25 USC 458cc Funding Agreements

Page 173

‘‘(2) the United States recognizes a special government-to-government relationship with Indian tribes,
including the right of the tribes to self-governance,
as reflected in the Constitution, treaties, Federal
statutes, and the course of dealings of the United
States with Indian tribes;
‘‘(3) although progress has been made, the Federal
bureaucracy, with its centralized rules and regulations, has eroded tribal self-governance and dominates tribal affairs;
‘‘(4) the Tribal Self-Governance Demonstration
Project [established by title III of Pub. L. 93–638, formerly set out as a note under 25 U.S.C. 450f] was designed to improve and perpetuate the government-togovernment relationship between Indian tribes and
the United States and to strengthen tribal control
over Federal funding and program management; and
‘‘(5) Congress has reviewed the results of the Tribal
Self-Governance Demonstration Project and finds
that—
‘‘(A) transferring control to tribal governments,
upon tribal request, over funding and decisionmaking for Federal programs, services, functions,
and activities, or portions thereof, is an effective
way to implement the Federal policy of government-to-government relations with Indian tribes;
and
‘‘(B) transferring control to tribal governments,
upon tribal request, over funding and decisionmaking for Federal programs, services, functions,
and activities strengthens the Federal policy of Indian self-determination.’’
CONGRESSIONAL DECLARATION OF POLICY
Section 203 of title II of Pub. L. 103–413 provided that:
‘‘It is the policy of this title [enacting this part] to permanently establish and implement tribal self-governance—
‘‘(1) to enable the United States to maintain and
improve its unique and continuing relationship with,
and responsibility to, Indian tribes;
‘‘(2) to permit each Indian tribe to choose the extent of the participation of such tribe in self-governance;
‘‘(3) to coexist with the provisions of the Indian
Self-Determination Act [title I of Pub. L. 93–638, see
Short Title note set out under section 450 of this
title] relating to the provision of Indian services by
designated Federal agencies;
‘‘(4) to ensure the continuation of the trust responsibility of the United States to Indian tribes and Indian individuals;
‘‘(5) to permit an orderly transition from Federal
domination of programs and services to provide Indian tribes with meaningful authority to plan, conduct, redesign, and administer programs, services,
functions, and activities that meet the needs of the
individual tribal communities; and
‘‘(6) to provide for an orderly transition through a
planned and measurable parallel reduction in the
Federal bureaucracy.’’

§ 458bb. Selection of participating Indian tribes
(a) Continuing participation
Each Indian tribe that is participating in the
Tribal Self-Governance Demonstration Project
at the Department of the Interior under title
III 1 on October 25, 1994, shall thereafter participate in Self-Governance under this part and
cease participation in the Tribal Self-Governance Demonstration Project under title III 1
with respect to the Department of the Interior.
(b) Additional participants
(1) In addition to those Indian tribes participating in self-governance under subsection (a) of
1 See

References in Text note below.

§ 458cc

TITLE 25—INDIANS

this section, the Secretary, acting through the
Director of the Office of Self-Governance, may
select up to 50 new tribes per year from the applicant pool described in subsection (c) of this
section to participate in self-governance.
(2) If each tribe requests, two or more otherwise eligible Indian tribes may be treated as a
single Indian tribe for the purpose of participating in Self-Governance as a consortium.
(c) Applicant pool
The qualified applicant pool for Self-Governance shall consist of each tribe that—
(1) successfully completes the planning
phase described in subsection (d) of this section;
(2) has requested participation in Self-Governance by resolution or other official action
by the tribal governing body; and
(3) has demonstrated, for the previous three
fiscal years, financial stability and financial
management capability as evidenced by the
tribe having no material audit exceptions in
the required annual audit of the self-determination contracts of the tribe.
(d) Planning phase
Each Indian tribe seeking to begin participation in Self-Governance shall complete a planning phase in accordance with this subsection.
The tribe shall be eligible for a grant to plan
and negotiate participation in Self-Governance.
The planning phase shall include—
(1) legal and budgetary research; and
(2) internal tribal government planning and
organizational preparation.
(Pub. L. 93–638, title IV, § 402, as added Pub. L.
103–413, title II, § 204, Oct. 25, 1994, 108 Stat. 4272;
amended Pub. L. 104–208, div. A, title I, § 101(d)
[title I, § 117], Sept. 30, 1996, 110 Stat. 3009–181,
3009–201.)
REFERENCES IN TEXT
Title III, referred to in subsec. (a), means title III of
Pub. L. 93–638, as added by Pub. L. 100–472, title II, § 209,
Oct. 5, 1988, 102 Stat. 2296, and amended, which was set
out as a note under section 450f of this title prior to repeal by Pub. L. 106–260, § 10, Aug. 18, 2000, 114 Stat. 734.
AMENDMENTS
1996—Subsec. (b)(1). Pub. L. 104–208 amended par. (1)
generally. Prior to amendment, par. (1) read as follows:
‘‘In addition to those Indian tribes participating in
Self-Governance under subsection (a) of this section,
the Secretary, acting through the Director of the Office
of Self-Governance, may select up to 20 new tribes per
year from the applicant pool described in subsection (c)
of this section to participate in Self-Governance.’’

§ 458cc. Funding agreements
(a) Authorization
The Secretary shall negotiate and enter into
an annual written funding agreement with the
governing body of each participating tribal government in a manner consistent with the Federal Government’s laws and trust relationship to
and responsibility for the Indian people.
(b) Contents
Each funding agreement shall—
(1) authorize the tribe to plan, conduct, consolidate, and administer programs, services,

§ 458cc

TITLE 25—INDIANS

functions, and activities, or portions thereof,
administered by the Department of the Interior through the Bureau of Indian Affairs,
without regard to the agency or office of the
Bureau of Indian Affairs within which the program, service, function, and activity, or portion thereof, is performed, including funding
for agency, area, and central office functions
in accordance with subsection (g)(3) of this
section, and including any program, service,
function, and activity, or portion thereof, administered under the authority of—
(A) the Act of April 16, 1934 (25 U.S.C. 452
et seq.);
(B) section 13 of this title; and
(C) programs, services, functions, and activities or portions thereof administered by
the Secretary of the Interior that are otherwise available to Indian tribes or Indians for
which appropriations are made to agencies
other than the Department of the Interior;
(2) subject to such terms as may be negotiated, authorize the tribe to plan, conduct,
consolidate, and administer programs, services, functions, and activities, or portions
thereof, administered by the Department of
the Interior, other than through the Bureau of
Indian Affairs, that are otherwise available to
Indian tribes or Indians, as identified in section 458ee(c) of this title, except that nothing
in this subsection may be construed to provide
any tribe with a preference with respect to the
opportunity of the tribe to administer programs, services, functions, and activities, or
portions thereof, unless such preference is
otherwise provided for by law;
(3) subject to the terms of the agreement,
authorize the tribe to redesign or consolidate
programs, services, functions, and activities,
or portions thereof, and reallocate funds for
such programs, services, functions, and activities, or portions thereof, except that, with respect to the reallocation, consolidation, and
redesign of programs described in paragraph
(2), a joint agreement between the Secretary
and the tribe shall be required;
(4) prohibit the inclusion of funds provided—
(A) pursuant to the Tribally Controlled
Colleges and Universities Assistance Act of
1978 (25 U.S.C. 1801 et seq.);
(B) for elementary and secondary schools
under the formula developed pursuant to
section 2008 of this title; and
(C) the Flathead Agency Irrigation Division or the Flathead Agency Power Division,
except that nothing in this section shall affect the contract authority of such divisions
under section 450f of this title;
(5) specify the services to be provided, the
functions to be performed, and the responsibilities of the tribe and the Secretary pursuant
to the agreement;
(6) authorize the tribe and the Secretary to
reallocate funds or modify budget allocations
within any year, and specify the procedures to
be used;
(7) allow for retrocession of programs or portions of programs pursuant to section 450j(e) of
this title;
(8) provide that, for the year for which, and
to the extent to which, funding is provided to
a tribe under this section, the tribe—

Page 174

(A) shall not be entitled to contract with
the Secretary for such funds under section
450f of this title, except that such tribe shall
be eligible for new programs on the same
basis as other tribes; and
(B) shall be responsible for the administration of programs, services, functions, and activities pursuant to agreements entered into
under this section; and
(9) prohibit the Secretary from waiving,
modifying, or diminishing in any way the
trust responsibility of the United States with
respect to Indian tribes and individual Indians
that exists under treaties, Executive orders,
and other laws.
(c) Additional activities
Each funding agreement negotiated pursuant
to subsections (a) and (b) of this section may, in
accordance to such additional terms as the parties deem appropriate, also include other programs, services, functions, and activities, or
portions thereof, administered by the Secretary
of the Interior which are of special geographic,
historical, or cultural significance to the participating Indian tribe requesting a compact.
(d) Provisions relating to Secretary
Funding agreements negotiated between the
Secretary and an Indian tribe shall include provisions—
(1) to monitor the performance of trust functions by the tribe through the annual trust
evaluation, and
(2) for the Secretary to reassume a program,
service, function, or activity, or portions
thereof, if there is a finding of imminent jeopardy to a physical trust asset, natural resources, or public health and safety.
(e) Construction projects
(1) Regarding construction programs or
projects, the Secretary and Indian tribes may
negotiate for the inclusion of specific provisions
of division B (except sections 1123, 2303, 2304, and
2313) of subtitle I of title 41 and Federal acquisition regulations in any funding agreement entered into under this subchapter. Absent a negotiated agreement, such provisions and regulatory requirements shall not apply.
(2) In all construction projects performed pursuant to this part, the Secretary shall ensure
that proper health and safety standards are provided for in the funding agreements.
(f) Submission for review
Not later than 90 days before the proposed effective date of an agreement entered into under
this section, the Secretary shall submit a copy
of such agreement to—
(1) each Indian tribe that is served by the
Agency that is serving the tribe that is a
party to the funding agreement;
(2) the Committee on Indian Affairs of the
Senate; and
(3) the Subcommittee on Native American
Affairs of the Committee on Natural Resources of the House of Representatives.
(g) Payment
(1) At the request of the governing body of the
tribe and under the terms of an agreement en-

Page 175

§ 458cc

TITLE 25—INDIANS

tered into under this section, the Secretary
shall provide funding to the tribe to carry out
the agreement.
(2) The funding agreements authorized by this
part and title III of this Act shall provide for advance payments to the tribes in the form of annual or semi-annual installments at the discretion of the tribes.
(3) Subject to paragraph (4) of this subsection
and paragraphs (1) through (3) of subsection (b)
of this section, the Secretary shall provide funds
to the tribe under an agreement under this part
for programs, services, functions, and activities,
or portions thereof, in an amount equal to the
amount that the tribe would have been eligible
to receive under contracts and grants under this
subchapter, including amounts for direct program and contract support costs and, in addition, any funds that are specifically or functionally related to the provision by the Secretary of
services and benefits to the tribe or its members, without regard to the organization level
within the Department where such functions are
carried out.
(4) Funds for trust services to individual Indians shall be available under an agreement entered into under this section only to the extent
that the same services that would have been
provided by the Secretary are provided to individual Indians by the tribe.
(h) Civil actions
(1) Except as provided in paragraph (2), for the
purposes of section 450m–1 of this title, the term
‘‘contract’’ shall include agreements entered
into under this part.
(2) For the period that an agreement entered
into under this part is in effect, the provisions
of section 81 of this title, section 476 of this
title, and the Act of July 3, 1952 (25 U.S.C. 82a),
shall not apply to attorney and other professional contracts by Indian tribal governments
participating in Self-Governance under this
part.
(i) Facilitation
(1) Except as otherwise provided by law, the
Secretary shall interpret each Federal law and
regulation in a manner that will facilitate—
(A) the inclusion of programs, services, functions, and activities in the agreements entered
into under this section; and
(B) the implementation of agreements entered into under this section.
(2)(A) A tribe may submit a written request
for a waiver to the Secretary identifying the
regulation sought to be waived and the basis for
the request.
(B) Not later than 60 days after receipt by the
Secretary of a written request by a tribe to
waive application of a Federal regulation for an
agreement entered into under this section, the
Secretary shall either approve or deny the requested waiver in writing to the tribe. A denial
may be made only upon a specific finding by the
Secretary that identified language in the regulation may not be waived because such waiver is
prohibited by Federal law. The Secretary’s decision shall be final for the Department.
(j) Funds
All funds provided under funding agreements
entered into pursuant to this subchapter, and all

funds provided under contracts or grants made
pursuant to this subchapter, shall be treated as
non-Federal funds for purposes of meeting
matching requirements under any other Federal
law.
(k) Disclaimer
Nothing in this section is intended or shall be
construed to expand or alter existing statutory
authorities in the Secretary so as to authorize
the Secretary to enter into any agreement
under subsection (b)(2) of this section and section 458ee(c)(1) of this title with respect to functions that are inherently Federal or where the
statute establishing the existing program does
not authorize the type of participation sought
by the tribe: Provided, however an Indian tribe
or tribes need not be identified in the authorizing statute in order for a program or element of
a program to be included in a compact under
subsection (b)(2) of this section.
(l) Incorporate self-determination provisions
At the option of a participating tribe or tribes,
any or all provisions of part A of this subchapter
shall be made part of an agreement entered into
under title III of this Act or this part. The Secretary is obligated to include such provisions at
the option of the participating tribe or tribes. If
such provision is incorporated it shall have the
same force and effect as if set out in full in title
III or this part.
(Pub. L. 93–638, title IV, § 403, as added Pub. L.
103–413, title II, § 204, Oct. 25, 1994, 108 Stat. 4272;
amended Pub. L. 104–109, § 19, Feb. 12, 1996, 110
Stat. 766; Pub. L. 105–244, title IX, § 901(d), Oct. 7,
1998, 112 Stat. 1828; Pub. L. 106–568, title VIII,
§ 812(b), Dec. 27, 2000, 114 Stat. 2917; Pub. L.
110–315, title IX, § 941(k)(2)(H), Aug. 14, 2008, 122
Stat. 3467.)
REFERENCES IN TEXT
Act of April 16, 1934, referred to in subsec. (b)(1)(A), is
act Apr. 16, 1934, ch. 147, 48 Stat. 596, 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.
The Tribally Controlled Colleges and Universities Assistance Act of 1978, referred to in subsec. (b)(4)(A), is
Pub. L. 95–471, Oct. 17, 1978, 92 Stat. 1325, which is classified principally to chapter 20 (§ 1801 et seq.) of this
title. For complete classification of this Act to the
Code, see Short Title note set out under section 1801 of
this title and Tables.
This subchapter, referred to in subsecs. (e)(1), (g)(3),
and (j), was in the original ‘‘this Act’’, meaning Pub. L.
93–638, Jan. 4, 1975, 88 Stat. 2203, 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.
Title III of this Act, referred to in subsecs. (g)(2) and
(l), is title III of Pub. L. 93–638, as added by Pub. L.
100–472, title II, § 209, Oct. 5, 1988, 102 Stat. 2296, which
was set out as a note under section 450f of this title
prior to repeal by Pub. L. 106–260, § 10, Aug. 18, 2000, 114
Stat. 734.
The Act of July 3, 1952, referred to in subsec. (h)(2),
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.
Part A of this subchapter, referred to in subsec. (l),
was in the original ‘‘title I of this Act’’, meaning title

§ 458dd

TITLE 25—INDIANS

I of Pub. L. 93–638, known as the Indian Self-Determination Act, which is classified principally to part A (§ 450f
et seq.) of this subchapter. For complete classification
of title I to the Code, see Short Title note set out under
section 450 of this title and Tables.
CODIFICATION
In subsec. (e)(1), ‘‘division B (except sections 1123,
2303, 2304, and 2313) of subtitle I of title 41’’ substituted
for ‘‘the Office of Federal Procurement and Policy Act’’
on authority of Pub. L. 111–350, § 6(c), Jan. 4, 2011, 124
Stat. 3854, which Act enacted Title 41, Public Contracts.
AMENDMENTS
2008—Subsec. (b)(4)(A). Pub. L. 110–315 substituted
‘‘the Tribally Controlled Colleges and Universities Assistance Act of 1978’’ for ‘‘the Tribally Controlled College or University Assistance Act of 1978’’.
2000—Subsec. (h)(2). Pub. L. 106–568 struck out ‘‘and’’
before ‘‘section 476 of this title’’ and substituted ‘‘and
the Act of July 3, 1952 (25 U.S.C. 82a), shall not apply’’
for ‘‘shall not apply’’.
1998—Subsec. (b)(4)(A). Pub. L. 105–244 substituted
‘‘Tribally Controlled College or University Assistance
Act of 1978’’ for ‘‘Tribally Controlled Community College Assistance Act of 1978’’.
1996—Subsec. (l). Pub. L. 104–109 added subsec. (l).
EFFECTIVE DATE OF 1998 AMENDMENT
Amendment by Pub. L. 105–244 effective Oct. 1, 1998,
except as otherwise provided in Pub. L. 105–244, see section 3 of Pub. L. 105–244, set out as a note under section
1001 of Title 20, Education.

§ 458dd. Budget request
The Secretary shall identify, in the annual
budget request of the President to the Congress
under section 1105 of title 31 any funds proposed
to be included in agreements authorized under
this part.
(Pub. L. 93–638, title IV, § 404, as added Pub. L.
103–413, title II, § 204, Oct. 25, 1994, 108 Stat. 4275.)
§ 458ee. Reports
(a) Requirement
The Secretary shall submit to Congress a written report on January 1 of each year following
October 25, 1994, regarding the administration of
this part.
(b) Contents
The report shall—
(1) identify the relative costs and benefits of
Self-Governance;
(2) identify, with particularity, all funds
that are specifically or functionally related to
the provision by the Secretary of services and
benefits to Self-Governance tribes and their
members;
(3) identify the funds transferred to each
Self-Governance tribe and the corresponding
reduction in the Federal bureaucracy;
(4) include the separate views of the tribes;
and
(5) include the funding formula for individual tribal shares of Central Office funds, together with the comments of affected Indian
tribes, developed under subsection (d) of this
section.
(c) Report on non-BIA programs
(1) In order to optimize opportunities for including non-Bureau of Indian Affairs programs,

Page 176

services, functions, and activities, or portions
thereof, in agreements with tribes participating
in Self-Governance under this part, the Secretary shall—
(A) review all programs, services, functions,
and activities, or portions thereof, administered by the Department of the Interior, other
than through the Bureau of Indian Affairs,
without regard to the agency or office concerned; and
(B) not later than 90 days after October 25,
1994, provide to the appropriate committees of
Congress a listing of all such programs, services, functions, and activities, or portions
thereof, that the Secretary determines, with
the concurrence of tribes participating in SelfGovernance under this part, are eligible for inclusion in such agreements at the request of a
participating Indian tribe.
(2) The Secretary shall establish programmatic targets, after consultation with
tribes participating in Self-Governance under
this part, to encourage bureaus of the Department to assure that a significant portion of such
programs, services, functions, and activities are
actually included in the agreements negotiated
under section 458cc of this title.
(3) The listing and targets under paragraphs
(1) and (2) shall be published in the Federal Register and be made available to any Indian tribe
participating in Self-Governance under this
part. The list shall be published before January
1, 1995, and annually thereafter by January 1
preceding the fiscal year in which the targets
are to be met.
(4) Thereafter, the Secretary shall annually
review and publish in the Federal Register, after
consultation with tribes participating in SelfGovernance under this part, a revised listing and
programmatic targets.
(d) Report on Central Office funds
Within 90 days after October 25, 1994, the Secretary shall, in consultation with Indian tribes,
develop a funding formula to determine the individual tribal share of funds controlled by the
Central Office of the Bureau of Indian Affairs for
inclusion in the Self-Governance compacts. The
Secretary shall include such formula in the annual report submitted to the Congress under
subsection (b) of this section, together with the
views of the affected Indian tribes.
(Pub. L. 93–638, title IV, § 405, as added Pub. L.
103–413, title II, § 204, Oct. 25, 1994, 108 Stat. 4276.)
§ 458ff. Disclaimers
(a) Other services, contracts, and funds
Nothing in this part shall be construed to
limit or reduce in any way the services, contracts, or funds that any other Indian tribe or
tribal organization is eligible to receive under
section 450f of this title or any other applicable
Federal law.
(b) Federal trust responsibilities
Nothing in this subchapter shall be construed
to diminish the Federal trust responsibility to
Indian tribes, individual Indians, or Indians with
trust allotments.