    [United States Statutes at Large, Volume 134, 116th Congress, 2nd Session]
    [From the U.S. Government Publishing Office, www.gpo.gov]

    Public Law 116-180
    116th Congress

    An Act

    To amend the Indian Self-Determination and Education Assistance Act to
    provide further self-governance by Indian Tribes, and for other
    purposes. <>

    Be it enacted by the Senate and House of Representatives of the
    United States of America in Congress assembled, <>
    SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) <>  Short Title.--This Act may be cited
    as the ``Practical Reforms and Other Goals To Reinforce the
    Effectiveness of Self-Governance and Self-Determination for Indian
    Tribes Act of 2019'' or the ``PROGRESS for Indian Tribes Act''.

    (b) Table of Contents.--The table of contents of this Act is as
    follows:

    Sec. 1. Short title; table of contents.

    TITLE I--TRIBAL SELF-GOVERNANCE

    Sec. 101. Tribal self-governance.

    TITLE II--INDIAN SELF-DETERMINATION

    Sec. 201. Definitions; reporting and audit requirements; application of
    provisions.
    Sec. 202. Contracts by Secretary of the Interior.
    Sec. 203. Administrative provisions.
    Sec. 204. Contract funding and indirect costs.
    Sec. 205. Contract or grant specifications.

    TITLE I--TRIBAL SELF-GOVERNANCE

    SEC. 101. <>  TRIBAL SELF-GOVERNANCE.

    (a) Effect of Provisions.--Nothing in this Act, or the amendments
    made by this Act, shall be construed--
    (1) to modify, limit, expand, or otherwise affect--
    (A) the authority of the Secretary of the Interior,
    as provided for under the Indian Self-Determination and
    Education Assistance Act (as in effect on the day before
    the date of enactment of this Act), regarding--
    (i) the inclusion of any non-BIA program (as
    defined in section 401 of the Indian Self-
    Determination and Education Assistance Act) in a
    self-determination contract or funding agreement
    under section 403(c) of such Act (as so in
    effect); or
    (ii) the implementation of any contract or
    agreement described in clause (i) that is in
    effect on the day described in subparagraph (A);
    (B) the meaning, application, or effect of any
    Tribal water rights settlement, including the
    performance

    [[Page 858]]

    required of a party thereto or any payment or funding
    obligation thereunder;
    (C) the authority, jurisdiction, or responsibility
    of a State to manage, control, or regulate fish and
    wildlife under State law (including regulations) on land
    or water in the State, including Federal public land;
    (D) except for the authority provided to the
    Secretary as described in subparagraph (A), the
    applicability or effect of any Federal law related to
    the protection or management of fish or wildlife; or
    (E) any treaty-reserved right or other right of any
    Indian Tribe as recognized by any other means, including
    treaties or agreements with the United States, Executive
    orders, statutes, regulations, or case law; or
    (2) to authorize any provision of a contract or agreement
    that is not consistent with the terms of a Tribal water rights
    settlement.

    (b) Definitions.--Section 401 of the Indian Self-Determination and
    Education Assistance Act (25 U.S.C. 5361) is amended to read as follows:
    ``SEC. 401. DEFINITIONS.

    ``In this title:
    ``(1) Compact.--The term `compact' means a self-governance
    compact entered into under section 404.
    ``(2) Construction program; construction project.--The term
    `construction program' or `construction project' means a Tribal
    undertaking relating to the administration, planning,
    environmental determination, design, construction, repair,
    improvement, or expansion of roads, bridges, buildings,
    structures, systems, or other facilities for purposes of
    housing, law enforcement, detention, sanitation, water supply,
    education, administration, community, health, irrigation,
    agriculture, conservation, flood control, transportation, or
    port facilities, or for other Tribal purposes.
    ``(3) Department.--The term `Department' means the
    Department of the Interior.
    ``(4) Funding agreement.--The term `funding agreement' means
    a funding agreement entered into under section 403.
    ``(5) Gross mismanagement.--The term `gross mismanagement'
    means a significant violation, shown by a preponderance of the
    evidence, of a compact, funding agreement, or statutory or
    regulatory requirement applicable to Federal funds for a program
    administered by an Indian Tribe under a compact or funding
    agreement.
    ``(6) Inherent federal function.--The term `inherent Federal
    function' means a Federal function that may not legally be
    delegated to an Indian Tribe.
    ``(7) Non-BIA program.--The term `non-BIA program' means all
    or a portion of a program, function, service, or activity that
    is administered by any bureau, service, office, or agency of the
    Department of the Interior other than--
    ``(A) the Bureau of Indian Affairs;
    ``(B) the Office of the Assistant Secretary for
    Indian Affairs; or
    ``(C) the Office of the Special Trustee for American
    Indians.

    [[Page 859]]

    ``(8) Program.--The term `program' means any program,
    function, service, or activity (or portion thereof) within the
    Department that is included in a funding agreement.
    ``(9) Secretary.--The term `Secretary' means the Secretary
    of the Interior.
    ``(10) Self-determination contract.--The term `self-
    determination contract' means a self-determination contract
    entered into under section 102.
    ``(11) Self-governance.--The term `self-governance' means
    the Tribal Self-Governance Program established under section
    402.
    ``(12) Tribal share.--The term `Tribal share' means the
    portion of all funds and resources of an Indian Tribe that--
    ``(A) support any program within the Bureau of
    Indian Affairs, the Office of the Special Trustee for
    American Indians, or the Office of the Assistant
    Secretary for Indian Affairs; and
    ``(B) are not required by the Secretary for the
    performance of an inherent Federal function.
    ``(13) Tribal water rights settlement.--The term `Tribal
    water rights settlement' means any settlement, compact, or other
    agreement expressly ratified or approved by an Act of Congress
    that--
    ``(A) includes an Indian Tribe and the United States
    as parties; and
    ``(B) quantifies or otherwise defines any water
    right of the Indian Tribe.''.

    (c) Establishment.--Section 402 of the Indian Self-Determination and
    Education Assistance Act (25 U.S.C. 5362) is amended to read as follows:
    ``SEC. 402. TRIBAL SELF-GOVERNANCE PROGRAM.

    ``(a) Establishment.--The Secretary shall establish and carry out a
    program within the Department to be known as the `Tribal Self-Governance
    Program'.
    ``(b) Selection of Participating Indian Tribes.--
    ``(1) In general.--
    ``(A) Eligibility.--The Secretary, acting through
    the Director of the Office of Self-Governance, may
    select not more than 50 new Indian Tribes per year from
    those tribes eligible under subsection (c) to
    participate in self-governance.
    ``(B) Joint participation.--On the request of each
    participating Indian Tribe, 2 or more otherwise eligible
    Indian Tribes may be treated as a single Indian Tribe
    for the purpose of participating in self-governance.
    ``(2) Other authorized indian tribe or tribal
    organization.--If an Indian Tribe authorizes another Indian
    Tribe or a Tribal organization to plan for or carry out a
    program on its behalf under this title, the authorized Indian
    Tribe or Tribal organization shall have the rights and
    responsibilities of the authorizing Indian Tribe (except as
    otherwise provided in the authorizing resolution).
    ``(3) Joint participation as organization.--Two or more
    Indian Tribes that are not otherwise eligible under subsection
    (c) may be treated as a single Indian Tribe for the purpose

    [[Page 860]]

    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 or a compact or
    funding agreement fully or

    [[Page 861]]

    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

    [[Page 862]]

    ``(B) include--
    ``(i) legal and budgetary research; and
    ``(ii) internal Tribal government planning,
    training, and organizational preparation.

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

    (d) Funding Agreements.--Section 403 of the Indian Self-
    Determination and Education Assistance Act (25 U.S.C. 5363) is amended--
    (1) by striking subsection (a) and inserting the following:

    ``(a) Authorization.--The Secretary shall, on the request of any
    Indian Tribe or Tribal organization, negotiate and enter into a written
    funding agreement with the governing body of the Indian Tribe or the
    Tribal organization in a manner consistent with--
    ``(1) the trust responsibility of the Federal Government,
    treaty obligations, and the government-to-government
    relationship between Indian Tribes and the United States; and
    ``(2) subsection (b).'';
    (2) in subsection (b)--
    (A) in paragraph (1)--
    (i) in the matter preceding subparagraph (A),
    by striking ``without regard to the agency or
    office of the Bureau of Indian Affairs'' and
    inserting ``the Office of the Assistant Secretary
    for Indian Affairs, and the Office of the Special
    Trustee for American Indians, without regard to
    the agency or office of that Bureau or those
    Offices'';
    (ii) by redesignating subparagraphs (A) and
    (B) as clauses (i) and (ii), respectively, and
    indenting the margins of such clauses accordingly;
    (iii) by striking ``including any program''
    and inserting the following: ``including--
    ``(A) any program'';
    (iv) in subparagraph (A)--
    (I) in clause (i), as redesignated
    by clause (ii), by striking the
    semicolon at the end and inserting ``;
    and''; and
    (II) in clause (ii), as so
    redesignated, by striking ``and'' after
    the semicolon;
    (v) by redesignating subparagraph (C) as
    subparagraph (B);
    (vi) in subparagraph (B), as redesignated by
    clause (v), by striking the semicolon and
    inserting ``; and''; and
    (vii) by adding at the end the following:
    ``(C) any other program, service, function, or
    activity (or portion thereof) that is provided through
    the Bureau

    [[Page 863]]

    of Indian Affairs, the Office of the Assistant Secretary
    for Indian Affairs, or the Office of the Special Trustee
    for American Indians with respect to which Indian Tribes
    or Indians are primary or significant beneficiaries;'';
    (B) in paragraph (2)--
    (i) by striking ``section 405(c)'' and
    inserting ``section 412(c)''; and
    (ii) by inserting ``and'' after the semicolon
    at the end;
    (C) in paragraph (3), by striking the semicolon at
    the end and inserting a period; and
    (D) by striking paragraphs (4) through (9);
    (3) in subsection (f)--
    (A) in the subsection heading, by striking ``for
    Review'';
    (B) by striking ``such agreement to--'' and all that
    follows through ``Indian tribe'' and inserting ``such
    agreement to each Indian Tribe'';
    (C) by striking ``agreement;'' and inserting
    ``agreement.''; and
    (D) by striking paragraphs (2) and (3);
    (4) in subsection (k), by striking ``section 405(c)(1)'' and
    inserting ``section 412(c)''; and
    (5) by adding at the end the following:

    ``(m) <>  Other Provisions.--
    ``(1) Excluded funding.--A funding agreement shall not
    authorize an Indian Tribe to plan, conduct, administer, or
    receive Tribal share funding under any program that--
    ``(A) is provided under the Tribally Controlled
    Colleges and Universities Assistance Act of 1978 (25
    U.S.C. 1801 et seq.); or
    ``(B) is provided for elementary and secondary
    schools under the formula developed under section 1127
    of the Education Amendments of 1978 (25 U.S.C. 2007).
    ``(2) Services, functions, and responsibilities.--A funding
    agreement shall specify--
    ``(A) the services to be provided under the funding
    agreement;
    ``(B) the functions to be performed under the
    funding agreement; and
    ``(C) the responsibilities of the Indian Tribe and
    the Secretary under the funding agreement.
    ``(3) Base budget.--
    ``(A) In general.--A funding agreement shall, at the
    option of the Indian Tribe, provide for a stable base
    budget specifying the recurring funds (which may include
    funds available under section 106(a)) to be transferred
    to the Indian Tribe, for such period as the Indian Tribe
    specifies in the funding agreement, subject to annual
    adjustment only to reflect changes in congressional
    appropriations.
    ``(B) Limitations.--Notwithstanding subparagraph
    (A), a funding agreement shall not specify funding
    associated with a program described in subsection (b)(2)
    or (c) unless the Secretary agrees.
    ``(4) No waiver of trust responsibility.--A funding
    agreement shall prohibit the Secretary from waiving, modifying,
    or diminishing in any way the trust responsibility of the United

    [[Page 864]]

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

    (e) General Revisions.--Title IV of the Indian Self-Determination
    and Education Assistance Act (25 U.S.C. 5361 et seq.) is amended by
    striking sections 404 through 408 <>  and
    inserting the following:
    ``SEC. 404. <>  COMPACTS.

    ``(a) In General.--The Secretary shall negotiate and enter into a
    written compact with each Indian Tribe participating in self-governance
    in a manner consistent with the trust responsibility of the Federal
    Government, treaty obligations, and the government-to-government
    relationship between Indian Tribes and the United States.
    ``(b) Contents.--A compact under subsection (a) shall--
    ``(1) specify and affirm the general terms of the
    government-to-government relationship between the Indian Tribe
    and the Secretary; and

    [[Page 865]]

    ``(2) include such terms as the parties intend shall control
    during the term of the compact.

    ``(c) Amendment.--A compact under subsection (a) may be amended only
    by agreement of the parties.
    ``(d) Effective Date.--The effective date of a compact under
    subsection (a) shall be--
    ``(1) the date of the execution of the compact by the
    parties; or
    ``(2) such date as is mutually agreed upon by the parties.

    ``(e) Duration.--A compact under subsection (a) shall remain in
    effect--
    ``(1) for so long as permitted by Federal law; or
    ``(2) until termination by written agreement, retrocession,
    or reassumption.

    ``(f) Existing Compacts.--An Indian Tribe participating in self-
    governance under this title, as in effect on the date of enactment of
    the PROGRESS for Indian Tribes Act, shall have the option at any time
    after that date--
    ``(1) to retain its negotiated compact (in whole or in part)
    to the extent that the provisions of the compact are not
    directly contrary to any express provision of this title; or
    ``(2) to negotiate a new compact in a manner consistent with
    this title.
    ``SEC. 405. <>  GENERAL PROVISIONS.

    ``(a) Applicability.--An Indian Tribe and the Secretary shall
    include in any compact or funding agreement provisions that reflect the
    requirements of this title.
    ``(b) Conflicts of Interest.--An Indian Tribe participating in self-
    governance shall ensure that internal measures are in place to address,
    pursuant to Tribal law and procedures, conflicts of interest in the
    administration of programs.
    ``(c) <>  Audits.--
    ``(1) Single agency audit act.--Chapter 75 of title 31,
    United States Code, shall apply to a funding agreement under
    this title.
    ``(2) Cost principles.--An Indian Tribe shall apply cost
    principles under the applicable Office of Management and Budget
    circular, except as modified by--
    ``(A) any provision of law, including section 106;
    or
    ``(B) any exemptions to applicable Office of
    Management and Budget circulars subsequently granted by
    the Office of Management and Budget.
    ``(3) Federal claims.--Any claim by the Federal Government
    against an Indian Tribe relating to funds received under a
    funding agreement based on any audit under this subsection shall
    be subject to section 106(f).

    ``(d) Redesign and Consolidation.--Except as provided in section
    407, an Indian Tribe may redesign or consolidate programs, or reallocate
    funds for programs, in a compact or funding agreement in any manner that
    the Indian Tribe determines to be in the best interest of the Indian
    community being served--
    ``(1) so long as the redesign or consolidation does not have
    the effect of denying eligibility for services to population
    groups otherwise eligible to be served under applicable Federal
    law; and

    [[Page 866]]

    ``(2) except that, with respect to the reallocation,
    consolidation, and redesign of programs described in subsection
    (b)(2) or (c) of section 403, a joint agreement between the
    Secretary and the Indian Tribe shall be required.

    ``(e) Retrocession.--
    ``(1) In general.--An Indian Tribe may fully or partially
    retrocede to the Secretary any program under a compact or
    funding agreement.
    ``(2) Effective date.--
    ``(A) Agreement.--Unless an Indian Tribe rescinds a
    request for retrocession under paragraph (1), the
    retrocession shall become effective on the date
    specified by the parties in the compact or funding
    agreement.
    ``(B) No agreement.--In the absence of a
    specification of an effective date in the compact or
    funding agreement, the retrocession shall become
    effective on--
    ``(i) the earlier of--
    ``(I) 1 year after the date on which
    the request is submitted; and
    ``(II) the date on which the funding
    agreement expires; or
    ``(ii) such date as may be mutually agreed
    upon by the Secretary and the Indian Tribe.

    ``(f) <>  Nonduplication.--A funding agreement
    shall provide that, for the period for which, and to the extent to
    which, funding is provided to an Indian Tribe under this title, the
    Indian Tribe--
    ``(1) shall not be entitled to contract with the Secretary
    for funds under section 102, except that the Indian Tribe shall
    be eligible for new programs on the same basis as other Indian
    Tribes; and
    ``(2) shall be responsible for the administration of
    programs in accordance with the compact or funding agreement.

    ``(g) Records.--
    ``(1) In general.--Unless an Indian Tribe specifies
    otherwise in the compact or funding agreement, records of an
    Indian Tribe shall not be considered to be Federal records for
    purposes of chapter 5 of title 5, United States Code.
    ``(2) Recordkeeping system.--An Indian Tribe shall--
    ``(A) maintain a recordkeeping system; and
    ``(B) <>  on a notice
    period of not less than 30 days, provide the Secretary
    with reasonable access to the records to enable the
    Department to meet the requirements of sections 3101
    through 3106 of title 44, United States Code.
    ``SEC. 406. <>  PROVISIONS RELATING TO THE
    SECRETARY.

    ``(a) <>  Trust Evaluations.--A funding agreement
    shall include a provision to monitor the performance of trust functions
    by the Indian Tribe through the annual trust evaluation.

    ``(b) Reassumption.--
    ``(1) <>  In general.--A compact
    or funding agreement shall include provisions for the Secretary
    to reassume a program and associated funding if there is a
    specific finding relating to that program of--
    ``(A) imminent jeopardy to a trust asset, a natural
    resource, or public health and safety that--
    ``(i) is caused by an act or omission of the
    Indian Tribe; and

    [[Page 867]]

    ``(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 one or more of the officials designated
    pursuant to paragraph (4), the Secretary shall review and make a
    determination with respect to the final offer, except that the
    60-day period may be extended for up to 30 days for
    circumstances beyond the control of the Secretary, upon written
    request by the Secretary to the Indian tribe.
    ``(3) Extensions.--The deadline described in paragraph (2)
    may be extended for any length of time, as agreed upon by both
    the Indian Tribe and the Secretary.
    ``(4) Designated officials.--
    ``(A) In general.--The Secretary shall designate one
    or more appropriate officials in the Department to
    receive a copy of the final offer described in paragraph
    (1).
    ``(B) No designation.--If no official is designated,
    the Director of the Office of the Executive Secretariat
    and Regulatory Affairs shall be the designated official.

    [[Page 868]]

    ``(5) <>  No timely determination.--If
    the Secretary fails to make a determination with respect to a
    final offer within the period specified in paragraph (2),
    including any extension agreed to under paragraph (3), the
    Secretary shall be deemed to have agreed to the offer, except
    that with respect to any compact or funding agreement provision
    concerning a program described under section 403(c), the
    Secretary shall be deemed to have rejected the offer with
    respect to such provision and the terms of clauses (ii) through
    (iv) of paragraphs (6)(A) shall apply.
    ``(6) Rejection of final offer.--
    ``(A) In general.--If the Secretary rejects a final
    offer (or one or more provisions or funding levels in a
    final offer), the Secretary shall--
    ``(i) <>  provide timely
    written notification to the Indian Tribe that
    contains a specific finding that clearly
    demonstrates, or that is supported by a
    controlling legal authority, that--
    ``(I) the amount of funds proposed
    in the final offer exceeds the
    applicable funding level as determined
    under section 106(a)(1);
    ``(II) the program that is the
    subject of the final offer is an
    inherent Federal function or is subject
    to the discretion of the Secretary under
    section 403(c);
    ``(III) the Indian Tribe cannot
    carry out the program in a manner that
    would not result in significant danger
    or risk to the public health or safety,
    to natural resources, or to trust
    resources;
    ``(IV) the Indian Tribe is not
    eligible to participate in self-
    governance under section 402(c);
    ``(V) the funding agreement would
    violate a Federal statute or regulation;
    or
    ``(VI) with respect to a program or
    portion of a program included in a final
    offer pursuant to section 403(b)(2), the
    program or the portion of the program is
    not otherwise available to Indian Tribes
    or Indians under section 102(a)(1)(E);
    ``(ii) provide technical assistance to
    overcome the objections stated in the notification
    required by clause (i);
    ``(iii) <>  provide the Indian
    Tribe with a hearing on the record with the right
    to engage in full discovery relevant to any issue
    raised in the matter, and the opportunity for
    appeal on the objections raised, except that the
    Indian Tribe may, in lieu of filing such appeal,
    directly proceed to initiate an action in a United
    States district court under section 110(a); and
    ``(iv) provide the Indian Tribe the option of
    entering into the severable portions of a final
    proposed compact or funding agreement (including a
    lesser funding amount, if any), that the Secretary
    did not reject, subject to any additional
    alterations necessary to conform the compact or
    funding agreement to the severed provisions.

    [[Page 869]]

    ``(B) Effect of exercising certain option.--If an
    Indian Tribe exercises the option specified in
    subparagraph (A)(iv)--
    ``(i) the Indian Tribe shall retain the right
    to appeal the rejection by the Secretary under
    this section; and
    ``(ii) <>  clauses (i),
    (ii), and (iii) of subparagraph (A) shall apply
    only to the portion of the proposed final compact
    or funding agreement that was rejected by the
    Secretary.

    ``(d) Burden of Proof.--In any administrative action, hearing,
    appeal, or civil action brought under this section, the Secretary shall
    have the burden of proof--
    ``(1) of demonstrating, by a preponderance of the evidence,
    the validity of the grounds for a reassumption under subsection
    (b); and
    ``(2) of clearly demonstrating the validity of the grounds
    for rejecting a final offer made under subsection (c).

    ``(e) Good Faith.--
    ``(1) In general.--In the negotiation of compacts and
    funding agreements, the Secretary shall at all times negotiate
    in good faith to maximize implementation of the self-governance
    policy.
    ``(2) Policy.--The Secretary shall carry out this title in a
    manner that maximizes the policy of Tribal self-governance.

    ``(f) Savings.--
    ``(1) In general.--To the extent that programs carried out
    for the benefit of Indian Tribes and Tribal organizations under
    this title reduce the administrative or other responsibilities
    of the Secretary with respect to the operation of Indian
    programs and result in savings that have not otherwise been
    included in the amount of Tribal shares and other funds
    determined under section 408(c), except for funding agreements
    entered into for programs under section 403(c), the Secretary
    shall make such savings available to the Indian Tribes or Tribal
    organizations for the provision of additional services to
    program beneficiaries in a manner equitable to directly served,
    contracted, and compacted programs.
    ``(2) Discretionary programs of special significance.--For
    any savings generated as a result of the assumption of a program
    by an Indian Tribe under section 403(c), such savings shall be
    made available to that Indian Tribe.

    ``(g) Trust Responsibility.--The Secretary may not waive, modify, or
    diminish in any way the trust responsibility of the United States with
    respect to Indian Tribes and individual Indians that exists under
    treaties, Executive orders, other laws, or court decisions.
    ``(h) Decision Maker.--A decision that constitutes final agency
    action and relates to an appeal within the Department conducted under
    subsection (c)(6)(A)(iii) may be made by--
    ``(1) an official of the Department who holds a position at
    a higher organizational level within the Department than the
    level of the departmental agency in which the decision that is
    the subject of the appeal was made; or
    ``(2) an administrative law judge.

    ``(i) Rules of Construction.--Subject to section 101(a) of the
    PROGRESS for Indian Tribes Act, each provision of this title and each
    provision of a compact or funding agreement shall be liberally

    [[Page 870]]

    construed for the benefit of the Indian Tribe participating in self-
    governance, and any ambiguity shall be resolved in favor of the Indian
    Tribe.
    ``SEC. 407. <>  CONSTRUCTION PROGRAMS AND
    PROJECTS.

    ``(a) In General.--Indian Tribes participating in Tribal self-
    governance may carry out any construction project included in a compact
    or funding agreement under this title.
    ``(b) Tribal Option To Carry Out Certain Federal Environmental
    Activities.--In carrying out a construction project under this title, an
    Indian Tribe may, subject to the agreement of the Secretary, elect to
    assume some Federal responsibilities under the National Environmental
    Policy Act of 1969 (42 U.S.C. 4321 et seq.), division A of subtitle III
    of title 54, United States Code, and related provisions of other law and
    regulations that would apply if the Secretary were to undertake a
    construction project, by adopting a resolution--
    ``(1) designating a certifying Tribal officer to represent
    the Indian Tribe and to assume the status of a responsible
    Federal official under those Acts, laws, or regulations; and
    ``(2) accepting the jurisdiction of the United States courts
    for the purpose of enforcing the responsibilities of the
    certifying Tribal officer assuming the status of a responsible
    Federal official under those Acts, laws, or regulations.

    ``(c) Savings Clause.--Notwithstanding subsection (b), nothing in
    this section authorizes the Secretary to include in any compact or
    funding agreement duties of the Secretary under the National
    Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), division A of
    subtitle III of title 54, United States Code, 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--

    [[Page 871]]

    ``(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.

    [[Page 872]]

    ``(3) Oversight visits.--The Secretary may conduct onsite
    project oversight visits semiannually or on an alternate
    schedule agreed to by the Secretary and the Indian Tribe.

    ``(i) Application of Other Laws.--Unless otherwise agreed to by the
    Indian Tribe and except as otherwise provided in this Act, no provision
    of title 41, United States Code, the Federal Acquisition Regulation, or
    any other law or regulation pertaining to Federal procurement (including
    Executive orders) shall apply to any construction program or project
    carried out under this title.
    ``(j) Future Funding.--Upon completion of a facility constructed
    under this title, the Secretary shall include the facility among those
    eligible for annual operation and maintenance funding support comparable
    to that provided for similar facilities funded by the Department as
    annual appropriations are available and to the extent that the facility
    size and complexity and other factors do not exceed the funding formula
    criteria for comparable buildings.
    ``SEC. 408. <>  PAYMENT.

    ``(a) In General.--At the request of the governing body of an Indian
    Tribe and under the terms of an applicable funding agreement, the
    Secretary shall provide funding to the Indian Tribe to carry out the
    funding agreement.
    ``(b) <>  Advance Annual Payment.--At the option
    of the Indian Tribe, a funding agreement shall provide for an advance
    annual payment to an Indian Tribe.

    ``(c) Amount.--
    ``(1) In general.--Subject to subsection (e) and sections
    403 and 405, the Secretary shall provide funds to the Indian
    Tribe under a funding agreement for programs in an amount that
    is equal to the amount that the Indian Tribe would have been
    entitled to receive under contracts and grants under this Act
    (including amounts for direct program and contract support costs
    and, in addition, any funds that are specifically or
    functionally related to the provision by the Secretary of
    services and benefits to the Indian Tribe or its members)
    without regard to the organization level within the Department
    at which the programs are carried out.
    ``(2) Savings clause.--Nothing in this section reduces
    programs, services, or funds of, or provided to, another Indian
    Tribe.

    ``(d) Timing.--
    ``(1) <>  In general.--Pursuant
    to the terms of any compact or funding agreement entered into
    under this title, the Secretary shall transfer to the Indian
    Tribe all funds provided for in the funding agreement, pursuant
    to subsection (c), and provide funding for periods covered by
    joint resolution adopted by Congress making continuing
    appropriations, to the extent permitted by such resolution.
    ``(2) <>  Transfers.--Not later than 1
    year after the date of enactment of the PROGRESS for Indian
    Tribes Act, in any instance in which a funding agreement
    requires an annual transfer of funding to be made at the
    beginning of a fiscal year or requires semiannual or other
    periodic transfers of funding to be made commencing at the
    beginning of a fiscal year, the first such transfer shall be
    made not later than 10 days after the apportionment of such
    funds by the Office

    [[Page 873]]

    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.--

    [[Page 874]]

    ``(1) In general.--An Indian Tribe may retain interest or
    income earned on any funds paid under a compact or funding
    agreement to carry out governmental purposes.
    ``(2) No effect on other amounts.--The retention of interest
    or income under paragraph (1) shall not diminish the amount of
    funds an Indian Tribe is entitled to receive under a funding
    agreement in the year the interest or income is earned or in any
    subsequent fiscal year.
    ``(3) Investment standard.--Funds transferred under this
    title shall be managed by the Indian Tribe using the prudent
    investment standard, provided that the Secretary shall not be
    liable for any investment losses of funds managed by the Indian
    Tribe that are not otherwise guaranteed or insured by the
    Federal Government.

    ``(k) Carryover of Funds.--
    ``(1) In general.--Notwithstanding any provision of an
    appropriations Act, all funds paid to an Indian Tribe in
    accordance with a compact or funding agreement shall remain
    available until expended.
    ``(2) Effect of carryover.--If an Indian Tribe elects to
    carry over funding from one year to the next, the carryover
    shall not diminish the amount of funds the Indian Tribe is
    entitled to receive under a funding agreement in that fiscal
    year or any subsequent fiscal year.

    ``(l) Limitation of Costs.--
    ``(1) In general.--An Indian Tribe shall not be obligated to
    continue performance that requires an expenditure of funds in
    excess of the amount of funds transferred under a compact or
    funding agreement.
    ``(2) Notice of insufficiency.--If at any time the Indian
    Tribe has reason to believe that the total amount provided for a
    specific activity under a compact or funding agreement is
    insufficient, the Indian Tribe shall provide reasonable notice
    of such insufficiency to the Secretary.
    ``(3) Suspension of performance.--If, after notice under
    paragraph (2), the Secretary does not increase the amount of
    funds transferred under the funding agreement, the Indian Tribe
    may suspend performance of the activity until such time as
    additional funds are transferred.
    ``(4) Savings clause.--Nothing in this section reduces any
    programs, services, or funds of, or provided to, another Indian
    Tribe.

    ``(m) Distribution of Funds.--The Office of Self-Governance shall be
    responsible for distribution of all Bureau of Indian Affairs funds
    provided under this title unless otherwise agreed by the parties to an
    applicable funding agreement.
    ``(n) Applicability.--Notwithstanding any other provision of this
    section, section 101(a) of the PROGRESS for Indian Tribes Act applies to
    subsections (a) through (m).
    ``SEC. 409. <>  FACILITATION.

    ``(a) In General.--Except as otherwise provided by law (including
    section 101(a) of the PROGRESS for Indian Tribes Act), the Secretary
    shall interpret each Federal law and regulation in a manner that
    facilitates--
    ``(1) the inclusion of programs in funding agreements; and
    ``(2) the implementation of funding agreements.

    [[Page 875]]

    ``(b) Regulation Waiver.--
    ``(1) Request.--An Indian Tribe may submit to the Secretary
    a written request for a waiver of applicability of a Federal
    regulation, including--
    ``(A) an identification of the specific text in the
    regulation sought to be waived; and
    ``(B) the basis for the request.
    ``(2) <>  Determination by the secretary.--
    Not later than 120 days after receipt by the Secretary and the
    designated officials under paragraph (4) of a request under
    paragraph (1), the Secretary shall approve or deny the requested
    waiver in writing to the Indian Tribe.
    ``(3) Extensions.--The deadline described in paragraph (2)
    may be extended for any length of time, as agreed upon by both
    the Indian Tribe and the Secretary.
    ``(4) Designated officials.--The Secretary shall designate
    one or more appropriate officials in the Department to receive a
    copy of the waiver request described in paragraph (1).
    ``(5) Grounds for denial.--The Secretary may deny a request
    under paragraph (1) upon a specific finding by the Secretary
    that the identified text in the regulation may not be waived
    because such a waiver is prohibited by Federal law.
    ``(6) Failure to make determination.--If the Secretary fails
    to make a determination with respect to a waiver request within
    the period specified in paragraph (2) (including any extension
    agreed to under paragraph (3)), the Secretary shall be deemed to
    have agreed to the request, except that for a waiver request
    relating to programs eligible under section 403(b)(2) or section
    403(c), the Secretary shall be deemed to have denied the
    request.
    ``(7) Finality.--A decision of the Secretary under this
    section shall be final for the Department.
    ``SEC. 410. <>  DISCRETIONARY APPLICATION OF
    OTHER SECTIONS.

    ``(a) In General.--Except as otherwise provided in section 201(d) of
    the PROGRESS for Indian Tribes Act, at the option of a participating
    Indian Tribe or Indian Tribes, any of the provisions of title I may be
    incorporated in any compact or funding agreement under this title. The
    inclusion of any such provision shall be subject to, and shall not
    conflict with, section 101(a) of such Act.
    ``(b) Effect.--Each incorporated provision under subsection (a)
    shall--
    ``(1) have the same force and effect as if set out in full
    in this title;
    ``(2) supplement or replace any related provision in this
    title; and
    ``(3) <>  apply to any agency
    otherwise governed by this title.

    ``(c) Effective Date.--If an Indian Tribe requests incorporation at
    the negotiation stage of a compact or funding agreement, the
    incorporation shall--
    ``(1) be effective immediately; and
    ``(2) control the negotiation and resulting compact and
    funding agreement.

    [[Page 876]]

    ``SEC. 411. <>  ANNUAL BUDGET LIST.

    ``The Secretary shall list, in the annual budget request submitted
    to Congress under section 1105 of title 31, United States Code, any
    funds proposed to be included in funding agreements authorized under
    this title.
    ``SEC. 412. <>  REPORTS.

    ``(a) In General.--
    ``(1) Requirement.--On January 1 of each year, the Secretary
    shall submit to Congress a report regarding the administration
    of this title.
    ``(2) Analysis.--Any Indian Tribe may submit to the Office
    of Self-Governance and to the appropriate committees of Congress
    a detailed annual analysis of unmet Tribal needs for funding
    agreements under this title.

    ``(b) Contents.--The report under subsection (a)(1) shall--
    ``(1) be compiled from information contained in funding
    agreements, annual audit reports, and data of the Secretary
    regarding the disposition of Federal funds;
    ``(2) identify--
    ``(A) the relative costs and benefits of self-
    governance;
    ``(B) with particularity, all funds that are
    specifically or functionally related to the provision by
    the Secretary of services and benefits to self-
    governance Indian Tribes and members of Indian Tribes;
    ``(C) the funds transferred to each Indian Tribe and
    the corresponding reduction in the Federal employees and
    workload; and
    ``(D) the funding formula for individual Tribal
    shares of all Central Office funds, together with the
    comments of affected Indian Tribes, developed under
    subsection (d);
    ``(3) <>  before being submitted to
    Congress, be distributed to the Indian Tribes for comment (with
    a comment period of not less than 30 days);
    ``(4) include the separate views and comments of each Indian
    Tribe or Tribal organization; and
    ``(5) <>  include a list of--
    ``(A) <>  all
    such programs that the Secretary determines, in
    consultation with Indian Tribes participating in self-
    governance, are eligible for negotiation to be included
    in a funding agreement at the request of a participating
    Indian Tribe; and
    ``(B) all such programs which Indian Tribes have
    formally requested to include in a funding agreement
    under section 403(c) due to the special geographic,
    historical, or cultural significance of the program to
    the Indian Tribe, indicating whether each request was
    granted or denied, and stating the grounds for any
    denial.

    ``(c) Report on Non-BIA Programs.--
    ``(1) In general.--In order to optimize opportunities for
    including non-BIA programs in agreements with Indian Tribes
    participating in self-governance under this title, the Secretary
    shall review all programs administered by the Department, other
    than through the Bureau of Indian Affairs, the Office of the
    Assistant Secretary for Indian Affairs, or the Office of the
    Special Trustee for American Indians, without regard to the
    agency or office concerned.

    [[Page 877]]

    ``(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, 2020, the Secretary shall, in consultation with
    Indian Tribes, develop a funding formula to determine the individual
    Tribal share of funds controlled by the Central Office of the Bureau of
    Indian Affairs and the Office of the Special Trustee for inclusion in
    the compacts.
    ``SEC. 413. <>  REGULATIONS.

    ``(a) In General.--
    ``(1) <>  Promulgation.--Not later than 90
    days after the date of enactment of the PROGRESS for Indian
    Tribes Act, the Secretary shall initiate procedures under
    subchapter III of chapter 5 of title 5, United States Code, to
    negotiate and promulgate such regulations as are necessary to
    carry out this title.
    ``(2) <>
    Publication of proposed regulations.--Proposed regulations to
    implement this title shall be published in the Federal Register
    not later than 21 months after the date of enactment of the
    PROGRESS for Indian Tribes Act.
    ``(3) Expiration of authority.--The authority to promulgate
    regulations under paragraph (1) shall expire on the date that is
    30 months after the date of enactment of the PROGRESS for Indian
    Tribes Act.

    ``(b) Committee.--
    ``(1) Membership.--A negotiated rulemaking committee
    established pursuant to section 565 of title 5, United States
    Code, to carry out this section shall have as its members only
    representatives of the Federal Government and Tribal government.
    ``(2) Lead agency.--Among the Federal representatives
    described in paragraph (1), the Office of Self-Governance shall
    be the lead agency for the Department.

    ``(c) Adaptation of Procedures.--The Secretary shall adapt the
    negotiated rulemaking procedures to the unique context of self-
    governance and the government-to-government relationship between the
    United States and Indian Tribes.
    ``(d) Effect.--

    [[Page 878]]

    ``(1) Repeal.--The Secretary may repeal any regulation that
    is inconsistent with this Act.
    ``(2) Conflicting provisions.--Subject to section 101(a) of
    the PROGRESS for Indian Tribes Act and except with respect to
    programs described under section 403(c), this title shall
    supersede any conflicting provision of law (including any
    conflicting regulations).
    ``(3) Effectiveness without regard to regulations.--The lack
    of promulgated regulations on an issue shall not limit the
    effect or implementation of this title.
    ``SEC. 414. <>  EFFECT OF CIRCULARS, POLICIES,
    MANUALS, GUIDANCE, AND RULES.

    ``Unless expressly agreed to by a participating Indian Tribe in a
    compact or funding agreement, the participating Indian Tribe shall not
    be subject to any agency circular, policy, manual, guidance, or rule
    adopted by the Department, except for--
    ``(1) the eligibility provisions of section 105(g); and
    ``(2) regulations promulgated pursuant to section 413.
    ``SEC. 415. <>  APPEALS.

    ``Except as provided in section 406(d), in any administrative
    action, appeal, or civil action for judicial review of any decision made
    by the Secretary under this title, the Secretary shall have the burden
    of proof of demonstrating by a preponderance of the evidence--
    ``(1) the validity of the grounds for the decision; and
    ``(2) the consistency of the decision with the requirements
    and policies of this title.
    ``SEC. 416. <>  APPLICATION OF OTHER
    PROVISIONS.

    ``Section 314 of the Department of the Interior and Related Agencies
    Appropriations Act, 1991 (Public Law 101-512; 104 Stat. 1959), shall
    apply to compacts and funding agreements entered into under this title.
    ``SEC. 417. <>  AUTHORIZATION OF
    APPROPRIATIONS.

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

    TITLE II--INDIAN SELF-DETERMINATION

    SEC. 201. DEFINITIONS; REPORTING AND AUDIT REQUIREMENTS;
    APPLICATION OF PROVISIONS.

    (a) Definitions.--
    (1) In general.--Section 4 of the Indian Self-Determination
    and Education Assistance Act (25 U.S.C. 5304) is amended by
    striking subsection (j) and inserting the following:

    ``(j) `self-determination contract' means a contract entered into
    under title I (or a grant or cooperative agreement used under section 9)
    between a Tribal organization and the appropriate Secretary for the
    planning, conduct, and administration of programs or services that are
    otherwise provided to Indian Tribes and members of Indian Tribes
    pursuant to Federal law, subject to the condition that, except as
    provided in section 105(a)(3), no contract entered

    [[Page 879]]

    into under title I (or grant or cooperative agreement used under section
    9) shall be--
    ``(1) considered to be a procurement contract; or
    ``(2) except as provided in section 107(a)(1), subject to
    any Federal procurement law (including regulations);''.
    (2) Technical amendments.--Section 4 of the Indian Self-
    Determination and Education Assistance Act (25 U.S.C. 5304), as
    amended by paragraph (1), is further amended--
    (A) in subsection (e), by striking `` `Indian tribe'
    means'' and inserting `` `Indian tribe' or `Indian
    Tribe' means''; and
    (B) in subsection (l), by striking `` `tribal
    organization' means'' and inserting `` `Tribal
    organization' or `tribal organization' means''.

    (b) Reporting and Audit Requirements.--Section 5 of the Indian Self-
    Determination and Education Assistance Act (25 U.S.C. 5305) is amended--
    (1) in subsection (b)--
    (A) by striking ``after completion of the project or
    undertaking referred to in the preceding subsection of
    this section'' and inserting ``after the retention
    period for the report that is submitted to the Secretary
    under subsection (a)''; and
    (B) by adding at the end the following: ``The
    retention period shall be defined in regulations
    promulgated by the Secretary pursuant to section 413.'';
    and
    (2) in subsection (f)(1), by inserting ``if the Indian
    Tribal organization expends $500,000 or more in Federal awards
    during such fiscal year'' after ``under this Act,''.

    (c) <>  Effective Date.--The amendment made
    by subsection (b)(2) shall not take effect until 14 months after the
    date of enactment of this Act.

    (d) <>  Application of Other Provisions.--
    Sections 4, 5, 6, 7, 102(c), 104, 105(a)(1), 105(f), 110, and 111 of the
    Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304,
    5305, 5306, 5307, 5321(c), 5323, 5324(a)(1), 5324(f), 5331, and 5332)
    and section 314 of the Department of the Interior and Related Agencies
    Appropriations Act, 1991 (Public Law 101-512; 104 Stat. 1959), apply to
    compacts and funding agreements entered into under title IV of the
    Indian Self-Determination and Education Assistance Act (25 U.S.C. 5361
    et seq.).
    SEC. 202. CONTRACTS BY SECRETARY OF THE INTERIOR.

    Section 102 of the Indian Self-Determination and Education
    Assistance Act (25 U.S.C. 5321) is amended--
    (1) in subsection (c)(2), by striking ``economic
    enterprises'' and all that follows through ``except that'' and
    inserting ``economic enterprises (as defined in section 3 of the
    Indian Financing Act of 1974 (25 U.S.C. 1452)), except that'';
    and
    (2) by adding at the end the following:

    ``(f) Good Faith Requirement.--In the negotiation of contracts and
    funding agreements, the Secretary shall--
    ``(1) at all times negotiate in good faith to maximize
    implementation of the self-determination policy; and
    ``(2) carry out this Act in a manner that maximizes the
    policy of Tribal self-determination, in a manner consistent
    with--
    ``(A) the purposes specified in section 3; and

    [[Page 880]]

    ``(B) the PROGRESS for Indian Tribes Act.

    ``(g) Rule of Construction.--Subject to section 101(a) of the
    PROGRESS for Indian Tribes Act, each provision of this Act and each
    provision of a contract or funding agreement shall be liberally
    construed for the benefit of the Indian Tribe participating in self-
    determination, and any ambiguity shall be resolved in favor of the
    Indian Tribe.''.
    SEC. 203. ADMINISTRATIVE PROVISIONS.

    Section 105 of the Indian Self-Determination and Education
    Assistance Act (25 U.S.C. 5324) is amended--
    (1) in subsection (b), in the first sentence, by striking
    ``pursuant to'' and all that follows through ``of this Act'' and
    inserting ``pursuant to sections 102 and 103''; and
    (2) by adding at the end the following:

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

    ``(q)(1) <>  Technical Assistance for Internal
    Controls.--In considering proposals for, amendments to, or in the course
    of, a contract under this title and compacts under titles IV and V of
    this Act, if the Secretary determines that the Indian Tribe lacks
    adequate internal controls necessary to manage the contracted program or
    programs, the Secretary shall, as soon as practicable, provide the
    necessary technical assistance to assist the Indian Tribe in developing
    adequate internal controls. <> As part of that technical
    assistance, the Secretary and the Tribe shall develop a plan for
    assessing the subsequent effectiveness of such technical assistance. The
    inability of the Secretary to provide technical assistance or lack of a
    plan under this subsection shall not result in the reassumption of an
    existing agreement, contract, or compact, or declination or rejection of
    a new agreement, contract, or compact.

    ``(2) <>  The Secretary shall prepare a report to be
    included in the information required for the reports under sections
    412(b)(2)(A) and 514(b)(2)(A). The Secretary shall include in this
    report, in the aggregate, a description of the internal controls that
    were inadequate, the technical assistance provided, and a description of
    Secretarial actions taken to address any remaining inadequate internal
    controls after the provision of technical assistance and implementation
    of the plan required by paragraph (1).''.
    SEC. 204. CONTRACT FUNDING AND INDIRECT COSTS.

    Section 106(a)(3) of the Indian Self-Determination and Education
    Assistance Act (25 U.S.C. 5325(a)(3)) is amended--
    (1) in subparagraph (A)--
    (A) in clause (i), by striking ``, and'' and
    inserting ``; and''; and

    [[Page 881]]

    (B) in clause (ii), by striking ``expense related to
    the overhead incurred'' and inserting ``expense incurred
    by the governing body of the Indian Tribe or Tribal
    organization and any overhead expense incurred'';
    (2) by redesignating subparagraph (B) as subparagraph (C);
    and
    (3) by inserting after subparagraph (A) the following:
    ``(B) In calculating the reimbursement rate for
    expenses described in subparagraph (A)(ii), not less
    than 50 percent of the expenses described in
    subparagraph (A)(ii) that are incurred by the governing
    body of an Indian Tribe or Tribal organization relating
    to a Federal program, function, service, or activity
    carried out pursuant to the contract shall be considered
    to be reasonable and allowable.''.
    SEC. 205. CONTRACT OR GRANT SPECIFICATIONS.

    Section 108 of the Indian Self-Determination and Education
    Assistance Act (25 U.S.C. 5329) is amended--
    (1) in subsection (a)(2), by inserting ``subject to
    subsections (a) and (b) of section 102,'' before ``contain'';
    (2) in subsection (f)(2)(A)(ii) of the model agreement
    contained in subsection (c), by inserting ``subject to
    subsections (a) and (b) of section 102 of the Indian Self-
    Determination and Education Assistance Act (25 U.S.C. 5321),''
    before ``such other provisions''; and
    (3) in subsection (b)(7)(C) of the model agreement contained
    in subsection (c), in the second sentence of the matter
    preceding clause (i), by striking ``one performance monitoring
    visit'' and inserting ``two performance monitoring visits''.

    Approved October 21, 2020.

    LEGISLATIVE HISTORY--S. 209:
    ---------------------------------------------------------------------------

    HOUSE REPORTS: No. 116-422 (Comm. on Natural Resources).
    SENATE REPORTS: No. 116-34 (Comm. on Indian Affairs).
    CONGRESSIONAL RECORD:
    Vol. 165 (2019):
    June 27, considered and passed
    Senate.
    Vol. 166 (2020):
    Sept. 21, considered and passed
    House.
    DAILY COMPILATION OF PRESIDENTIAL DOCUMENTS (2020):
    Oct. 21, Presidential statement.