To amend the Indian Self-Determination and Education Assistance Act to provide further self-governance by Indian tribes.

October 3, 2003

Mr. CAMPBELL (for himself and Mr. INOUYE) introduced the following bill; which was read twice and referred to the Committee on Indian Affairs

To amend the Indian Self-Determination and Education Assistance Act to provide further self-governance by Indian tribes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Department of the Interior Tribal Self-Governance Act of 2003'.

SEC. 2. AMENDMENT.

The Indian Self-Determination and Education Assistance Act is amended by striking title IV (25 U.S.C. 458aa et seq.) and inserting the following:

`TITLE IV--TRIBAL SELF-GOVERNANCE

`SEC. 401. DEFINITIONS.

`In this title:

`(1) COMPACT- The term `compact' means a compact under section 404.

`(2) CONSTRUCTION PROGRAM- The term `construction program' means a tribal undertaking to complete any or all included programs 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) CONSTRUCTION PROJECT- The term `construction project' means a tribal undertaking that constructs 1 or more 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.

`(4) DEPARTMENT- The term `Department' means the Department of the Interior.

`(5) FUNDING AGREEMENT- The term `funding agreement' means a funding agreement under section 405(b).

`(6) GROSS MISMANAGEMENT- The term `gross mismanagement' means a significant violation, shown by clear and convincing evidence, of a compact, funding agreement, or statutory or regulatory requirement applicable to Federal funds transferred to an Indian tribe by a compact or funding agreement that results in a significant reduction of funds being made available for the included programs assumed by an Indian tribe.

`(7) INCLUDED PROGRAM- The term `included program' means a program that is eligible for inclusion under a funding agreement (including any portion of such a program and any function, service, or activity performed under such a program).

`(8) INDIAN TRIBE- The term `Indian tribe', in a case in which an Indian tribe authorizes another Indian tribe, an inter-tribal consortium, or a tribal organization to plan for or carry out an included program on its behalf in accordance with section 403(a)(3), includes the other authorized Indian tribe, inter-tribal consortium, or tribal organization.

`(9) INHERENT FEDERAL FUNCTION- The term `inherent Federal function' means a Federal function that cannot legally be delegated to an Indian tribe.

`(10) INTER-TRIBAL CONSORTIUM-

`(A) IN GENERAL- The term `inter-tribal consortium' means a coalition of 2 more separate Indian tribes that join together for the purpose of participating in self-governance.

`(B) INCLUSION- The term `inter-tribal organization' includes a tribal organization.

`(11) SECRETARY- The term `Secretary' means the Secretary of the Interior.

`(12) SELF-GOVERNANCE- The term `self-governance' means the program of self-governance established under section 402.

`(13) TRIBAL SHARE- The term `tribal share' means an Indian tribe's portion of all funds and resources that support secretarial included programs that are not required by the Secretary for the performance of inherent Federal functions.

`SEC. 402. ESTABLISHMENT.

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

`SEC. 403. SELECTION OF PARTICIPATING INDIAN TRIBES.

`(a) IN GENERAL-

`(1) CONTINUING PARTICIPATION- An Indian tribe that was participating in the Tribal Self-Governance Demonstration Project at the Department under title III on October 25, 1994, may elect to participate in self-governance under this title.

`(2) ADDITIONAL PARTICIPANTS-

`(A) IN GENERAL- In addition to Indian tribes participating in self-governance under paragraph (1), an Indian tribe that meets the eligibility criteria specified in subsection (b) shall be entitled to participate in self-governance.

`(B) NO LIMITATION- The Secretary shall not limit the number of additional Indian tribes to be selected each year from among Indian tribes that are eligible under subsection (b).

`(3) OTHER AUTHORIZED INDIAN TRIBE, INTER-TRIBAL CONSORTIUM, OR TRIBAL GOVERNMENT- If an Indian tribe authorizes another Indian

tribe, an inter-tribal consortium, or a tribal organization to plan for or carry out an included program 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).

`(4) JOINT PARTICIPATION- Two or more Indian tribes that are not otherwise eligible under subsection (b) may be treated as a single Indian tribe for the purpose of participating in self-governance as a consortium if--

`(A) if each Indian tribe so requests; and

`(B) the consortium itself is eligible under subsection (b).

`(5) TRIBAL WITHDRAWAL FROM A CONSORTIUM-

`(A) IN GENERAL- An Indian tribe that withdraws from participation in an inter-tribal consortium or tribal organization, in whole or in part, shall be entitled to participate in self-governance if the Indian tribe is eligible under subsection (b).

`(B) EFFECT OF WITHDRAWAL- If an Indian tribe withdraws from participation in an inter-tribal consortium or tribal organization, the Indian tribe shall be entitled to its tribal share of funds and resources supporting the included programs that the Indian tribe will be carrying out under the compact and funding agreement of the Indian tribe.

`(C) PARTICIPATION IN SELF-GOVERNANCE- The withdrawal of an Indian tribe from an inter-tribal consortium or tribal organization shall not affect the eligibility of the inter-tribal consortium or tribal organization to participate in self-governance on behalf of 1 or more other Indian tribes.

`(D) WITHDRAWAL PROCESS-

`(i) IN GENERAL- An Indian tribe may fully or partially withdraw from a participating inter-tribal consortium or tribal organization its tribal share of any included program that is included in a compact or funding agreement.

`(ii) EFFECTIVE DATE-

`(I) IN GENERAL- A withdrawal under clause (i) shall become effective on the date specified in the resolution that authorizes transfer to the participating tribal organization or inter-tribal consortium.

`(II) NO SPECIFIED DATE- In the absence of a date specified in the resolution, the withdrawal shall become effective on--

`(aa) the earlier of--

`(AA) 1 year after the date of submission of the request; or

`(BB) the date on which the funding agreement expires; or

`(bb) such date as may be agreed on by the Secretary, the withdrawing Indian tribe, and the tribal organization or inter-tribal consortium that signed the compact or funding agreement on behalf of the withdrawing Indian tribe, inter-tribal consortium, or tribal organization.

`(E) DISTRIBUTION OF FUNDS- If an Indian tribe or tribal organization eligible to enter into a self-determination contract under title I or a compact or funding agreement under this title fully or partially withdraws from a participating inter-tribal consortium or 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 funds and resources supporting the included 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 inter-tribal consortium or tribal organization); and

`(II) the funds referred to in subclause (I) shall be withdrawn by the Secretary from the funding agreement of the inter-tribal consortium or 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 funds not obligated by the inter-tribal consortium associated with the withdrawing Indian tribe's returned included programs, less closeout costs, shall be returned by the inter-tribal consortium to the Secretary for operation of the included programs included in the withdrawal.

`(F) RETURN TO MATURE CONTRACT STATUS- If an Indian tribe elects to operate all or some included 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.

`(b) ELIGIBILITY- To be eligible to participate in self-governance, an Indian tribe shall--

`(1) complete the planning phase described in subsection (c);

`(2) request participation in self-governance by resolution or other official action by the tribal governing body; and

`(3) demonstrate, for the 3 fiscal years preceding the date on which the Indian tribe requests participation, financial stability and financial management capability as evidenced by the Indian tribe's having no uncorrected significant and material audit exceptions in the required annual audit of its self-determination or self-governance agreements with any Federal agency.

`(c) PLANNING PHASE-

`(1) IN GENERAL- An Indian tribe seeking to participate in self-governance shall complete a planning phase in accordance with this subsection.

`(2) ACTIVITIES- The planning phase--

`(A) shall be conducted to the satisfaction of the Indian tribe; and

`(B) shall include--

`(i) legal and budgetary research; and

`(ii) internal tribal government planning and organizational preparation.

`(d) GRANTS-

`(1) IN GENERAL- Subject to the availability of appropriations, an Indian tribe that meets the requirements of paragraphs (2) and (3) of subsection (b) shall be eligible for grants--

`(A) to plan for participation in self-governance; and

`(B) to negotiate the terms of participation by the Indian tribe or tribal organization in self-governance, as set forth in a compact and a funding agreement.

`(2) RECEIPT OF GRANT NOT REQUIRED- Receipt of a grant under paragraph (1) shall not be a requirement of participation in self-governance.

`SEC. 404. COMPACTS.

`(a) IN GENERAL- The Secretary shall negotiate and enter into a written compact with as Indian tribe participating in self-governance in a manner that is 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 the general terms of the government-to-government relationship between the Indian tribe and the Secretary; and

`(2) include such terms as the parties intend shall control year after year.

`(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 Indian tribe; or

`(2) another date agreed to by the parties.

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

`(f) EXISTING COMPACTS- An Indian tribe participating in self-governance under this title, as in effect on the date of enactment of the Department of the Interior Tribal Self-Governance Act of 2003, shall have the option at any time after that date--

`(1) to retain its negotiated compact (in whole or in part) to the extent that the provisions of the compact are not directly contrary to any express provision of this title; or

`(2) to negotiate a new compact in a manner consistent with this title.

`SEC. 405. FUNDING AGREEMENTS.

`(a) IN GENERAL- The Secretary shall negotiate and enter into a written funding agreement with the governing body of an Indian tribe in a manner that is consistent with the trust responsibility of the Federal Government, treaty obligations, and the government-to-government relationship between Indian tribes and the United States.

`(b) INCLUDED PROGRAMS-

`(1) BUREAU OF INDIAN AFFAIRS AND OFFICE OF SPECIAL TRUSTEE-

`(A) IN GENERAL- A funding agreement shall, as determined by the Indian tribe, authorize the Indian tribe to plan, conduct, consolidate, administer, and receive full tribal share funding for all programs carried out by the Bureau of Indian Affairs and the Office of Special Trustee, without regard to the agency or office within which the program is performed (including funding for agency, area, and central office functions in accordance with section 409(c)), that--

`(i) are provided for in the Act of April 16, 1934 (25 U.S.C. 452 et seq.);

`(ii) the Secretary administers for the benefit of Indians under the Act of November 2, 1921 (25 U.S.C. 13), or any subsequent Act;

`(iii) the Secretary administers for the benefit of Indians with appropriations made to agencies other than the Department of the Interior; or

`(iv) are provided for the benefit of Indians because of their status as Indians.

`(B) INCLUSIONS- Programs described in subparagraph (A) shall include all programs with respect to which Indian tribes or Indians are primary or significant beneficiaries.

`(2) OTHER AGENCIES- A funding agreement 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 for all programs carried out by the Secretary outside the Bureau of Indian Affairs, without regard to the agency or office within which the program is performed, including funding for agency, area, and central office functions in accordance with subsection 409(c), to the extent that the included programs are within the scope of paragraph (1).

`(3) DISCRETIONARY PROGRAMS- A funding agreement under subsection (a) may, in accordance with such additional terms as the parties consider to

be appropriate, include programs administered by the Secretary, in addition to programs described in paragraphs (1) and (2), that are of special geographical, historical, or cultural significance to the Indian tribe.

`(4) COMPETITIVE BIDDING- Nothing in this section--

`(A) supersedes any express statutory requirement for competitive bidding; or

`(B) prohibits the inclusion in a funding agreement of a program in which non-Indians have an incidental or legally identifiable interest.

`(5) EXCLUDED FUNDING- A funding agreement shall not authorize an Indian tribe to plan, conduct, administer, or receive tribal share funding under any program that--

`(A) is provided under the Tribally Controlled Community College Assistance Act of 1978 (25 U.S.C. 1801 et seq.);

`(B) is provided for elementary and secondary schools under the formula developed under section 1128 of the Education Amendments of 1978 (25 U.S.C. 2008); and

`(C) is provided for the Flathead Agency Irrigation Division or the Flathead Agency Power Division (except that nothing in this section affects the contract authority of the Flathead Agency Irrigation Division or the Flathead Agency Power Division under section 102).

`(6) SERVICES, FUNCTIONS, AND RESPONSIBILITIES- A funding agreement shall specify--

`(A) the services to be provided under the funding agreement;

`(B) the functions to be performed under the funding agreement; and

`(C) the responsibilities of the Indian tribe and the Secretary under the funding agreement.

`(7) BASE BUDGET- A funding agreement shall, at the option of the Indian tribe, provide for a stable base budget specifying the recurring funds (including funds available under section 106(a)) to be transferred to the Indian tribe, for such period as the Indian tribe specifies in the funding agreement, subject to annual adjustment only to reflect changes in congressional appropriations.

`(8) NO WAIVER OF TRUST RESPONSIBILITY- A funding agreement shall prohibit the Secretary from waiving, modifying, or diminishing in any way the trust responsibility of the United States with respect to Indian tribes and individual Indians that exists under treaties, Executive orders, court decisions, and other laws.

`(c) AMENDMENT- The Secretary shall not revise, amend, or require additional terms in a new or subsequent funding agreement without the consent of the Indian tribe.

`(d) EFFECTIVE DATE- A funding agreement shall become effective on the date specified in the funding agreement.

`(e) EXISTING AND SUBSEQUENT FUNDING AGREEMENTS-

`(1) SUBSEQUENT FUNDING AGREEMENTS- Absent notification from an Indian tribe that is withdrawing or retroceding the operation of 1 or more included programs identified in a funding agreement, or unless otherwise agreed to by the parties to the funding agreement--

`(A) a funding agreement shall remain in effect until a subsequent funding agreement is executed; and

`(B) the term of the subsequent funding agreement shall be retroactive to the end of the term of the preceding funding agreement.

`(2) EXISTING FUNDING AGREEMENTS- An Indian tribe that was participating in self-governance under this title on the date of enactment of the Department of the Interior Tribal Self-Governance Act of 2003 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.

`(3) 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.

`SEC. 406. GENERAL PROVISIONS.

`(a) APPLICABILITY- An Indian tribe may 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 included programs.

`(c) AUDITS-

`(1) SINGLE AGENCY AUDIT ACT- Chapter 75 of title 31, United States Code, shall apply to a funding agreement under this title.

`(2) COST PRINCIPLES- An Indian tribe shall apply cost principles under the applicable Office of Management and Budget circular, except as modified by--

`(A) section 106 of this Act or any other provision of law; or

`(B) any exemptions to applicable Office of Management and Budget circulars 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 an audit under this subsection shall be subject to section 106(f).

`(d) REDESIGN AND CONSOLIDATION- An Indian tribe may redesign or consolidate included programs or reallocate funds for included programs in any manner that the Indian tribe determines to be in the best interest of the Indian community being served, so long as the redesign or consolidation does not have the effect of denying eligibility for services to population groups otherwise eligible to be served under applicable Federal law.

`(e) RETROCESSION-

`(1) IN GENERAL- An Indian tribe may fully or partially retrocede to the Secretary any included program under a compact or funding agreement.

`(2) EFFECTIVE DATE-

`(A) AGREEMENT- Unless the Indian tribe rescinds a request for retrocession, 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 such a specification, the retrocession shall become effective on--

`(i) the earlier of--

`(I) the date that is 1 year after the date of submission of the request; or

`(II) the date on which the funding agreement expires; or

`(ii) such date as may be agreed on by the Secretary and the Indian tribe.

`(f) NONDUPLICATION- A funding agreement shall provide that, for the period for which, and to the extent to which, funding is provided to an Indian tribe under this title, the Indian tribe--

`(1) shall not be entitled to enter into a contract with the Secretary for funds under section 102, except that the Indian tribe shall be eligible for new included programs on the same basis as other Indian tribes; and

`(2) shall be responsible for the administration of included 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 treated as agency records for purposes of chapter 5 of title 5, United States Code.

`(2) RECORDKEEPING SYSTEM- An Indian tribe shall--

`(A) maintain a recordkeeping system; and

`(B) on 30 days' notice, provide the Secretary with reasonable access to the records to enable the Department to meet the requirements of sections 3101 through 3106 of title 44, United States Code.

`SEC. 407. PROVISIONS RELATING TO THE SECRETARY.

`(a) TRUST EVALUATIONS- A funding agreement shall include a provision to monitor the performance of trust functions by the Indian tribe through the annual trust evaluation.

`(b) REASSUMPTION-

`(1) IN GENERAL- A compact or funding agreement shall include provisions for the Secretary to reassume an included program and associated funding if there is a specific finding relating to that included program of--

`(A) imminent jeopardy to a physical trust asset, natural resource, or public health and safety that--

`(i) is caused by an act or omission of the Indian tribe; and

`(ii) arises out of a failure to carry out the compact or funding agreement; or

`(B) gross mismanagement with respect to funds transferred to an Indian tribe by 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 an included program unless--

`(A) the Secretary first provides written notice and a hearing on the record to the Indian tribe; and

`(B) the Indian tribe does not take corrective action to remedy gross mismanagement or the imminent jeopardy to a physical trust asset, natural resource, or public health and safety.

`(3) EXCEPTION-

`(A) IN GENERAL- Notwithstanding subparagraph (2), the Secretary may, on written notice to the Indian tribe, immediately reassume operation of an included program if--

`(i) the Secretary makes a finding of both imminent and substantial jeopardy and irreparable harm to a physical 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 physical trust asset, natural resource, or public health and safety arises out of a failure by

the Indian tribe to carry out its compact or funding agreement.

`(B) REASSUMPTION- If the Secretary reassumes operation of an included program under subparagraph (A), the Secretary shall provide the Indian tribe with a hearing on the record not later than 10 days after the date of reassumption.

`(c) INABILITY TO AGREE ON COMPACT OR FUNDING AGREEMENT-

`(1) FINAL OFFER- If the Secretary and a participating Indian tribe are unable to agree, in whole or in part, on the terms of a compact or funding agreement (including funding levels), the Indian tribe may submit a final offer to the Secretary.

`(2) DETERMINATION- Not more than 45 days after the date of submission of a final offer, or as otherwise agreed to by the Indian tribe, the Secretary shall review and make a determination with respect to the final offer.

`(3) NO TIMELY DETERMINATION- If the Secretary fails to make a determination with respect to a final offer within the time specified in paragraph (2), the Secretary shall be deemed to have agreed to the offer.

`(4) REJECTION OF FINAL OFFER-

`(A) IN GENERAL- If the Secretary rejects a final offer (or 1 or more provisions or funding levels in a final offer), the Secretary shall--

`(i) provide timely written notification to the Indian tribe that contains a specific finding that clearly demonstrates, or that is supported by a controlling legal authority, that--

`(I) the amount of funds proposed in the final offer exceeds the applicable funding level to which the Indian tribe is entitled under this title;

`(II) the included program that is the subject of the final offer is an inherent Federal function;

`(III) the Indian tribe cannot carry out the included program 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 403(b);

`(ii) provide technical assistance to overcome the objections stated in the notification required by clause (i);

`(iii) provide the Indian tribe 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 an appeal, directly proceed to bring a civil action in United States district court under section 110(a)); and

`(iv) provide the Indian tribe the option of entering into the severable portions of a final proposed compact or funding agreement (including a lesser funding amount, if any), that the Secretary did not reject, subject to any additional alterations necessary to conform the compact or funding agreement to the severed provisions.

`(B) EFFECT OF EXERCISING CERTAIN OPTION- If an Indian tribe exercises the option specified in subparagraph (A)(iv)--

`(i) the Indian tribe shall retain the right to appeal the rejection by the Secretary under this section; and

`(ii) clauses (i), (ii), and (iii) of that subparagraph shall apply only to the portion of the proposed final compact or funding agreement that was rejected by the Secretary.

`(d) BURDEN OF PROOF- In any administrative hearing or appeal or civil action brought under this section, the Secretary shall have the burden of demonstrating by clear and convincing evidence the validity of the grounds for rejecting a final offer made under subsection (c) or the grounds for a reassumption under subsection (b).

`(e) GOOD FAITH-

`(1) IN GENERAL- In the negotiation of compacts and funding agreements, the Secretary shall at all times negotiate in good faith to maximize implementation of the self-governance policy.

`(2) POLICY- The Secretary shall carry out this Act in a manner that maximizes the policy of tribal self-governance.

`(f) SAVINGS- To the extent that included programs 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 409(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 included programs.

`(g) TRUST RESPONSIBILITY- The Secretary may not waive, modify, or diminish in any way the trust responsibility of the United States with respect to Indian tribes and individual Indians that exists under treaties, Executive orders, other laws, or court decisions.

`(h) DECISIONMAKER- A decision that constitutes final agency action and relates to an appeal within the Department brought under subsection (c)(4) may be made--

`(1) by an official of the Department who holds a position at a higher organizational level within the

Department than the level of the departmental agency in which the decision that is the subject of the appeal was made; or

`(2) by an administrative law judge.

`(i) RULE OF CONSTRUCTION- Each provision of this title and each provision of a compact or funding agreement shall be liberally construed for the benefit of the Indian tribe participating in self-governance, and any ambiguity shall be resolved in favor of the Indian tribe.

`SEC. 408. CONSTRUCTION PROGRAMS AND CONSTRUCTION PROJECTS.

`(a) IN GENERAL- An Indian tribe participating in self-governance may carry out a construction program or construction project under this title in the same manner as the Indian tribe carries out other included programs under this title, consistent with the provisions of all applicable Federal laws.

`(b) FEDERAL FUNCTIONS- An Indian tribe participating in self-governance may, in carrying out construction projects under this title, 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 carry out a construction project, by adopting a resolution--

`(1) designating a certifying officer to represent the Indian tribe and to assume the status of a responsible Federal official under those laws; and

`(2) accepting the jurisdiction of the Federal courts for the purpose of enforcement of the responsibilities of the responsible Federal official under applicable environmental law.

`(c) NEGOTIATIONS-

`(1) IN GENERAL- In accordance with all applicable Federal laws, a construction program or construction project shall be treated in the same manner and be subject to all provisions of this Act as are all other tribal assumptions of included programs under this Act.

`(2) CONSTRUCTION PROJECTS- A provision shall be included in the funding agreement that, for each construction project--

`(A) states the approximate start and completion dates of the construction project, which may extend for 1 or more years;

`(B) provides a general description of the construction project;

`(C) states the responsibilities of the Indian tribe and the Secretary with respect to the construction project;

`(D) describes--

`(i) the ways in which the Indian tribe will address project-related environmental considerations; and

`(ii) the standards by which the Indian tribe will accomplish the construction project; and

`(E) the amount of funds provided for the construction project.

`(d) CODES AND STANDARDS; TRIBAL ASSURANCES- A funding agreement shall contain a certification by the Indian tribe that the Indian tribe will establish and enforce procedures designed to ensure that all construction-related included programs carried out through the funding agreement adhere to building codes and other codes and architectural and engineering standards (including public health and safety standards) identified by the Indian tribe in the funding agreement, which codes and standards shall be in conformity with nationally recognized standards for comparable projects in comparable locations.

`(e) RESPONSIBILITY FOR COMPLETION- The Indian tribe shall assume responsibility for the successful completion of a construction project in accordance with the funding agreement.

`(f) FUNDING-

`(1) IN GENERAL- At the option of an Indian tribe, full funding for a construction program or construction project carried out under this title shall be included in a funding agreement as an annual advance payment.

`(2) ENTITLEMENT- Notwithstanding the annual advance payment provisions or any other provision of law, an Indian tribe shall be entitled to receive in its initial funding agreement all funds made available to the Secretary for multiyear construction programs and projects carried out under this title.

`(3) CONTINGENCY FUNDS- The Secretary shall include associated project contingency funds in an advance payment described in paragraph (1), and the Indian tribe shall be responsible for the management of the contingency funds included in the funding agreement.

`(4) REALLOCATION OF SAVINGS-

`(A) IN GENERAL- Notwithstanding any other provision of an annual Act of appropriation or other Federal law, an Indian tribe may reallocate any financial savings realized by the Indian tribe arising from efficiencies in the design, construction, or any other aspect of a construction program or construction project.

`(B) PURPOSES- A reallocation under subparagraph (A) shall be for construction-related activity purposes generally similar to those for which the funds were appropriated and distributed to the Indian tribe under the funding agreement.

`(g) APPROVAL-

`(1) IN GENERAL- If the planning and design documents for a construction project are prepared by an Indian tribe in a manner that is consistent with the certification given by the Indian tribe as required under subsection (d), approval by the Secretary of a funding agreement providing for the assumption of the construction project shall be deemed to be an approval by the Secretary of the construction project planning and design documents.

`(2) REPORTS- The Indian tribe shall provide the Secretary with construction project progress and financial reports not less than semiannually.

`(3) INSPECTIONS- The Secretary may conduct onsite project inspections at a construction project semiannually or on an alternate schedule agreed to by the Secretary and the Indian tribe.

`(h) WAGES-

`(1) IN GENERAL- All laborers and mechanics employed by a contractor or subcontractor in the construction, alteration, or repair (including painting and decorating) of a building or other facility in connection with a construction project funded by the United States under this title shall be paid wages at not less than the amounts of wages prevailing on similar construction in the locality as determined by the Secretary of Labor in accordance with subchapter IV of chapter 31 of title 40, United States Code.

`(2) AUTHORITY- With respect to construction, alteration, or repair work to which that subchapter is applicable under this subsection, the Secretary of Labor shall have the authority and functions specified in the Reorganization Plan numbered 14, of 1950.

`(3) APPLICABILITY OF SUBSECTION- Notwithstanding any other provision of law, this subsection does not apply to any portion of a construction project carried out under this Act--

`(A) that is funded from a non-Federal source, regardless of whether the non-Federal funds are included with Federal funds for administrative convenience; or

`(B) that is performed by a laborer or mechanic employed directly by an Indian tribe or tribal organization.

`(4) APPLICABILITY OF TRIBAL LAW- This subsection does not apply to a compact or funding agreement if the compact, self-determination contract, or funding agreement is otherwise covered by a law (including a regulation) adopted by an Indian tribe that requires the payment of not less than prevailing wages, as determined by the Indian tribe.

`(i) APPLICABILITY OF OTHER LAW- Unless otherwise agreed to by the Indian tribe, no provision of the Office of Federal Procurement Policy Act (41 U.S.C. 401 et seq.), the Federal Acquisition Regulation, or any other law or regulation pertaining to Federal procurement (including Executive orders) shall apply to any construction program or project conducted under this title.

`SEC. 409. PAYMENT.

`(a) IN GENERAL- At the request of the governing body of the Indian tribe and under the terms of a funding agreement, the Secretary shall provide funding to the Indian tribe to carry out the funding agreement.

`(b) ADVANCE ANNUAL PAYMENT- At the option of the Indian tribe, a funding agreement shall provide for an advance annual payment to an Indian tribe.

`(c) AMOUNT- Subject to subsection (e) and sections 405 and 406 of this title, the Secretary shall provide funds to the Indian tribe under a funding agreement for included programs in the 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 Federal agency in which the included programs are carried out.

`(d) TIMING- Unless the funding agreement provides otherwise, the transfer of funds shall be made not later than 10 days after the apportionment of funds by the Office of Management and Budget to the Department.

`(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) LIMITATION 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 Act, 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 Act--

`(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 an included 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 Act; or

`(D) to pay for costs of Federal personnel displaced by self-determination contracts under this Act or self-governance.

`(h) FEDERAL RESOURCES- If an Indian tribe elects to carry out a compact or funding agreement with the use of Federal personnel, Federal supplies (including supplies available from Federal warehouse facilities), Federal supply sources (including lodging, airline transportation, and other means of transportation including the use of interagency motor pool vehicles), or other Federal resources (including supplies, services, and resources available to the Secretary under any procurement contracts in which the Department is eligible to participate), the Secretary shall acquire and transfer such personnel, supplies, or resources to the Indian tribe.

`(i) PROMPT PAYMENT ACT- Chapter 39 of title 31, United States Code, shall apply to the transfer of funds due under a compact or funding agreement authorized under this Act.

`(j) INTEREST OR OTHER INCOME-

`(1) IN GENERAL- An Indian tribe may retain interest or income earned on any funds paid under a compact or funding agreement to carry out governmental purposes.

`(2) NO EFFECT ON OTHER AMOUNTS- The retention of interest or income under paragraph (1) shall not diminish the amount of funds that an Indian tribe is entitled to receive under a funding agreement in the year in which the interest or income is earned or in any subsequent fiscal year.

`(3) INVESTMENT STANDARD- Funds transferred under this title shall be managed using the prudent investment standard.

`(k) CARRYOVER OF FUNDS-

`(1) IN GENERAL- Notwithstanding any provision of an Act of appropriation, all funds paid to an Indian tribe in accordance with a compact or funding agreement shall remain available until expended.

`(2) EFFECT OF CARRYOVER- If an Indian tribe elects to carry over funding from 1 year to the next, the carryover shall not diminish the amount of funds that 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 an 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 the insufficiency to the Secretary.

`(3) SUSPENSION OF PERFORMANCE- 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. 410. CIVIL ACTIONS.

`(a) INCLUSION AS CONTRACT- Except as provided in subsection (b), for the purposes of section 110, the term `contract' shall include a funding agreement.

`(b) CONTRACTS WITH PROFESSIONALS- For the period during which a funding agreement is in effect, section 2103 of the Revised Statutes (25 U.S.C. 81), and section 16 of the Act of June 18, 1934 (25 U.S.C. 476) shall not apply to a contract between an attorney or other professional and an Indian tribe.

`SEC. 411. FACILITATION.

`(a) IN GENERAL- Except as otherwise provided by law, the Secretary shall interpret each Federal law (including a regulation) in a manner that facilitates--

`(1) the inclusion of included programs in funding agreements; and

`(2) the implementation of funding agreements.

`(b) REGULATION WAIVER-

`(1) REQUEST- An Indian tribe may submit a written request for a waiver to the Secretary identifying the specific text in regulation sought to be waived and the basis for the request.

`(2) DETERMINATION BY THE SECRETARY- Not later than 60 days after the date of receipt by the Secretary of a request under paragraph (1), the Secretary shall approve or deny the requested waiver in writing to the Indian tribe.

`(3) GROUND FOR DENIAL- The Secretary may deny a request for a waiver only on 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.

`(4) FAILURE TO MAKE DETERMINATION- If the Secretary fails to approve or deny a waiver request within the time required under paragraph (2), the Secretary shall be deemed to have approved the request.

`(5) FINALITY- The Secretary's decision shall be final for the Department.

`SEC. 412. DISCLAIMERS.

`Nothing in this title expands or alters any statutory authority of the Secretary so as to authorize the Secretary

to enter into any funding agreement under section 405(b)(2) or 415(c)(1)--

`(1) with respect to an inherent Federal function;

`(2) in a case in which the statute establishing a program does not authorize the type of participation sought by the Indian tribe (without regard to whether 1 or more Indian tribes are identified in the authorizing statute); or

`(3) limits or reduces in any way the services, contracts, or funds that any other Indian tribe or tribal organization is eligible to receive under section 102 or any other applicable Federal law.

`SEC. 413. APPLICABILITY OF OTHER PROVISIONS.

`(a) MANDATORY APPLICATION- Sections 5(d), 6, 102(c), 104, 105(f), 110, and 111 apply to compacts and funding agreements under this title.

`(b) DISCRETIONARY APPLICATION-

`(1) IN GENERAL- At the option of a participating Indian tribe, any or all of the provisions of title I or title V shall be incorporated in a compact or funding agreement.

`(2) EFFECT- Each incorporated provision--

`(A) shall have the same effect as if the provision were set out in full in this title; and

`(B) shall be deemed to supplement or replace any related provision in this title and to apply to any agency otherwise governed by this title.

`(3) EFFECTIVE DATE- If an Indian tribe requests incorporation at the negotiation stage of a compact or funding agreement, the incorporation--

`(A) shall be effective immediately; and

`(B) shall control the negotiation and resulting compact and funding agreement.

`SEC. 414. BUDGET REQUEST.

`(a) REQUIREMENT OF ANNUAL BUDGET REQUEST-

`(1) IN GENERAL- The President shall identify in the annual budget request submitted to Congress under section 1105 of title 31, United States Code, all funds necessary to fully fund all funding agreements authorized under this title.

`(2) DUTY OF SECRETARY- The Secretary shall ensure that there are included, in each budget request, requests for funds in amounts that are sufficient for planning and negotiation grants and sufficient to cover any shortfall in funding identified under subsection (b).

`(3) TIMING- All funds included within funding agreements shall be provided to the Office of Self-Governance not later than 15 days after the date on which funds are apportioned to the Department.

`(4) DISTRIBUTION OF FUNDS- The Office of Self-Governance shall be responsible for distribution of all funds provided under this title.

`(5) RULE OF CONSTRUCTION- Nothing in this subsection authorizes the Secretary to reduce the amount of funds that an Indian tribe is otherwise entitled to receive under a funding agreement or other applicable law.

`(b) PRESENT FUNDING; SHORTFALLS- In all budget requests, the President shall identify the level of need presently funded and any shortfall in funding (including direct program costs, tribal shares and contract support costs) for each Indian tribe, either directly by the Secretary of Interior, under self-determination contracts, or under compacts and funding agreements.

`SEC. 415. 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- A report under paragraph (1) shall include a detailed analysis of tribal unmet need 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 subchapter.

`(3) NO ADDITIONAL REPORTING REQUIREMENTS- In preparing reports under paragraph (1), the Secretary may not impose any reporting requirement on participating Indian tribes not otherwise provided for by this Act.

`(b) CONTENTS- A 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;

`(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 bureaucracy;

`(D) the funding formula for individual tribal shares of all Central Office funds, with the comments of affected Indian tribes, developed under subsection (d); and

`(E) amounts expended in the preceding fiscal year to carry out inherent Federal functions, including an identification of inherent Federal functions by type and location;

`(3) contain a description of the methods used to determine the individual tribal share of funds controlled by all components of the Department (including funds assessed by any other Federal agency) for inclusion in compacts or funding agreements;

`(4) before being submitted to Congress, be distributed to the Indian tribes for comment (with a comment period of not less than 30 days); and

`(5) include the separate views and comments of each Indian tribe or tribal organization.

`(c) REPORT ON NON-BIA PROGRAMS-

`(1) IN GENERAL- In order to optimize opportunities for including non-Bureau of Indian Affairs included programs in agreements with Indian tribes

participating in self-governance under this title, the Secretary shall--

`(A) review all included programs administered by the Department, other than through the Bureau of Indian Affairs, without regard to the agency or office concerned;

`(B) not later than January 1, 2004, submit to Congress--

`(i) a list of all such included programs that the Secretary determines, with the concurrence of Indian tribes participating in self-governance, are eligible to be included in a funding agreement at the request of a participating Indian tribe; and

`(ii) a list of all such included programs for which Indian tribes have requested to include in a funding agreement under section 405(b)(3) due to the special geographic, historical, or cultural significance to the Indian tribe, indicating whether each request was granted or denied and stating the grounds for any denial.

`(2) PROGRAMMATIC TARGETS- The Secretary shall establish programmatic targets, after consultation with Indian tribes participating in self-governance, to encourage bureaus of the Department to ensure that a significant portion of those included programs are included in funding agreements.

`(3) PUBLICATION- The lists and targets under paragraphs (1) and (2) shall be published in the Federal Register and be made available to any Indian tribe participating in self-governance.

`(4) ANNUAL REVIEW-

`(A) IN GENERAL- The Secretary shall annually review and publish in the Federal Register, after consultation with Indian tribes participating in self-governance, revised lists and programmatic targets.

`(B) CONTENTS- The revised lists and programmatic targets shall include all included programs that were eligible for contracting in the original list published in the Federal Register in 1995, except for included programs specifically determined not to be contractible as a matter of law.

`(d) REPORT ON CENTRAL OFFICE FUNDS- Not later than January 1, 2004, the Secretary shall, in consultation with Indian tribes, develop a funding formula to determine the individual tribal share of funds controlled by the Central Office of the Bureau of Indian Affairs for inclusion in the self-governance compacts.

`SEC. 416. REGULATIONS.

`(a) IN GENERAL-

`(1) PROMULGATION- Not later than 90 days after the date of the enactment of the Department of the Interior Tribal Self-Governance Act of 2003, the Secretary shall initiate procedures under subchapter III of chapter 5, of title 5, United States Code, to negotiate and promulgate such regulations as are necessary to carry out the amendments made by that Act.

`(2) PUBLICATION OF PROPOSED REGULATIONS- Proposed regulations to implement the amendments shall be published in the Federal Register not later than 1 year after the date of enactment of that Act.

`(3) EXPIRATION OF AUTHORITY- The authority to promulgate regulations under paragraph (1) shall expire on the date that is 18 months after the date of enactment of that Act.

`(b) COMMITTEE-

`(1) MEMEBERSHIP- A negotiated rulemaking committee established under section 565 of title 5, United States Code, to carry out this section shall have as its members only Federal and tribal government representatives.

`(2) LEAD AGENCY- Among the Federal representatives, the Office of Self-Governance shall be the lead agency for the Department of the Interior.

`(c) ADAPTATION OF PROCEDURES- The Secretary shall adapt the negotiated rulemaking procedures to the unique context of self-governance and the government-to-government relationship between the United States and Indian tribes.

`(d) EFFECT-

`(1) REPEAL- All regulatory provisions under part 1000 of title 25, Code of Federal Regulations, are repealed on the date of enactment of the Department of the Interior Tribal Self-Governance Act of 2003.

`(2) EFFECTIVENESS WITHOUT REGARD TO REGULATIONS- The lack of promulgated regulations shall not limit the effect of this Act.

`(3) INTERIM PROVISION- Notwithstanding this subsection, any regulation under part 1000 of title 25, Code of Federal Regulations, shall remain in effect, at an Indian tribe's option, in implementing compacts until regulations are promulgated.

`SEC. 417. EFFECT OF CIRCULARS, POLICIES, MANUALS, GUIDANCES, 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 under section 416.

`SEC. 418. APPEALS.

`In any administrative appeal or civil action for judicial review of any decision made by the Secretary under this title, the Secretary shall have the burden of proof of demonstrating by clear and convincing evidence--

`(1) the validity of the grounds for the decision; and

`(2) the consistency of the decision with the provisions and policies of this title.

`SEC. 419. AUTHORIZATION OF APPROPRIATIONS.

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

END