[116th Congress Public Law 180]
[From the U.S. Government Publishing Office]
[[Page 134 STAT. 857]]
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. <<NOTE: Oct. 21, 2020 - [S. 209]>>
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, <<NOTE: Practical
Reforms and Other Goals To Reinforce the Effectiveness of Self-
Governance and Self-Determination for Indian Tribes Act of 2019.>>
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) <<NOTE: 25 USC 5301 note.>> 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. <<NOTE: 25 USC 5361 note.>> 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 134 STAT. 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 134 STAT. 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 134 STAT. 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) <<NOTE: Records.>> 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) <<NOTE: Contracts.>> 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 134 STAT. 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) <<NOTE: Applicability.>> 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) <<NOTE: Time period.>> 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 134 STAT. 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 134 STAT. 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) <<NOTE: Contracts.>> 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 134 STAT. 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 <<NOTE: 25 USC 5364-5368.>> and
inserting the following:
``SEC. 404. <<NOTE: 25 USC 5364.>> 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 134 STAT. 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. <<NOTE: 25 USC 5365.>> 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) <<NOTE: Applicability.>> 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 134 STAT. 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) <<NOTE: Contracts.>> 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) <<NOTE: Notice. Time period.>> 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. <<NOTE: 25 USC 5366.>> PROVISIONS RELATING TO THE
SECRETARY.
``(a) <<NOTE: Contracts.>> 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) <<NOTE: Compact. Contracts.>> 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 134 STAT. 867]]
``(ii) arises out of a failure to carry out
the compact or funding agreement; or
``(B) <<NOTE: Determination. Consultation.>> 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) <<NOTE: Notice. Hearing.>> 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) <<NOTE: Notice.>> 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) <<NOTE: Hearing. Deadline.>> 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) <<NOTE: Deadline. Review. Time period. Extension.>>
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 134 STAT. 868]]
``(5) <<NOTE: Applicability.>> 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) <<NOTE: Notification.>> 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) <<NOTE: Hearing.>> 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 134 STAT. 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) <<NOTE: Applicability.>> 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 134 STAT. 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. <<NOTE: 25 USC 5367.>> 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) <<NOTE: Certification.>> 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 134 STAT. 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) <<NOTE: Contracts.>> 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) <<NOTE: Contracts.>> 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 134 STAT. 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. <<NOTE: 25 USC 5368.>> 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) <<NOTE: Contracts.>> 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) <<NOTE: Transfer authority.>> 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) <<NOTE: Deadlines.>> 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 134 STAT. 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) <<NOTE: Acquisitions. Transfer authority.>> 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) <<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.
``(j) Interest or Other Income.--
[[Page 134 STAT. 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. <<NOTE: 25 USC 5369.>> 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 134 STAT. 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) <<NOTE: Deadline.>> 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. <<NOTE: 25 USC 5370.>> 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) <<NOTE: Applicability.>> 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 134 STAT. 876]]
``SEC. 411. <<NOTE: 25 USC 5371.>> 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. <<NOTE: 25 USC 5372.>> 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) <<NOTE: Comment period.>> 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) <<NOTE: Lists.>> include a list of--
``(A) <<NOTE: Determination. Consultation.>> 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 134 STAT. 877]]
``(2) <<NOTE: Consultation.>> 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) <<NOTE: Federal Register, publication.>>
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) <<NOTE: Federal Register,
publication. Consultation.>> 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) <<NOTE: Consultation.>> 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. <<NOTE: 25 USC 5373.>> REGULATIONS.
``(a) In General.--
``(1) <<NOTE: Deadline.>> 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) <<NOTE: Federal Register, publication. Deadline.>>
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 134 STAT. 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. <<NOTE: 25 USC 5374.>> 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. <<NOTE: 25 USC 5375.>> 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. <<NOTE: 25 USC 5376.>> 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. <<NOTE: 25 USC 5377.>> 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 134 STAT. 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) <<NOTE: 25 USC 5305 note.>> 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) <<NOTE: 25 USC 5361 note.>> 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 134 STAT. 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) <<NOTE: Determination.>> 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. <<NOTE: Plan.>> 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) <<NOTE: Reports.>> 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 134 STAT. 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:
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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.
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