Tribal Self-Governance Act of 1994

108 STAT. 4250

PUBLIC LAW 103-413—OCT. 25, 1994

Public Law 103-413
103d Congress

An Act
Oct. 25, 1994
[H.R. 4842]

Indian SelfDetermination
Act
Amendments of
1994.
25 u s e 450
note.
Indian SelfDetermination
Contract Reform
Act of 1994.
25 u s e 450
note.

To specify the terms of contracts entered into by the United States and Indian
tribal organizations under the Indian Self-Determination and Education Assistance
Act and to provide for tribal Self-Governance, and for other purposes.

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

of

SECTION 1. SHORT TITLE.

This Act may be cited as the "Indian Self-Determination Act
Amendments of 1994".

TITLE I—INDIAN SELF-DETERMINATION
ACT CONTRACTS
SEC. 101. SHORT TITLE.

This title may be cited as the "Indian Self-Determination Contract Reform Act of 1994".
SEC. 102. GENERAL AMENDMENTS.

25 u s e 450b.

25 u s e 450c.

The Indian Self-Determination and Education Assistance Act
(25 U.S.C. 450 et seq.) is amended—
(1) in section 4—
(A) in subsection (g), by striking "indirect costs rate"
£ind inserting "indirect cost rate";
(B) by striking "and" at the end of subsection (k);
(C) by striking the period at the end of subsection
(1) and inserting "; and"; and
(D) by adding at the end the following new subsection:
"(m) 'construction contract' means a fixed-price or costreimbursement self-determination contract for a construction
project, except that such term does not include any contract—
"(1) that is limited to providing planning services and
construction management services (or a combination of such
services);
"(2) for the Housing Improvement Program or roads
maintenance program of the Bureau of Indian Affairs administered by the Secretary of the Interior; or
"(3) for the health facility maintenance and improvement
program administered by the Secretary of Health and Human
Services.";
(2) by striking subsection (f) of section 5 and inserting
the following new subsection:
"(f)(1) For each fiscal year during which an Indian tribal
organization receives or expends funds pursuant to a contract

PUBLIC LAW 103-413—OCT. 25, 1994

108 STAT. 4251

entered into, or grant made, under this Act, the tribal organization
that requested such contract or grant shall submit to the appropriate Secretary a single-agency audit report required by chapter
75 of title 31, United States Code.
"(2) In addition to submitting a single-agency audit report
pursuant to paragraph (1), a tribal organization referred to in
such paragraph shall submit such additional information concerning
the conduct of the program, function, service, or activity carried
out pursuant to the contract or grant that is the subject of the
report as the tribal organization may negotiate with the Secretary.
"(3) Any disagreement over reporting requirements shall be
subject to the declination criteria and procedures set forth in section
102.";
(3) in section 7(a), by striking "of subcontractors" and
inserting in lieu thereof "or subcontractors (excluding tribes
and tribal organizations)";
(4) at the end of section 7, add the following new subsection:
"(c) Notwithstanding subsections (a) and (b), with respect to
any self-determination contract, or portion of a self-determination
contract, that is intended to benefit one tribe, the tribal employment
or contract preference laws adopted by such tribe shall govern
with respect to the administration of the contract or portion of
tiiG contract
(5) at the end of section 102(a)(1), add the following new
flush sentence:
"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.";
(6) in section 102(a)—
(A) in paragraph (2)—
(i) in the first sentence, by inserting ", or a proposal
to amend or renew a self-determination contract,"
before "to the Secretary for review";
(ii) in the second sentence—
(I) by striking "The" and inserting "Subject
to the provisions of paragraph (4), the";
(II) by inserting "and award the contract" after
"approve the proposal";
(III) by striking ", within sixty days of receipt
of the proposal,"; and
(IV) by striking "a specific finding is made
that" and inserting "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";
(iii) in subparagraph (B), by striking "or" after
the semicolon;
(iv) in subparagraph (C), by striking the period
at the end and inserting a semicolon;

25 USC 450e.

25USC450f.

108 STAT. 4252

25 use 450f.

PUBLIC LAW 103-413—OCT. 25, 1994

(v) by adding at the end the following new subparagraphs:
"(D) the amount of funds proposed under the contract
is in excess of the applicable funding level for the contract,
as determined under section 106(a); 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."; and
(vi) by adding at the end of the paragraph the
following new flush material:
"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, 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."; and
(B) by adding at the end the following new paragraph:
"(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 106(a),
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 106(a). If a tribal
organization elects to carry out a severable portion of a contract
proposal pursuant to this paragraph, subsection (b) shall only apply
to the portion of the contract that is declined by the Secretary
pursuant to this subsection.";
(7) in section 102(b)(3)—
(A) by inserting after "record" the following: "with the
right to engage in full discovery relevant to any issue
raised in the matter"; and

PUBLIC LAW 103-413—OCT. 25, 1994

108 STAT. 4253

(B) by inserting before the period the following: ",
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 110(a)";
(8) in section 102(d), by striking "as provided in section 25USC450f.
2671 of title 28)" and inserting "as provided in section 2671
of title 28, United States Code, 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)";
(9) by adding at the end of section 102 the following new
subsection:
"(e)(1) With respect to any hearing or appeal conducted pursuant to subsection (b)(3), 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) 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.";
(10) by striking subsection (a) of section 105 and inserting 25 USC 450j.
the following new subsection:
"(a)(1) Notwithstanding any other provision of law, subject to
paragraph (3), the contracts and cooperative agreements entered
into with tribal organizations pursuant to section 102 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 selfdetermination 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 the Office of
Federal Procurement Policy Act (41 U.S.C. 401 et seq.) and the
regulations relating to acquisitions promulgated under such Act
shall apply only to the extent that the application of such provision
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 Act.
"(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

108 STAT. 4254

25USC450J.

25 use 450j.

PUBLIC LAW 103-413—OCT. 25, 1994

(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 Act, unless expressly
provided in such law.
"(ii) The laws listed in this paragraph are as follows:
"(I) The Federal Property and Administrative Services Act
of 1949 (40 U.S.C. 471 et seq.).
"(II) Section 3709 of the Revised Statutes.
"(Ill) Section 9(c) of the Act of Aug. 2, 1946 (60 Stat.
809, chapter 744).
"(IV) Title III of the Federal Property and Administrative
Services Act of 1949 (63 Stat. 393 et seq., chapter 288).
"(V) Section 13 of the Act of Oct. 3, 1944 (58 Stat. 770;
chapter 479).
"(VI) Chapters 21, 25, 27, 29, and 31 of title 44, United
States Code.
"(VII) Section 2 of the Act of June 13, 1934 (48 Stat
948, chapter 483).
"(VIII) Sections 1 through 12 of the Act of June 30, 1936
(49 Stat. 2036 et seq. chapter 881).
"(IX) The Service Control Act of 1965 (41 U.S.C. 351 et
seq.).
"(X) The Small Business Act (15 U.S.C. 631 et seq.).
"(XI) Executive Order Nos. 12138, 11246, 11701 and
11758.";
(11) by striking subsection (e) and inserting the following
new subsection:
"(e) 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 Act, 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.";
(12) by striking paragraph (2) of section 105(f) and inserting
the following new paragraph:
"(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

PUBLIC LAW 103-413—OCT. 25, 1994

108 STAT. 4255

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";
(13) by adding at the end of section 105 the following 25USC450j.
new subsections:
"(i)(l) 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 title 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
110.
"(j) 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 102.
"(k) For purposes of section 201(a) of the Federal Property
and Administrative Services Act of 1949 (40 U.S.C. 481(a)) (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 Act
shall be deemed an executive agency 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.
"(1)(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 Act.
"(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

108 STAT. 4256

PUBLIC LAW 103-413—OCT. 25, 1994

reasonable expenses that the Secretary determines, by regulation,
to be allowable.
"(ni)(l) Each construction contract requested, approved, or
awarded under this Act shall be subject to—
"(A) except as otherwise provided in this Act, the provisions
of this Act, other than sections 102(a)(2), 106(1), 108 and 109;
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 102(a), 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 103 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, United States Code.
"(F) The submission to the Secretary by the tribe or tribal
organization of a final contract proposal pursuant to section
102(a).
"(4)(A) Subject to subparagraph (B), in funding a fixed-price
construction contract pursuant to section 106(a), 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.

PUBLIC LAW 103-413—OCT. 25,1994

108 STAT. 4257

"(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 Act 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 sections 102(a)(2) and 102(b) of section 102 (including providing opportunity for an appeal pursuant to section 102(b)).
"(n) 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, United
States Code) 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.";
(14) in section 106(a)—
25 USC 450j-i.
(A) in paragraph (1), by inserting before the period
at the end the following: ", 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";
(B) in paragraph (2), by inserting after "consist of
the following: "an amount for"; and
(C) by striking paragraph (3) and inserting the following new paragraphs:
"(3)(A) The contract support costs that are eligible costs for
the purposes of receiving funding under this Act shall include
the costs of reimbursing each tribal contractor for reasonable and
allowable costs of—

108 STAT. 4258

25 use 450J-1.

PUBLIC LAW 103-413—OCT. 25, 1994

"(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 section 106(a)(1).
"(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 Act,
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 8.
"(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.";
(15) in section 106(c)—
(A) by striking "March 15" and inserting "May 15";
(B) in paragraphs (1) and (2), by striking "indirect
costs" each place it appears and inserting "contract support
costs";
(C) in paragraph (4), by striking "and" at the end;
(D) in paragraph (5), by striking the period at the
end and inserting "; and"; and
(E) by adding at the end the following new paragraph:
"(6) an accounting of any deficiency of funds needed to
maintain the preexisting level of services to any tribes affected
by contracting activities under this Act, and a statement of
the amount of funds needed for transitional purposes to enable
contractors to convert from a Federal fiscal year accounting
cycle to a different accounting cycle, as authorized by section
105(d).";
(16) in section 106(f), by inserting immediately after the
second sentence the following new sentence: "For the purpose

PUBLIC LAW 103-413—OCT. 25, 1994

108 STAT. 4259

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, United States Code, or noncompliance with any
other applicable law.";
(17) by striking subsection (g) of section 106 and inserting
the following new subsection:
"(g) 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 section 106(a), subject to
adjustments for each subsequent year that such tribe or tribal
organization administers a Federal program, function, service, or
activity under such contract.";
(18) by striking subsection (i) of section 106 and inserting
the following new subsection:
"(i) 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, United States
Code)."; and
(19) by adding at the end of section 106 the following
new subsections:
"(j) 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.
"(k) 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.

79-194 O—95—25 : QL 3 Part 5

25 USC 450j-l.

108 STAT. 4260

PUBLIC LAW 103-413—OCT. 25, 1994

"(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 Act.
"(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)(1) The Secretary may only suspend, withhold, or delay
the pa5mient 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.
"(m) 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.
"(n) To the extent that programs, functions, services, or activities carried out by tribal organizations pursuant to contracts entered
into under this Act 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),
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.
"(o) 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.".
SEC. 103. CONTRACT SPECIFICATIONS.

The Indian Self-Determination Education Assistance Act (25
U.S.C. 450 et seq.) is amended by inserting after section 107 the
following new section:

PUBLIC LAW 103-413—OCT. 25, 1994

108 STAT. 4261

"SEC. 108. CONTRACT OR GRANT SPECIFICATIONS.

"(a) Each self-determination contract entered into under this
Act shall—
"(1) contain, or incorporate by reference, the provisions
of the model agreement described in subsection (c) (with modifications where indicated and the blanks appropriately filled
in), and
"(2) contain such other provisions as are agreed to by
the parties.
"(b) 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, United States Code.
"(c) The model agreement referred to in subsection (a)(1) reads
as follows:
"•SECTION 1. AGREEMENT BETWEEN THE SECRETARY AND THE
TRIBAL GOVERNMENT.
" '(a) AUTHORITY AND PURPOSE.—

"XD AUTHORITY.—This agreement, denoted a Self-Determination Contract (referred to in this agreement as the "Contract"), is entered into by the Secretary of the Interior or
the Secretary of Health and Human Services (referred to in
this agreement as the "Secretary"), for and on behalf of the
United States pursuant to title I of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.)
and by the authority of the
tribal government or tribal
organization (referred to in this agreement as the "Contractor").
The provisions of title I of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450 et seq.) are incorporated in this agreement.
"'(2) PURPOSE.—Each provision of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.)
and each provision of this Contract shall be liberally construed
for the benefit of the Contractor to transfer the funding and
the following related functions, services, activities, and programs (or portions thereof), that are otherwise contractable
under section 102(a) of such Act, including all related administrative functions, from the Federal Government to the Contractor: (List functions, services, activities, and programs).
"'(b) TERMS, PROVISIONS, AND CONDITIONS.—

"XD TERM.—Pursuant to section 105(c)(1) of the Indian
Self-Determination and Education Assistance Act (25 U.S.C.
450j(c)(l)), the term of this contract shall be
years. Pursuant to section 105(d)(1) of such Act (25 U.S.C. 450j(d)), upon
the election by the Contractor, the period of this Contract
shall be determined on the basis of a calendar year, unless
the Secretary and the Contractor agree on a different period
in the annual funding agreement incorporated by reference
in subsection (f)(2).
"'(2) EFFECTIVE DATE.—This Contract shall become effective upon the date of the approval and execution by the Contractor and the Secretary, unless the Contractor and the Secretary
agree on an effective date other than the date specified in
this paragraph.

25 USC 450/.

108 STAT. 4262

PUBLIC LAW 103-413—OCT. 25, 1994

"'(3) PROGRAM STANDARD.—The Contractor agrees to
administer the program, services, functions and activities (or
portions thereof) Usted in subsection (a)(2) of the Contract
in conformity with the following standards: (list standards).
"'(4) FUNDING AMOUNT.—Subject to the availability of
appropriations, the Secretary shall make available to the Contractor the total amount specified in the annual funding agreement incorporated by reference in subsection (f)(2). Such
amount shall not be less than the applicable amount determined
pursuant to section 106(a) of the Indian Self-Determination
and Education Assistance Act (25 U.S.C. 450J-1).
"'(5) LIMITATION OF COSTS.—The Contractor shall not be
obligated to continue performance that requires an expenditure
of funds in excess of the amount of funds awarded under
this Contract. If, at any time, the Contractor has reason to
believe that the total amount required for performance of this
Contract or a specific activity conducted under this Contract
would be greater than the amount of funds awarded under
this Contract, the Contractor shall provide reasonable notice
to the appropriate Secretary. If the appropriate Secretary does
not take such action as may be necessary to increase the
amount of funds awarded under this Contract, the Contractor
may suspend performance of the Contract until such time as
additional funds are awarded.
"'(6) PAYMENT.—

"'(A) IN GENERAL.—Payments to the Contractor under
this Contract shall—
"*(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) QUARTERLY, SEMIANNUAL, LUMP-SUM, AND OTHER
METHODS OF PAYMENT.—

"'(i) IN GENERAL.—-Pursuant to section 108(b) of
the Indian Self-Determination and Education Assistance Act, and notwithstanding any other provision of
law, for each fiscal year covered by this Contract, the
Secretary shall make available to the Contractor the
funds specified for the fiscal year under the annual
funding agreement incorporated by reference pursuant
to subsection (f)(2) by paying to the Contractor, on
a quarterly basis, one-quarter of the total amount provided for in the annual funding agreement for that
fiscal year, in a lump-sum payment or as semiannual
payments, or any other method of pa3anent authorized
by law, in accordance with such method as may be
requested by the Contractor and specified in the annual
funding agreement.
"'(ii) METHOD OF QUARTERLY PAYMENT.—If quarterly payments are specified in the annual funding
agreement incorporated by reference pursuant to subsection (f)(2), each quarterly payment made pursuant
to clause (i) shall be made on the first day of each
quarter of the fiscal year, except that in any case
in which the Contract year coincides with the Federal
fiscal year, payment for the first quarter shall be made

"t*''sife 1-'

PUBLIC LAW 103-413—OCT. 25, 1994

108 STAT. 4263

not later than the date that is 10 calendar days after
the date on which the Office of Management and
Budget apportions the appropriations for the fiscal year
for the programs, services, functions, and activities
subject to this Contract.
"'(iii) APPLICABILITY.—Chapter 39 of title 31,
United States Code, shall apply to the payment of
funds due under this Contract and the annual funding
agreement referred to in clause (i).
" '(7) RECORDS AND MONITORING.—

" '(A) IN GENERAL.—Except for previously provided copies of tribal records that the Secretary demonstrates are
clearly required to be maintained as part of the recordkeeping system of the Department of the Interior or the
Department of Health and Human Services (or both),
records of the Contractor shall not be considered Federal
records for purposes of chapter 5 of title 5, United States
Code.
"'(B) RECORDKEEPING SYSTEM.—^The Contractor shall
maintain a recordkeeping system and, upon reasonable
advance request, provide reasonable access to such records
to the Secretary.
"'(C) RESPONSIBILITIES OF CONTRACTOR.—The Contrac-

tor shall be responsible for managing the day-to-day operations conducted under this Contract and for monitoring
activities conducted under this Contract to ensure compliance with the Contract and applicable Federal requirements. With respect to the monitoring activities of the
Secretary, the routine monitoring visits shall be limited
to not more than one performance monitoring visit for
this Contract by the head of each operating division, departmental bureau, or departmental agency, or duly authorized
representative of such head unless—
"'(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 prdslem that requires
the additional visit has been given to the Contractor.
"'(8) PROPERTY.—

'"(A) IN GENERAL.—^As provided in section 105(f) of
the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 45Cj(f)), at the request of the Contractor,
the Secretary may make available, or transfer to the Contractor, all reasonably divisible real property, facilities,
equipment, and personal property that the Secretary has
used to provide or administer the programs, services, functions, and activities covered by this Contract. A mutually
agreed upon list specifying the property, facilities, and
equipment so furnished shall also be prepared by the Secretary, with the concurrence of the Contractor, and periodi-

108 STAT. 4264

PUBLIC LAW 103-413—OCT. 25, 1994
cally revised by the Secretary, with the concurrence of
the Contractor.
[••
"XB) RECORDS.^The Contractor shall maintain a
record of all property referred to in subparagraph (A) or
other property acquired by the Contractor under section
105(f)(2)(A) of such Act for purposes of replacement.
"XO JOINT USE AGREEMENTS.—Upon the request of

the Contractor, the Secretary and the Contractor shall
enter into a separate joint use agreement to address the
shared use by the parties of real or personal property
that is not reasonably divisible.
"'(D) ACQUISITION OF PROPERTY.—The Contractor is
granted the authority to acquire such excess property as
the Contractor may determine to be appropriate in the
judgment of the Contractor to support the programs, services, functions, and activities operated pursuant to this
Contract.
"'(E) CONFISCATED OR EXCESS PROPERTY.—The Secretary shall assist the Contractor in obtaining such confiscated or excess property as may become available to
tribes, tribal organizations, or local governments.
'"(F)

SCREENER

IDENTIFICATION

CARD.—A

screener

identification card (General Services Administration form
numbered 2946) shall be issued to the Contractor not later
than the effective date of this Contract. The designated
official shall, upon request, assist the Contractor in securing the use of the card.
" '(G) CAPITAL EQUIPMENT.—The Contractor shall determine the capital equipment, leases, rentals, property, or
services the Contractor requires to perform the obligations
of the Contractor under this subsection, and shall acquire
and maintain records of such capital equipment, property
rentals, leases, property, or services through applicable
procurement procedures of the Contractor.
"'(9) AVAILABILITY OF FUNDS.—Notwithstanding any other
provision of law, any funds provided under this Contract—
" '(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) TRANSPORTATION.—Beginning on the effective date
of this Contract, the Secretary shall authorize the Contractor
to obtain interagency motor pool vehicles and related services
for performance of any activities carried out under this
Contract.
"'(11) FEDERAL PROGRAM GUIDELINES, MANUALS, OR POLICY
DIRECTIVES.—Except as specifically provided in the Indian SelfDetermination and Education Assistance Act (25 U.S.C. 450
et seq.) the Contractor is not required to abide by program
guidelines, manuals, or policy directives of the Secretary, unless
otherwise agreed to by the Contractor and the Secretary, or
otherwise required by law.
"'(12) DISPUTES.—

'"(A) THIRD-PARTY MEDIATION DEFINED.—For the purposes of this Contract, the term "third-party mediation"
means a form of mediation whereby the Secretary and

• ''-'W

PUBLIC LAW 103-413—OCT. 25, 1994

108 STAT. 4265

the Contractor nominate a third party who is not employed
by or significantly involved with the Secretary of the
Interior, the Secretary of Health and Human Services,
or the Contractor, to serve as a third-party mediator to
mediate disputes under this Contract.
"'(B) ALTERNATIVE PROCEDURES.—In addition to, or as

an alternative to, remedies and procedures prescribed by
section 110 of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450m-l), the parties to this
Contract may jointly—
"'(i) submit disputes under this Contract to thirdparty 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) EFFECT OF DECISIONS.—The Secretary shall be
bound by decisions made pursuant to the processes set
forth in subparagraph (B), except that the Secretary shall
not be bound by any decision that significantly conflicts
with the interests of Indians or the United States.
"'(13) ADMINISTRATIVE PROCEDURES OF CONTRACTOR.—
Pursuant to the Indian Civil Rights Act of 1968 (25 U.S.C.
1301 et seq.), the laws, policies, and procedures of the Contractor shall provide for administrative due process (or the equivalent of administrative due process) with respect to programs,
services, functions, and activities that are provided by the Contractor pursuant to this Contract.
"'(14) SUCCESSOR ANNUAL FUNDING AGREEMENT.—
" '(A) IN GENERAL.—Negotiations for a successor annual
funding agreement, provided for in subsection (f)(2), shall
begin not later than 120 days prior to the conclusion of
the preceding annual funding agreement. Except as provided in section 105(c)(2) of the Indian Self-Determination
and Education Assistance Act (25 U.S.C. 450j(c)(2)) the
funding for each such successor annual funding agreement
shall only be reduced pursuant to section 106(b) of such
Act (25 U.S.C. 450j-l(b)).
" '(B) INFORMATION.—The Secretary shall prepare and
supply relevant information, and promptly comply with
any request by the Contractor for information that the
Contractor reasonably needs to determine the amount of
funds that may be available for a successor annual funding
agreement, as provided for in subsection (f)(2) of this
Contract.
"'(15) CONTRACT REQUIREMENTS; APPROVAL BY SECRETARY.—

"'(A) I N GENERAL.—Except as provided in subparagraph (B), for the term of the Contract, section 2103 of
the Revised Statutes (25 U.S.C. 81) and section 16 of the
Act of June 18, 1934 (48 Stat. 987, chapter 576; 25 U.S.C.

108 STAT. 4266

PUBLIC LAW 103-413—OCT. 25, 1994
476), shall not apply to any contract entered into in connection with this Contract.
"'(B) REQUIREMENTS.—Each Contract entered into by
the Contractor with a third party in connection with
performing the obligations of the Contractor under this
Contract shall—
" *(i) be in writing;
" Xii) 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) OBLIGATION OF THE CONTRACTOR.—
"'(1) CONTRACT PERFORMANCE.—Except

as provided in subsection (d)(2), the Contractor shall perform the programs, services, functions, and activities as provided in the annual funding
agreement under subsection (f)(2) of this Contract.
"'(2) AMOUNT OF FUNDS.—The total amount of funds to
be paid under this Contract pursuant to section 106(a) shall
be determined in an annual funding agreement entered into
between the Secretary and the Contractor, which shall be incorporated into this Contract.
"'(3) CONTRACTED PROGRAMS.—Subject to the availability

of appropriated funds, the Contractor shall administer the programs, services, functions, and activities identified in this Contract and funded through the annual funding agreement under
subsection (f)(2).
" '(4) TRUST SERVICES FOR INDIVIDUAL INDIANS.—

" '(A) IN GENERAL.—To the extent that the annual funding agreement provides funding for the delivery of trust
services to individual Indians that have been provided by
the Secretary, the Contractor shall maintain at least the
same level of service as the Secretary provided for such
individual Indians, subject to the availability of appropriated funds for such services.
" '(B) TRUST SERVICES TO INDIVIDUAL INDIANS.—For the

purposes of this paragraph only, the term "trust services
for individual Indians" means only those services that pertain to land or financial management connected to individually held allotments.
"'(5) FAIR AND UNIFORM SERVICES.—^The Contractor shall
provide services under this Contract in a fair and uniform
manner and shall provide access to an administrative or judicial
body empowered to adjudicate or otherwise resolve complaints,
claims, and grievances brought by program beneficiaries against
the Contractor arising out of the performance of the Contract.
" '(d) OBLIGATION OF THE UNITED STATES.—
"'(1) TRUST RESPONSIBILITY.—

"'(A) IN GENERAL.—The United States reaffirms the
trust responsibility of the United States to the
Indian
tribe(s) to protect and conserve the trust resources of the
Indian tribe(s) and the trust resources of individual
Indians.
'"(B) CONSTRUCTION OF CONTRACT.—Nothing in this
Contract may be construed to terminate, waive, modify.

PUBLIC LAW 103-413—OCT. 25, 1994

108 STAT. 4267

or reduce the trust responsibility of the United States
to the tribe(s) or individual Indians. The Secretary shall
act in good faith in upholding such trust responsibility.
"'(2) GOOD FAITH.—TO the extent that health programs
are included in this Contract, and within available funds, the
Secretary shall act in good faith in cooperating with the Contractor to achieve the goals set forth in the Indian Health
Care Improvement Act (25 U.S.C. 1601 et seq.).
"'(3) PROGRAMS RETAINED.—AS specified in the annual
funding agreement, the United States hereby retains the programs, services, functions, and activities with respect to the
tribe(s) that are not specifically assumed by the Contractor
in the annual funding agreement under subsection (f)(2).
" '(e) OTHER PROVISIONS.—
"'(1) DESIGNATED OFFICIALS.—Not

later than the effective
date of this Contract, the United States shall provide to the
Contractor, and the Contractor shall provide to the United
States, a written designation of a senior official to serve as
a representative for notices, proposed amendments to the Contract, and other purposes for this Contract.
" X2) CONTRACT MODIFICATIONS OR AMENDMENT.—

"'(A) IN GENERAL.—Except as provided in subparagraph (B), no modification to this Contract shall take effect
unless such modification is made in the form of a written
amendment to the Contract, and the Contractor and the
Secretary provide written consent for the modification.
" *(B) EXCEPTION.—The addition of supplemental funds
for programs, functions, and activities (or portions thereof)
already included in the annual funding agreement under
subsection (f)(2), and the reduction of funds pursuant to
section 106(b)(2), shall not be subject to subparagraph (A).
"'(3) OFFICIALS NOT TO BENEFIT.—No Member of Congress,
or resident commissioner, shall be admitted to any share or
part of any contract executed pursuant to this Contract, or
to any benefit that may arise from such contract. This paragraph may not be construed to apply to any contract with
a third party entered into under this Contract if such contract
is made with a corporation for the general benefit of the corporation.
"'(4) COVENANT AGAINST CONTINGENT FEES.—The parties
warrant that no person or selling agency has been employed
or retained to solicit or secure any contract executed pursuant
to this Contract upon an agreement or understanding for a
commission, percentage, brokerage, or contingent fee, excepting
bona fide employees or bona fide established commercial or
selling agencies maintained by the Contractor for the purpose
of securing business.
" '(f) ATTACHMENTS.—
"'(1) APPROVAL OF CONTRACT.—Unless

previously furnished
to the Secretary, the resolution of the
Indian tribe(s)
authorizing the contracting of the programs, services, functions,
and activities identified in this Contract is attached to this
Contract as attachment 1.
" '(2) ANNUAL FUNDING AGREEMENT.—

"'(A) IN GENERAL.—The annual funding agreement
under this Contract shall only contain— .

108 STAT. 4268

PUBLIC LAW 103-413—OCT. 25, 1994
"'(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) INCORPORATION BY REFERENCE.—The annual
funding agreement is hereby incorporated in its entirety
in this Contract and attached to this Contract as attachment 2.'".

SEC. 104. ADDITIONAL AMENDMENTS.

25 use 450m.

25 use 450m-l.

The Indian Self-Determination and Education Assistance Act
(25 U.S.C. 450 et seq.), as amended by sections 102 and 103,
is further amended—
(1) in section 109—
(A) by inserting after "pursuant to such contract or
grant agreement," the following "or in the management
of trust fund, trust lands or interests in such lands pursuant to such contract or gremt agreement,";
(B) by striking "action as prescribed by him" and all
that follows through "in such cases, he" and inserting the
following: "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";
(C) by inserting after "rescind such contract or grant
agreement" the following: ", in whole or in part,";
(D) by striking the second period after "the tribal
organization may approve"; and
(E) by inserting before the last sentence, the following
new 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.";
(2) in section 110(a), by inserting immediately before the
period at the end the following: "(including immediate injunctive relief to reverse a declination finding under section
102(a)(2) or to compel the Secretary to award and fund an
approved self-determination contract)"; and
(3) in section 110(d), by inserting immediately before the
period at the end the following: ", except that all administrative
appeals relating to such contracts shall be heard by the Interior

PUBLIC LAW 103-413—OCT. 25, 1994

108 STAT. 4269

Board of Contract Appeals established pursuant to section 8
ofsuchAct(41U.S.C. 607)".
,.,.^
,
SEC. 105. REGULATIONS.

The Indian Self-Determination and Education Assistance Act
(25 U.S.C. 450 et seq.), as amended by sections 2 through 4, is
further amended—
(1) by striking subsections (a) and (b) of section 107 and 25USC450k.
inserting the following new subsections:
"(a)(1) Except as may be specifically authorized in this subsection, or in any other provision of this Act, 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 Act relating to
chapter 171 of title 28, United States Code, commonly known as
the 'Federal Tort Claims Act', the Contract Disputes Act of 1978
(41 U.S.C. 601 et seq.), declination and waiver procedures, appeal
procedures, reassumption procedures, discretionary grant procedures for grants awarded under section 103, property donation
procedures arising under section 105(f), internal agency procedures
relating to the implementation of this Act, 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 Act, including
the regulations referred to in this subsection, shall be promulgated—
"(i) in conformance with sections 552 and 553 of title 5,
United States Code 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
Act shall expire if final regulations are not promulgated within
18 months after the date of enactment of the Indian Self-Determination Contract Reform Act of 1994.
"(b) The provisions of this Act shall supersede any conflicting
provisions of law (including any conflicting regulations) in effect
on the day before the date of enactment of the Indian Self-Determination Contract Reform Act of 1994, and the Secretary is authorized to repeal any regulation inconsistent with the provisions of
this Act."; and
(2) by adding at the end of section 107, the following
new subsections:
"(d)(1) In drafting and promulgating regulations as provided
in subsection (a) (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 Act,
the Secretary of the Interior and the Secretary of Health and
Human Services shall follow the guidance of—

108 STAT. 4270

Federal
Register,
publication.

PUBLIC LAW 103-413—OCT. 25, 1994

"(i) subchapter III of chapter 5 of title 5, United States
Code, 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 the date of enactment
of such Act.
"(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 Act.
"(E) If the Secretary determines that an extension of the deadlines under subsection (a)(2)(B) and subparagraph (C) of this paragraph is appropriate, the Secretary may submit proposed legislation
to Congress for the extension of such deadlines.
"(e) The Secretary may, with respect to a contract entered
into under this Act, make exceptions in the regulations promulgated
to carry out this Act, 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 Act, 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
102.".
SEC. 106. CONFORMING AMENDMENTS.

Section 105(h) of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450j(h)) is amended by striking "and
the rules and regulations adopted by the Secretaries of the Interior
and Health and Human Services pursuant to section 107 of this
Act".
Tribal SelfGrovernance Act
of 1994.
25 u s e 450
note.

TITLE II—SELF-GOVERNANCE
SEC. 201. SHORT TITLE.

This title may be cited as the 'Tribal Self-Governance Act
of 1994".
25 u s e 458aa
note.

SEC. 202. FINDINGS.

Congress finds that—

PUBLIC LAW 103-413—OCT. 25, 1994

108 STAT. 4271

(1) the tribal right of self-government flows from the inherent sovereignty of Indian tribes and nations;
(2) the United States recognizes a special govemmentto-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 was
designed to improve and perpetuate the govemment-to-government 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 SelfGovernance 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-govemment 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.
SEC. 203. DECLARATION OF POLICY.

25 USC 458aa

It is the policy of this title 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 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; r
(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.
SEC. 204. TRIBAL SELF-GOVERNANCE.

The Indian Self-Determination and Education Assistance Act
is amended by adding at the end the following new title:

108 STAT. 4272

PUBLIC LAW 103-413—OCT. 25, 1994

"TITLE IV—TRIBAL SELF-GOVERNANCE
25 u s e 458aa.

"SEC. 401. ESTABLISHMENT.

"The Secretary of the Interior (hereinafter in this title referred
to as the 'Secretary') shall establish and carry out a program within
the Department of the Interior to be known as Tribal Self-Governance (hereinafter in this title referred to as 'Self-Governance') in
accordance with this title.
25 u s e 458bb.

"SEC. 402. 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 on the date of
enactment of this title shall thereafter participate in Self-Governance under this title and cease participation in the Tribal SelfGovernance Demonstration Project under title III 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), 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) 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 appUcant pool for SelfGovernance shall consist of each tribe that—
"(1) successfully completes the planning phase described
in subsection (d);
"(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.
25USC458CC.

"SEC. 403. 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, functions, and activities, or portions thereof, administered by the Department of the Interior
through the Bureau of Indian Affairs, without regard to the

PUBLIC LAW 103-413—OCT. 25, 1994

108 STAT. 4273

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), 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) the Act of November 2, 1921 (25 U.S.C. 13); 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 405(c),
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 Community
College Assistance Act of 1978 (25 U.S.C. 1801 et seq.);
"(B) for elementary and secondary schools under the
formula developed pursuant to section 1128 of the Education Amendments of 1978 (25 U.S.C. 2008); 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 102;
"(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 105(e);
"(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—
"(A) shall not be entitled to contract with the Secretary
for such funds under section 102, except that such tribe
shall be eligible for new programs on the same basis as
other tribes; and
•

108 STAT. 4274

PUBLIC LAW 103-413—OCT. 25, 1994

"(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) 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 THE 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 the Office of Federal
Procurement and Policy Act and Federal acquisition regulations
in any funding agreement entered into under this Act. Absent
a negotiated agreement, such provisions and regulatory requirements shall not apply.
"(2) In all construction projects performed pursuant to this
title, 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 entered into under
this section, the Secretary shall provide funding to the tribe to
carry out the agreement.
"(2) The funding agreements authorized by this title 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), the Secretary shall provide funds
to the tribe under an agreement under this title 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 Act, including

PUBLIC LAW 103-413—OCT. 25, 1994

108 STAT. 4275

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 110, the term 'contract' shall include
agreements entered into under this title.
"(2) For the period that an agreement entered into under this
title is in effect, the provisions of section 2103 of the Revised
Statutes of the United States (25 U.S.C. 81), and section 16 of
the Act of June 18, 1934 (25 U.S.C. 476), shall not apply to attorney
and other professional contracts by Indian tribal governments
participating in Self-Governance under this title.
"(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 Act, and all funds provided under
contracts or grants made pursuant to this Act, 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 sections 403(b)(2) and 405(c)(1) 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 section 403(b)(2).
"SEC. 404. BUDGET REQUEST.

"The Secretary shall identify, in the annual budget request
of the President to the Congress under section 1105 of title 31,

/

25 USC 458dd.

108 STAT. 4276

PUBLIC LAW 103-413—OCT. 25, 1994

United States Code, any funds proposed to be included in agreements authorized under this title.
25 u s e 458ee.

Federal
Register,
publication.

Federal
Register,
publication.

"SEC. 405. REPORTS.

"(a) REQUIREMENT.—^The Secretary shall submit to Congress
a written report on January 1 of each year following the date
of enactment of this title regarding the administration of this title.
"(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).
"(c) REPORT ON N O N - B I A PROGRAMS.—(1) In order to optimize
opportunities for including non-Bureau of Indian Affairs programs,
services, functions, and activities, or portions thereof, in agreements
with tribes participating in Self-Governance under this title, 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 the date of enactment
of this title, 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 Self-Governance under
this title, 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
title, 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 403.
"(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 title.
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 Self-Governance under this title, a revised listing and programmatic targets.
"(d) REPORT ON CENTRAL OFFICE FUNDS.—^Within 90 days after
the date of the enactment of this title, the Secretary shall, in
consultation with Indian tribes, develop a funding formula to determine the individual tribal share of funds controlled by the Central

PUBLIC LAW 103-413—OCT. 25, 1994

108 STAT. 4277

Office of the Bureau of Indian Affairs for inclusion in the SelfGovernance compacts. The Secretary shall include such formula
in the annual report submitted to the Congress under subsection
(b), together with the views of the affected Indian tribes.
"SEC. 406. DISCLAIMERS.
"(a)

25 USC 458ff.

OTHER SERVICES, CONTRACTS, AND FUNDS.—Nothing in

this title 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 102 or any other
applicable Federal law.
"(b) FEDERAL TRUST RESPONSIBILITIES.—^Nothing in this Act
shall be construed to diminish the Federal trust responsibility to
Indian tribes, individual Indians, or Indians with trust allotments.
"(c) APPLICATION OF OTHER SECTIONS OF ACT.—^All provisions
of sections 6, 102(c), 104, 105(f), 110, and 111 of this Act shall
apply to agreements provided under this title.
"SEC. 407. REGULATIONS.

"(a) IN GENERAL.—Not later than 90 days after the date of
enactment of this title, at the request of a majority of the Indian
tribes with agreements under this title, the Secretary shall initiate
procedures under subchapter III of chapter 5 of title 5, United
States Code, to negotiate and promulgate such regulations as are
necessary to carry out this title.
"(b) COMMITTEE.—^A negotiated rulemaking committee established pursuant to section 565 of title 5, United States Code, to
carry out this section shall have as its members only Federal
and tribal government representatives, a majority of whom shall
be representatives of Indian tribes with agreements under this
title.
"(c) ADAPTATION OF PROCEDURES.—^The Secretary shall adapt
the negotiated rulemaking procedures to the unique context of
Self-Governance and the government-to-govemment relationship
between the United States and the Indian tribes.
"(d) EFFECT.—^The lack of promulgated regulations shall not
limit the effect of this title.

25 USC 458gg.

108 STAT. 4278
25 u s e 458hh.

PUBLIC LAW 103-413—OCT. 25, 1994

"SEC. 408. AUTHORIZATION OF APPROPRIATIONS.

"There are authorized to be appropriated such sums as may
be necessary to carry out this title.".
Approved October 25, 1994.

LEGISLATIVE HISTCHtY—H.R. 4842:
CONGRESSIONAL RECORD, Vol. 140 (1994):
Oct. 6, considered and passed House.
Oct. 7, considered and passed Senate.