 
        carried out by an Indian tribe under this title, the 
        Indian tribe and the Secretary shall negotiate a 
        provision to be included in the funding agreement that 
        identifies--
                  (A) the approximate start and completion 
                dates for the project, which may extend over a 
                period of one or more years;
                  (B) a general description of the project, 
                including the scope of work, references to 
                design criteria, and other terms and 
                conditions;
                  (C) the responsibilities of the Indian tribe 
                and the Secretary for the project;
                  (D) how project-related environmental 
                considerations will be addressed;
                  (E) the amount of funds provided for the 
                project;
                  (F) the obligations of the Indian tribe to 
                comply with the codes referenced in subsection 
                (d)(1) and applicable Federal laws and 
                regulations;
                  (G) the agreement of the parties over who 
                will bear any additional costs necessary to 
                meet changes in scope, or errors or omissions 
                in design and construction; and
                  (H) the agreement of the Secretary to issue a 
                certificate of occupancy, if requested by the 
                Indian tribe, based upon the review and 
                verification by the Secretary, to the 
                satisfaction of the Secretary, that the Indian 
                tribe has secured upon completion the review 
                and approval of the plans and specifications, 
                sufficiency of design, life safety, and code 
                compliance by qualified, licensed, and 
                independent architects and engineers.
    (f) Funding.--
          (1) In general.--Funding appropriated for 
        construction projects carried out under this title 
        shall be included in funding agreements as annual or 
        semiannual advance payments at the option of the Indian 
        tribe.
          (2) Advance payments.--The Secretary shall include 
        all associated project contingency funds with each 
        advance payment, and the Indian tribe shall be 
        responsible for the management of such contingency 
        funds.
    (g) Negotiations.--At the option of the Indian tribe, 
construction project funding proposals shall be negotiated 
pursuant to the statutory process in section 105, and any 
resulting construction project agreement shall be incorporated 
into the funding agreement as addenda.
    (h) Federal Review and Verification.--
          (1) In general.--On a schedule negotiated by the 
        Secretary and the Indian tribe--
                  (A) the Secretary shall review and verify, to 
                the satisfaction of the Secretary, that project 
                planning and design documents prepared by the 
                Indian tribe in advance of initial construction 
                are in conformity with the obligations of the 
                Indian tribe under subsection (d); and
                  (B) before the project planning and design 
                documents are implemented, the Secretary shall 
                review and verify to the satisfaction of the 
                Secretary that subsequent document amendments 
                which result in a significant change in 
                construction are in conformity with the 
                obligations of the Indian tribe under 
                subsection (d).
          (2) Reports.--The Indian tribe shall provide the 
        Secretary with project progress and financial reports 
        not less than semiannually.
          (3) Oversight visits.--The Secretary may conduct 
        onsite project oversight visits semiannually or on an 
        alternate schedule agreed to by the Secretary and the 
        Indian tribe.
    (i) Application of Other Laws.--Unless otherwise agreed to 
by the Indian tribe and except as otherwise provided in this 
Act, no provision of the Office of Federal Procurement Policy 
Act (41 U.S.C. 401 et seq.), the Federal Acquisition 
Regulations issued pursuant to that Act, or any other law or 
regulation pertaining to Federal procurement (including 
Executive orders) shall apply to any construction program or 
project carried out under this title.
    (j) Future Funding.--Upon completion of a facility 
constructed under this title, the Secretary shall include the 
facility among those eligible for annual operation and 
maintenance funding support comparable to that provided for 
similar facilities funded by the Department as annual 
appropriations are available and to the extent that the 
facility size and complexity and other factors do not exceed 
the funding formula criteria for comparable buildings.
    (k) Applicability.--Notwithstanding any other provision of 
this section, section 202 of the Department of the Interior 
Tribal Self-Governance Act of 2015 applies to subsections (a) 
through (j).

SEC. 408. PAYMENT.

    (a) In General.--At the request of the governing body of an 
Indian tribe and under the terms of an applicable funding 
agreement, the Secretary shall provide funding to the Indian 
tribe to carry out the funding agreement.
    (b) Advance Annual Payment.--At the option of the Indian 
tribe, a funding agreement shall provide for an advance annual 
payment to an Indian tribe.
    (c) Amount.--
          (1) In general.--Subject to subsection (e) and 
        sections 403 and 405, the Secretary shall provide funds 
        to the Indian tribe under a funding agreement for 
        programs in an amount that is equal to the amount that 
        the Indian tribe would have been entitled to receive 
        under contracts and grants under this Act (including 
        amounts for direct program and contract support costs 
        and, in addition, any funds that are specifically or 
        functionally related to the provision by the Secretary 
        of services and benefits to the Indian tribe or its 
        members) without regard to the organization level 
        within the Department at which the programs are carried 
        out.
          (2) Savings clause.--Nothing in this section reduces 
        programs, services, or funds of, or provided to, 
        another Indian tribe.
    (d) Timing.--
          (1) In General.--Pursuant to the terms of any compact 
        or funding agreement entered into under this title, the 
        Secretary shall transfer to the Indian tribe all funds 
        provided for in the funding agreement, pursuant to 
        subsection (c), and provide funding for periods covered 
        by joint resolution adopted by Congress making 
        continuing appropriations, to the extent permitted by 
        such resolution.
          (2) Transfers.--Not later than 1 year after the date 
        of enactment of the Department of the Interior Tribal 
        Self-Governance Act of 2015, in any instance in which a 
        funding agreement requires an annual transfer of 
        funding to be made at the beginning of a fiscal year or 
        requires semiannual or other periodic transfers of 
        funding to be made commencing at the beginning of a 
        fiscal year, the first such transfer shall be made not 
        later than 10 days after the apportionment of such 
        funds by the Office of Management and Budget to the 
        Department, unless the funding agreement provides 
        otherwise.
    (e) Availability.--Funds for trust services to individual 
Indians shall be available under a funding agreement only to 
the extent that the same services that would have been provided 
by the Secretary are provided to individual Indians by the 
Indian tribe.
    (f) Multiyear Funding.--A funding agreement may provide for 
multiyear funding.
    (g) Limitations on Authority of the Secretary.--The 
Secretary shall not--
          (1) fail to transfer to an Indian tribe its full 
        share of any central, headquarters, regional, area, or 
        service unit office or other funds due under this title 
        for programs eligible under paragraph (1) or (2) of 
        section 403(b), except as required by Federal law;
          (2) withhold any portion of such funds for transfer 
        over a period of years; or
          (3) reduce the amount of funds required under this 
        title--
                  (A) to make funding available for self-
                governance monitoring or administration by the 
                Secretary;
                  (B) in subsequent years, except as necessary 
                as a result of--
                          (i) a reduction in appropriations 
                        from the previous fiscal year for the 
                        program to be included in a compact or 
                        funding agreement;
                          (ii) a congressional directive in 
                        legislation or an accompanying report;
                          (iii) a tribal authorization;
                          (iv) a change in the amount of pass-
                        through funds subject to the terms of 
                        the funding agreement; or
                          (v) completion of an activity under a 
                        program for which the funds were 
                        provided;
                  (C) to pay for Federal functions, including--
                          (i) Federal pay costs;
                          (ii) Federal employee retirement 
                        benefits;
                          (iii) automated data processing;
                          (iv) technical assistance; and
                          (v) monitoring of activities under 
                        this title; or
                  (D) to pay for costs of Federal personnel 
                displaced by self-determination contracts under 
                this Act or self-governance under this title.
    (h) Federal Resources.--If an Indian tribe elects to carry 
out a compact or funding agreement with the use of Federal 
personnel, Federal supplies (including supplies available from 
Federal warehouse facilities), Federal supply sources 
(including lodging, airline transportation, and other means of 
transportation, including the use of interagency motor pool 
vehicles), or other Federal resources (including supplies, 
services, and resources available to the Secretary under any 
procurement contracts in which the Department is eligible to 
participate), the Secretary shall, as soon as practicable, 
acquire and transfer such personnel, supplies, or resources to 
the Indian tribe under this title.
    (i) Prompt Payment Act.--Chapter 39 of title 31, United 
States Code, shall apply to the transfer of funds due under a 
compact or funding agreement authorized under this title.
    (j) Interest or Other Income.--
          (1) In general.--An Indian tribe may retain interest 
        or income earned on any funds paid under a compact or 
        funding agreement to carry out governmental purposes.
          (2) No effect on other amounts.--The retention of 
        interest or income under paragraph (1) shall not 
        diminish the amount of funds an Indian tribe is 
        entitled to receive under a funding agreement in the 
        year the interest or income is earned or in any 
        subsequent fiscal year.
          (3) Investment standard.--Funds transferred under 
        this title shall be managed by the Indian tribe using 
        the prudent investment standard, provided that the 
        Secretary shall not be liable for any investment losses 
        of funds managed by the Indian tribe that are not 
        otherwise guaranteed or insured by the Federal 
        Government.
    (k) Carryover of Funds.--
          (1) In general.--Notwithstanding any provision of an 
        appropriations Act, all funds paid to an Indian tribe 
        in accordance with a compact or funding agreement shall 
        remain available until expended.
          (2) Effect of carryover.--If an Indian tribe elects 
        to carry over funding from 1 year to the next, the 
        carryover shall not diminish the amount of funds the 
        Indian tribe is entitled to receive under a funding 
        agreement in that fiscal year or any subsequent fiscal 
        year.
    (l) Limitation of Costs.--
          (1) In general.--An Indian tribe shall not be 
        obligated to continue performance that requires an 
        expenditure of funds in excess of the amount of funds 
        transferred under a compact or funding agreement.
          (2) Notice of insufficiency.--If at any time the 
        Indian tribe has reason to believe that the total 
        amount provided for a specific activity under a compact 
        or funding agreement is insufficient, the Indian tribe 
        shall provide reasonable notice of such insufficiency 
        to the Secretary.
          (3) Suspension of performance.--If, after notice 
        under paragraph (2), the Secretary does not increase 
        the amount of funds transferred under the funding 
        agreement, the Indian tribe may suspend performance of 
        the activity until such time as additional funds are 
        transferred.
          (4) Savings clause.--Nothing in this section reduces 
        any programs, services, or funds of, or provided to, 
        another Indian tribe.
    (m) Distribution of Funds.--The Office of Self-Governance 
shall be responsible for distribution of all Bureau of Indian 
Affairs funds provided under this title unless otherwise agreed 
by the parties to an applicable funding agreement.
    (n) Applicability.--Notwithstanding any other provision of 
this section, section 202 of the Department of the Interior 
Tribal Self-Governance Act of 2015 applies to subsections (a) 
through (m).

SEC. 409. FACILITATION.

    (a) In General.--Except as otherwise provided by law 
(including section 202 of the Department of the Interior Tribal 
Self-Governance Act of 2015), the Secretary shall interpret 
each Federal law and regulation in a manner that facilitates--
          (1) the inclusion of programs in funding agreements; 
        and
          (2) the implementation of funding agreements.
    (b) Regulation Waiver.--
          (1) Request.--An Indian tribe may submit to the 
        Secretary a written request for a waiver of 
        applicability of a Federal regulation, including--
                  (A) an identification of the specific text in 
                the regulation sought to be waived; and
                  (B) the basis for the request.
          (2) Determination by the secretary.--Not later than 
        120 days after receipt by the Secretary and the 
        designated officials under paragraph (4) of a request 
        under paragraph (1), the Secretary shall approve or 
        deny the requested waiver in writing to the Indian 
        tribe.
          (3) Extensions.--The deadline described in paragraph 
        (2) may be extended for any length of time, as agreed 
        upon by both the Indian tribe and the Secretary.
          (4) Designated officials.--The Secretary shall 
        designate one or more appropriate officials in the 
        Department to receive a copy of the waiver request 
        described in paragraph (1).
          (5) Grounds for denial.--The Secretary may deny a 
        request under paragraph (1)--
                  (A) for a program eligible under paragraph 
                (1) or (2) of section 403(b), only upon a 
                specific finding by the Secretary that the 
                identified text in the regulation may not be 
                waived because such a waiver is prohibited by 
                Federal law; and
                  (B) for a program eligible under section 
                403(c), upon a specific finding by the 
                Secretary that the waiver is prohibited by 
                Federal law or is inconsistent with the express 
                provisions of the funding agreement.
          (6) Failure to make determination.--If the Secretary 
        fails to approve or deny a waiver request within the 
        period required under paragraph (2), the Secretary 
        shall be deemed to have approved the request.
          (7) Finality.--A decision of the Secretary under this 
        section shall be final for the Department.

SEC. 410. DISCLAIMERS.

    Nothing in this title expands or alters any statutory 
authority of the Secretary in a manner that authorizes the 
Secretary to enter into any agreement under section 403--
          (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) that limits or reduces in any way the services, 
        contracts, or funds that any other Indian tribe or 
        tribal organization is eligible to receive under 
        section 102 or any other applicable Federal law.

SEC. 411. DISCRETIONARY APPLICATION OF OTHER SECTIONS.

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

SEC. 412. ANNUAL BUDGET LIST.

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

SEC. 413. REPORTS.

    (a) In General.--
          (1) Requirement.--On January 1 of each year, the 
        Secretary shall submit to Congress a report regarding 
        the administration of this title.
          (2) Analysis.--Any Indian tribe may submit to the 
        Office of Self-Governance and to the appropriate 
        Committees of Congress a detailed annual analysis of 
        unmet tribal needs for funding agreements under this 
        title.
    (b) Contents.--The report under subsection (a)(1) shall--
          (1) be compiled from information contained in funding 
        agreements, annual audit reports, and data of the 
        Secretary regarding the disposition of Federal funds;
          (2) identify--
                  (A) the relative costs and benefits of self-
                governance;
                  (B) with particularity, all funds that are 
                specifically or functionally related to the 
                provision by the Secretary of services and 
                benefits to self-governance Indian tribes and 
                members of Indian tribes;
                  (C) the funds transferred to each Indian 
                tribe and the corresponding reduction in the 
                Federal employees and workload; and
                  (D) the funding formula for individual tribal 
                shares of all Central Office funds, together 
                with the comments of affected Indian tribes, 
                developed under subsection (d);
          (3) before being submitted to Congress, be 
        distributed to the Indian tribes for comment (with a 
        comment period of no less than 30 days);
          (4) include the separate views and comments of each 
        Indian tribe or tribal organization; and
          (5) include a list of--
                  (A) all such programs that the Secretary 
                determines, in consultation with Indian tribes 
                participating in self-governance, are eligible 
                for negotiation to be included in a funding 
                agreement at the request of a participating 
                Indian tribe; and
                  (B) all such programs which Indian tribes 
                have formally requested to include in a funding 
                agreement under section 403(c) due to the 
                special geographic, historical, or cultural 
                significance of the program to the Indian 
                tribe, indicating whether each request was 
                granted or denied, and stating the grounds for 
                any denial.
    (c) Report on Non-BIA, Non-OST Programs.--
          (1) In general.--In order to optimize opportunities 
        for including non-Bureau of Indian Affairs and non-
        Office of Special Trustee programs in agreements with 
        Indian tribes participating in self-governance under 
        this title, the Secretary shall review all programs 
        administered by the Department, other than through the 
        Bureau of Indian Affairs or Office of the Special 
        Trustee, without regard to the agency or office 
        concerned.
          (2) Programmatic targets.--The Secretary shall 
        establish programmatic targets, after consultation with 
        Indian tribes participating in self-governance, to 
        encourage bureaus of the Department to ensure that an 
        appropriate portion of those programs are available to 
        be included in funding agreements.
          (3) Publication.--The lists under subsection (b)(5) 
        and targets under paragraph (2) shall be published in 
        the Federal Register and made available to any Indian 
        tribe participating in self-governance.
          (4) Annual review.--
                  (A) In general.--The Secretary shall annually 
                review and publish in the Federal Register, 
                after consultation with Indian tribes 
                participating in self-governance, revised lists 
                and programmatic targets.
                  (B) Contents.--In preparing the revised lists 
                and programmatic targets, the Secretary shall 
                consider all programs that were eligible for 
                contracting in the original list published in 
                the Federal Register in 1995, except for 
                programs specifically determined not to be 
                contractible as a matter of law.
    (d) Report on Central Office Funds.--Not later than January 
1, 2016, the Secretary shall, in consultation with Indian 
tribes, develop a funding formula to determine the individual 
tribal share of funds controlled by the Central Office of the 
Bureau of Indian Affairs and the Office of the Special Trustee 
for inclusion in the compacts.

SEC. 414. REGULATIONS.

    (a) In General.--
          (1) Promulgation.--Not later than 90 days after the 
        date of enactment of the Department of the Interior 
        Tribal Self-Governance Act of 2015, the Secretary shall 
        initiate procedures under subchapter III of chapter 5 
        of title 5, United States Code, to negotiate and 
        promulgate such regulations as are necessary to carry 
        out this title.
          (2) Publication of proposed regulations.--Proposed 
        regulations to implement this title shall be published 
        in the Federal Register not later than 21 months after 
        the date of enactment of the Department of the Interior 
        Tribal Self-Governance Act of 2015.
          (3) Expiration of authority.--The authority to 
        promulgate regulations under paragraph (1) shall expire 
        on the date that is 30 months after the date of 
        enactment of the Department of the Interior Tribal 
        Self-Governance Act of 2015.
    (b) Committee.--
          (1) Membership.--A negotiated rulemaking committee 
        established pursuant to section 565 of title 5, United 
        States Code, to carry out this section shall have as 
        its members only representatives of the Federal 
        Government and tribal government.
          (2) Lead agency.--Among the Federal representatives 
        described in paragraph (1), the Office of Self-
        Governance shall be the lead agency for the Department.
    (c) Adaptation of Procedures.--The Secretary shall adapt 
the negotiated rulemaking procedures to the unique context of 
self-governance and the government-to-government relationship 
between the United States and Indian tribes.
    (d) Effect.--
          (1) Repeal.--The Secretary may repeal any regulation 
        that is inconsistent with this Act.
          (2) Conflicting provisions.--Subject to section 202 
        of the Department of the Interior Tribal Self-
        Governance Act of 2015, this title shall supersede any 
        conflicting provision of law (including any conflicting 
        regulations).
          (3) Effectiveness without regard to regulations.--The 
        lack of promulgated regulations on an issue shall not 
        limit the effect or implementation of this title.

SEC. 415. EFFECT OF CIRCULARS, POLICIES, MANUALS, GUIDANCE, AND RULES.

    Unless expressly agreed to by a participating Indian tribe 
in a compact or funding agreement, the participating Indian 
tribe shall not be subject to any agency circular, policy, 
manual, guidance, or rule adopted by the Department, except 
for--
          (1) the eligibility provisions of section 105(g); and
          (2) regulations promulgated pursuant to section 414.

SEC. 416. APPEALS.

    Except as provided in section 406(d), in any administrative 
action, appeal, or civil action for judicial review of any 
decision made by the Secretary under this title, the Secretary 
shall have the burden of proof of demonstrating by a 
preponderance of the evidence--
          (1) the validity of the grounds for the decision; and
          (2) the consistency of the decision with the 
        requirements and policies of this title.

SEC. 417. APPLICATION OF OTHER PROVISIONS.

    Section 314 of the Department of the Interior and Related 
Agencies Appropriations Act, 1991 (Public Law 101-512; 104 
Stat. 1959), shall apply to compacts and funding agreements 
entered into under this title.

SEC. 418. AUTHORIZATION OF APPROPRIATIONS.

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

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