(1) The Secretary is directed, upon the request of any Indian tribe by tribal resolution, to enter into a self-determination contract or contracts with a tribal organization to plan, conduct, and administer programs or portions thereof, including construction programs—
(A) provided for in the Act of April 16, 1934 (48 Stat. 596), as amended [25 U.S.C. 452 et seq.];
(B) which the Secretary is authorized to administer for the benefit of Indians under the Act of November 2, 1921 (42 Stat. 208) [25 U.S.C. 13], and any Act subsequent thereto;
(C) provided by the Secretary of Health and Human Services under the Act of August 5, 1954 (68 Stat. 674), as amended [42 U.S.C. 2001 et seq.];
(D) administered by the Secretary for the benefit of Indians for which appropriations are made to agencies other than the Department of Health and Human Services or the Department of the Interior; and
(E) for the benefit of Indians because of their status as Indians without regard to the agency or office of the Department of Health and Human Services or the Department of the Interior within which it is performed.
The programs, functions, services, or activities that are contracted under this paragraph shall include administrative functions of the Department of the Interior and the Department of Health and Human Services (whichever is applicable) that support the delivery of services to Indians, including those administrative activities supportive of, but not included as part of, the service delivery programs described in this paragraph that are otherwise contractable. The administrative functions referred to in the preceding sentence shall be contractable without regard to the organizational level within the Department that carries out such functions.
(2) If so authorized by an Indian tribe under paragraph (1) of this subsection, a tribal organization may submit a proposal for a self-determination contract, or a proposal to amend or renew a self-determination contract, to the Secretary for review. Subject to the provisions of paragraph (4), the Secretary shall, within ninety days after receipt of the proposal, approve the proposal and award the contract unless the Secretary provides written notification to the applicant that contains a specific finding that clearly demonstrates that, or that is supported by a controlling legal authority that—
(A) the service to be rendered to the Indian beneficiaries of the particular program or function to be contracted will not be satisfactory;
(B) adequate protection of trust resources is not assured;
(C) the proposed project or function to be contracted for cannot be properly completed or maintained by the proposed contract;
(D) the amount of funds proposed under the contract is in excess of the applicable funding level for the contract, as determined under section 450j–1(a) of this title; or
(E) the program, function, service, or activity (or portion thereof) that is the subject of the proposal is beyond the scope of programs, functions, services, or activities covered under paragraph (1) because the proposal includes activities that cannot lawfully be carried out by the contractor.
Notwithstanding any other provision of law, the Secretary may extend or otherwise alter the 90-day period specified in the second sentence of this subsection,1 if before the expiration of such period, the Secretary obtains the voluntary and express written consent of the tribe or tribal organization to extend or otherwise alter such period. The contractor shall include in the proposal of the contractor the standards under which the tribal organization will operate the contracted program, service, function, or activity, including in the area of construction, provisions regarding the use of licensed and qualified architects, applicable health and safety standards, adherence to applicable Federal, State, local, or tribal building codes and engineering standards. The standards referred to in the preceding sentence shall ensure structural integrity, accountability of funds, adequate competition for subcontracting under tribal or other applicable law, the commencement, performance, and completion of the contract, adherence to project plans and specifications (including any applicable Federal construction guidelines and manuals), the use of proper materials and workmanship, necessary inspection and testing, and changes, modifications, stop work, and termination of the work when warranted.
(3) Upon the request of a tribal organization that operates two or more mature self-determination contracts, those contracts may be consolidated into one single contract.
(4) The Secretary shall approve any severable portion of a contract proposal that does not support a declination finding described in paragraph (2). If the Secretary determines under such paragraph that a contract proposal—
(A) proposes in part to plan, conduct, or administer a program, function, service, or activity that is beyond the scope of programs covered under paragraph (1), or
(B) proposes a level of funding that is in excess of the applicable level determined under section 450j–1(a) of this title,
subject to any alteration in the scope of the proposal that the Secretary and the tribal organization agree to, the Secretary shall, as appropriate, approve such portion of the program, function, service, or activity as is authorized under paragraph (1) or approve a level of funding authorized under section 450j–1(a) of this title. If a tribal organization elects to carry out a severable portion of a contract proposal pursuant to this paragraph, subsection (b) of this section shall only apply to the portion of the contract that is declined by the Secretary pursuant to this subsection.
Whenever the Secretary declines to enter into a self-determination contract or contracts pursuant to subsection (a) of this section, the Secretary shall—
(1) state any objections in writing to the tribal organization,
(2) provide assistance to the tribal organization to overcome the stated objections, and
(3) provide the tribal organization 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, under such rules and regulations as the Secretary may promulgate, except that the tribe or tribal organization may, in lieu of filing such appeal, exercise the option to initiate an action in a Federal district court and proceed directly to such court pursuant to section 450m–1(a) of this title.
(1) Beginning in 1990, the Secretary shall be responsible for obtaining or providing liability insurance or equivalent coverage, on the most cost-effective basis, for Indian tribes, tribal organizations, and tribal contractors carrying out contracts, grant agreements and cooperative agreements pursuant to this subchapter. In obtaining or providing such coverage, the Secretary shall take into consideration the extent to which liability under such contracts or agreements are covered by the Federal Tort Claims Act.
(2) In obtaining or providing such coverage, the Secretary shall, to the greatest extent practicable, give a preference to coverage underwritten by Indian-owned economic enterprises as defined in section 1452 of this title, except that, for the purposes of this subsection, such enterprises may include non-profit corporations.
(3)(A) Any policy of insurance obtained or provided by the Secretary pursuant to this subsection shall contain a provision that the insurance carrier shall waive any right it may have to raise as a defense the sovereign immunity of an Indian tribe from suit, but that such waiver shall extend only to claims the amount and nature of which are within the coverage and limits of the policy and shall not authorize or empower such insurance carrier to waive or otherwise limit the tribe's sovereign immunity outside or beyond the coverage or limits of the policy of insurance.
(B) No waiver of the sovereign immunity of an Indian tribe pursuant to this paragraph shall include a waiver to the extent of any potential liability for interest prior to judgment or for punitive damages or for any other limitation on liability imposed by the law of the State in which the alleged injury occurs.
For purposes of section 233 of title 42, with respect to claims by any person, initially filed on or after December 22, 1987, whether or not such person is an Indian or Alaska Native or is served on a fee basis or under other circumstances as permitted by Federal law or regulations for personal injury, including death, resulting from the performance prior to, including, or after December 22, 1987, of medical, surgical, dental, or related functions, including the conduct of clinical studies or investigations, or for purposes of section 2679, title 28, with respect to claims by any such person, on or after November 29, 1990, for personal injury, including death, resulting from the operation of an emergency motor vehicle, an Indian tribe, a tribal organization or Indian contractor carrying out a contract, grant agreement, or cooperative agreement under sections 2 450f or 450h of this title is deemed to be part of the Public Health Service in the Department of Health and Human Services while carrying out any such contract or agreement and its employees (including those acting on behalf of the organization or contractor as provided in section 2671 of title 28 and including an individual who provides health care services pursuant to a personal services contract with a tribal organization for the provision of services in any facility owned, operated, or constructed under the jurisdiction of the Indian Health Service) are deemed employees of the Service while acting within the scope of their employment in carrying out the contract or agreement: Provided, That such employees shall be deemed to be acting within the scope of their employment in carrying out such contract or agreement when they are required, by reason of such employment, to perform medical, surgical, dental or related functions at a facility other than the facility operated pursuant to such contract or agreement, but only if such employees are not compensated for the performance of such functions by a person or entity other than such Indian tribe, tribal organization or Indian contractor.
(1) With respect to any hearing or appeal conducted pursuant to subsection (b)(3) of this section or any civil action conducted pursuant to section 450m–1(a) of this title, the Secretary shall have the burden of proof to establish by clearly demonstrating the validity of the grounds for declining the contract proposal (or portion thereof).
(2) Notwithstanding any other provision of law, a decision by an official of the Department of the Interior or the Department of Health and Human Services, as appropriate (referred to in this paragraph as the “Department”) that constitutes final agency action and that relates to an appeal within the Department that is conducted under subsection (b)(3) of this section shall be made either—
(A) 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 (such as the Indian Health Service or the Bureau of Indian Affairs) in which the decision that is the subject of the appeal was made; or
(B) by an administrative judge.
(Pub. L. 93–638, title I, §102, formerly §§102 and 103(c), Jan. 4, 1975, 88 Stat. 2206; Pub. L. 100–202, §101(g) [title II, §201], Dec. 22, 1987, 101 Stat. 1329–213, 1329–246; Pub. L. 100–446, title II, §201, Sept. 27, 1988, 102 Stat. 1817; renumbered §102 and amended Pub. L. 100–472, title II, §201(a), (b)(1), Oct. 5, 1988, 102 Stat. 2288, 2289; Pub. L. 100–581, title II, §210, Nov. 1, 1988, 102 Stat. 2941; Pub. L. 101–644, title II, §203(b), Nov. 29, 1990, 104 Stat. 4666; Pub. L. 103–413, title I, §102(5)–(9), Oct. 25, 1994, 108 Stat. 4251–4253; Pub. L. 106–260, §6, Aug. 18, 2000, 114 Stat. 732.)
Act of April 16, 1934, referred to in subsec. (a)(1)(A), is act Apr. 16, 1934, ch. 147, 48 Stat. 596, as amended, popularly known as the Johnson-O'Malley Act, which is classified generally to section 452 et seq. of this title. For complete classification of this Act to the Code, see Short Title note set out under section 452 of this title and Tables.
Act of August 5, 1954, referred to in subsec. (a)(1)(C), is act Aug. 5, 1954, ch. 658, 68 Stat. 674, as amended, which is classified generally to subchapter I (§2001 et seq.) of chapter 22 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Tables.
This subchapter, referred to in subsec. (c)(1), was in the original “this Act”, meaning Pub. L. 93–638, Jan. 4, 1975, 88 Stat. 2203, as amended, known as the Indian Self-Determination and Education Assistance Act, which is classified principally to this subchapter (§450 et seq.). For complete classification of this Act to the Code, see Short Title note set out under section 450 of this title and Tables.
The Federal Tort Claims Act, referred to in subsec. (c)(1), is title IV of act Aug. 2, 1946, ch. 753, 60 Stat. 842, which was classified principally to chapter 20 (§§921, 922, 931–934, 941–946) of former Title 28, Judicial Code and Judiciary. Title IV of act Aug. 2, 1946, was substantially repealed and reenacted as sections 1346(b) and 2671 et seq. of Title 28, Judiciary and Judicial Procedure, by act June 25, 1948, ch. 646, 62 Stat. 992, the first section of which enacted Title 28. The Federal Tort Claims Act is also commonly used to refer to chapter 171 of Title 28, Judiciary and Judicial Procedure. For complete classification of title IV to the Code, see Tables. For distribution of former sections of Title 28 into the revised Title 28, see Table at the beginning of Title 28.
2000—Subsec. (e)(1). Pub. L. 106–260 inserted “or any civil action conducted pursuant to section 450m–1(a) of this title” after “subsection (b)(3) of this section”.
1994—Subsec. (a)(1). Pub. L. 103–413, §102(5), inserted concluding provisions.
Subsec. (a)(2). Pub. L. 103–413, §102(6)(A)(i), (ii), (vi), inserted “, or a proposal to amend or renew a self-determination contract,” before “to the Secretary for review” in first sentence and, in second sentence, substituted “Subject to the provisions of paragraph (4), the Secretary” for “The Secretary”, inserted “and award the contract” after “approve the proposal”, substituted “the Secretary provides written notification to the applicant that contains a specific finding that clearly demonstrates that, or that is supported by a controlling legal authority that” for “, within sixty days of receipt of the proposal, a specific finding is made that”, and inserted concluding provisions.
Subsec. (a)(2)(D), (E). Pub. L. 103–413, §102(6)(A)(iii)–(v), added subpars. (D) and (E).
Subsec. (a)(4). Pub. L. 103–413, §102(6)(B), added par. (4).
Subsec. (b)(3). Pub. L. 103–413, §102(7), inserted “with the right to engage in full discovery relevant to any issue raised in the matter” after “record” and “, except that the tribe or tribal organization may, in lieu of filing such appeal, exercise the option to initiate an action in a Federal district court and proceed directly to such court pursuant to section 450m–1(a) of this title” before period at end.
Subsec. (d). Pub. L. 103–413, §102(8), substituted “as provided in section 2671 of title 28 and including an individual who provides health care services pursuant to a personal services contract with a tribal organization for the provision of services in any facility owned, operated, or constructed under the jurisdiction of the Indian Health Service)” for “as provided in section 2671 of title 28)”.
Subsec. (e). Pub. L. 103–413, §102(9), added subsec. (e).
1990—Subsec. (d). Pub. L. 101–644 inserted “or for purposes of section 2679, title 28, with respect to claims by any such person, on or after November 29, 1990, for personal injury, including death, resulting from the operation of an emergency motor vehicle,” after “investigations,”.
1988—Pub. L. 100–472, §201(a), amended section generally, revising and restating provisions of subsecs. (a) to (c).
Subsec. (c)(2). Pub. L. 100–581 which directed amendment of par. (2) by substituting “section 1452 of this title” for “section 1425 of title 25, United States Code” was executed by making the substitution for “section 1425, title 25, United States Code” to reflect the probable intent of Congress.
Subsec. (d). Pub. L. 100–472, §201(b)(1), redesignated the last sentence of subsec. (c) of section 450g of this title as subsec. (d) of this section and substituted “sections 450f or 450h of this title” for “sections 450g and 450h(b) of this title”.
Pub. L. 100–446 inserted into sentence beginning “For purposes of” the words “by any person, initially filed on or after December 22, 1987, whether or not such person is an Indian or Alaska Native or is served on a fee basis or under other circumstances as permitted by Federal law or regulations” after “claims”, “prior to, including, or after December 22, 1987,” after “performance”, “an Indian tribe,” after “investigations,” and “: Provided, That such employees shall be deemed to be acting within the scope of their employment in carrying out such contract or agreement when they are required, by reason of such employment, to perform medical, surgical, dental or related functions at a facility other than the facility operated pursuant to such contract or agreement, but only if such employees are not compensated for the performance of such functions by a person or entity other than such Indian tribe, tribal organization or Indian contractor” after “the contract or agreement”.
1987—Subsec. (d). Pub. L. 100–202 inserted sentence at end deeming a tribal organization or Indian contractor carrying out a contract, grant agreement, or cooperative agreement to be part of the Public Health Service while carrying out any such contract or agreement and its employees to be employees of the Service while acting within the scope of their employment in carrying out the contract or agreement.
Pub. L. 102–184, §1, Dec. 4, 1991, 105 Stat. 1278, provided that: “This Act [amending provisions set out below] may be cited as the ‘Tribal Self-Governance Demonstration Project Act’.”
For short title of title I of Pub. L. 93–638, which is classified principally to this part, as the “Indian Self-Determination Act”, see section 101 of Pub. L. 93–638, set out as a note under section 450 of this title.
Pub. L. 106–260, §11, Aug. 18, 2000, 114 Stat. 734, provided that: “Funds appropriated for title III of the Indian Self-Determination and Education Assistance Act ([Pub. L. 93–638, former] 25 U.S.C. 450f note) shall be available for use under title V of such Act [25 U.S.C. 458aaa et seq.].”
Title VI of Pub. L. 93–638, as added by Pub. L. 106–260, §5, Aug. 18, 2000, 114 Stat. 731, provided that:
“(a)
“(b)
“(1)
“(2)
“(a)
“(b)
“(1) the probable effects on specific programs and program beneficiaries of such a demonstration project;
“(2) statutory, regulatory, or other impediments to implementation of such a demonstration project;
“(3) strategies for implementing such a demonstration project;
“(4) probable costs or savings associated with such a demonstration project;
“(5) methods to assure quality and accountability in such a demonstration project; and
“(6) such other issues that may be determined by the Secretary or developed through consultation pursuant to section 603.
“(c)
“(1) the results of the study under this section;
“(2) a list of programs, services, functions, and activities (or portions thereof) within each agency with respect to which it would be feasible to include in a tribal self-governance demonstration project;
“(3) a list of programs, services, functions, and activities (or portions thereof) included in the list provided pursuant to paragraph (2) that could be included in a tribal self-governance demonstration project without amending statutes, or waiving regulations that the Secretary may not waive;
“(4) a list of legislative actions required in order to include those programs, services, functions, and activities (or portions thereof) included in the list provided pursuant to paragraph (2) but not included in the list provided pursuant to paragraph (3) in a tribal self-governance demonstration project; and
“(5) any separate views of tribes and other entities consulted pursuant to section 603 related to the information provided pursuant to paragraphs (1) through (4).
“(a)
“(1)
“(2)
“(A) the government-to-government relationship with Indian tribes forms the basis for the consultation process;
“(B) the Indian tribes and the Secretary jointly conduct the consultations required by this section; and
“(C) the consultation process allows for separate and direct recommendations from the Indian tribes and other entities described in subsection (b).
“(b)
“There are authorized to be appropriated such sums as may be necessary to carry out this title. Such sums shall remain available until expended.”
Pub. L. 105–277, div. A, §101(e) [title VII], Oct. 21, 1998, 112 Stat. 2681–231, 2681–335, provided that:
“This title may be cited as the ‘Indian Tribal Tort Claims and Risk Management Act of 1998’.”
“(a)
“(1) Indian tribes have made significant achievements toward developing a foundation for economic self-sufficiency and self-determination, and that economic self-sufficiency and self-determination have increased opportunities for the Indian tribes and other entities and persons to interact more frequently in commerce and intergovernmental relationships;
“(2) although Indian tribes have sought and secured liability insurance coverage to meet their needs, many Indian tribes are faced with significant barriers to obtaining liability insurance because of the high cost or unavailability of such coverage in the private market;
“(3) as a result, Congress has extended liability coverage provided to Indian tribes to organizations to carry out activities under the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.); and
“(4) there is an emergent need for comprehensive and cost-efficient insurance that allows the economy of Indian tribes to continue to grow and provides compensation to persons that may suffer personal injury or loss of property.
“(b)
“In this title:
“(1)
“(2)
“(3)
“(a)
“(1)
“(2)
“(A) an analysis of loss data;
“(B) risk assessments;
“(C) projected exposure to liability, and related matters; and
“(D) the category of risk and coverage involved, which may include—
“(i) general liability;
“(ii) automobile liability;
“(iii) the liability of officials of the Indian tribe;
“(iv) law enforcement liability;
“(v) workers’ compensation; and
“(vi) other types of liability contingencies.
“(3)
“(b)
“(1) be appropriate to improve the provision of insurance coverage to Indian tribes; or
“(2) otherwise achieve the purpose of providing relief to persons who are injured as a result of an official action of a tribal government.
“There are authorized to be appropriated to the Department of the Interior such sums as may be necessary to carry out this title.”
Pub. L. 101–512, title III, §314, Nov. 5, 1990, 104 Stat. 1959, as amended by Pub. L. 103–138, title III, §308, Nov. 11, 1993, 107 Stat. 1416, provided that: “With respect to claims resulting from the performance of functions during fiscal year 1991 and thereafter, or claims asserted after September 30, 1990, but resulting from the performance of functions prior to fiscal year 1991, under a contract, grant agreement, or any other agreement or compact authorized by the Indian Self-Determination and Education Assistance Act of 1975, as amended (88 Stat. 2203; 25 U.S.C. 450 et seq.) [Pub. L. 93–638, see Short Title note set out under section 450 of this title and Tables] or by title V, part B, Tribally Controlled School Grants of the Hawkins-Stafford Elementary and Secondary School Improvement Amendments of 1988, as amended (102 Stat. 385; 25 U.S.C. 2501 et seq.), an Indian tribe, tribal organization or Indian contractor is deemed hereafter to be part of the Bureau of Indian Affairs in the Department of the Interior or the Indian Health Service in the Department of Health and Human Services while carrying out any such contract or agreement and its employees are deemed employees of the Bureau or Service while acting within the scope of their employment in carrying out the contract or agreement: Provided, That after September 30, 1990, any civil action or proceeding involving such claims brought hereafter against any tribe, tribal organization, Indian contractor or tribal employee covered by this provision shall be deemed to be an action against the United States and will be defended by the Attorney General and be afforded the full protection and coverage of the Federal Tort Claims Act [See Short Title note under section 2671 of Title 28, Judiciary and Judicial Procedure]: Provided further, That beginning with the fiscal year ending September 30, 1991, and thereafter, the appropriate Secretary shall request through annual appropriations funds sufficient to reimburse the Treasury for any claims paid in the prior fiscal year pursuant to the foregoing provisions: Provided further, That nothing in this section shall in any way affect the provisions of section 102(d) of the Indian Self-Determination and Education Assistance Act of 1975, as amended (88 Stat. 2203; 25 U.S.C. 450 et seq.) [25 U.S.C. 450f(d)].”
Section 201(b)(2) of Pub. L. 100–472 provided that: “Any reference to section 103(c) [§103(c) of Pub. L. 93–638, formerly 25 U.S.C. 450g(c)] contained in an Act making appropriations for the Department of the Interior and Related Agencies for fiscal year 1989 [Pub. L. 100–446] shall be deemed to apply to section 102(d) of such Act [§102(d) of Pub. L. 93–638, 25 U.S.C. 450f(d)] as amended by this Act.”
Title III of Pub. L. 93–638, as added by Pub. L. 100–472, title II, §209, Oct. 5, 1988, 102 Stat. 2296; amended by Pub. L. 102–184, §§2–6, Dec. 4, 1991, 105 Stat. 1278; Pub. L. 102–573, title VIII, §814, Oct. 29, 1992, 106 Stat. 4590; Pub. L. 103–435, §22(a)(2), (3), Nov. 2, 1994, 108 Stat. 4575; Pub. L. 103–437, §10(c)(1), Nov. 2, 1994, 108 Stat. 4589; Pub. L. 105–244, title IX, §901(d), Oct. 7, 1998, 112 Stat. 1828, related to tribal self-governance research and demonstration project conducted by Secretary of the Interior and Secretary of Health and Human Services, prior to repeal by Pub. L. 106–260, §10, Aug. 18, 2000, 114 Stat. 734.
1 So in original. Probably should be “paragraph,”.
2 So in original. Probably should be “section”.
Section, Pub. L. 93–638, title I, §103, Jan. 4, 1975, 88 Stat. 2206; Pub. L. 96–88, title V, §509(b), Oct. 17, 1979, 93 Stat. 695; Pub. L. 100–202, §101(g) [title II], Dec. 22, 1987, 101 Stat. 1329–213, 1329–246; Pub. L. 100–446, title II, Sept. 27, 1988, 102 Stat. 1817, which related to contracts by Secretary of Health and Human Services with tribal organizations, was repealed except for the last sentence of subsec. (c), providing that tribal organizations and Indian contractors be deemed part of Public Health Service, which was redesignated subsec. (d) of section 450f of this title.
The Secretary of the Interior is authorized, upon the request of any Indian tribe (from funds appropriated for the benefit of Indians pursuant to section 13 of this title, and any Act subsequent thereto) to contract with or make a grant or grants to any tribal organization for—
(1) the strengthening or improvement of tribal government (including, but not limited to, the development, improvement, and administration of planning, financial management, or merit personnel systems; the improvement of tribally funded programs or activities; or the development, construction, improvement, maintenance, preservation, or operation of tribal facilities or resources);
(2) the planning, training, evaluation of other activities designed to improve the capacity of a tribal organization to enter into a contract or contracts pursuant to section 450f of this title and the additional costs associated with the initial years of operation under such a contract or contracts; or
(3) the acquisition of land in connection with items (1) and (2) above: Provided, That in the case of land within Indian country (as defined in chapter 53 of title 18) or which adjoins on at least two sides lands held in trust by the United States for the tribe or for individual Indians, the Secretary of 1 Interior may (upon request of the tribe) acquire such land in trust for the tribe.
The Secretary of Health and Human Services may, in accordance with regulations adopted pursuant to section 450k of this title, make grants to any Indian tribe or tribal organization for—
(1) the development, construction, operation, provision, or maintenance of adequate health facilities or services including the training of personnel for such work, from funds appropriated to the Indian Health Service for Indian health services or Indian health facilities; or
(2) planning, training, evaluation or other activities designed to improve the capacity of a tribal organization to enter into a contract or contracts pursuant to section 450g 2 of this title.
The provisions of any other Act notwithstanding, any funds made available to a tribal organization under grants pursuant to this section may be used as matching shares for any other Federal grant programs which contribute to the purposes for which grants under this section are made.
The Secretary is directed, upon the request of any tribal organization and subject to the availability of appropriations, to provide technical assistance on a nonreimbursable basis to such tribal organization—
(1) to develop any new self-determination contract authorized pursuant to this subchapter;
(2) to provide for the assumption by such tribal organization of any program, or portion thereof, provided for in section 450f(a)(1) of this title; or
(3) to develop modifications to any proposal for a self-determination contract which the Secretary has declined to approve pursuant to section 450f of this title.
The Secretary is authorized, upon the request of an Indian tribe, to make a grant to any tribal organization for—
(1) obtaining technical assistance from providers designated by the tribal organization, including tribal organizations that operate mature contracts, for the purposes of program planning and evaluation, including the development of any management systems necessary for contract management, and the development of cost allocation plans for indirect cost rates; and
(2) the planning, designing, monitoring, and evaluating of Federal programs serving the tribe, including Federal administrative functions.
(Pub. L. 93–638, title I, §103, formerly §104, Jan. 4, 1975, 88 Stat. 2207; renumbered §103 and amended Pub. L. 100–472, title II, §202, Oct. 5, 1988, 102 Stat. 2289; Pub. L. 101–644, title II, §203(g)(1), Nov. 29, 1990, 104 Stat. 4666.)
Section 450g of this title, referred to in subsec. (b)(2), was in the original “section 103 of this Act”, meaning section 103 of Pub. L. 93–638, the Indian Self-Determination Act. Section 103(a) and (b) and the first sentence of section 103(c) of Pub. L. 93–638 were repealed, and the remainder of section 103(c) of Pub. L. 93–638 was redesignated as section 102(d) of Pub. L. 93–638 (section 450f(d) of this title) by Pub. L. 100–472, title II, §201(b)(1), Oct. 5, 1988, 102 Stat. 2289. Section 104 of Pub. L. 93–638 was renumbered as section 103 of Pub. L. 93–638 by section 202(a) of Pub. L. 100–472, and is classified to this section.
A prior section 103 of Pub. L. 93–638 was classified to section 450g of this title and was repealed in part and transferred in part by section 201(b)(1) of Pub. L. 100–472.
1990—Subsec. (a)(3). Pub. L. 101–644, which directed the substitution of “Indian country (as defined in chapter 53 of title 18)” for “reservation boundaries” in “section 301(a)(3) of the Indian Self-Determination Act (25 U.S.C. 450h(a)(3))”, was executed to this section, section 103(a)(3) of that Act, to reflect the probable intent of Congress.
1988—Subsec. (a). Pub. L. 100–472, §202(b), inserted “or” at end of par. (2), substituted a period for “; or” at end of par. (3), and struck out par. (4) which read as follows: “the planning, designing, monitoring, and evaluating of Federal programs serving the tribe.”
Subsec. (b). Pub. L. 100–472, §202(c), substituted “Health and Human Services” for “Health, Education, and Welfare”.
Subsecs. (d), (e). Pub. L. 100–472, §202(d), added subsecs. (d) and (e).
Section 203(g)(2) of Pub. L. 101–644 provided that: “The amendment made by paragraph (1) [amending this section] shall not alter or otherwise modify or affect existing prohibitions or limitations on the Secretary's authority to acquire lands in trust.”
1 So in original. Probably should be followed by “the”.
2 See References in Text note below.
Notwithstanding the provisions of sections 8347(o), 8713, and 8914 of title 5, executive order, or administrative regulation, an employee serving under an appointment not limited to one year or less who leaves Federal employment to be employed by a tribal organization, the city of St. Paul, Alaska, the city of St. George, Alaska, upon incorporation, or the Village Corporations of St. Paul and St. George Islands established pursuant to section 1607 of title 43, in connection with governmental or other activities which are or have been performed by employees in or for Indian communities is entitled, if the employee and the tribal organization so elect, to the following:
(1) To retain coverage, rights, and benefits under subchapter I of chapter 81 (“Compensation for Work Injuries”) of title 5, and for this purpose his employment with the tribal organization shall be deemed employment by the United States. However, if an injured employee, or his dependents in case of his death, receives from the tribal organization any payment (including an allowance, gratuity, payment under an insurance policy for which the premium is wholly paid by the tribal organization, or other benefit of any kind) on account of the same injury or death, the amount of that payment shall be credited against any benefit payable under subchapter I of chapter 81 of title 5, as follows:
(A) payments on account of injury or disability shall be credited against disability compensation payable to the injured employee; and
(B) payments on account of death shall be credited against death compensation payable to dependents of the deceased employee.
(2) To retain coverage, rights, and benefits under chapter 83 (“Retirement”) or chapter 84 (“Federal Employees Retirement System”) of title 5, if necessary employee deductions and agency contributions in payment for coverage, rights, and benefits for the period of employment with the tribal organization are currently deposited in the Civil Service Retirement and Disability Fund (section 8348 of title 5); and the period during which coverage, rights, and benefits are retained under this paragraph is deemed creditable service under section 8332 of title 5. Days of unused sick leave to the credit of an employee under a formal leave system at the time the employee leaves Federal employment to be employed by a tribal organization remain to his credit for retirement purposes during covered service with the tribal organization.
(3) To retain coverage, rights, and benefits under chapter 89 (“Health Insurance”) of title 5, if necessary employee deductions and agency contributions in payment for the coverage, rights, and benefits for the period of employment with the tribal organization are currently deposited in the Employee's Health Benefit Fund (section 8909 of title 5); and the period during which coverage, rights, and benefits are retained under this paragraph is deemed service as an employee under chapter 89 of title 5.
(4) To retain coverage, rights, and benefits under chapter 87 (“Life Insurance”) of title 5, if necessary employee deductions and agency contributions in payment for the coverage, rights, and benefits for the period of employment with the tribal organizations are currently deposited in the Employee's Life Insurance Fund (section 8714 of title 5); and the period during which coverage, rights, and benefits are retained under this paragraph is deemed service as an employee under chapter 87 of title 5.
During the period an employee is entitled to the coverage, rights, and benefits pursuant to the preceding subsection, the tribal organization employing such employee shall deposit currently in the appropriate funds the employee deductions and agency contributions required by paragraphs (2), (3), and (4) of such preceding subsection.
An employee who is employed by a tribal organization under subsection (e) of this section and such tribal organization shall make the election to retain the coverages, rights, and benefits in paragraphs (1), (2), (3), and (4) of such subsection (e) before the date of his employment by a tribal organization. An employee who is employed by a tribal organization under subsection (e) of this section shall continue to be entitled to the benefits of such subsection if he is employed by another tribal organization to perform service in activities of the type described in such subsection.
For the purposes of subsections (e), (f), and (g) of this section, the term “employee” means an employee as defined in section 2105 of title 5.
The President may prescribe regulations necessary to carry out the provisions of subsections (e), (f), (g), and (h) of this section and to protect and assure the compensation, retirement, insurance, leave, reemployment rights, and such other similar civil service employment rights as he finds appropriate.
Anything in sections 205 and 207 of title 18 to the contrary notwithstanding—
(1) an officer or employee of the United States assigned to a tribal organization (as defined in section 450b(l) of this title) or an inter-tribal consortium (as defined in section 458aaa of this title), as authorized under section 3372 of title 5 or section 48 of this title may act as agent or attorney for, and appear on behalf of, such tribal organization or inter-tribal consortium in connection with any matter related to a tribal governmental activity or Federal Indian program or service pending before any department, agency, court, or commission, including any matter in which the United States is a party or has a direct and substantial interest: Provided, That such officer or employee must advise in writing the head of the department, agency, court, or commission with which the officer or employee is dealing or appearing on behalf of the tribal organization or inter-tribal consortium of any personal and substantial involvement with the matter involved; and
(2) a former officer or employee of the United States who is carrying out official duties as an employee or as an elected or appointed official of a tribal organization (as defined in section 450b(l) of this title) or inter-tribal consortium (as defined in section 458aaa of this title) may act as agent or attorney for, and appear on behalf of, such tribal organization or intra-tribal consortium in connection with any matter related to a tribal governmental activity or Federal Indian program or service pending before any department, agency, court, or commission, including any matter in which the United States is a party or has a direct and substantial interest: Provided, That such former officer or employee must advise in writing the head of the department, agency, court, or commission with which the former officer or employee is dealing or appearing on behalf of the tribal organization or inter-tribal consortium of any personal and substantial involvement that he or she may have had as an officer or employee of the United States in connection with the matter involved.
The status of an Indian (as defined in section 479 of this title) appointed (except temporary appointments) to the Federal service under an excepted appointment under the authority of section 472 of this title, or any other provision of law granting a preference to Indians in personnel actions, shall be converted to a career appointment in the competitive service after three years of continuous service and satisfactory performance. The conversion shall not alter the Indian's eligibility for preference in personnel actions.
(Pub. L. 93–638, title I, §104, formerly §105, Jan. 4, 1975, 88 Stat. 2208; Pub. L. 89–702, title II, §210(a), as added Pub. L. 98–129, §2, Oct. 14, 1983, 97 Stat. 843; Pub. L. 99–221, §3(a), Dec. 26, 1985, 99 Stat. 1735; renumbered §104 and amended Pub. L. 100–472, title II, §203, Oct. 5, 1988, 102 Stat. 2290; Pub. L. 101–301, §2(a)(6), May 24, 1990, 104 Stat. 206; Pub. L. 110–81, title I, §104(b), Sept. 14, 2007, 121 Stat. 740.)
Section is comprised of section 104 of Pub. L. 93–638. Subsecs. (a) to (d) of section 104 of Pub. L. 93–638 are classified to section 3371 of Title 5, Government Organization and Employees, section 2004b of Title 42, The Public Health and Welfare, section 456 of Title 50, Appendix, War and National Defense, and section 4762 of Title 42, respectively. Subsecs. (k) and (l) of section 104 of Pub. L. 93–638 are classified to section 3372 of Title 5.
A prior section 104 of Pub. L. 93–638 was renumbered section 103 by Pub. L. 100–472 and is classified to section 450h of this title.
2007—Subsec. (j). Pub. L. 110–81 amended subsec. (j) generally. Prior to amendment, text read as follows: “Anything in sections 205 and 207 of title 18 to the contrary notwithstanding, officers and employees of the United States assigned to an Indian tribe as authorized under section 3372 of title 5, or section 48 of this title and former officers and employees of the United States employed by Indian tribes may act as agents or attorneys for or appear on behalf of such tribes in connection wth [sic] any matter pending before any department, agency, court, or commission, including any matter in which the United States is a party or has a direct and substantial interest: Provided, That each such officer or employee or former officer or employee must advise in writing the head of the department, agency, court, or commission with which he is dealing or appearing on behalf of the tribe of any personal and substantial involvement he may have had as an officer or employee of the United States in connection with the matter involved.”
1990—Subsec. (m). Pub. L. 101–301 substituted “an Indian (as defined in section 479 of this title) appointed (except temporary appointments)” for “an Indian appointed”.
1988—Subsecs. (a), (b). Pub. L. 100–472, §203(b), (c), amended subsecs. (a) and (b). See Codification note above.
Subsec. (e). Pub. L. 100–472, §203(d), (e), in introductory provisions, substituted “Notwithstanding the provisions of sections 8347(o), 8713, and 8914 of title 5” for “Notwithstanding any other law” and struck out “on or before December 31, 1988” after “title 43”, and in par. (2), inserted “or chapter 84 (‘Federal Employees Retirement System’)”. Notwithstanding directory language that the substitution of “Notwithstanding the provisions of sections 8347(o), 8713, and 8914 of title 5” be made in par. (2) of subsec. (e), the substitution was made in introductory provisions of subsec. (e) to reflect the probable intent of Congress because the language replaced appeared only in those introductory provisions.
Subsecs. (k), (l). Pub. L. 100–472, §203(f), added subsecs. (k) and (l). See Codification note above.
Subsec. (m). Pub. L. 100–472, §203(f), added subsec. (m).
1985—Subsec. (e). Pub. L. 99–221 substituted “1988” for “1985”.
1983—Subsec. (e). Pub. L. 89–702, §210(a), as added by Pub. L. 98–129, inserted “, the city of St. Paul, Alaska, the city of St. George, Alaska, upon incorporation, or the Village Corporations of St. Paul and St. George Islands established pursuant to section 1607 of title 43”.
Pub. L. 110–81, title I, §105(d), Sept. 14, 2007, 121 Stat. 741, provided that: “The amendments made by section 104 [amending this section and section 207 of Title 18, Crimes and Criminal Procedure] shall take effect on the date of the enactment of this Act [Sept. 14, 2007], except that section 104(j)(2) of the Indian Self-Determination and Education Assistance Act [25 U.S.C. 450i(j)(2)] (as amended by section 104(b)) shall apply to individuals who leave Federal office or employment to which such amendments apply on or after the 60th day after the date of the enactment of this Act.”
Pub. L. 89–702, title II, §210(b), as added by Pub. L. 98–129, §2, Oct. 14, 1983, 97 Stat. 844, provided that: “Notwithstanding any other provision of law, any Native of the Pribilof Islands employed by the Federal government on October 28, 1983, shall be deemed to have been covered under chapters 81, 83, 85 and 87 of title 5, United States Code, on such date for the purposes of determining eligibility for continuity of benefits under section 105(e) of the Act of January 4, 1975 (Public Law 93–638), known as the Indian Self-Determination and Education Assistance Act [subsec. (e) of this section].”
Ex. Ord. No. 11899, Jan. 26, 1976, 41 F.R. 3459, as amended by Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055; Ex. Ord. No. 12608, Sept. 9, 1987, 52 F.R. 34617, provided:
By virtue of the authority vested in me by section 105(i) of the Indian Self-Determination and Education Assistance Act (88 Stat. 2210, 25 U.S.C. 450i), section 3301 of title 5 of the United States Code, section 301 of title 3 of the United States Code, and as President of the United States of America, it is hereby ordered as follows:
(1) Notwithstanding any other provision of law, subject to paragraph (3), the contracts and cooperative agreements entered into with tribal organizations pursuant to section 450f of this title shall not be subject to Federal contracting or cooperative agreement laws (including any regulations), except to the extent that such laws expressly apply to Indian tribes.
(2) Program standards applicable to a nonconstruction self-determination contract shall be set forth in the contract proposal and the final contract of the tribe or tribal organization.
(3)(A) With respect to a construction contract (or a subcontract of such a construction contract), the provisions of division B (except sections 1123, 2303, 2304, and 2313) of subtitle I of title 41 and the regulations relating to acquisitions promulgated under division B (except sections 1123, 2303, 2304, and 2313) of subtitle I of title 41 shall apply only to the extent that the application of such provision 1 to the construction contract (or subcontract) is—
(i) necessary to ensure that the contract may be carried out in a satisfactory manner;
(ii) directly related to the construction activity; and
(iii) not inconsistent with this subchapter.
(B) A list of the Federal requirements that meet the requirements of clauses (i) through (iii) of subparagraph (A) shall be included in an attachment to the contract pursuant to negotiations between the Secretary and the tribal organization.
(C)(i) Except as provided in subparagraph (B), no Federal law listed in clause (ii) or any other provision of Federal law (including an Executive order) relating to acquisition by the Federal Government shall apply to a construction contract that a tribe or tribal organization enters into under this subchapter, unless expressly provided in such law.
(ii) The laws listed in this paragraph are as follows:
(I) Chapters 1 to 11 of title 40 and division C (except sections 3302, 3307(e), 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41.
(II) Section 6101 of title 41.
(III) Section 9(c) 2 of the Act of Aug. 2, 1946 (60 Stat. 809, chapter 744).
(IV) Division C (except sections 3302, 3307(e), 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41.
(V) Section 13 of the Act of Oct. 3, 1944 (58 Stat. 770; chapter 479) [50 U.S.C. App. 1622].
(VI) Chapters 21, 25, 27, 29, and 31 of title 44.
(VII) Section 3145 of title 40.
(VIII) Chapter 65 of title 41.
(IX) Chapter 67 of title 41.
(X) The Small Business Act (15 U.S.C. 631 et seq.).
(XI) Executive Order Nos. 12138, 11246, 11701 and 11758.
Payments of any grants or under any contracts pursuant to sections 450f and 450h of this title may be made in advance or by way of reimbursement and in such installments and on such conditions as the appropriate Secretary deems necessary to carry out the purposes of this part. The transfer of funds shall be scheduled consistent with program requirements and applicable Treasury regulations, so as to minimize the time elapsing between the transfer of such funds from the United States Treasury and the disbursement thereof by the tribal organization, whether such disbursement occurs prior to or subsequent to such transfer of funds. Tribal organizations shall not be held accountable for interest earned on such funds, pending their disbursement by such organization.
(1) A self-determination contract shall be—
(A) for a term not to exceed three years in the case of other than a mature contract, unless the appropriate Secretary and the tribe agree that a longer term would be advisable, and
(B) for a definite or an indefinite term, as requested by the tribe (or, to the extent not limited by tribal resolution, by the tribal organization), in the case of a mature contract.
The amounts of such contracts shall be subject to the availability of appropriations.
(2) The amounts of such contracts may be renegotiated annually to reflect changed circumstances and factors, including, but not limited to, cost increases beyond the control of the tribal organization.
(1) Beginning in fiscal year 1990, upon the election of a tribal organization, the Secretary shall use the calendar year as the basis for any contracts or agreements under this subchapter, unless the Secretary and the Indian tribe or tribal organization agree on a different period.
(2) The Secretary shall, on or before April 1 of each year beginning in 1992, submit a report to the Congress on the amounts of any additional obligation authority needed to implement this subsection in the next following fiscal year.
If an Indian tribe, or a tribal organization authorized by a tribe, requests retrocession of the appropriate Secretary for any contract or portion of a contract entered into pursuant to this subchapter, unless the tribe or tribal organization rescinds the request for retrocession, such retrocession shall become effective on—
(1) the earlier of—
(A) the date that is 1 year after the date the Indian tribe or tribal organization submits such request; or
(B) the date on which the contract expires; or
(2) such date as may be mutually agreed by the Secretary and the Indian tribe.
In connection with any self-determination contract or grant made pursuant to section 450f or 450h of this title, the appropriate Secretary may—
(1) permit an Indian tribe or tribal organization in carrying out such contract or grant, to utilize existing school buildings, hospitals, and other facilities and all equipment therein or appertaining thereto and other personal property owned by the Government within the Secretary's jurisdiction under such terms and conditions as may be agreed upon for their use and maintenance;
(2) donate to an Indian tribe or tribal organization title to any personal or real property found to be excess to the needs of the Bureau of Indian Affairs, the Indian Health Service, or the General Services Administration, except that—
(A) subject to the provisions of subparagraph (B), title to property and equipment furnished by the Federal Government for use in the performance of the contract or purchased with funds under any self-determination contract or grant agreement shall, unless otherwise requested by the tribe or tribal organization, vest in the appropriate tribe or tribal organization;
(B) if property described in subparagraph (A) has a value in excess of $5,000 at the time of the retrocession, rescission, or termination of the self-determination contract or grant agreement, at the option of the Secretary, upon the retrocession, rescission, or termination, title to such property and equipment shall revert to the Department of the Interior or the Department of Health and Human Services, as appropriate; and
(C) all property referred to in subparagraph (A) shall remain eligible for replacement on the same basis as if title to such property were vested in the United States; and
(3) acquire excess or surplus Government personal or real property for donation to an Indian tribe or tribal organization if the Secretary determines the property is appropriate for use by the tribe or tribal organization for a purpose for which a self-determination contract or grant agreement is authorized under this subchapter.
The contracts authorized under section 450f of this title and grants pursuant to section 450h of this title may include provisions for the performance of personal services which would otherwise be performed by Federal employees including, but in no way limited to, functions such as determination of eligibility of applicants for assistance, benefits, or services, and the extent or amount of such assistance, benefits, or services to be provided and the provisions of such assistance, benefits, or services, all in accordance with the terms of the contract or grant and applicable rules and regulations of the appropriate Secretary: Provided, That the Secretary shall not make any contract which would impair his ability to discharge his trust responsibilities to any Indian tribe or individuals.
Contracts and grants with tribal organizations pursuant to sections 450f and 450h of this title shall include provisions to assure the fair and uniform provision by such tribal organizations of the services and assistance they provide to Indians under such contracts and grants.
(1) If a self-determination contract requires the Secretary to divide the administration of a program that has previously been administered for the benefit of a greater number of tribes than are represented by the tribal organization that is a party to the contract, the Secretary shall take such action as may be necessary to ensure that services are provided to the tribes not served by a self-determination contract, including program redesign in consultation with the tribal organization and all affected tribes.
(2) Nothing in this part shall be construed to limit or reduce in any way the funding for any program, project, or activity serving a tribe under this or other applicable Federal law. Any tribe or tribal organization that alleges that a self-determination contract is in violation of this section may apply the provisions of section 450m–1 of this title.
Upon providing notice to the Secretary, a tribal organization that carries out a nonconstruction self-determination contract may propose a redesign of a program, activity, function, or service carried out by the tribal organization under the contract, including any nonstatutory program standard, in such manner as to best meet the local geographic, demographic, economic, cultural, health, and institutional needs of the Indian people and tribes served under the contract. The Secretary shall evaluate any proposal to redesign any program, activity, function, or service provided under the contract. With respect to declining to approve a redesigned program, activity, function, or service under this subsection, the Secretary shall apply the criteria and procedures set forth in section 450f of this title.
For purposes of section 501 of title 40 (relating to Federal sources of supply, including lodging providers, airlines and other transportation providers), a tribal organization carrying out a contract, grant, or cooperative agreement under this subchapter shall be deemed an executive agency and part of the Indian Health Service when carrying out such contract, grant, or agreement and the employees of the tribal organization shall be eligible to have access to such sources of supply on the same basis as employees of an executive agency have such access. For purposes of carrying out such contract, grant, or agreement, the Secretary shall, at the request of an Indian tribe, enter into an agreement for the acquisition, on behalf of the Indian tribe, of any goods, services, or supplies available to the Secretary from the General Services Administration or other Federal agencies that are not directly available to the Indian tribe under this section or under any other Federal law, including acquisitions from prime vendors. All such acquisitions shall be undertaken through the most efficient and speedy means practicable, including electronic ordering arrangements.
(1) Upon the request of an Indian tribe or tribal organization, the Secretary shall enter into a lease with the Indian tribe or tribal organization that holds title to, a leasehold interest in, or a trust interest in, a facility used by the Indian tribe or tribal organization for the administration and delivery of services under this subchapter.
(2) The Secretary shall compensate each Indian tribe or tribal organization that enters into a lease under paragraph (1) for the use of the facility leased for the purposes specified in such paragraph. Such compensation may include rent, depreciation based on the useful life of the facility, principal and interest paid or accrued, operation and maintenance expenses, and such other reasonable expenses that the Secretary determines, by regulation, to be allowable.
(1) Each construction contract requested, approved, or awarded under this subchapter, shall be subject to—
(A) except as otherwise provided in this subchapter, the provisions of this subchapter, other than sections 450f(a)(2), 450j–1(l), 450l and 450m of this title; and
(B) section 314 of the Department of the Interior and Related Agencies Appropriations Act, 1991 (104 Stat. 1959).
(2) In providing technical assistance to tribes and tribal organizations in the development of construction contract proposals, the Secretary shall provide, not later than 30 days after receiving a request from a tribe or tribal organization, all information available to the Secretary regarding the construction project, including construction drawings, maps, engineering reports, design reports, plans of requirements, cost estimates, environmental assessments or environmental impact reports, and archaeological reports.
(3) Prior to finalizing a construction contract proposal pursuant to section 450f(a) of this title, and upon request of the tribe or tribal organization that submits the proposal, the Secretary shall provide for a precontract negotiation phase in the development of a contract proposal. Such phase shall include, at a minimum, the following elements:
(A) The provision of technical assistance pursuant to section 450h of this title and paragraph (2).
(B) A joint scoping session between the Secretary and the tribe or tribal organization to review all plans, specifications, engineering reports, cost estimates, and other information available to the parties, for the purpose of identifying all areas of agreement and disagreement.
(C) An opportunity for the Secretary to revise the plans, designs, or cost estimates of the Secretary in response to concerns raised, or information provided by, the tribe or tribal organization.
(D) A negotiation session during which the Secretary and the tribe or tribal organization shall seek to develop a mutually agreeable contract proposal.
(E) Upon the request of the tribe or tribal organization, the use of an alternative dispute resolution mechanism to seek resolution of all remaining areas of disagreement pursuant to the dispute resolution provisions under subchapter IV of chapter 5 of title 5.
(F) The submission to the Secretary by the tribe or tribal organization of a final contract proposal pursuant to section 450f(a) of this title.
(4)(A) Subject to subparagraph (B), in funding a fixed-price construction contract pursuant to section 450j–1(a) of this title, the Secretary shall provide for the following:
(i) The reasonable costs to the tribe or tribal organization for general administration incurred in connection with the project that is the subject of the contract.
(ii) The ability of the contractor that carries out the construction contract to make a reasonable profit, taking into consideration the risks associated with carrying out the contract and other relevant considerations.
(B) In establishing a contract budget for a construction project, the Secretary shall not be required to separately identify the components described in clauses (i) and (ii) of subparagraph (A).
(C) The total amount awarded under a construction contract shall reflect an overall fair and reasonable price to the parties, including the following costs:
(i) The reasonable costs to the tribal organization of performing the contract, taking into consideration the terms of the contract and the requirements of this subchapter and any other applicable law.
(ii) The costs of preparing the contract proposal and supporting cost data.
(iii) The costs associated with auditing the general and administrative costs of the tribal organization associated with the management of the construction contract.
(iv) In the case of a fixed-price contract, a fair profit determined by taking into consideration the relevant risks and local market conditions.
(v) If the Secretary and the tribe or tribal organization are unable to develop a mutually agreeable construction contract proposal pursuant to the procedures set forth in this subsection, the tribe or tribal organization may submit a final contract proposal to the Secretary. Not later than 30 days after receiving such final contract proposal, the Secretary shall approve the contract proposal and award the contract, unless, during such period the Secretary declines the proposal pursuant to subsections (a)(2) and (b) 2 of section 450f of this title (including providing opportunity for an appeal pursuant to section 450f(b) of this title).
Notwithstanding any other provision of law, the rental rates for housing provided to an employee by the Federal Government in Alaska pursuant to a self-determination contract shall be determined on the basis of—
(1) the reasonable value of the quarters and facilities (as such terms are defined under section 5911 of title 5) to such employee, and
(2) the circumstances under which such quarters and facilities are provided to such employee,
as based on the cost of comparable private rental housing in the nearest established community with a year-round population of 1,500 or more individuals.
At the option of an Indian tribe or tribal organization, patient records may be deemed to be Federal records under those provisions of title 44 that are commonly referred to as the “Federal Records Act of 1950” for the limited purposes of making such records eligible for storage by Federal Records Centers to the same extent and in the same manner as other Department of Health and Human Services patient records.
Patient records that are deemed to be Federal records under those provisions of title 44 that are commonly referred to as the “Federal Records Act of 1950” pursuant to this subsection shall not be considered Federal records for the purposes of chapter 5 of title 5.
(Pub. L. 93–638, title I, §105, formerly §106, Jan. 4, 1975, 88 Stat. 2210; renumbered §105 and amended Pub. L. 100–472, title II, §204, Oct. 5, 1988, 102 Stat. 2291; Pub. L. 101–301, §2(a)(7), May 24, 1990, 104 Stat. 207; Pub. L. 101–644, title II, §203(c)–(e), Nov. 29, 1990, 104 Stat. 4666; Pub. L. 103–413, title I, §§102(10)–(13), 106, Oct. 25, 1994, 108 Stat. 4253–4255, 4270; Pub. L. 104–109, §7, Feb. 12, 1996, 110 Stat. 764; Pub. L. 106–260, §§7, 8, Aug. 18, 2000, 114 Stat. 732, 733.)
Section 9(c) of the Act of Aug. 2, 1946, referred to in subsec. (a)(3)(C)(ii)(III), was section 9(c) of act Aug. 2, 1946, ch. 744, 60 Stat. 809, which amended section 5 of former Title 41, Public Contracts, and was repealed by Pub. L. 111–350, §7(b), Jan. 4, 2011, 124 Stat. 3855, which Act enacted Title 41, Public Contracts.
The Small Business Act, referred to in subsec. (a)(3)(C)(ii)(X), is Pub. L. 85–536, §2(1 et seq.), July 18, 1958, 72 Stat. 384, which is classified generally to chapter 14A (§631 et seq.) of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see Short Title note set out under section 631 of Title 15 and Tables.
Executive Order Nos. 12138, 11246, 11701 and 11758, referred to in subsec. (a)(3)(C)(ii)(XI), are Ex. Ord. No. 12138, May 18, 1979, 44 F.R. 29637, which is set out as a note under section 631 of Title 15, Commerce and Trade, Ex. Ord. No. 11246, Sept. 24, 1965, 30 F.R. 12319, which is set out as a note under section 2000e of Title 42, The Public Health and Welfare, Ex. Ord. No. 11701, Jan. 24, 1973, 38 F.R. 2675, which is set out as a note under section 4212 of Title 38, Veterans’ Benefits, and Ex. Ord. No. 11758, Jan. 15, 1974, 39 F.R. 2075, which is set out as a note under section 701 of Title 29, Labor.
This part, referred to in subsecs. (b) and (i)(2), was in the original “this title”, meaning title I of Pub. L. 93–638, known as the Indian Self-Determination Act, which is classified principally to this part (450f et seq.). For complete classification of title I to the Code, see Short Title note set out under section 450 of this title and Tables.
Section 314 of the Department of the Interior and Related Agencies Appropriations Act, 1991, referred to in subsec. (m)(1)(B), is section 314 of Pub. L. 101–512, which is set out as a note under section 450f of this title.
Subsections (a)(2) and (b) of section 450f of this title, referred to in subsec. (m)(4)(C)(v), was in the original “sections 102(a)(2) and 102(b) of section 102”, and was translated as reading “subsections (a)(2) and (b) of section 102”, meaning section 102 of Pub. L. 93–638, to reflect the probable intent of Congress.
The Federal Records Act of 1950, referred to in subsec. (o), was title V of act June 30, 1949, ch. 288, as added Sept. 5, 1950, ch. 849, §6(d), 64 Stat. 583, which was classified generally to sections 392 to 396 and 397 to 401 of former Title 44, Public Printing and Documents. Section 6(d) of act Sept. 5, 1950, was repealed by Pub. L. 90–620, Oct. 22, 1968, 82 Stat. 1238, the first section of which enacted Title 44, Public Printing and Documents. For disposition of sections of former Title 44, see Table at the beginning of Title 44. Title V of act June 30, 1949, was repealed by Pub. L. 107–217, §4, Aug. 21, 2002, 116 Stat. 1303.
In subsec. (a)(3)(A), “division B (except sections 1123, 2303, 2304, and 2313) of subtitle I of title 41” substituted for “the Office of Federal Procurement Policy Act (41 U.S.C. 401 et seq.)” and for “such Act” on authority of Pub. L. 111–350, §6(c), Jan. 4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public Contracts.
In subsec. (a)(3)(C)(ii)(I), “Chapters 1 to 11 of title 40 and division C (except sections 3302, 3307(e), 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41” substituted for “The Federal Property and Administrative Services Act of 1949 (40 U.S.C. 471 et seq.)” on authority of Pub. L. 107–217, §5(c), Aug. 21, 2002, 116 Stat. 1303, which Act enacted Title 40, Public Buildings, Property, and Works, and Pub. L. 111–350, §6(c), Jan. 4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public Contracts.
In subsec. (a)(3)(C)(ii)(II), “Section 6101 of title 41” substituted for “Section 3709 of the Revised Statutes” on authority of Pub. L. 111–350, §6(c), Jan. 4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public Contracts.
In subsec. (a)(3)(C)(ii)(IV), “Division C (except sections 3302, 3307(e), 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41” substituted for “Title III of the Federal Property and Administrative Services Act of 1949 (63 Stat. 393 et seq., chapter 288)” on authority of Pub. L. 111–350, §6(c), Jan. 4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public Contracts.
In subsec. (a)(3)(C)(ii)(VII), “Section 3145 of title 40” substituted for “Section 2 of the Act of June 13, 1934 (48 Stat 948, chapter 483 [482])” on authority of Pub. L. 107–217, §5(c), Aug. 21, 2002, 116 Stat. 1303, which Act enacted Title 40, Public Buildings, Property, and Works.
In subsec. (a)(3)(C)(ii)(VIII), “Chapter 65 of title 41” substituted for “Sections 1 through 12 of the Act of June 30, 1936 (49 Stat. 2036 et seq. chapter 881)” on authority of Pub. L. 111–350, §6(c), Jan. 4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public Contracts.
In subsec. (a)(3)(C)(ii)(IX), “Chapter 67 of title 41” substituted for “The Service Control [Contract] Act of 1965 (41 U.S.C. 351 et seq.)” on authority of Pub. L. 111–350, §6(c), Jan. 4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public Contracts.
In subsec. (k), “section 501 of title 40” substituted for “section 201(a) of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 481(a))” on authority of Pub. L. 107–217, §5(c), Aug. 21, 2002, 116 Stat. 1303, which Act enacted Title 40, Public Buildings, Property, and Works.
A prior section 105 of Pub. L. 93–638 was renumbered section 104 by Pub. L. 100–472 and is classified to section 450i of this title.
2000—Subsec. (k). Pub. L. 106–260, §7, substituted “deemed an executive agency and part of the Indian Health Service” for “deemed an executive agency” and inserted at end “For purposes of carrying out such contract, grant, or agreement, the Secretary shall, at the request of an Indian tribe, enter into an agreement for the acquisition, on behalf of the Indian tribe, of any goods, services, or supplies available to the Secretary from the General Services Administration or other Federal agencies that are not directly available to the Indian tribe under this section or under any other Federal law, including acquisitions from prime vendors. All such acquisitions shall be undertaken through the most efficient and speedy means practicable, including electronic ordering arrangements.”
Subsec. (o). Pub. L. 106–260, §8, added subsec. (o).
1996—Subsec. (e). Pub. L. 104–109 made technical amendment to directory language of Pub. L. 103–413, §102(11). See 1994 Amendment note below.
1994—Subsec. (a). Pub. L. 103–413, §102(10), added subsec. (a) and struck out former subsec. (a) which read as follows: “Contracts with tribal organizations pursuant to section 450f of this title shall be in accordance with all Federal contracting laws and regulations except that, in the discretion of the appropriate Secretary, such contracts may be negotiated without advertising and need not conform with the provisions of sections 270a to 270d of title 40: Provided, That the appropriate Secretary may waive any provisions of such contracting laws or regulations which he determines are not appropriate for the purposes of the contract involved or inconsistent with the provisions of this Act: Provided further, That, except for construction contracts (or sub-contracts of such a construction contract), the Office of Federal Procurement Policy Act (88 Stat. 796; 41 U.S.C. 401 et seq.) and Federal acquisition regulations promulgated thereunder shall not apply to self-determination contracts.”
Subsec. (e). Pub. L. 103–413, §102(11), as amended by Pub. L. 104–109, added subsec. (e) and struck out former subsec. (e) which read as follows: “Whenever an Indian tribe requests retrocession of the appropriate Secretary for any contract entered into pursuant to this Act, such retrocession shall become effective one year from the date of the request by the Indian tribe or at such date as may be mutually agreed by the Secretary and the Indian tribe.”
Subsec. (f)(2). Pub. L. 103–413, §102(12), added par. (2) and struck out former par. (2) which read as follows: “donate to an Indian tribe or tribal organization the title to any personal or real property found to be excess to the needs of the Bureau of Indian Affairs, the Indian Health Service, or the General Services Administration, including property and equipment purchased with funds under any self-determination contract or grant agreement; and”.
Subsec. (h). Pub. L. 103–413, §106, struck out “and the rules and regulations adopted by the Secretaries of the Interior and Health and Human Services pursuant to section 450k of this title” after “sections 450f and 450h of this title”.
Subsecs. (i) to (n). Pub. L. 103–413, §102(13), added subsecs. (i) to (n).
1990—Subsec. (a). Pub. L. 101–301 substituted “sub-contracts of such a construction contract” for “sub-contracts in such cases where the tribal contractor has sub-contracted the activity”.
Subsec. (c)(1)(B). Pub. L. 101–644, §203(c), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: “for an indefinite term in the case of a mature contract.”
Subsec. (d). Pub. L. 101–644, §203(d), amended subsec. (d) generally. Prior to amendment, subsec. (d) read as follows:
“(1) No later than fiscal year 1990, the Secretary shall begin using the calendar year as the basis for contracts and agreements under this Act except for instances where the Secretary and the Indian tribe or tribal organization agree on a different period.
“(2) The Secretary shall submit a report to the Congress within ninety days of October 5, 1988, on the amounts of any additional obligational authority needed to implement this subsection in fiscal year 1989.”
Subsec. (f)(2), (3). Pub. L. 101–644, §203(e), inserted “or real” after “personal”.
1988—Subsec. (a). Pub. L. 100–472, §204(b), (c), substituted “section 450f” for “sections 450f and 450g” and inserted proviso relating to nonapplication of Office of Federal Procurement Policy Act to self-determination contracts.
Subsec. (b). Pub. L. 100–472, §204(d), which directed the amendment of subsec. (b) by substituting “sections 450f and 450h” for “sections 450f, 450g, and 450h” was executed by substituting the new language for “section 450f, 450g, or 450h” as the probable intent of Congress.
Subsec. (c). Pub. L. 100–472, §204(e), added subsec. (c) and struck out former subsec. (c) which read as follows: “Any contract requested by a tribe pursuant to sections 450f and 450g of this title shall be for a term not to exceed one year unless the appropriate Secretary determines that a longer term would be advisable: Provided, That such term may not exceed three years and shall be subject to the availability of appropriations: Provided, further, That the amounts of such contracts may be renegotiated annually to reflect factors, including but not limited to cost increases beyond the control of a tribal organization.”
Subsec. (d). Pub. L. 100–472, §204(e), added subsec. (d) and struck out former subsec. (d) which related to revision or amendment of contracts or grants at request or with consent of tribal organization and effective date for retrocession of contracts.
Subsec. (e). Pub. L. 100–472, §204(e), added subsec. (e) and struck out former subsec. (e) which authorized the Secretary to permit tribal organizations to use existing school buildings, hospitals, and other facilities and equipment therein in carrying out grants or contracts.
Subsec. (f). Pub. L. 100–472, §204(e), added subsec. (f). Former subsec. (f) redesignated (g).
Subsec. (g). Pub. L. 100–472, §204(f), redesignated former subsec. (f) as (g) and substituted “section 450f” for “sections 450f and 450g”. Former subsec. (g) redesignated (h).
Subsec. (h). Pub. L. 100–472, §204(g), (h), redesignated former subsec. (g) as (h), substituted “sections 450f and 450h” for “sections 450f, 450g, and 450h”, and “Health and Human Services” for “Health, Education, and Welfare”. Former subsec. (h), which related to minimum amount of funds under terms of contracts, was struck out.
Pub. L. 105–277, div. A, §101(e) [title I], Oct. 21, 1998, 105 Stat. 2681–231, 2681–246, provided in part that: “hereafter funds made available to tribes and tribal organizations through contracts, compact agreements, or grants, as authorized by the Indian Self-Determination Act of 1975 [25 U.S.C. 450f et seq.] or grants authorized by the Indian Education Amendments of 1988 (25 U.S.C. 2001 and 2008A [probably means prior versions of 25 U.S.C. 2001 and 2008a]) shall remain available until expended by the contractor or grantee”.
1 So in original. Probably should be “provisions”.
2 See References in Text note below.
(1) The amount of funds provided under the terms of self-determination contracts entered into pursuant to this subchapter shall not be less than the appropriate Secretary would have otherwise provided for the operation of the programs or portions thereof for the period covered by the contract, without regard to any organizational level within the Department of the Interior or the Department of Health and Human Services, as appropriate, at which the program, function, service, or activity or portion thereof, including supportive administrative functions that are otherwise contractable, is operated.
(2) There shall be added to the amount required by paragraph (1) contract support costs which shall consist of an amount for the reasonable costs for activities which must be carried on by a tribal organization as a contractor to ensure compliance with the terms of the contract and prudent management, but which—
(A) normally are not carried on by the respective Secretary in his direct operation of the program; or
(B) are provided by the Secretary in support of the contracted program from resources other than those under contract.
(3)(A) The contract support costs that are eligible costs for the purposes of receiving funding under this subchapter shall include the costs of reimbursing each tribal contractor for reasonable and allowable costs of—
(i) direct program expenses for the operation of the Federal program that is the subject of the contract, and
(ii) any additional administrative or other expense related to the overhead incurred by the tribal contractor in connection with the operation of the Federal program, function, service, or activity pursuant to the contract,
except that such funding shall not duplicate any funding provided under subsection (a)(1) of this section.
(B) On an annual basis, during such period as a tribe or tribal organization operates a Federal program, function, service, or activity pursuant to a contract entered into under this subchapter, the tribe or tribal organization shall have the option to negotiate with the Secretary the amount of funds that the tribe or tribal organization is entitled to receive under such contract pursuant to this paragraph.
(4) For each fiscal year during which a self-determination contract is in effect, any savings attributable to the operation of a Federal program, function, service, or activity under a self-determination contract by a tribe or tribal organization (including a cost reimbursement construction contract) shall—
(A) be used to provide additional services or benefits under the contract; or
(B) be expended by the tribe or tribal organization in the succeeding fiscal year, as provided in section 13a of this title.
(5) Subject to paragraph (6), during the initial year that a self-determination contract is in effect, the amount required to be paid under paragraph (2) shall include startup costs consisting of the reasonable costs that have been incurred or will be incurred on a one-time basis pursuant to the contract necessary—
(A) to plan, prepare for, and assume operation of the program, function, service, or activity that is the subject of the contract; and
(B) to ensure compliance with the terms of the contract and prudent management.
(6) Costs incurred before the initial year that a self-determination contract is in effect may not be included in the amount required to be paid under paragraph (2) if the Secretary does not receive a written notification of the nature and extent of the costs prior to the date on which such costs are incurred.
The amount of funds required by subsection (a) of this section—
(1) shall not be reduced to make funding available for contract monitoring or administration by the Secretary;
(2) shall not be reduced by the Secretary in subsequent years except pursuant to—
(A) a reduction in appropriations from the previous fiscal year for the program or function to be contracted;
(B) a directive in the statement of the managers accompanying a conference report on an appropriation bill or continuing resolution;
(C) a tribal authorization;
(D) a change in the amount of pass-through funds needed under a contract; or
(E) completion of a contracted project, activity, or program;
(3) shall not be reduced by the Secretary to pay for Federal functions, including, but not limited to, Federal pay costs, Federal employee retirement benefits, automated data processing, contract technical assistance or contract monitoring;
(4) shall not be reduced by the Secretary to pay for the costs of Federal personnel displaced by a self-determination contract; and
(5) may, at the request of the tribal organization, be increased by the Secretary if necessary to carry out this subchapter or as provided in section 450j(c) of this title.
Notwithstanding any other provision in this subchapter, the provision of funds under this subchapter is subject to the availability of appropriations and the Secretary is not required to reduce funding for programs, projects, or activities serving a tribe to make funds available to another tribe or tribal organization under this subchapter.
Not later than May 15 of each year, the Secretary shall prepare and submit to Congress an annual report on the implementation of this subchapter. Such report shall include—
(1) an accounting of the total amounts of funds provided for each program and the budget activity for direct program costs and contract support costs of tribal organizations under self-determination;
(2) an accounting of any deficiency in funds needed to provide required contract support costs to all contractors for the fiscal year for which the report is being submitted;
(3) the indirect cost rate and type of rate for each tribal organization that has been negotiated with the appropriate Secretary;
(4) the direct cost base and type of base from which the indirect cost rate is determined for each tribal organization;
(5) the indirect cost pool amounts and the types of costs included in the indirect cost pool; and
(6) an accounting of any deficiency in funds needed to maintain the preexisting level of services to any Indian tribes affected by contracting activities under this subchapter, and a statement of the amount of funds needed for transitional purposes to enable contractors to convert from a Federal fiscal year accounting cycle, as authorized by section 450j(d) of this title.
(1) Where a tribal organization's allowable indirect cost recoveries are below the level of indirect costs that the tribal organizations should have received for any given year pursuant to its approved indirect cost rate, and such shortfall is the result of lack of full indirect cost funding by any Federal, State, or other agency, such shortfall in recoveries shall not form the basis for any theoretical over-recovery or other adverse adjustment to any future years’ indirect cost rate or amount for such tribal organization, nor shall any agency seek to collect such shortfall from the tribal organization.
(2) Nothing in this subsection shall be construed to authorize the Secretary to fund less than the full amount of need for indirect costs associated with a self-determination contract.
Indian tribes and tribal organizations shall not be held liable for amounts of indebtedness attributable to theoretical or actual under-recoveries or theoretical over-recoveries of indirect costs, as defined in Office of Management and Budget Circular A–87, incurred for fiscal years prior to fiscal year 1992.
Any right of action or other remedy (other than those relating to a criminal offense) relating to any disallowance of costs shall be barred unless the Secretary has given notice of any such disallowance within three hundred and sixty-five days of receiving any required annual single agency audit report or, for any period covered by law or regulation in force prior to October 19, 1984, any other required final audit report. Such notice shall set forth the right of appeal and hearing to the board of contract appeals pursuant to section 450m–1 of this title. For the purpose of determining the 365-day period specified in this paragraph, an audit report shall be deemed to have been received on the date of actual receipt by the Secretary, if, within 60 days after receiving the report, the Secretary does not give notice of a determination by the Secretary to reject the single-agency report as insufficient due to noncompliance with chapter 75 of title 31 or noncompliance with any other applicable law. Nothing in this subsection shall be deemed to enlarge the rights of the Secretary with respect to section 476 of this title.
Upon the approval of a self-determination contract, the Secretary shall add to the contract the full amount of funds to which the contractor is entitled under subsection (a) of this section, subject to adjustments for each subsequent year that such tribe or tribal organization administers a Federal program, function, service, or activity under such contract.
In calculating the indirect costs associated with a self-determination contract for a construction program, the Secretary shall take into consideration only those costs associated with the administration of the contract and shall not take into consideration those moneys actually passed on by the tribal organization to construction contractors and subcontractors.
On an annual basis, the Secretary shall consult with, and solicit the participation of, Indian tribes and tribal organizations in the development of the budget for the Indian Health Service and the Bureau of Indian Affairs (including participation of Indian tribes and tribal organizations in formulating annual budget requests that the Secretary submits to the President for submission to Congress pursuant to section 1105 of title 31).
Notwithstanding any other provision of law, a tribal organization may use funds provided under a self-determination contract to meet matching or cost participation requirements under other Federal and non-Federal programs.
Without intending any limitation, a tribal organization may, without the approval of the Secretary, expend funds provided under a self-determination contract for the following purposes, to the extent that the expenditure of the funds is supportive of a contracted program:
(1) Depreciation and use allowances not otherwise specifically prohibited by law, including the depreciation of facilities owned by the tribe or tribal organization.
(2) Publication and printing costs.
(3) Building, realty, and facilities costs, including rental costs or mortgage expenses.
(4) Automated data processing and similar equipment or services.
(5) Costs for capital assets and repairs.
(6) Management studies.
(7) Professional services, other than services provided in connection with judicial proceedings by or against the United States.
(8) Insurance and indemnification, including insurance covering the risk of loss of or damage to property used in connection with the contract without regard to the ownership of such property.
(9) Costs incurred to raise funds or contributions from non-Federal sources for the purpose of furthering the goals and objectives of the self-determination contract.
(10) Interest expenses paid on capital expenditures such as buildings, building renovation, or acquisition or fabrication of capital equipment, and interest expenses on loans necessitated due to delays by the Secretary in providing funds under a contract.
(11) Expenses of a governing body of a tribal organization that are attributable to the management or operation of programs under this subchapter.
(12) Costs associated with the management of pension funds, self-insurance funds, and other funds of the tribal organization that provide for participation by the Federal Government.
(1) The Secretary may only suspend, withhold, or delay the payment of funds for a period of 30 days beginning on the date the Secretary makes a determination under this paragraph to a tribal organization under a self-determination contract, if the Secretary determines that the tribal organization has failed to substantially carry out the contract without good cause. In any such case, the Secretary shall provide the tribal organization with reasonable advance written notice, technical assistance (subject to available resources) to assist the tribal organization, a hearing on the record not later than 10 days after the date of such determination or such later date as the tribal organization shall approve, and promptly release any funds withheld upon subsequent compliance.
(2) With respect to any hearing or appeal conducted pursuant to this subsection, the Secretary shall have the burden of proof to establish by clearly demonstrating the validity of the grounds for suspending, withholding, or delaying payment of funds.
The program income earned by a tribal organization in the course of carrying out a self-determination contract—
(1) shall be used by the tribal organization to further the general purposes of the contract; and
(2) shall not be a basis for reducing the amount of funds otherwise obligated to the contract.
To the extent that programs, functions, services, or activities carried out by tribal organizations pursuant to contracts entered into under this subchapter 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 contract funds determined under subsection (a) of this section, the Secretary shall make such savings available for the provision of additional services to program beneficiaries, either directly or through contractors, in a manner equitable to both direct and contracted programs.
Notwithstanding any other provision of law (including any regulation), a tribal organization that carries out a self-determination contract may, with respect to allocations within the approved budget of the contract, rebudget to meet contract requirements, if such rebudgeting would not have an adverse effect on the performance of the contract.
(Pub. L. 93–638, title I, §106, as added Pub. L. 100–472, title II, §205, Oct. 5, 1988, 102 Stat. 2292; amended Pub. L. 101–301, §2(a)(8), (9), May 24, 1990, 104 Stat. 207; Pub. L. 101–644, title II, §203(a), Nov. 29, 1990, 104 Stat. 4666; Pub. L. 103–413, title I, §102(14)–(19), Oct. 25, 1994, 108 Stat. 4257–4259; Pub. L. 105–362, title VIII, §801(g), Nov. 10, 1998, 112 Stat. 3288; Pub. L. 106–260, §9, Aug. 18, 2000, 114 Stat. 733.)
A prior section 106 of Pub. L. 93–638 was renumbered section 105 by Pub. L. 100–472 and is classified to section 450j of this title.
2000—Subsecs. (c) to (o). Pub. L. 106–260 added subsec. (c) and redesignated former subsecs. (c) to (n) as (d) to (o), respectively.
1998—Subsecs. (c) to (o). Pub. L. 105–362 redesignated subsecs. (d) to (o) as (c) to (n), respectively, and struck out former subsec. (c) which related to Secretary's annual report to Congress on implementation of this subchapter.
1994—Subsec. (a)(1). Pub. L. 103–413, §102(14)(A), inserted before period at end “, without regard to any organizational level within the Department of the Interior or the Department of Health and Human Services, as appropriate, at which the program, function, service, or activity or portion thereof, including supportive administrative functions that are otherwise contractable, is operated”.
Subsec. (a)(2). Pub. L. 103–413, §102(14)(B), inserted “an amount for” after “consist of”.
Subsec. (a)(3). Pub. L. 103–413, §102(14)(C), added par. (3) and struck out former par. (3) which read as follows: “Any savings in operation under a self-determination contract shall be utilized to provide additional services or benefits under the contract or be expended in the succeeding fiscal year as provided in section 13a of this title.”
Subsec. (a)(4) to (6). Pub. L. 103–413, §102(14)(C), added pars. (4) to (6).
Subsec. (c). Pub. L. 103–413, §102(15)(A), substituted “May 15” for “March 15” in introductory provisions.
Subsec. (c)(1), (2). Pub. L. 103–413, §102(15)(B), substituted “contract support costs” for “indirect costs”.
Subsec. (c)(6). Pub. L. 103–413, §102(15)(C)–(E), added par. (6).
Subsec. (f). Pub. L. 103–413, §102(16), inserted after second sentence “For the purpose of determining the 365-day period specified in this paragraph, an audit report shall be deemed to have been received on the date of actual receipt by the Secretary, if, within 60 days after receiving the report, the Secretary does not give notice of a determination by the Secretary to reject the single-agency report as insufficient due to noncompliance with chapter 75 of title 31 or noncompliance with any other applicable law.”
Subsec. (g). Pub. L. 103–413, §102(17), added subsec. (g) and struck out former subsec. (g) which read as follows: “Upon the approval of a self-determination contract and at the request of an Indian tribe or tribal organization, the Secretary shall add the indirect cost funding amount awarded for a self-determination contract to the amount awarded for direct program funding for the first year and, subject to adjustments in the amount of direct program costs for the contract, for each subsequent year that the program remains continuously under contract.”
Subsec. (i). Pub. L. 103–413, §102(18), added subsec. (i) and struck out former subsec. (i) which read as follows: “Within one month after October 5, 1988, the Secretary is mandated to establish a team in each area of the Bureau of Indian Affairs which consists of agency personnel (area personnel in the Navajo Area and in the case of Indian tribes not served by an agency) and tribal representatives for the purpose of analyzing the ‘Indian Priority System’ and other aspects of the budgeting and funding allocation process of the Bureau of Indian Affairs for the purpose of making a report to Congress with appropriate recommendations for changes and legislative actions to achieve greater tribal decision-making authority over the use of funds appropriated for the benefit of the tribes and their members. The report along with the analysis, findings and recommendations of the area teams shall be submitted to Congress within six months of October 5, 1988. The Secretary may submit to Congress separate comments on the information and recommendations on the report.”
Subsecs. (j) to (o). Pub. L. 103–413, §102(19), added subsecs. (j) to (o).
1990—Subsec. (e). Pub. L. 101–644 substituted “1992” for “1988”.
Subsec. (f). Pub. L. 101–301, §2(a)(8), substituted “prior to enactment of chapter 75 of title 31” for “prior to enactment of the Single Agency Audit Act of 1984 (chapter 75 of title 31)”, which for purposes of codification was translated as “prior to October 19, 1984”, requiring no change in text.
Subsec. (i). Pub. L. 101–301, §2(a)(9), substituted “agency personnel (area personnel in the Navajo Area and in the case of Indian tribes not served by an agency)” for “agency personnel”.
Before, on, and after October 21, 1998, and notwithstanding any other provision of law, funds available to the Indian Health Service in this Act or any other Act for Indian self-determination or self-governance contract or grant support costs may be expended only for costs directly attributable to contracts, grants and compacts pursuant to the Indian Self-Determination Act [25 U.S.C. 450f et seq.] and no funds appropriated by this or any other Act shall be available for any contract support costs or indirect costs associated with any contract, grant, cooperative agreement, self-governance compact, or funding agreement entered into between an Indian tribe or tribal organization and any entity other than the Indian Health Service.
(Pub. L. 105–277, div. A, §101(e) [title II], Oct. 21, 1998, 112 Stat. 2681–231, 2681–280.)
The Indian Self-Determination Act, referred to in text, is title I of Pub. L. 93–638, Jan. 4, 1975, 88 Stat. 2206, as amended, which is classified principally to this part (§450f et seq.). For complete classification of this Act to the Code, see Short Title note set out under section 450 of this title and Tables.
Notwithstanding any other provision of law, including but not limited to the Indian Self-Determination Act of 1975, as amended [25 U.S.C. 450f et seq.], on and after November 29, 1999, funds available to the Department of the Interior for Indian self-determination or self-governance contract or grant support costs may be expended only for costs directly attributable to contracts, grants and compacts pursuant to the Indian Self-Determination Act of 1975 and on and after November 29, 1999, funds appropriated in this title 1 shall not be available for any contract support costs or indirect costs associated with any contract, grant, cooperative agreement, self-governance compact or funding agreement entered into between an Indian tribe or tribal organization and any entity other than an agency of the Department of the Interior.
(Pub. L. 106–113, div. B, §1000(a)(3) [title I, §113], Nov. 29, 1999, 113 Stat. 1535, 1501A–157.)
The Indian Self-Determination Act of 1975, referred to in text, probably means the Indian Self-Determination Act, title I of Pub. L. 93–638, Jan. 4, 1975, 88 Stat. 2206, as amended, which is classified principally to this part (§450f et seq.). For complete classification of this Act to the Code, see Short Title note set out under section 450 of this title and Tables.
This title, referred to in text, is title I of the Department of the Interior and Related Agencies Appropriations Act, 2000, as enacted by Pub. L. 106–113, div. B, §1000(a)(3), Nov. 29, 1999, 113 Stat. 1535, 1501A–135. For complete classification of this title to the Code, see Tables.
Similar provisions were contained in Pub. L. 105–277, div. A, §101(e) [title I, §114], Oct. 21, 1998, 112 Stat. 2681–231, 2681–255.
1 See References in Text note below.
(1) Except as may be specifically authorized in this subsection, or in any other provision of this subchapter, the Secretary of the Interior and the Secretary of Health and Human Services may not promulgate any regulation, nor impose any nonregulatory requirement, relating to self-determination contracts or the approval, award, or declination of such contracts, except that the Secretary of the Interior and the Secretary of Health and Human Services may promulgate regulations under this subchapter relating to chapter 171 of title 28, commonly known as the “Federal Tort Claims Act”, chapter 71 of title 41, declination and waiver procedures, appeal procedures, reassumption procedures, discretionary grant procedures for grants awarded under section 450h of this title, property donation procedures arising under section 450j(f) of this title, internal agency procedures relating to the implementation of this subchapter, retrocession and tribal organization relinquishment procedures, contract proposal contents, conflicts of interest, construction, programmatic reports and data requirements, procurement standards, property management standards, and financial management standards.
(2)(A) The regulations promulgated under this subchapter, including the regulations referred to in this subsection, shall be promulgated—
(i) in conformance with sections 552 and 553 of title 5 and subsections (c), (d), and (e) of this section; and
(ii) as a single set of regulations in title 25 of the Code of Federal Regulations.
(B) The authority to promulgate regulations set forth in this subchapter shall expire if final regulations are not promulgated within 20 months after October 25, 1994.
The provisions of this subchapter shall supersede any conflicting provisions of law (including any conflicting regulations) in effect on the day before October 25, 1994, and the Secretary is authorized to repeal any regulation inconsistent with the provisions of this subchapter.
The Secretary of the Interior and the Secretary of Health and Human Services are authorized, with the participation of Indian tribes and tribal organizations, to revise and amend any rules or regulations promulgated pursuant to this section: Provided, That prior to any revision or amendment to such rules or regulations, the respective Secretary or Secretaries shall present the proposed revision or amendment to the Committee on Energy and Natural Resources of the Senate and the Committee on Natural Resources of the House of Representatives and shall, to the extent practicable, consult with appropriate national or regional Indian organizations and shall publish any proposed revisions in the Federal Register not less than sixty days prior to the effective date of such rules and regulations in order to provide adequate notice to, and receive comments from, other interested parties.
(1) In drafting and promulgating regulations as provided in subsection (a) of this section (including drafting and promulgating any revised regulations), the Secretary of the Interior and the Secretary of Health and Human Services shall confer with, and allow for active participation by, representatives of Indian tribes, tribal organizations, and individual tribal members.
(2)(A) In carrying out rulemaking processes under this subchapter, the Secretary of the Interior and the Secretary of Health and Human Services shall follow the guidance of—
(i) subchapter III of chapter 5 of title 5, commonly known as the “Negotiated Rulemaking Act of 1990”; and
(ii) the recommendations of the Administrative Conference of the United States numbered 82–4 and 85–5 entitled “Procedures for Negotiating Proposed Regulations” under sections 305.82–4 and 305.85–5 of title 1, Code of Federal Regulations, and any successor recommendation or law (including any successor regulation).
(B) The tribal participants in the negotiation process referred to in subparagraph (A) shall be nominated by and shall represent the groups described in this paragraph and shall include tribal representatives from all geographic regions.
(C) The negotiations referred to in subparagraph (B) shall be conducted in a timely manner. Proposed regulations to implement the amendments made by the Indian Self-Determination Contract Reform Act of 1994 shall be published in the Federal Register by the Secretary of the Interior and the Secretary of Health and Human Services not later than 180 days after October 25, 1994.
(D) Notwithstanding any other provision of law (including any regulation), the Secretary of the Interior and the Secretary of Health and Human Services are authorized to jointly establish and fund such interagency committees or other interagency bodies, including advisory bodies comprised of tribal representatives, as may be necessary or appropriate to carry out the provisions of this subchapter.
(E) If the Secretary determines that an extension of the deadlines under subsection (a)(2)(B) of this section and subparagraph (C) of this paragraph is appropriate, the Secretary may submit proposed legislation to Congress for the extension of such deadlines.
The Secretary may, with respect to a contract entered into under this subchapter, make exceptions in the regulations promulgated to carry out this subchapter, or waive such regulations, if the Secretary finds that such exception or waiver is in the best interest of the Indians served by the contract or is consistent with the policies of this subchapter, and is not contrary to statutory law. In reviewing each request, the Secretary shall follow the timeline, findings, assistance, hearing, and appeal procedures set forth in section 450f of this title.
(Pub. L. 93–638, title I, §107, Jan. 4, 1975, 88 Stat. 2212; Pub. L. 96–88, title V, §509(b), Oct. 17, 1979, 93 Stat. 695; Pub. L. 100–472, title II, §207, Oct. 5, 1988, 102 Stat. 2295; Pub. L. 101–644, title II, §203(f), Nov. 29, 1990, 104 Stat. 4666; Pub. L. 103–413, title I, §105, Oct. 25, 1994, 108 Stat. 4269; Pub. L. 103–435, §22(a)(1), Nov. 2, 1994, 108 Stat. 4575; Pub. L. 103–437, §10(c)(2), Nov. 2, 1994, 108 Stat. 4589; Pub. L. 104–133, §1, Apr. 25, 1996, 110 Stat. 1320; Pub. L. 104–287, §6(e), Oct. 11, 1996, 110 Stat. 3399.)
The Indian Self-Determination Contract Reform Act of 1994, referred to in subsec. (d)(2)(C), is title I of Pub. L. 103–413, Oct. 25, 1994, 108 Stat. 4250, which enacted section 450l of this title, amended this section and sections 450b, 450c, 450e, 450f, 450j, 450j–1, 450m, and 450m–1 of this title, and enacted provisions set out as a note under section 450 of this title. For complete classification of this Act to the Code, see Short Title of 1994 Amendment note set out under section 450 of this title and Tables.
In subsec. (a)(1), “chapter 71 of title 41” substituted for “the Contract Disputes Act of 1978 (41 U.S.C. 601 et seq.)” on authority of Pub. L. 111–350, §6(c), Jan. 4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public Contracts.
1996—Subsec. (a)(2)(B). Pub. L. 104–133 substituted “20 months” for “18 months”.
Subsec. (b). Pub. L. 104–287 repealed Pub. L. 103–437, §10(c)(2)(A). See 1994 Amendment note below.
1994—Subsec. (a). Pub. L. 103–413, §105(1), added subsec. (a) and struck out former subsec. (a) which read as follows: “The Secretaries of the Interior and of Health and Human Services are each authorized to perform any and all acts and to make such rules and regulations as may be necessary and proper for the purposes of carrying out the provisions of this subchapter: Provided, however, That all Federal requirements for self-determination contracts and grants under this Act shall be promulgated as regulations in conformity with sections 552 and 553 of title 5.”
Subsec. (b). Pub. L. 103–437, §10(c)(2)(A), which directed that subsec. (b) be repealed, was itself repealed by Pub. L. 104–287, §6(e). See Effective Date and Construction of 1996 Amendment note below.
Pub. L. 103–435, which directed substitution of “Committee on Natural Resources” for “Committee on Interior and Insular Affairs” in par. (2), could not be executed because “Committee on Interior and Insular Affairs” did not appear in text subsequent to amendment by Pub. L. 103–413, §105(1). See below.
Pub. L. 103–413, §105(1), added subsec. (b) and struck out former subsec. (b) which read as follows:
“(b)(1) Within three months from October 5, 1988, the Secretary shall consider and formulate appropriate regulations to implement the provisions of this Act, with the participation of Indian tribes. Such proposed regulations shall contain all Federal requirements applicable to self-determination contracts and grants under this Act.
“(2) Within six months from October 5, 1988, the Secretary shall present the proposed regulations to the Select Committee on Indian Affairs of the United States Senate and to the Committee on Interior and Insular Affairs of the United States House of Representatives.
“(3) Within seven months from October 5, 1988, the Secretary shall publish proposed regulations in the Federal Register for the purpose of receiving comments from tribes and other interested parties.
“(4) Within ten months from October 5, 1988, the Secretary shall promulgate regulations to implement the provisions of such Act.”
Subsec. (c). Pub. L. 103–437, §10(c)(2)(B), substituted “Committee on Energy and Natural Resources of the Senate and the Committee on Natural Resources of the House of Representatives” for “Committees on Interior and Insular Affairs of the United States Senate and House of Representatives”.
Subsecs. (d), (e). Pub. L. 103–413, §105(2), added subsecs. (d) and (e).
1990—Subsec. (c). Pub. L. 101–644 inserted “, with the participation of Indian tribes and tribal organizations,” after “authorized”.
1988—Subsec. (a). Pub. L. 100–472, §207(a), substituted “Health and Human Services” for “Health, Education, and Welfare”, and inserted proviso relating to promulgation of Federal requirements for self-determination contracts as regulations.
Subsec. (b). Pub. L. 100–472, §207(b), amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows:
“(1) Within six months from January 4, 1975, the Secretary of the Interior and the Secretary of Health and Human Services shall each to the extent practicable, consult with national and regional Indian organizations to consider and formulate appropriate rules and regulations to implement the provisions of this subchapter.
“(2) Within seven months from January 4, 1975, the Secretary of the Interior and the Secretary of Health and Human Services shall each present the proposed rules and regulations to the Committees on Interior and Insular Affairs of the United States Senate and House of Representatives.
“(3) Within eight months from January 4, 1975, the Secretary of the Interior and the Secretary of Health and Human Services shall publish proposed rules and regulations in the Federal Register for the purpose of receiving comments from interested parties.
“(4) Within ten months from January 4, 1975, the Secretary of the Interior and the Secretary of Health and Human Services shall promulgate rules and regulations to implement the provisions of this subchapter.”
“Secretary of Health and Human Services” substituted for “Secretary of Health, Education, and Welfare” in subsec. (c), pursuant to section 509(b) of Pub. L. 96–88, which is classified to section 3508(b) of Title 20, Education.
Section 6(e) of Pub. L. 104–287 provided that: “Effective November 2, 1994, section 10(c)(2)(A) of the Act of November 2, 1994 (Public Law 103–437, 108 Stat. 4589) [amending this section], is repealed and section 107(b) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450k(b)), as amended by section 105(1) of the Indian Self-Determination Act (Public Law 103–413, 108 Stat. 4269), is revived and shall read as if section 10(c)(2)(A) of the Act of November 2, 1994 (Public Law 103–437, 108 Stat. 4589), had not been enacted.
Each self-determination contract entered into under this subchapter shall—
(1) contain, or incorporate by reference, the provisions of the model agreement described in subsection (c) of this section (with modifications where indicated and the blanks appropriately filled in), and
(2) contain such other provisions as are agreed to by the parties.
Notwithstanding any other provision of law, the Secretary may make payments pursuant to section 1(b)(6) of such model agreement. As provided in section 1(b)(7) of the model agreement, the records of the tribal government or tribal organization specified in such section shall not be considered Federal records for purposes of chapter 5 of title 5.
The model agreement referred to in subsection (a)(1) of this section reads as follows:
“(a)
“(1)
“(2)
“(b)
“(1)
“(2)
“(3)
“(4)
“(5)
“(6)
“(A)
“(i) be made as expeditiously as practicable; and
“(ii) include financial arrangements to cover funding during periods covered by joint resolutions adopted by Congress making continuing appropriations, to the extent permitted by such resolutions.
“(B)
“(i)
“(ii)
“(iii)
“(7)
“(A)
“(B)
“(C)
“(i) the Contractor agrees to one or more additional visits; or
“(ii) the appropriate official determines that there is reasonable cause to believe that grounds for reassumption of the Contract, suspension of Contract payments, or other serious Contract performance deficiency may exist.
No additional visit referred to in clause (ii) shall be made until such time as reasonable advance notice that includes a description of the nature of the problem that requires the additional visit has been given to the Contractor.
“(8)
“(A)
“(B)
“(C)
“(D)
“(E)
“(F)
“(G)
“(9)
“(A) shall remain available until expended; and
“(B) with respect to such funds, no further—
“(i) approval by the Secretary, or
“(ii) justifying documentation from the Contractor,
shall be required prior to the expenditure of such funds.
“(10)
“(11)
“(12)
“(A)
“(B)
“(i) submit disputes under this Contract to third-party mediation;
“(ii) submit the dispute to the adjudicatory body of the Contractor, including the tribal court of the Contractor;
“(iii) submit the dispute to mediation processes provided for under the laws, policies, or procedures of the Contractor; or
“(iv) use the administrative dispute resolution processes authorized in subchapter IV of chapter 5 of title 5, United States Code.
“(C)
“(13)
“(14)
“(A)
“(B)
“(15)
“(A)
“(B)
“(i) be in writing;
“(ii) identify the interested parties, the authorities of such parties, and purposes of the Contract;
“(iii) state the work to be performed under the Contract; and
“(iv) state the process for making any claim, the payments to be made, and the terms of the Contract, which shall be fixed.
“(c)
“(1)
“(2)
“(3)
“(4)
“(A)
“(B)
“(5)
“(d)
“(1)
“(A)
“(B)
“(2)
“(3)
“(e)
“(1)
“(2)
“(A)
“(B)
“(3)
“(4)
“(f)
“(1)
“(2)
“(A)
“(i) terms that identify the programs, services, functions, and activities to be performed or administered, the general budget category assigned, the funds to be provided, and the time and method of payment; and
“(ii) such other provisions, including a brief description of the programs, services, functions, and activities to be performed (including those supported by financial resources other than those provided by the Secretary), to which the parties agree.
“(B)
(Pub. L. 93–638, title I, §108, as added Pub. L. 103–413, title I, §103, Oct. 25, 1994, 108 Stat. 4260; amended Pub. L. 106–568, title VIII, §812(a), Dec. 27, 2000, 114 Stat. 2917.)
The Indian Self-Determination and Education Assistance Act, referred to in section 1(a), (b)(6)(B)(i), (11) of the provisions of subsec. (c) setting out the model agreement, is Pub. L. 93–638, Jan. 4, 1975, 88 Stat. 2203, which is classified principally to this subchapter (§450 et seq.). Title I of the Act is classified principally to this part (§450f et seq.). Section 102(a) of the Act is classified to section 450f(a) of this title. Section 108(b) of the Act is classified to subsec. (b) of this section. For complete classification of this Act to the Code, see Short Title note set out under section 450 of this title and Tables.
The Indian Civil Rights Act of 1968, referred to in section 1(b)(13) of the provisions of subsec. (c) setting out the model agreement, is title II of Pub. L. 90–284, Apr. 11, 1968, 82 Stat. 77, which is classified generally to subchapter I (§1301 et seq.) of chapter 15 of this title. For complete classification of this Act to the Code, see Tables.
The Act of July 3, 1952, referred to in section 1(b)(15)(A) of the provisions of subsec. (c) setting out the model agreement, is act July 3, 1952, ch. 549, 66 Stat. 323, which enacted section 82a of this title and provisions set out as a note under section 82a of this title.
The Indian Health Care Improvement Act, referred to in section 1(d)(2) of the provisions of subsec. (c) setting out the model agreement, is Pub. L. 94–437, Sept. 30, 1976, 90 Stat. 1400, which is classified principally to chapter 18 (§1601 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 1601 of this title and Tables.
A prior section 450l, Pub. L. 93–638, title I, §108, Jan. 4, 1975, 88 Stat. 2212, which related to report by tribe requesting contract or grant, was renumbered section 5(f) of Pub. L. 93–638, by Pub. L. 100–472, title II, §208, Oct. 5, 1988, 102 Stat. 2296, and is classified to section 450c(f) of this title.
2000—Subsec. (c). Pub. L. 106–568 substituted “, section 16 of the Act of June 18, 1934” for “and section 16 of the Act of June 18, 1934” and “and the Act of July 3, 1952 (25 U.S.C. 82a), shall not apply” for “shall not apply” in section 1(b)(15)(A) of the provisions setting out the model agreement.
Pub. L. 105–83, title III, §311, Nov. 14, 1997, 111 Stat. 1590, provided that: “Notwithstanding Public Law 103–413 [see Short Title of 1994 Amendment note set out under section 450 of this title], quarterly payments of funds to tribes and tribal organizations under annual funding agreements pursuant to section 108 of Public Law 93–638 [25 U.S.C. 450l], as amended, beginning in fiscal year 1998 and therafter, [sic] may be made on the first business day following the first day of a fiscal quarter.”
Similar provisions were contained in the following prior appropriation acts:
Pub. L. 104–208, div. A, title I, §101(d) [title III, §311], Sept. 30, 1996, 110 Stat. 3009–181, 3009–221.
Pub. L. 104–134, title I, §101(c) [title III, §311], Apr. 26, 1996, 110 Stat. 1321–156, 1321–197; renumbered title I, Pub. L. 104–140, §1(a), May 2, 1996, 110 Stat. 1327.
Each contract or grant agreement entered into pursuant to sections 450f, 450g, and 450h 1 of this title shall provide that in any case where the appropriate Secretary determines that the tribal organization's performance under such contract or grant agreement involves (1) the violation of the rights or endangerment of the health, safety, or welfare of any persons; or (2) gross negligence or mismanagement in the handling or use of funds provided to the tribal organization pursuant to such contract or grant agreement, or in the management of trust fund, trust lands or interests in such lands pursuant to such contract or grant agreement, such Secretary may, under regulations prescribed by him and after providing notice and a hearing on the record to such tribal organization, rescind such contract or grant agreement, in whole or in part, and assume or resume control or operation of the program, activity, or service involved if he determines that the tribal organization has not taken corrective action as prescribed by the Secretary to remedy the contract deficiency, except that the appropriate Secretary may, upon written notice to a tribal organization, and the tribe served by the tribal organization, immediately rescind a contract or grant, in whole or in part, and resume control or operation of a program, activity, function, or service, if the Secretary finds that (i) there is an immediate threat of imminent harm to the safety of any person, or imminent substantial and irreparable harm to trust funds, trust lands, or interests in such lands, and (ii) such threat arises from the failure of the contractor to fulfill the requirements of the contract. In such cases, the Secretary shall provide the tribal organization with a hearing on the record within ten days or such later date as the tribal organization may approve. Such Secretary may decline to enter into a new contract or grant agreement and retain control of such program, activity, or service until such time as he is satisfied that the violations of rights or endangerment of health, safety, or welfare which necessitated the rescission has been corrected. In any hearing or appeal provided for under this section, the Secretary shall have the burden of proof to establish, by clearly demonstrating the validity of the grounds for rescinding, assuming, or reassuming the contract that is the subject of the hearing. Nothing in this section shall be construed as contravening the Occupational Safety and Health Act of 1970, as amended [29 U.S.C. 651 et seq.].
(Pub. L. 93–638, title I, §109, Jan. 4, 1975, 88 Stat. 2212; Pub. L. 100–581, title II, §211, Nov. 1, 1988, 102 Stat. 2941; Pub. L. 101–301, §2(a)(10), May 24, 1990, 104 Stat. 207; Pub. L. 103–413, title I, §104(1), Oct. 25, 1994, 108 Stat. 4268.)
Sections 450g and 450h of this title, referred to in text, was in the original “sections 103 and 104 of this Act”, meaning sections 103 and 104 of Pub. L. 93–638, the Indian Self-Determination Act. Section 103(a) and (b) and the first sentence of section 103(c) of Pub. L. 93–638 were repealed, and the remainder of section 103(c) of Pub. L. 93–638 was redesignated as section 102(d) of Pub. L. 93–638 (section 450f(d) of this title), by Pub. L. 100–472, title II, §201(b)(1), Oct. 5, 1988, 102 Stat. 2289. Sections 104 and 105 of Pub. L. 93–638 were renumbered as sections 103 and 104, respectively, of Pub. L. 93–638 by sections 202(a) and 203(a) of Pub. L. 100–472, and are classified to sections 450h and 450i, respectively, of this title.
The Occupational Safety and Health Act of 1970, as amended, referred to in text, is Pub. L. 91–596, Dec. 29, 1970, 84 Stat. 1590, as amended, which is classified principally to chapter 15 (§651 et seq.) of Title 29, Labor. For complete classification of this Act to the Code, see Short Title note set out under section 651 of Title 29 and Tables.
1994—Pub. L. 103–413 inserted “or in the management of trust fund, trust lands or interests in such lands pursuant to such contract or grant agreement,” after “pursuant to such contract or grant agreement,” and “, in whole or in part,” after “rescind such contract or grant agreement”, substituted “action as prescribed by the Secretary to remedy the contract deficiency, except that the appropriate Secretary may, upon written notice to a tribal organization, and the tribe served by the tribal organization, immediately rescind a contract or grant, in whole or in part, and resume control or operation of a program, activity, function, or service, if the Secretary finds that (i) there is an immediate threat of imminent harm to the safety of any person, or imminent substantial and irreparable harm to trust funds, trust lands, or interests in such lands, and (ii) such threat arises from the failure of the contractor to fulfill the requirements of the contract. In such cases, the Secretary” for “action as prescribed by him: Provided, That the appropriate Secretary may, upon notice to a tribal organization, immediately rescind a contract or grant and resume control or operation of a program, activity, or service if he finds that there is an immediate threat to safety and, in such cases, he”, struck out second period after “the tribal organization may approve”, and inserted before last sentence “In any hearing or appeal provided for under this section, the Secretary shall have the burden of proof to establish, by clearly demonstrating the validity of the grounds for rescinding, assuming, or reassuming the contract that is the subject of the hearing.”
1990—Pub. L. 101–301 substituted “providing notice and a hearing” for “providing notice and hearing”.
1988—Pub. L. 100–581 inserted “on the record” after “providing notice and hearing”.
Pub. L. 100–581 which directed amendment of this section by substituting “in such cases, he shall provide the tribal organization with a hearing on the record within ten days or such later date as the tribal organization may approve.” for “in such cases, he shall hold a hearing within ten days thereof” was executed by substituting the new language for “in such cases, he shall hold a hearing on such action within ten days thereof” to reflect the probable intent of Congress.
1 See References in Text note below.
The United States district courts shall have original jurisdiction over any civil action or claim against the appropriate Secretary arising under this subchapter and, subject to the provisions of subsection (d) of this section and concurrent with the United States Court of Claims, over any civil action or claim against the Secretary for money damages arising under contracts authorized by this subchapter. In an action brought under this paragraph, the district courts may order appropriate relief including money damages, injunctive relief against any action by an officer of the United States or any agency thereof contrary to this subchapter or regulations promulgated thereunder, or mandamus to compel an officer or employee of the United States, or any agency thereof, to perform a duty provided under this subchapter or regulations promulgated hereunder (including immediate injunctive relief to reverse a declination finding under section 450f(a)(2) of this title or to compel the Secretary to award and fund an approved self-determination contract).
The Secretary shall not revise or amend a self-determination contract with a tribal organization without the tribal organization's consent.
The Equal Access to Justice Act (Publc 1 Law 96–481, Act of October 1,1 1980; 92 1 Stat. 2325, as amended), section 504 of title 5, and section 2412 of title 28 shall apply to administrative appeals pending on or filed after October 5, 1988, by tribal organizations regarding self-determination contracts.
Chapter 71 of title 41 shall apply to self-determination contracts, except that all administrative appeals relating to such contracts shall be heard by the Interior Board of Contract Appeals established pursuant to section 8 of such Act (41 U.S.C. 607).2
Subsection (d) of this section shall apply to any case pending or commenced on or after March 17, 1986, before the Boards of Contract Appeals of the Department of the Interior or the Department of Health and Human Services 2 except that in any such cases finally disposed of before October 5, 1988, the thirty-day period referred to in section 504(a)(2) of title 5 shall be deemed to commence on October 5, 1988.
(Pub. L. 93–638, title I, §110, as added Pub. L. 100–472, title II, §206(a), Oct. 5, 1988, 102 Stat. 2294; amended Pub. L. 100–581, title II, §212, Nov. 1, 1988, 102 Stat. 2941; Pub. L. 101–301, §§1(a)(2), 2(b), May 24, 1990, 104 Stat. 206, 207; Pub. L. 103–413, title I, §104(2), (3), Oct. 25, 1994, 108 Stat. 4268.)
The Equal Access to Justice Act, referred to in subsec. (c), is Pub. L. 96–481, title II, Oct. 21, 1980, 94 Stat. 2325. For complete classification of this Act to the Code, see Short Title note set out under section 504 of Title 5, Government Organization and Employees, and Tables.
The Interior Board of Contract Appeals established pursuant to section 8 of such Act (41 U.S.C. 607), referred to in subsec. (d), terminated effective 1 year after Jan. 6, 2006, pursuant to section 847(g) of Pub. L. 109–163, set out as an Effective Date of 2006 Amendment note under section 5372a of Title 5, Government Organization and Employees. Any reference to such Board to be treated as referring to the Civilian Board of Contract Appeals pursuant to Pub. L. 109–163, div. A, title VIII, §847(e), Jan. 6, 2006, 119 Stat. 3394, formerly set out in a note under section 607 of former Title 41, Public Contracts. The Civilian Board of Contract Appeals was established by section 42 of Pub. L. 93–400 which was classified to section 438 of former Title 41 prior to being repealed and restated as section 7105(b) of Title 41, Public Contracts, by Pub. L. 111–350, §§3, 7(b), Jan. 4, 2011, 124 Stat. 3677, 3855.
The Boards of Contract Appeals of the Department of the Interior or the Department of Health and Human Services, referred to in subsec. (e), terminated effective 1 year after Jan. 6, 2006, pursuant to section 847(g) of Pub. L. 109–163, set out as an Effective Date of 2006 Amendment note under section 5372a of Title 5, Government Organization and Employees. Any reference to such Boards to be treated as referring to the Civilian Board of Contract Appeals pursuant to Pub. L. 109–163, div. A, title VIII, §847(e), Jan. 6, 2006, 119 Stat. 3394, formerly set out in a note under section 607 of former Title 41, Public Contracts. The Civilian Board of Contract Appeals was established by section 42 of Pub. L. 93–400 which was classified to section 438 of former Title 41 prior to being repealed and restated as section 7105(b) of Title 41, Public Contracts, by Pub. L. 111–350, §§3, 7(b), Jan. 4, 2011, 124 Stat. 3677, 3855.
October 5, 1988, referred to in subsec. (e), was in the original “the date of enactment of these amendments” and “the date of enactment of this subsection”, meaning the date of enactment of the Indian Self-Determination and Education Assistance Act Amendments of 1988, Pub. L. 100–472, which enacted this section.
In subsec. (d), “Chapter 71 of title 41” substituted for “The Contract Disputes Act (Public Law 95–563, Act of November 1, 1978; 92 Stat. 2383, as amended)” on authority of Pub. L. 111–350, §6(c), Jan. 4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public Contracts.
A prior section 110 of Pub. L. 93–638 was renumbered section 111 by Pub. L. 100–472 and is classified to section 450n of this title.
1994—Subsec. (a). Pub. L. 103–413, §104(2), inserted before period at end “(including immediate injunctive relief to reverse a declination finding under section 450f(a)(2) of this title or to compel the Secretary to award and fund an approved self-determination contract)”.
Subsec. (d). Pub. L. 103–413, §104(3), inserted before period at end “, except that all administrative appeals relating to such contracts shall be heard by the Interior Board of Contract Appeals established pursuant to section 8 of such Act (41 U.S.C. 607)”.
1990—Subsec. (a). Pub. L. 101–301, §1(a)(2), made technical correction to directory language of Pub. L. 100–581, §212(a). See 1988 Amendment note below.
Subsec. (b). Pub. L. 101–301, §2(b), amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: “Unless otherwise agreed to by the resolution of tribal organization, the Secretary shall not revise or amend a self-determination contract with such tribal organization.”
Subsec. (c). Pub. L. 101–301, §1(a)(2), made technical correction to directory language of Pub. L. 100–581, §212(c). See 1988 Amendment note below.
1988—Subsec. (a). Pub. L. 100–581, §212(a), as amended by Pub. L. 101–301, §1(a)(2), substituted “over any civil action” for “over civil action” after “Court of Claims,”.
Subsec. (b). Pub. L. 100–581, §212(b), substituted “of tribal organization” for “of an Indian tribe” and “such tribal organization” for “such tribe”.
Subsec. (c). Pub. L. 100–581, §212(c), as amended by Pub. L. 101–301, §1(a)(2), amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows: “The Equal Access to Justice Act (Public Law 96–481, Act of October 1 [21], 1980; 94 Stat. 2325, as amended) shall apply to administrative appeals by tribal organizations regarding self-determination contracts.”
1 So in original. Probably should be “Public”, “21,”, and “94”, respectively.
2 See References in Text note below.
Nothing in this subchapter shall be construed as—
(1) affecting, modifying, diminishing, or otherwise impairing the sovereign immunity from suit enjoyed by an Indian tribe; or
(2) authorizing or requiring the termination of any existing trust responsibility of the United States with respect to the Indian people.
(Pub. L. 93–638, title I, §111, formerly §110, Jan. 4, 1975, 88 Stat. 2213; renumbered §111, Pub. L. 100–472, title II, §206(b), Oct. 5, 1988, 102 Stat. 2295.)