[106th Congress Public Law 260]
[From the U.S. Government Publishing Office]
<DOC>
[DOCID: f:publ260.106]
[[Page 114 STAT. 711]]
[CORRECTED PRINT*]
Public Law 106-260
106th Congress
An Act
To amend the Indian Self-Determination and Education Assistance Act to
provide for further self-governance by Indian tribes, and for other
purposes. <<NOTE: Aug. 18, 2000 - [H.R. 1167]>>
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress <<NOTE: Tribal Self-Governance
Amendments of 2000.>> assembled,
SECTION 1. <<NOTE: 25 USC 450 note.>> SHORT TITLE.
This Act may be cited as the ``Tribal Self-Governance Amendments of
2000''.
SEC. 2. <<NOTE: 25 USC 458aaa note.>> FINDINGS.
Congress finds that--
(1) the tribal right of self-government flows from the
inherent sovereignty of Indian tribes and nations;
(2) the United States recognizes a special government-to-
government relationship with Indian tribes, including the right
of the Indian tribes to self-governance, as reflected in the
Constitution, treaties, Federal statutes, and the course of
dealings of the United States with Indian tribes;
(3) although progress has been made, the Federal
bureaucracy, with its centralized rules and regulations, has
eroded tribal self-governance and dominates tribal affairs;
(4) the Tribal Self-Governance Demonstration Project,
established under title III of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450f note) was designed to
improve and perpetuate the government-to-government relationship
between Indian tribes and the United States and to strengthen
tribal control over Federal funding and program management;
(5) although the Federal Government has made considerable
strides in improving Indian health care, it has failed to fully
meet its trust responsibilities and to satisfy its obligations
to the Indian tribes under treaties and other laws; and
(6) Congress has reviewed the results of the Tribal Self-
Governance Demonstration Project and finds that transferring
full control and funding to tribal governments, upon tribal
request, over decision making for Federal programs, services,
functions, and activities (or portions thereof)--
(A) is an appropriate and effective means of
implementing the Federal policy of government-to-
government relations with Indian tribes; and
(B) strengthens the Federal policy of Indian self-
determination.
__________
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*See note at the bottom of page 114 Stat. 734.
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[[Page 114 STAT. 712]]
SEC. 3. <<NOTE: 25 USC 458aaa note.>> DECLARATION OF POLICY.
It is the policy of Congress--
(1) to permanently establish and implement tribal self-
governance within the Department of Health and Human Services;
(2) to call for full cooperation from the Department of
Health and Human Services and its constituent agencies in the
implementation of tribal self-governance--
(A) to enable the United States to maintain and
improve its unique and continuing relationship with, and
responsibility to, Indian tribes;
(B) to permit each Indian tribe to choose the extent
of its participation in self-governance in accordance
with the provisions of the Indian Self-Determination and
Education Assistance Act relating to the provision of
Federal services to Indian tribes;
(C) to ensure the continuation of the trust
responsibility of the United States to Indian tribes and
Indian individuals;
(D) to affirm and enable the United States to
fulfill its obligations to the Indian tribes under
treaties and other laws;
(E) to strengthen the government-to-government
relationship between the United States and Indian tribes
through direct and meaningful consultation with all
tribes;
(F) to permit an orderly transition from Federal
domination of programs and services to provide Indian
tribes with meaningful authority, control, funding, and
discretion to plan, conduct, redesign, and administer
programs, services, functions, and activities (or
portions thereof) that meet the needs of the individual
tribal communities;
(G) to provide for a measurable parallel reduction
in the Federal bureaucracy as programs, services,
functions, and activities (or portion thereof) are
assumed by Indian tribes;
(H) to encourage the Secretary to identify all
programs, services, functions, and activities (or
portions thereof) of the Department of Health and Human
Services that may be managed by an Indian tribe under
this Act and to assist Indian tribes in assuming
responsibility for such programs, services, functions,
and activities (or portions thereof); and
(I) to provide Indian tribes with the earliest
opportunity to administer programs, services, functions,
and activities (or portions thereof) from throughout the
Department of Health and Human Services.
SEC. 4. TRIBAL SELF-GOVERNANCE.
The Indian Self-Determination and Education Assistance Act (25
U.S.C. 450 et seq.) is amended by adding at the end the following:
[[Page 114 STAT. 713]]
``TITLE V--TRIBAL SELF-GOVERNANCE
``SEC. 501. <<NOTE: 25 USC 458aaa.>> DEFINITIONS.
``(a) In General.--In this title:
``(1) Construction project.--The term `construction
project'--
``(A) means an organized noncontinuous undertaking
to complete a specific set of predetermined objectives
for the planning, environmental determination, design,
construction, repair, improvement, or expansion of
buildings or facilities, as described in a construction
project agreement; and
``(B) does not include construction program
administration and activities described in paragraphs
(1) through (3) of section 4(m), that may otherwise be
included in a funding agreement under this title.
``(2) Construction project agreement.--The term
`construction project agreement' means a negotiated agreement
between the Secretary and an Indian tribe, that at a minimum--
``(A) establishes project phase start and completion
dates;
``(B) defines a specific scope of work and standards
by which it will be accomplished;
``(C) identifies the responsibilities of the Indian
tribe and the Secretary;
``(D) addresses environmental considerations;
``(E) identifies the owner and operations and
maintenance entity of the proposed work;
``(F) provides a budget;
``(G) provides a payment process; and
``(H) establishes the duration of the agreement
based on the time necessary to complete the specified
scope of work, which may be 1 or more years.
``(3) Gross mismanagement.--The term `gross mismanagement'
means a significant, clear, and convincing violation of a
compact, funding agreement, or regulatory, or statutory
requirements applicable to Federal funds transferred to an
Indian tribe by a compact or funding agreement that results in a
significant reduction of funds available for the programs,
services, functions, or activities (or portions thereof) assumed
by an Indian tribe.
``(4) Inherent federal functions.--The term `inherent
Federal functions' means those Federal functions which cannot
legally be delegated to Indian tribes.
``(5) Inter-tribal consortium.--The term `inter-tribal
consortium' means a coalition of two more separate Indian tribes
that join together for the purpose of participating in self-
governance, including tribal organizations.
``(6) Secretary.--The term `Secretary' means the Secretary
of Health and Human Services.
``(7) Self-governance.--The term `self-governance' means the
program of self-governance established under section 502.
``(8) Tribal share.--The term `tribal share' means an Indian
tribe's portion of all funds and resources that support
[[Page 114 STAT. 714]]
secretarial programs, services, functions, and activities (or
portions thereof) that are not required by the Secretary for
performance of inherent Federal functions.
``(b) Indian Tribe.--In any case in which an Indian tribe has
authorized another Indian tribe, an inter-tribal consortium, or a tribal
organization to plan for or carry out programs, services, functions, or
activities (or portions thereof) on its behalf under this title, the
authorized Indian tribe, inter-tribal consortium, or tribal organization
shall have the rights and responsibilities of the authorizing Indian
tribe (except as otherwise provided in the authorizing resolution or in
this title). In such event, the term `Indian tribe' as used in this
title shall include such other authorized Indian tribe, inter-tribal
consortium, or tribal organization.
``SEC. 502. <<NOTE: 25 USC 458aaa-1.>> ESTABLISHMENT.
``The Secretary shall establish and carry out a program within the
Indian Health Service of the Department of Health and Human Services to
be known as the `Tribal Self-Governance Program' in accordance with this
title.
``SEC. 503. <<NOTE: 25 USC 458aaa-2.>> SELECTION OF PARTICIPATING INDIAN
TRIBES.
``(a) Continuing Participation.--Each Indian tribe that is
participating in the Tribal Self-Governance Demonstration Project under
title III on the date of the enactment of this title may elect to
participate in self-governance under this title under existing authority
as reflected in tribal resolution.
``(b) Additional Participants.--
``(1) In general.--In addition to those Indian tribes
participating in self-governance under subsection (a), each year
an additional 50 Indian tribes that meet the eligibility
criteria specified in subsection (c) shall be entitled to
participate in self-governance.
``(2) Treatment of certain indian tribes.--
``(A) In general.--An Indian tribe that has
withdrawn from participation in an inter-tribal
consortium or tribal organization, in whole or in part,
shall be entitled to participate in self-governance
provided the Indian tribe meets the eligibility criteria
specified in subsection (c).
``(B) Effect of withdrawal.--If an Indian tribe has
withdrawn from participation in an inter-tribal
consortium or tribal organization, that Indian tribe
shall be entitled to its tribal share of funds
supporting those programs, services, functions, and
activities (or portions thereof) that the Indian tribe
will be carrying out under the compact and funding
agreement of the Indian tribe.
``(C) Participation in self-governance.--In no event
shall the withdrawal of an Indian tribe from an inter-
tribal consortium or tribal organization affect the
eligibility of the inter-tribal consortium or tribal
organization to participate in self-governance.
``(c) Applicant Pool.--
``(1) In general.--The qualified applicant pool for self-
governance shall consist of each Indian tribe that--
``(A) successfully completes the planning phase
described in subsection (d);
``(B) has requested participation in self-governance
by resolution or other official action by the governing
body of each Indian tribe to be served; and
[[Page 114 STAT. 715]]
``(C) has demonstrated, for 3 fiscal years,
financial stability and financial management capability.
``(2) Criteria for determining financial stability and
financial management capacity.--For purposes of this subsection,
evidence that, during the 3-year period referred to in paragraph
(1)(C), an Indian tribe had no uncorrected significant and
material audit exceptions in the required annual audit of the
Indian tribe's self-determination contracts or self-governance
funding agreements with any Federal agency shall be conclusive
evidence of the required stability and capability.
``(d) Planning Phase.--Each Indian tribe seeking participation in
self-governance shall complete a planning phase. The planning phase
shall be conducted to the satisfaction of the Indian tribe and shall
include--
``(1) legal and budgetary research; and
``(2) internal tribal government planning and organizational
preparation relating to the administration of health care
programs.
``(e) Grants.--Subject to the availability of appropriations, any
Indian tribe meeting the requirements of paragraph (1)(B) and (C) of
subsection (c) shall be eligible for grants--
``(1) to plan for participation in self-governance; and
``(2) to negotiate the terms of participation by the Indian
tribe or tribal organization in self-governance, as set forth in
a compact and a funding agreement.
``(f) Receipt of Grant Not Required.--Receipt of a grant under
subsection (e) shall not be a requirement of participation in self-
governance.
``SEC. 504. <<NOTE: 25 USC 458aaa-3.>> COMPACTS.
``(a) Compact Required.--The Secretary shall negotiate and enter
into a written compact with each Indian tribe participating in self-
governance in a manner consistent with the Federal Government's trust
responsibility, treaty obligations, and the government-to-government
relationship between Indian tribes and the United States.
``(b) Contents.--Each compact required under subsection (a) shall
set forth the general terms of the government-to-government relationship
between the Indian tribe and the Secretary, including such terms as the
parties intend shall control year after year. Such compacts may only be
amended by mutual agreement of the parties.
``(c) Existing Compacts.--An Indian tribe participating in the
Tribal Self-Governance Demonstration Project under title III on the date
of the enactment of this title shall have the option at any time after
the date of the enactment of this title to--
``(1) retain the Tribal Self-Governance Demonstration
Project compact of that Indian tribe (in whole or in part) to
the extent that the provisions of that funding agreement are not
directly contrary to any express provision of this title; or
``(2) instead of retaining a compact or portion thereof
under paragraph (1), negotiate a new compact in a manner
consistent with the requirements of this title.
``(d) Term and Effective Date.--The effective date of a compact
shall be the date of the approval and execution by the Indian tribe or
another date agreed upon by the parties, and shall remain
[[Page 114 STAT. 716]]
in effect for so long as permitted by Federal law or until terminated by
mutual written agreement, retrocession, or reassumption.
``SEC. 505. <<NOTE: 25 USC 458aaa-4.>> FUNDING AGREEMENTS.
``(a) Funding Agreement Required.--The Secretary shall negotiate and
enter into a written funding agreement with each Indian tribe
participating in self-governance in a manner consistent with the Federal
Government's trust responsibility, treaty obligations, and the
government-to-government relationship between Indian tribes and the
United States.
``(b) Contents.--
``(1) In general.--Each funding agreement required under
subsection (a) shall, as determined by the Indian tribe,
authorize the Indian tribe to plan, conduct, consolidate,
administer, and receive full tribal share funding, including
tribal shares of discretionary Indian Health Service competitive
grants (excluding congressionally earmarked competitive grants),
for all programs, services, functions, and activities (or
portions thereof), that are carried out for the benefit of
Indians because of their status as Indians without regard to the
agency or office of the Indian Health Service within which the
program, service, function, or activity (or portion thereof) is
performed.
``(2) Inclusion of certain programs, services, functions,
and activities.--Such programs, services, functions, or
activities (or portions thereof) include all programs, services,
functions, activities (or portions thereof), including grants
(which may be added to a funding agreement after an award of
such grants), with respect to which Indian tribes or Indians are
primary or significant beneficiaries, administered by the
Department of Health and Human Services through the Indian
Health Service and all local, field, service unit, area,
regional, and central headquarters or national office functions
so administered under the authority of--
``(A) the Act of November 2, 1921 (42 Stat. 208;
chapter 115; 25 U.S.C. 13);
``(B) the Act of April 16, 1934 (48 Stat. 596;
chapter 147; 25 U.S.C. 452 et seq.);
``(C) the Act of August 5, 1954 (68 Stat. 674;
chapter 658);
``(D) the Indian Health Care Improvement Act (25
U.S.C. 1601 et seq.);
``(E) the Indian Alcohol and Substance Abuse
Prevention and Treatment Act of 1986 (25 U.S.C. 2401 et
seq.);
``(F) any other Act of Congress authorizing any
agency of the Department of Health and Human Services to
administer, carry out, or provide financial assistance
to such a program, service, function or activity (or
portions thereof) described in this section that is
carried out for the benefit of Indians because of their
status as Indians; or
``(G) any other Act of Congress authorizing such a
program, service, function, or activity (or portions
thereof) carried out for the benefit of Indians under
which appropriations are made available to any agency
other than an agency within the Department of Health and
Human Services, in any case in which the Secretary
administers
[[Page 114 STAT. 717]]
that program, service, function, or activity (or portion
thereof).
``(c) Inclusion in Compact or Funding Agreement.--It shall not be a
requirement that an Indian tribe or Indians be identified in the
authorizing statute for a program or element of a program to be eligible
for inclusion in a compact or funding agreement under this title.
``(d) Funding Agreement Terms.--Each funding agreement under this
title shall set forth--
``(1) terms that generally identify the programs, services,
functions, and activities (or portions thereof) to be performed
or administered; and
``(2) for the items identified in paragraph (1)--
``(A) the general budget category assigned;
``(B) the funds to be provided, including those
funds to be provided on a recurring basis;
``(C) the time and method of transfer of the funds;
``(D) the responsibilities of the Secretary; and
``(E) any other provision with respect to which the
Indian tribe and the Secretary agree.
``(e) Subsequent Funding Agreements.--Absent notification from an
Indian tribe that is withdrawing or retroceding the operation of one or
more programs, services, functions, or activities (or portions thereof)
identified in a funding agreement, or unless otherwise agreed to by the
parties, each funding agreement shall remain in full force and effect
until a subsequent funding agreement is executed, and the terms of the
subsequent funding agreement shall be retroactive to the end of the term
of the preceding funding agreement.
``(f) Existing Funding Agreements.--Each Indian tribe participating
in the Tribal Self-Governance Demonstration Project established under
title III on the date of the enactment of this title shall have the
option at any time thereafter to--
``(1) retain the Tribal Self-Governance Demonstration
Project funding agreement of that Indian tribe (in whole or in
part) to the extent that the provisions of that funding
agreement are not directly contrary to any express provision of
this title; or
``(2) instead of retaining a funding agreement or portion
thereof under paragraph (1), negotiate a new funding agreement
in a manner consistent with the requirements of this title.
``(g) Stable Base Funding.--At the option of an Indian tribe, a
funding agreement may provide for a stable base budget specifying the
recurring funds (including, for purposes of this provision, funds
available under section 106(a)) to be transferred to such Indian tribe,
for such period as may be specified in the funding agreement, subject to
annual adjustment only to reflect changes in congressional
appropriations by sub-sub activity excluding earmarks.
``SEC. 506. <<NOTE: 25 USC 458aaa-5.>> GENERAL PROVISIONS.
``(a) Applicability.--The provisions of this section shall apply to
compacts and funding agreements negotiated under this title and an
Indian tribe may, at its option, include provisions that reflect such
requirements in a compact or funding agreement.
``(b) Conflicts of Interest.--Indian tribes participating in self-
governance under this title shall ensure that internal measures
[[Page 114 STAT. 718]]
are in place to address conflicts of interest in the administration of
self-governance programs, services, functions, or activities (or
portions thereof).
``(c) Audits.--
``(1) <<NOTE: Applicability.>> Single agency audit act.--The
provisions of chapter 75 of title 31, United States Code,
requiring a single agency audit report shall apply to funding
agreements under this title.
``(2) Cost principles.--An Indian tribe shall apply cost
principles under the applicable Office of Management and Budget
circular, except as modified by section 106 other provisions of
law, or by any exemptions to applicable Office of Management and
Budget circulars subsequently granted by the Office of
Management and Budget. No other audit or accounting standards
shall be required by the Secretary. Any claim by the Federal
Government against the Indian tribe relating to funds received
under a funding agreement based on any audit under this
subsection shall be subject to the provisions of section 106(f).
``(d) Records.--
``(1) In general.--Unless an Indian tribe specifies
otherwise in the compact or funding agreement, records of the
Indian tribe shall not be considered Federal records for
purposes of chapter 5 of title 5, United States Code.
``(2) <<NOTE: Notice.>> Recordkeeping system.--The Indian
tribe shall maintain a recordkeeping system, and, after 30 days
advance notice, provide the Secretary with reasonable access to
such records to enable the Department of Health and Human
Services to meet its minimum legal recordkeeping system
requirements under sections 3101 through 3106 of title 44,
United States Code.
``(e) Redesign and Consolidation.--An Indian tribe may redesign or
consolidate programs, services, functions, and activities (or portions
thereof) included in a funding agreement under section 505 and
reallocate or redirect funds for such programs, services, functions, and
activities (or portions thereof) in any manner which the Indian tribe
deems to be in the best interest of the health and welfare of the Indian
community being served, only if the redesign or consolidation does not
have the effect of denying eligibility for services to population groups
otherwise eligible to be served under applicable Federal law.
``(f) Retrocession.--An Indian tribe may retrocede, fully or
partially, to the Secretary programs, services, functions, or activities
(or portions thereof) included in the compact or funding agreement.
Unless the Indian tribe rescinds the request for retrocession, such
retrocession will become effective within the timeframe specified by the
parties in the compact or funding agreement. In the absence of such a
specification, such retrocession shall become effective on--
``(1) the earlier of--
``(A) 1 year after the date of submission of such
request; or
``(B) the date on which the funding agreement
expires; or
``(2) such date as may be mutually agreed upon by the
Secretary and the Indian tribe.
``(g) Withdrawal.--
``(1) Process.--
[[Page 114 STAT. 719]]
``(A) In general.--An Indian tribe may fully or
partially withdraw from a participating inter-tribal
consortium or tribal organization its share of any
program, function, service, or activity (or portions
thereof) included in a compact or funding agreement.
``(B) Effective date.--The withdrawal referred to in
subparagraph (A) shall become effective within the
timeframe specified in the resolution which authorizes
transfer to the participating tribal organization or
inter-tribal consortium. In the absence of a specific
timeframe set forth in the resolution, such withdrawal
shall become effective on--
``(i) the earlier of--
``(I) 1 year after the date of
submission of such request; or
``(II) the date on which the funding
agreement expires; or
``(ii) such date as may be mutually agreed
upon by the Secretary, the withdrawing Indian
tribe, and the participating tribal organization
or inter-tribal consortium that has signed the
compact or funding agreement on behalf of the
withdrawing Indian tribe, inter-tribal consortium,
or tribal organization.
``(2) Distribution of funds.--When an Indian tribe or tribal
organization eligible to enter into a self-determination
contract under title I or a compact or funding agreement under
this title fully or partially withdraws from a participating
inter-tribal consortium or tribal organization--
``(A) the withdrawing Indian tribe or tribal
organization shall be entitled to its tribal share of
funds supporting those programs, services, functions, or
activities (or portions thereof) that the Indian tribe
will be carrying out under its own self-determination
contract or compact and funding agreement (calculated on
the same basis as the funds were initially allocated in
the funding agreement of the inter-tribal consortium or
tribal organization); and
``(B) the funds referred to in subparagraph (A)
shall be transferred from the funding agreement of the
inter-tribal consortium or tribal organization, on the
condition that the provisions of sections 102 and
105(i), as appropriate, shall apply to that withdrawing
Indian tribe.
``(3) Regaining mature contract status.--If an Indian tribe
elects to operate all or some programs, services, functions, or
activities (or portions thereof) carried out under a compact or
funding agreement under this title through a self-determination
contract under title I, at the option of the Indian tribe, the
resulting self-determination contract shall be a mature self-
determination contract.
``(h) Nonduplication.--For the period for which, and to the extent
to which, funding is provided under this title or under the compact or
funding agreement, the Indian tribe shall not be entitled to contract
with the Secretary for such funds under section 102, except that such
Indian tribe shall be eligible for new programs on the same basis as
other Indian tribes.
``SEC. 507. <<NOTE: 25 USC 458aaa-6.>> PROVISIONS RELATING TO THE
SECRETARY.
``(a) Mandatory Provisions.--
[[Page 114 STAT. 720]]
``(1) Health status reports.--Compacts or funding agreements
negotiated between the Secretary and an Indian tribe shall
include a provision that requires the Indian tribe to report on
health status and service delivery--
``(A) to the extent such data is not otherwise
available to the Secretary and specific funds for this
purpose are provided by the Secretary under the funding
agreement; and
``(B) if such reporting shall impose minimal burdens
on the participating Indian tribe and such requirements
are promulgated under section 517.
``(2) Reassumption.--
``(A) In general.--Compacts or funding agreements
negotiated between the Secretary and an Indian tribe
shall include a provision authorizing the Secretary to
reassume operation of a program, service, function, or
activity (or portions thereof) and associated funding if
there is a specific finding relative to that program,
service, function, or activity (or portion thereof) of--
``(i) imminent endangerment of the public
health caused by an act or omission of the Indian
tribe, and the imminent endangerment arises out of
a failure to carry out the compact or funding
agreement; or
``(ii) gross mismanagement with respect to
funds transferred to a tribe by a compact or
funding agreement, as determined by the Secretary
in consultation with the Inspector General, as
appropriate.
``(B) Prohibition.--The Secretary shall not reassume
operation of a program, service, function, or activity
(or portions thereof) unless--
``(i) the Secretary has first provided written
notice and a hearing on the record to the Indian
tribe; and
``(ii) the Indian tribe has not taken
corrective action to remedy the imminent
endangerment to public health or gross
mismanagement.
``(C) Exception.--
``(i) In general.--Notwithstanding
subparagraph (B), the Secretary may, upon written
notification to the Indian tribe, immediately
reassume operation of a program, service,
function, or activity (or portion thereof) if--
``(I) the Secretary makes a finding
of imminent substantial and irreparable
endangerment of the public health caused
by an act or omission of the Indian
tribe; and
``(II) the endangerment arises out
of a failure to carry out the compact or
funding agreement.
``(ii) <<NOTE: Deadline.>> Reassumption.--If
the Secretary reassumes operation of a program,
service, function, or activity (or portion
thereof) under this subparagraph, the Secretary
shall provide the Indian tribe with a hearing on
the record not later than 10 days after such
reassumption.
``(D) Hearings.--In any hearing or appeal involving
a decision to reassume operation of a program, service,
function, or activity (or portion thereof), the
Secretary shall have the burden of proof of
demonstrating by clear and
[[Page 114 STAT. 721]]
convincing evidence the validity of the grounds for the
reassumption.
``(b) Final Offer.--In the event the Secretary and a participating
Indian tribe are unable to agree, in whole or in part, on the terms of a
compact or funding agreement (including funding levels), the Indian
tribe may submit a final offer to the Secretary. Not more than 45
days <<NOTE: Deadline.>> after such submission, or within a longer time
agreed upon by the Indian tribe, the Secretary shall review and make a
determination with respect to such offer. In the absence of a timely
rejection of the offer, in whole or in part, made in compliance with
subsection (c), the offer shall be deemed agreed to by the Secretary.
``(c) Rejection of Final Offers.--
``(1) In general.--If the Secretary rejects an offer made
under subsection (b) (or one or more provisions or funding
levels in such offer), the Secretary shall provide--
``(A) a timely written notification to the Indian
tribe that contains a specific finding that clearly
demonstrates, or that is supported by a controlling
legal authority, that--
``(i) the amount of funds proposed in the
final offer exceeds the applicable funding level
to which the Indian tribe is entitled under this
title;
``(ii) the program, function, service, or
activity (or portion thereof) that is the subject
of the final offer is an inherent Federal function
that cannot legally be delegated to an Indian
tribe;
``(iii) the Indian tribe cannot carry out the
program, function, service, or activity (or
portion thereof) in a manner that would not result
in significant danger or risk to the public
health; or
``(iv) the Indian tribe is not eligible to
participate in self-governance under section 503;
``(B) technical assistance to overcome the
objections stated in the notification required by
subparagraph (A);
``(C) the Indian tribe with a hearing on the record
with the right to engage in full discovery relevant to
any issue raised in the matter and the opportunity for
appeal on the objections raised, except that the Indian
tribe may, in lieu of filing such appeal, directly
proceed to initiate an action in a Federal district
court pursuant to section 110(a); and
``(D) the Indian tribe with the option of entering
into the severable portions of a final proposed compact
or funding agreement, or provision thereof, (including a
lesser funding amount, if any), that the Secretary did
not reject, subject to any additional alterations
necessary to conform the compact or funding agreement to
the severed provisions.
``(2) Effect of exercising certain option.--If an Indian
tribe exercises the option specified in paragraph (1)(D), that
Indian tribe shall retain the right to appeal the Secretary's
rejection under this section, and subparagraphs (A), (B), and
(C) of that paragraph shall only apply to that portion of the
proposed final compact, funding agreement, or provision thereof
that was rejected by the Secretary.
``(d) Burden of Proof.--With respect to any hearing or appeal or
civil action conducted pursuant to this section, the Secretary
[[Page 114 STAT. 722]]
shall have the burden of demonstrating by clear and convincing evidence
the validity of the grounds for rejecting the offer (or a provision
thereof) made under subsection (b).
``(e) Good Faith.--In the negotiation of compacts and funding
agreements the Secretary shall at all times negotiate in good faith to
maximize implementation of the self-governance policy. The Secretary
shall carry out this title in a manner that maximizes the policy of
tribal self-governance, in a manner consistent with the purposes
specified in section 3 of the Tribal Self-Governance Amendments of 2000.
``(f) Savings.--To the extent that programs, functions, services, or
activities (or portions thereof) carried out by Indian tribes under this
title reduce the administrative or other responsibilities of the
Secretary with respect to the operation of Indian programs and result in
savings that have not otherwise been included in the amount of tribal
shares and other funds determined under section 508(c), the Secretary
shall make such savings available to the Indian tribes, inter-tribal
consortia, or tribal organizations for the provision of additional
services to program beneficiaries in a manner equitable to directly
served, contracted, and compacted programs.
``(g) Trust Responsibility.--The Secretary is prohibited from
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, other laws, or
court decisions.
``(h) Decisionmaker.--A decision that constitutes final agency
action and relates to an appeal within the Department of Health and
Human Services conducted under subsection (c) shall be made either--
``(1) by an official of the Department who holds a position
at a higher organizational level within the Department than the
level of the departmental agency in which the decision that is
the subject of the appeal was made; or
``(2) by an administrative judge.
``SEC. 508. <<NOTE: 25 USC 458aaa-7.>> TRANSFER OF FUNDS.
``(a) In General.--Pursuant to the terms of any compact or funding
agreement entered into under this title, the Secretary shall transfer to
the Indian tribe all funds provided for in the funding agreement,
pursuant to subsection (c), and provide funding for periods covered by
joint resolution adopted by Congress making continuing appropriations,
to the extent permitted by such resolutions. In any instance where a
funding agreement requires an annual transfer of funding to be made at
the beginning of a fiscal year, or requires semiannual or other periodic
transfers of funding to be made commencing at the beginning of a fiscal
year, the first such transfer shall be made not later than 10 days after
the apportionment of such funds by the Office of Management and Budget
to the Department, unless the funding agreement provides otherwise.
``(b) Multiyear Funding.--The Secretary is authorized to employ,
upon tribal request, multiyear funding agreements. References in this
title to funding agreements shall include such multiyear funding
agreements.
``(c) Amount of Funding.--The Secretary shall provide funds under a
funding agreement under this title in an amount equal to the amount that
the Indian tribe would have been entitled
[[Page 114 STAT. 723]]
to receive under self-determination contracts under this Act, including
amounts for direct program costs specified under section 106(a)(1) and
amounts for contract support costs specified under section 106(a) (2),
(3), (5), and (6), including any funds that are specifically or
functionally related to the provision by the Secretary of services and
benefits to the Indian tribe or its members, all without regard to the
organizational level within the Department where such functions are
carried out.
``(d) Prohibitions.--
``(1) In general.--Except as provided in paragraph (2), the
Secretary is expressly prohibited from--
``(A) failing or refusing to transfer to an Indian
tribe its full share of any central, headquarters,
regional, area, or service unit office or other funds
due under this Act, except as required by Federal law;
``(B) withholding portions of such funds for
transfer over a period of years; and
``(C) reducing the amount of funds required under
this Act--
``(i) to make funding available for self-
governance monitoring or administration by the
Secretary;
``(ii) in subsequent years, except pursuant
to--
``(I) a reduction in appropriations
from the previous fiscal year for the
program or function to be included in a
compact or funding agreement;
``(II) a congressional directive in
legislation or accompanying report;
``(III) a tribal authorization;
``(IV) a change in the amount of
pass-through funds subject to the terms
of the funding agreement; or
``(V) completion of a project,
activity, or program for which such
funds were provided;
``(iii) to pay for Federal functions,
including Federal pay costs, Federal employee
retirement benefits, automated data processing,
technical assistance, and monitoring of activities
under this Act; or
``(iv) to pay for costs of Federal personnel
displaced by self-determination contracts under
this Act or self-governance;
``(2) Exception.--The funds described in paragraph (1)(C)
may be increased by the Secretary if necessary to carry out this
Act or as provided in section 105(c)(2).
``(e) Other Resources.--In the event an Indian tribe elects to carry
out a compact or funding agreement with the use of Federal personnel,
Federal supplies (including supplies available from Federal warehouse
facilities), Federal supply sources (including lodging, airline
transportation, and other means of transportation including the use of
interagency motor pool vehicles) or other Federal resources (including
supplies, services, and resources available to the Secretary under any
procurement contracts in which the Department is eligible to
participate), the Secretary shall acquire and transfer such personnel,
supplies, or resources to the Indian tribe.
``(f) Reimbursement to Indian Health Service.--With respect to
functions transferred by the Indian Health Service to an Indian tribe,
the Indian Health Service shall provide goods
[[Page 114 STAT. 724]]
and services to the Indian tribe, on a reimbursable basis, including
payment in advance with subsequent adjustment. The reimbursements
received from those goods and services, along with the funds received
from the Indian tribe pursuant to this title, may be credited to the
same or subsequent appropriation account which provided the funding,
such amounts to remain available until expended.
``(g) <<NOTE: Applicability.>> Prompt Payment Act.--Chapter 39 of
title 31, United States Code, shall apply to the transfer of funds due
under a compact or funding agreement authorized under this title.
``(h) Interest or Other Income on Transfers.--An Indian tribe is
entitled to retain interest earned on any funds paid under a compact or
funding agreement to carry out governmental or health purposes and such
interest shall not diminish the amount of funds the Indian tribe is
authorized to receive under its funding agreement in the year the
interest is earned or in any subsequent fiscal year. Funds transferred
under this title shall be managed using the prudent investment standard.
``(i) Carryover of Funds.--All funds paid to an Indian tribe in
accordance with a compact or funding agreement shall remain available
until expended. In the event that an Indian tribe elects to carry over
funding from 1 year to the next, such carryover shall not diminish the
amount of funds the Indian tribe is authorized to receive under its
funding agreement in that or any subsequent fiscal year.
``(j) Program Income.--All Medicare, Medicaid, or other program
income earned by an Indian tribe shall be treated as supplemental
funding to that negotiated in the funding agreement. The Indian tribe
may retain all such income and expend such funds in the current year or
in future years except to the extent that the Indian Health Care
Improvement Act (25 U.S.C. 1601 et seq.) provides otherwise for Medicare
and Medicaid receipts. Such funds shall not result in any offset or
reduction in the amount of funds the Indian tribe is authorized to
receive under its funding agreement in the year the program income is
received or for any subsequent fiscal year.
``(k) Limitation of Costs.--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.
If at any time the Indian tribe has reason to believe that the total
amount provided for a specific activity in the compact or funding
agreement is insufficient the Indian tribe shall provide reasonable
notice of such insufficiency to the Secretary. If the Secretary does not
increase the amount of funds transferred under the funding agreement,
the Indian tribe may suspend performance of the activity until such time
as additional funds are transferred.
``SEC. 509. <<NOTE: 25 USC 458aaa-8.>> CONSTRUCTION PROJECTS.
``(a) In General.--Indian tribes participating in tribal self-
governance may carry out construction projects under this title if they
elect to assume all Federal responsibilities under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), the National
Historic Preservation Act (16 U.S.C. 470 et seq.), and related
provisions of law that would apply if the Secretary were to undertake a
construction project, by adopting a resolution--
[[Page 114 STAT. 725]]
``(1) designating a certifying officer to represent the
Indian tribe and to assume the status of a responsible Federal
official under such laws; and
``(2) accepting the jurisdiction of the Federal court for
the purpose of enforcement of the responsibilities of the
responsible Federal official under such environmental laws.
``(b) Negotiations.--Construction project proposals shall be
negotiated pursuant to the statutory process in section 105(m) and
resulting construction project agreements shall be incorporated into
funding agreements as addenda.
``(c) Codes and Standards.--The Indian tribe and the Secretary shall
agree upon and specify appropriate building codes and architectural and
engineering standards (including health and safety) which shall be in
conformity with nationally recognized standards for comparable projects.
``(d) Responsibility for Completion.--The Indian tribe shall assume
responsibility for the successful completion of the construction project
in accordance with the negotiated construction project agreement.
``(e) Funding.--Funding for construction projects carried out under
this title shall be included in funding agreements as annual advance
payments, with semiannual payments at the option of the Indian tribe.
Annual advance and semiannual payment amounts shall be determined based
on mutually agreeable project schedules reflecting work to be
accomplished within the advance payment period, work accomplished and
funds expended in previous payment periods, and the total prior
payments. The Secretary shall include associated project contingency
funds with each advance payment installment. The Indian tribe shall be
responsible for the management of the contingency funds included in
funding agreements.
``(f) Approval.--The Secretary shall have at least one opportunity
to approve project planning and design documents prepared by the Indian
tribe in advance of construction of the facilities specified in the
scope of work for each negotiated construction project agreement or
amendment thereof which results in a significant change in the original
scope of work. The Indian tribe shall provide the Secretary with project
progress and financial reports not less than semiannually. The Secretary
may conduct onsite project oversight visits semiannually or on an
alternate schedule agreed to by the Secretary and the Indian tribe.
``(g) Wages.--All laborers and mechanics employed by contractors and
subcontractors (excluding tribes and tribal organizations) in the
construction, alteration, or repair, including painting or decorating of
a building or other facilities in connection with construction projects
funded by the United States under this Act shall be paid wages at not
less than those prevailing wages on similar construction in the locality
as determined by the Secretary of Labor in accordance with the Davis-
Bacon Act of March 3, 1931 (46 Stat. 1494). With respect to construction
alteration, or repair work to which the Act of March 3, 1931, is
applicable under this section, the Secretary of Labor shall have the
authority and functions set forth in the Reorganization Plan numbered
14, of 1950, and section 2 of the Act of June 13, 1934 (48 Stat. 948).
``(h) Application of Other Laws.--Unless otherwise agreed to by the
Indian tribe, no provision of the Office of Federal Procurement Policy
Act, the Federal Acquisition Regulations issued pursuant thereto, or any
other law or regulation pertaining to Federal
[[Page 114 STAT. 726]]
procurement (including Executive orders) shall apply to any construction
project conducted under this title.
``SEC. 510. <<NOTE: 25 USC 458aaa-9.>> FEDERAL PROCUREMENT LAWS AND
REGULATIONS.
``Regarding construction programs or projects, the Secretary and
Indian tribes may negotiate for the inclusion of specific provisions of
the Office of Federal Procurement and Policy Act (41 U.S.C. 401 et seq.)
and Federal acquisition regulations in any funding agreement entered
into under this part. Absent a negotiated agreement, such provisions and
regulatory requirements shall not apply.
``SEC. 511. <<NOTE: 25 USC 458aaa-10.>> CIVIL ACTIONS.
``(a) Contract Defined.--For the purposes of section 110, the term
`contract' shall include compacts and funding agreements entered into
under this title.
``(b) Applicability of Certain Laws.--Section 2103 of the Revised
Statutes (25 U.S.C. 81) and section 16 of the Act of June 18, 1934 (48
Stat. 987; chapter 576; 25 U.S.C. 476), shall not apply to attorney and
other professional contracts entered into by Indian tribes participating
in self-governance under this title.
``(c) References.--All references in this Act to section 1 of the
Act of June 26, 1936 (49 Stat. 1967; chapter 831) are hereby deemed to
include the first section of the Act of July 3, 1952 (66 Stat. 323;
chapter 549; 25 U.S.C. 82a).
``SEC. 512. <<NOTE: 25 USC 458aaa-11.>> FACILITATION.
``(a) Secretarial Interpretation.--Except as otherwise provided by
law, the Secretary shall interpret all Federal laws, Executive orders,
and regulations in a manner that will facilitate--
``(1) the inclusion of programs, services, functions, and
activities (or portions thereof) and funds associated therewith,
in the agreements entered into under this section;
``(2) the implementation of compacts and funding agreements
entered into under this title; and
``(3) the achievement of tribal health goals and objectives.
``(b) Regulation Waiver.--
``(1) In general.--An Indian tribe may submit a written
request to waive application of a regulation promulgated under
section 517 or the authorities specified in section 505(b) for a
compact or funding agreement entered into with the Indian Health
Service under this title, to the Secretary identifying the
applicable Federal regulation sought to be waived and the basis
for the request.
``(2) Approval.--Not <<NOTE: Deadline.>> later than 90 days
after receipt by the Secretary of a written request by an Indian
tribe to waive application of a regulation for a compact or
funding agreement entered into under this title, the Secretary
shall either approve or deny the requested waiver in writing. A
denial may be made only upon a specific finding by the Secretary
that identified language in the regulation may not be waived
because such waiver is prohibited by Federal
law. <<NOTE: Deadline.>> A failure to approve or deny a waiver
request not later than 90 days after receipt shall be deemed an
approval of such request. The Secretary's decision shall be
final for the Department.
``(c) Access to Federal Property.--In connection with any compact or
funding agreement executed pursuant to this title or
[[Page 114 STAT. 727]]
an agreement negotiated under the Tribal Self-Governance Demonstration
Project established under title III, as in effect before the enactment
of the Tribal Self-Governance Amendments of 2000, upon the request of an
Indian tribe, the Secretary--
``(1) shall permit an Indian tribe to use existing school
buildings, hospitals, and other facilities and all equipment
therein or appertaining thereto and other personal property
owned by the Government within the Secretary's jurisdiction
under such terms and conditions as may be agreed upon by the
Secretary and the Indian tribe for their use and maintenance;
``(2) may donate to an Indian tribe title to any personal or
real property found to be excess to the needs of any agency of
the Department, or the General Services Administration, except
that--
``(A) subject to the provisions of subparagraph (B),
title to property and equipment furnished by the Federal
Government for use in the performance of the compact or
funding agreement or purchased with funds under any
compact or funding agreement shall, unless otherwise
requested by the Indian tribe, vest in the appropriate
Indian tribe;
``(B) if property described in subparagraph (A) has
a value in excess of $5,000 at the time of retrocession,
withdrawal, or reassumption, at the option of the
Secretary upon the retrocession, withdrawal, or
reassumption, title to such property and equipment shall
revert to the Department of Health and Human Services;
and
``(C) all property referred to in subparagraph (A)
shall remain eligible for replacement, maintenance, and
improvement on the same basis as if title to such
property were vested in the United States; and
``(3) shall acquire excess or surplus Government personal or
real property for donation to an Indian tribe if the Secretary
determines the property is appropriate for use by the Indian
tribe for any purpose for which a compact or funding agreement
is authorized under this title.
``(d) Matching or Cost-Participation Requirement.--All funds
provided under compacts, funding agreements, or grants made pursuant to
this Act, shall be treated as non-Federal funds for purposes of meeting
matching or cost participation requirements under any other Federal or
non-Federal program.
``(e) State Facilitation.--States are hereby authorized and
encouraged to enact legislation, and to enter into agreements with
Indian tribes to facilitate and supplement the initiatives, programs,
and policies authorized by this title and other Federal laws benefiting
Indians and Indian tribes.
``(f) Rules of Construction.--Each provision of this title and each
provision of a compact or funding agreement shall be liberally construed
for the benefit of the Indian tribe participating in self-governance and
any ambiguity shall be resolved in favor of the Indian tribe.
``SEC. 513. <<NOTE: 25 USC 458aaa-12.>> BUDGET REQUEST.
``(a) Requirement of Annual Budget Request.--
``(1) <<NOTE: President.>> In general.--The President shall
identify in the annual budget request submitted to Congress
under section
[[Page 114 STAT. 728]]
1105 of title 31, United States Code, all funds necessary to
fully fund all funding agreements authorized under this title,
including funds specifically identified to fund tribal base
budgets. All funds so appropriated shall be apportioned to the
Indian Health Service. Such funds shall be provided to the
Office of Tribal Self-Governance which shall be responsible for
distribution of all funds provided under section 505.
``(2) Rule of construction.--Nothing in this subsection
shall be construed to authorize the Indian Health Service to
reduce the amount of funds that a self-governance tribe is
otherwise entitled to receive under its funding agreement or
other applicable law, whether or not such funds are apportioned
to the Office of Tribal Self-Governance under this section.
``(b) Present Funding; Shortfalls.--In such budget request, the
President shall identify the level of need presently funded and any
shortfall in funding (including direct program and contract support
costs) for each Indian tribe, either directly by the Secretary of Health
and Human Services, under self-determination contracts, or under
compacts and funding agreements authorized under this title.
``SEC. 514. <<NOTE: 25 USC 458aaa-13.>> REPORTS.
``(a) Annual Report.--
``(1) In <<NOTE: Deadline.>> general.--Not later than
January 1 of each year after the date of the enactment of the
Tribal Self-Governance Amendments of 2000, the Secretary shall
submit to the Committee on Indian Affairs of the Senate and the
Committee on Resources of the House of Representatives a written
report regarding the administration of this title.
``(2) Analysis.--The report under paragraph (1) shall
include a detailed analysis of the level of need being presently
funded or unfunded for each Indian tribe, either directly by the
Secretary, under self-determination contracts under title I, or
under compacts and funding agreements authorized under this Act.
In compiling reports pursuant to this section, the Secretary may
not impose any reporting requirements on participating Indian
tribes or tribal organizations, not otherwise provided in this
Act.
``(b) Contents.--The report under subsection (a) shall--
``(1) be compiled from information contained in funding
agreements, annual audit reports, and data of the Secretary
regarding the disposition of Federal funds; and
``(2) identify--
``(A) the relative costs and benefits of self-
governance;
``(B) with particularity, all funds that are
specifically or functionally related to the provision by
the Secretary of services and benefits to self-
governance Indian tribes and their members;
``(C) the funds transferred to each self-governance
Indian tribe and the corresponding reduction in the
Federal bureaucracy;
``(D) the funding formula for individual tribal
shares of all headquarters funds, together with the
comments of affected Indian tribes or tribal
organizations, developed under subsection (c); and
[[Page 114 STAT. 729]]
``(E) amounts expended in the preceding fiscal year
to carry out inherent Federal functions, including an
identification of those functions by type and location;
``(3) contain a description of the method or methods (or any
revisions thereof) used to determine the individual tribal share
of funds controlled by all components of the Indian Health
Service (including funds assessed by any other Federal agency)
for inclusion in self-governance compacts or funding agreements;
``(4) <<NOTE: Deadline.>> before being submitted to
Congress, be distributed to the Indian tribes for comment (with
a comment period of no less than 30 days, beginning on the date
of distribution); and
``(5) include the separate views and comments of the Indian
tribes or tribal organizations.
``(c) <<NOTE: Deadline.>> Report on Fund Distribution Method.--Not
later than 180 days after the date of the enactment of the Tribal Self-
Governance Amendments of 2000, the Secretary shall, after consultation
with Indian tribes, submit a written report to the Committee on
Resources of the House of Representatives and the Committee on Indian
Affairs of the Senate that describes the method or methods used to
determine the individual tribal share of funds controlled by all
components of the Indian Health Service (including funds assessed by any
other Federal agency) for inclusion in self-governance compacts or
funding agreements.
``SEC. 515. <<NOTE: 25 USC 458aaa-14.>> DISCLAIMERS.
``(a) No Funding Reduction.--Nothing in this title shall be
construed to limit or reduce in any way the funding for any program,
project, or activity serving an Indian tribe under this or other
applicable Federal law. Any Indian tribe that alleges that a compact or
funding agreement is in violation of this section may apply the
provisions of section 110.
``(b) Federal Trust and Treaty Responsibilities.--Nothing in this
Act shall be construed to diminish in any way the trust responsibility
of the United States to Indian tribes and individual Indians that exists
under treaties, Executive orders, or other laws and court decisions.
``(c) Obligations of the United States.--The Indian Health Service
under this Act shall neither bill nor charge those Indians who may have
the economic means to pay for services, nor require any Indian tribe to
do so.
``SEC. 516. <<NOTE: 25 USC 458aaa-15.>> APPLICATION OF OTHER SECTIONS OF
THE ACT.
``(a) Mandatory Application.--All provisions of sections 5(b), 6, 7,
102(c) and (d), 104, 105(k) and (l), 106(a) through (k), and 111 of this
Act and section 314 of Public Law 101-512 (coverage under chapter 171 of
title 28, United States Code, commonly known as the `Federal Tort Claims
Act'), to the extent not in conflict with this title, shall apply to
compacts and funding agreements authorized by this title.
``(b) Discretionary Application.--At the request of a participating
Indian tribe, any other provision of title I, to the extent such
provision is not in conflict with this title, shall be made a part of a
funding agreement or compact entered into under this title. The
Secretary is obligated to include such provision at the option of the
participating Indian tribe or tribes. If such provision is incorporated
it shall have the same force and effect as
[[Page 114 STAT. 730]]
if it were set out in full in this title. In the event an Indian tribe
requests such incorporation at the negotiation stage of a compact or
funding agreement, such incorporation shall be deemed effective
immediately and shall control the negotiation and resulting compact and
funding agreement.
``SEC. 517. <<NOTE: 25 USC 458aaa-16.>> REGULATIONS.
``(a) In General.--
``(1) Promulgation.--Not <<NOTE: Deadline.>> later than 90
days after the date of the enactment of the Tribal Self-
Governance Amendments of 2000, 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 <<NOTE: Federal Register,
publication.>> of proposed regulations.--Proposed regulations to
implement this title shall be published in the Federal Register
by the Secretary no later than 1 year after the date of the
enactment of the Tribal Self-Governance Amendments of 2000.
``(3) Expiration of authority.--The authority to promulgate
regulations under paragraph (1) shall expire 21 months after the
date of the enactment of the Tribal Self-Governance Amendments
of 2000.
``(b) Committee.--
``(1) In general.--A negotiated rulemaking committee
established pursuant to section 565 of title 5, United States
Code, to carry out this section shall have as its members only
Federal and tribal government representatives, a majority of
whom shall be nominated by and be representatives of Indian
tribes with funding agreements under this Act.
``(2) Requirements.--The committee shall confer with, and
accommodate participation by, representatives of Indian tribes,
inter-tribal consortia, tribal organizations, and individual
tribal members.
``(c) Adaptation of Procedures.--The Secretary 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.--The lack of promulgated regulations shall not limit
the effect of this title.
``(e) Effect of Circulars, Policies, Manuals, Guidances, and
Rules.--Unless expressly agreed to by the participating Indian tribe in
the compact or funding agreement, the participating Indian tribe shall
not be subject to any agency circular, policy, manual, guidance, or rule
adopted by the Indian Health Service, except for the eligibility
provisions of section 105(g) and regulations promulgated under section
517.
``SEC. 518. <<NOTE: 25 USC 458aaa-17.>> APPEALS.
``In any appeal (including civil actions) involving decisions made
by the Secretary under this title, the Secretary shall have the burden
of proof of demonstrating by clear and convincing evidence--
``(1) the validity of the grounds for the decision made; and
``(2) that the decision is fully consistent with provisions
and policies of this title.
[[Page 114 STAT. 731]]
``SEC. 519. <<NOTE: 25 USC 458aaa-18.>> AUTHORIZATION OF APPROPRIATIONS.
``(a) In General.--There are authorized to be appropriated such sums
as may be necessary to carry out this title.
``(b) Availability of Appropriations.--Notwithstanding any other
provision of this Act, the provision of funds under this Act shall be
subject to the availability of appropriations and the Secretary is not
required to reduce funding for programs, projects, or activities serving
a tribe in order to make funds available to another tribe or tribal
organization under this Act.''.
SEC. 5. TRIBAL SELF-GOVERNANCE DEPARTMENT.
The Indian Self-Determination and Education Assistance Act (25
U.S.C. 450 et seq.) is amended by adding at the end the following:
``TITLE <<NOTE: 25 USC 450f note.>> VI--TRIBAL SELF-GOVERNANCE--
DEPARTMENT OF HEALTH AND HUMAN SERVICES
``SEC. 601. DEFINITIONS.
``(a) In General.--In this title, the Secretary may apply the
definitions contained in title V.
``(b) Other Definitions.--In this title:
``(1) Agency.--The term `agency' means any agency or other
organizational unit of the Department of Health and Human
Services, other than the Indian Health Service.
``(2) Secretary.--The term `Secretary' means the Secretary
of Health and Human Services.
``SEC. 602. DEMONSTRATION PROJECT FEASIBILITY.
``(a) Study.--The Secretary shall conduct a study to determine the
feasibility of a tribal self-governance demonstration project for
appropriate programs, services, functions, and activities (or portions
thereof) of the agency.
``(b) Considerations.--In conducting the study, the Secretary shall
consider--
``(1) the probable effects on specific programs and program
beneficiaries of such a demonstration project;
``(2) statutory, regulatory, or other impediments to
implementation of such a demonstration project;
``(3) strategies for implementing such a demonstration
project;
``(4) probable costs or savings associated with such a
demonstration project;
``(5) methods to assure quality and accountability in such a
demonstration project; and
``(6) such other issues that may be determined by the
Secretary or developed through consultation pursuant to section
603.
``(c) <<NOTE: Deadline.>> Report.--Not later than 18 months after
the date of the enactment of this title, the Secretary shall submit a
report to the Committee on Indian Affairs of the Senate and the
Committee on Resources of the House of Representatives. The report shall
contain--
``(1) the results of the study under this section;
[[Page 114 STAT. 732]]
``(2) a list of programs, services, functions, and
activities (or portions thereof) within each agency with respect
to which it would be feasible to include in a tribal self-
governance demonstration project;
``(3) a list of programs, services, functions, and
activities (or portions thereof) included in the list provided
pursuant to paragraph (2) that could be included in a tribal
self-governance demonstration project without amending statutes,
or waiving regulations that the Secretary may not waive;
``(4) a list of legislative actions required in order to
include those programs, services, functions, and activities (or
portions thereof) included in the list provided pursuant to
paragraph (2) but not included in the list provided pursuant to
paragraph (3) in a tribal self-governance demonstration project;
and
``(5) any separate views of tribes and other entities
consulted pursuant to section 603 related to the information
provided pursuant to paragraphs (1) through (4).
``SEC. 603. CONSULTATION.
``(a) Study Protocol.--
``(1) Consultation with indian tribes.--The Secretary shall
consult with Indian tribes to determine a protocol for
consultation under subsection (b) prior to consultation under
such subsection with the other entities described in such
subsection.
``(2) Requirements for protocol.--The protocol shall
require, at a minimum, that--
``(A) the government-to-government relationship with
Indian tribes forms the basis for the consultation
process;
``(B) the Indian tribes and the Secretary jointly
conduct the consultations required by this section; and
``(C) the consultation process allows for separate
and direct recommendations from the Indian tribes and
other entities described in subsection (b).
``(b) Conducting Study.--In conducting the study under this title,
the Secretary shall consult with Indian tribes, States, counties,
municipalities, program beneficiaries, and interested public interest
groups, and may consult with other entities as appropriate.
``SEC. 604. AUTHORIZATION OF APPROPRIATIONS.
``There are authorized to be appropriated such sums as may be
necessary to carry out this title. Such sums shall remain available
until expended.''.
SEC. 6. AMENDMENTS CLARIFYING CIVIL PROCEEDINGS.
Section 102(e)(1) of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450f(e)(1)) is amended by inserting after
``subsection (b)(3)'' the following: ``or any civil action conducted
pursuant to section 110(a)''.
SEC. 7. SPEEDY ACQUISITION OF GOODS, SERVICES, OR SUPPLIES.
Section 105(k) of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450j(k)) is amended--
(1) by striking ``deemed an executive agency'' and inserting
``deemed an executive agency and part of the Indian Health
Service''; and
(2) by adding at the end the following: ``For purposes of
carrying out such contract, grant, or agreement, the Secretary
[[Page 114 STAT. 733]]
shall, at the request of an Indian tribe, enter into an
agreement for the acquisition, on behalf of the Indian tribe, of
any goods, services, or supplies available to the Secretary from
the General Services Administration or other Federal agencies
that are not directly available to the Indian tribe under this
section or under any other Federal law, including acquisitions
from prime vendors. All such acquisitions shall be undertaken
through the most efficient and speedy means practicable,
including electronic ordering arrangements.''.
SEC. 8. PATIENT RECORDS.
Section 105 of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450j) is amended by adding at the end the
following:
``(o) Patient Records.--
``(1) In general.--At the option of an Indian tribe or
tribal organization, patient records may be deemed to be Federal
records under those provisions of title 44, United States Code,
that are commonly referred to as the `Federal Records Act of
1950' for the limited purposes of making such records eligible
for storage by Federal Records Centers to the same extent and in
the same manner as other Department of Health and Human Services
patient records.
``(2) Treatment of records.--Patient records that are deemed
to be Federal records under those provisions of title 44, United
States Code, that are commonly referred to as the `Federal
Records Act of 1950' pursuant to this subsection shall not be
considered Federal records for the purposes of chapter 5 of
title 5, United States Code.''.
SEC. 9. ANNUAL REPORTS.
Section 106 of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450j-1) is amended--
(1) by redesignating subsections (c) through (n) as
subsections (d) through (o), respectively; and
(2) by inserting after subsection (b), the following:
``(c) <<NOTE: Deadline.>> Annual Reports.--Not later than May 15 of
each year, the Secretary shall prepare and submit to Congress an annual
report on the implementation of this Act. Such report shall include--
``(1) an accounting of the total amounts of funds provided
for each program and the budget activity for direct program
costs and contract support costs of tribal organizations under
self-determination;
``(2) an accounting of any deficiency in funds needed to
provide required contract support costs to all contractors for
the fiscal year for which the report is being submitted;
``(3) the indirect cost rate and type of rate for each
tribal organization that has been negotiated with the
appropriate Secretary;
``(4) the direct cost base and type of base from which the
indirect cost rate is determined for each tribal organization;
``(5) the indirect cost pool amounts and the types of costs
included in the indirect cost pool; and
``(6) an accounting of any deficiency in funds needed to
maintain the preexisting level of services to any Indian tribes
affected by contracting activities under this Act, and a
statement of the amount of funds needed for transitional
purposes
[[Page 114 STAT. 734]]
to enable contractors to convert from a Federal fiscal year
accounting cycle, as authorized by section 105(d).''.
SEC. 10. REPEAL.
Title III of the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 450f note) is repealed.
SEC. 11. <<NOTE: 25 USC 450f note.>> SAVINGS PROVISION.
Funds appropriated for title III of the Indian Self-Determination
and Education Assistance Act (25 U.S.C. 450f note) shall be available
for use under title V of such Act.
SEC. 12. APPLICATION TO ALASKA.
(a) Notwithstanding any other provision of law, nothing in this Act,
the amendments made thereby, nor its implementation, shall affect--
(1) the right of the Consortium or Southcentral Foundation
to carry out the programs, functions, services and activities as
specified in section 325 of Public Law 105-83 (111 Stat. 55-56);
or
(2) the prohibitions in section 351 of section 101(e) of
division A, Public Law 105-277.
(b) Section 351 of section 101(e) of division A, Public Law 105-277
and section 326 of Public Law 105-83 (111 Stat. 57) are amended by
inserting ``as amended'' after the phrase ``Public Law 93-638 (25 U.S.C.
450 et seq.)'' where such phrase appears in each section.
SEC. 13. <<NOTE: 25 USC 458aaa note.>> EFFECTIVE DATE.
Except as otherwise provided, the provisions of this Act shall take
effect on the date of the enactment of this Act.
Approved August 18, 2000.
LEGISLATIVE HISTORY--H.R. 1167 (S. 979):
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HOUSE REPORTS: No. 106-477 (Comm. on Resources).
SENATE REPORTS: No. 106-221 accompanying S. 979 (Comm. on Indian
Affairs).
CONGRESSIONAL RECORD:
Vol. 145 (1999):
Nov. 17, considered and passed
House.
Vol. 146 (2000):
Apr. 4, considered and passed
Senate, amended, in lieu of
S. 979.
July 24, House concurred in Senate
amendment with amendments
pursuant to H. Res. 562.
July 26, Senate concurred in House
amendments.
__________
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Note: In line 1 of section 12(a)(1), the words ``Consortium or''
have been added in lieu of ``Consortium of''.
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