25 Cfr 1000

PART 1000—ANNUAL FUNDING
AGREEMENTS UNDER THE TRIBAL
SELF-GOVERNMENT ACT AMENDMENTS TO THE INDIAN SELF-DETERMINATION AND EDUCATION
ACT
Subpart A—General Provisions
Sec.
1000.1
1000.2
1000.3
1000.4

Authority.
Definitions.
Purpose and scope.
Policy statement.

WITHDRAWAL FROM A CONSORTIUM ANNUAL
FUNDING AGREEMENT

Subpart B—Selection of Additional Tribes
for Participation in Tribal Self-Governance
PURPOSE AND DEFINITIONS
1000.10
1000.11
1000.12
1000.13

What
What
What
What

is the purpose of this subpart?
is the ‘‘applicant pool’’?
is a ‘‘signatory’’?
is a ‘‘nonsignatory Tribe’’?
ELIGIBILITY

1000.14 Who is eligible to participate in
Tribal self-governance?
1000.15 How many additional Tribes/Consortia may participate in self-governance
per year?
1000.16 What criteria must a Tribe/Consortium satisfy to be eligible for admission
to the ‘‘applicant pool’’?
1000.17 What documents must a Tribe/Consortium submit to OSG to apply for admission to the applicant pool?
1000.18 May a Consortium member Tribe
withdraw from the Consortium and become a member of the applicant pool?
1000.19 What is done during the ‘‘planning
phase’’?
1000.20 What is required in a planning report?
1000.21 When does a Tribe/Consortium have
a ‘‘material audit exception’’?
1000.22 What are the consequences of having
a material audit exception?
ADMISSION INTO THE APPLICANT POOL

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1000.28 What happens if an application is
not complete?
1000.29 What happens if a Tribe/Consortium
is selected from the applicant pool but
does not execute a compact and an AFA
during the calendar year?
1000.30 May a Tribe/Consortium be selected
to negotiate an AFA under section
403(b)(2) without having or negotiating
an AFA under section 403(b)(1)?
1000.31 May a Tribe/Consortium be selected
to negotiate an AFA under section 403(c)
without negotiating an AFA under section 403(b)(1) and/or section 403(b)(2)?

1000.23 How is a Tribe/Consortium admitted
to the applicant pool?
1000.24 When does OSG accept applications
to become a member of the applicant
pool?
1000.25 What are the deadlines for a Tribe/
Consortium in the applicant pool to negotiate a compact and annual funding
agreement (AFA)?
1000.26 Under what circumstances will a
Tribe/Consortium be removed from the
applicant pool?
1000.27 How does the Director select which
Tribes in the applicant pool become selfgovernance Tribes?

1000.32 What happens when a Tribe wishes
to withdraw from a Consortium annual
funding agreement?
1000.33 What amount of funding is to be removed from the Consortium’s AFA for
the withdrawing Tribe?
1000.34 What happens if there is a dispute
between the Consortium and the withdrawing Tribe?
1000.35 When a Tribe withdraws from a Consortium, is the Secretary required to
award to the withdrawing Tribe a portion
of funds associated with a construction
project if the withdrawing Tribe so requests?

Subpart C—Section 402(d) Planning and
Negotiation Grants
PURPOSE AND TYPES OF GRANTS
1000.40
1000.41

What is the purpose of this subpart?
What types of grants are available?

AVAILABILITY, AMOUNT, AND NUMBER OF
GRANTS
1000.42 Will grants always be made available
to meet the planning phase requirement
as described in section 402(d) of the Act?
1000.43 May a Tribe/Consortium use its own
resources to meet its self-governance
planning and negotiation expenses?
1000.44 What happens if there are insufficient funds to meet the Tribal requests
for planning/negotiation grants in any
given year?
1000.45 How many grants will the Department make each year and what funding
will be available?
SELECTION CRITERIA
1000.46 Which Tribes/Consortia may be selected to receive a negotiation grant?
1000.47 What must a Tribe/Consortium do to
receive a negotiation grant?
1000.48 What must a Tribe do if it does not
wish to receive a negotiation grant?

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Pt. 1000

25 CFR Ch. VI (4–1–10 Edition)

ADVANCE PLANNING GRANT FUNDING
1000.49 Who can apply for an advance planning grant?
1000.50 What must a Tribe/Consortium seeking a planning grant submit in order to
meet the planning phase requirements?
1000.51 How will Tribes/Consortia know
when and how to apply for planning
grants?
1000.52 What criteria will the Director use
to award advance planning grants?
1000.53 Can Tribes/Consortia that receive
advance planning grants also apply for a
negotiation grant?
1000.54 How will a Tribe/Consortium know
whether or not it has been selected to receive an advance planning grant?
1000.55 Can a Tribe/Consortium appeal within DOI the Director’s decision not to
award a grant under this subpart?

Subpart D—Other Financial Assistance for
Planning and Negotiations Grants for
Non-BIA Programs
PURPOSE AND ELIGIBILITY
1000.60 What is the purpose of this subpart?
1000.61 Are other funds available to self-governance Tribes/Consortia for planning
and negotiating with non-BIA bureaus?

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ELIGIBILITY AND APPLICATION PROCESS
1000.62 Who can apply to OSG for grants to
plan and negotiate non-BIA programs?
1000.63 Under what circumstances may
planning and negotiation grants be
awarded to Tribes/Consortia?
1000.64 How does the Tribe/Consortium,
know when and how to apply to OSG for
a planning and negotiation grant?
1000.65 What kinds of activities do planning
and negotiation grants support?
1000.66 What must be included in the application?
1000.67 How will the Director award planning and negotiation grants?
1000.68 May non-BIA bureaus provide technical assistance to a Tribe/Consortium in
drafting its planning grant application?
1000.69 How can a Tribe/Consortium obtain
comments or selection documents received or utilized after OSG has made a
decision on a planning grant application?
1000.70 What criteria will the Director use
to rank the applications and how many
maximum points can be awarded for each
criterion?
1000.71 Can an applicant appeal a decision
not to award a grant?
1000.72 Will OSG notify Tribes/Consortia
and affected non-BIA bureaus of the results of the selection process?
1000.73 Once a Tribe/Consortium has been
awarded a grant, may the Tribe/Consortium obtain information from a non-BIA
bureau?

Subpart E—Annual Funding Agreements for
Bureau of Indian Affairs Programs
1000.80 What is the purpose of this subpart?
1000.81 What is an annual funding agreement (AFA)?
CONTENTS AND SCOPE OF ANNUAL FUNDING
AGREEMENTS
1000.82 What types of provisions must be included in a BIA AFA?
1000.83 Can additional provisions be included in an AFA?
1000.84 Does a Tribe/Consortium have the
right to include provisions of Title I of
Pub. L. 93–638 in an AFA?
1000.85 Can a Tribe/Consortium negotiate an
AFA with a term that exceeds one year?
DETERMINING WHAT PROGRAMS MAY BE
INCLUDED IN AN AFA
1000.86 What types of programs may be included in an AFA?
1000.87 How does the AFA specify the services provided, functions performed, and
responsibilities assumed by the Tribe/
Consortium and those retained by the
Secretary?
1000.88 Do Tribes/Consortia need Secretarial
approval to redesign BIA programs that
the Tribe/Consortium administers under
an AFA?
1000.89 Can the terms and conditions in an
AFA be amended during the year it is in
effect?
1000.90 What happens if an AFA expires before the effective date of the successor
AFA?
DETERMINING AFA AMOUNTS
1000.91 What funds must be transferred to a
Tribe/Consortium under an AFA?
1000.92 What funds may not be included in
an AFA?
1000.93 May the Secretary place any requirements on programs and funds that
are otherwise available to Tribes/Consortia or Indians for which appropriations are made to agencies other than
DOI?
1000.94 What are BIA residual funds?
1000.95 How is BIA’s residual determined?
1000.96 May a Tribe/Consortium continue to
negotiate an AFA pending an appeal of
residual functions and amounts?
1000.97 What is a Tribal share?
1000.98 How does BIA determine a Tribe’s/
Consortium’s share of funds to be included in an AFA?
1000.99 Can a Tribe/Consortium negotiate a
Tribal share for programs outside its region/agency?
1000.100 May a Tribe/Consortium obtain
funding that is distributed on a discretionary or competitive basis?

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Office of the Assistant Secretary, Interior
1000.101 Are all funds identified as Tribal
shares always paid to the Tribe/Consortium under an AFA?
1000.102 How are savings that result from
downsizing allocated?
1000.103 Do Tribes/Consortia need Secretarial approval to reallocate funds between programs that the Tribe/Consortium administers under the AFA?
1000.104 Can funding amounts negotiated in
an AFA be adjusted during the year it is
in effect?
ESTABLISHING SELF-GOVERNANCE BASE
BUDGETS
1000.105 What are self-governance base
budgets?
1000.106 Once a Tribe/Consortium establishes a base budget, are funding
amounts renegotiated each year?
1000.107 Must a Tribe/Consortium with a
base budget or base budget-eligible program amounts negotiated before January
16, 2001 negotiate new Tribal shares and
residual amounts?
1000.108 How are self-governance base budgets established?
1000.109 How are self-governance base budgets adjusted?

Subpart F—Non-BIA Annual Self-Governance Compacts and Funding Agreements
PURPOSE
1000.120 What is the purpose of this subpart?
1000.121 What is an annual funding agreement for a non-BIA program?

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ELIGIBILITY
1000.122 What non-BIA programs are eligible
for inclusion in an AFA?
1000.123 Are there non-BIA programs for
which the Secretary must negotiate for
inclusion in an AFA subject to such
terms as the parties may negotiate?
1000.124 What programs are included under
section 403(b)(2) of the Act?
1000.125 What programs are included under
section 403(c)?
1000.126 What does ‘‘special geographic, historical or cultural’’ mean?
1000.127 Under section 403(b)(2), when must
programs be awarded non-competitively?
1000.128 Is there a contracting preference
for programs of special geographic, historical, or cultural significance?
1000.129 Are there any programs that may
not be included in an AFA?
1000.130 Does a Tribe/Consortium need to be
identified in an authorizing statute in
order for a program or element of a program to be included in a non-BIA AFA?
1000.131 Will Tribes/Consortia participate in
the Secretary’s determination of what is

Pt. 1000
to be included on the annual list of available programs?
1000.132 How will the Secretary consult
with Tribes/Consortia in developing the
list of available programs?
1000.133 What else is on the list in addition
to eligible programs?
1000.134 May a bureau negotiate with a
Tribe/Consortium for programs not specifically included on the annual section
405(c) list?
1000.135 How will a bureau negotiate an annual funding agreement for a program of
special geographic, historical, or cultural
significance to more than one Tribe?
1000.136 When will this determination be
made?
FUNDING
1000.137 What funds are included in an AFA?
1000.138 How are indirect cost rates determined?
1000.139 Will the established indirect cost
rate always apply to new AFAs?
1000.140 How does the Secretary determine
the amount of indirect contract support
costs?
1000.141 Is there a predetermined cap or
limit on indirect cost rates or a fixed formula for calculating indirect cost rates?
1000.142 Instead of the negotiated indirect
cost rate, is it possible to establish a
fixed amount or another negotiated rate
for indirect costs where funds are limited?
OTHER TERMS AND CONDITIONS
1000.143 May the bureaus negotiate terms to
be included in an AFA for non-Indian
programs?
REALLOCATION, DURATION AND AMENDMENTS
1000.144 Can a Tribe reallocate funds for a
non-BIA non-Indian program?
1000.145 Do Tribes/Consortia need Secretarial approval to reallocate funds between Title-I eligible programs that the
Tribe/Consortium administers under a
non-BIA AFA?
1000.146 Can a Tribe/Consortium negotiate
an AFA with a non-BIA bureau for which
the performance period exceeds one year?
1000.147 Can the terms and conditions in a
non-BIA AFA be amended during the
year it is in effect?
1000.148 What happens if an AFA expires before the effective date of the successor
AFA?

Subpart G—Negotiation Process for Annual
Funding Agreements
PURPOSE
1000.160

What is the purpose of this subpart?

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Pt. 1000

25 CFR Ch. VI (4–1–10 Edition)

NEGOTIATING A SELF-GOVERNANCE COMPACT
1000.161 What is a self-governance compact?
1000.162 What is included in a self-governance compact?
1000.163 Can a Tribe negotiate other terms
and conditions not contained in the
model compact?
1000.164 Can a Tribe/Consortium have an
AFA without entering into a compact?
1000.165 Are provisions in compacts negotiated before January 16, 2001, effective
after implementation?
NEGOTIATION OF INITIAL ANNUAL FUNDING
AGREEMENTS
1000.166 What are the phases of the negotiation process?
1000.167 Who may initiate the information
phase?
1000.168 Is it mandatory to go through the
information phase before initiating the
negotiation phase?
1000.169 How does a Tribe/Consortium initiate the information phase?
1000.170 What is the letter of interest?
1000.171 When should a Tribe/Consortium
submit a letter of interest?
1000.172 What steps does the bureau take
after a letter of interest is submitted by
a Tribe/Consortium?
1000.173 How does a newly selected Tribe/
Consortium initiate the negotiation
phase?
1000.174 How and when does the bureau respond to a request to negotiate?
1000.175 What is the process for conducting
the negotiation phase?
1000.176 What issues must the bureau and
the Tribe/Consortium address at negotiation meetings?
1000.177 What happens when the AFA is
signed?
1000.178 When does the AFA become effective?
1000.179 What happens if the Tribe/Consortium and bureau negotiators fail to reach
an agreement?
NEGOTIATION PROCESS FOR SUCCESSOR
ANNUAL FUNDING AGREEMENTS
1000.180 What is a successor AFA?
1000.181 How does the Tribe/Consortium initiate the negotiation of a successor AFA?
1000.182 What is the process for negotiating
a successor AFA?

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Subpart H—Limitation and/or Reduction of
Services, Contracts, and Funds
1000.190 What is the purpose of this subpart?
1000.191 To whom does this subpart apply?
1000.192 What services, contracts, or funds
are protected under section 406(a)?
1000.193 Who may raise the issue of limitation or reduction of services, contracts,
or funding?

1000.194 When must BIA raise the issue of
limitation or reduction of services, contracts, or funding?
1000.195 When must an affected Tribe/Consortium or Tribal organization raise the
issue of a limitation or reduction of services, contracts, or funding for which it is
eligible?
1000.196 What must be included in a finding
by BIA or in a claim by or an affected
Tribe/Consortium or Tribal organization
regarding the issue of a limitation or reduction of services?
1000.197 How will BIA resolve a claim?
1000.198 How must a limitation or reduction
in services, contracts, or funds be remedied?

Subpart I—Public Consultation Process
1000.210 When does a non-BIA bureau use a
public consultation process related to
the negotiation of an AFA?
1000.211 Will the bureau contact the Tribe/
Consortium before initiating public consultation process for a non-BIA AFA
under negotiation?
1000.212 What is the role of the Tribe/Consortium when a bureau initiates a public
meeting?
1000.213 What should the bureau do if it is
invited to attend a meeting with respect
to the Tribe’s/Consortium’s proposed
AFA?
1000.214 Will the bureau and the Tribe/Consortium share information concerning inquiries about the Tribes/Consortia and
the AFA?

Subpart J—Waiver of Regulations
1000.220 What regulations apply to self-governance Tribes?
1000.221 Can the Secretary grant a waiver of
regulations to a Tribe/Consortium?
1000.222 How does a Tribe/Consortium obtain a waiver?
1000.223 When can a Tribe/Consortium request a waiver of a regulation?
1000.224 How can a Tribe/Consortium expedite the review of a regulation waiver request?
1000.225 Are meetings or discussions mandatory?
1000.226 On what basis may the Secretary
deny a waiver request?
1000.227 What happens if the Secretary denies the waiver request?
1000.228 What are examples of waivers prohibited by law?
1000.229 May a Tribe/Consortium propose a
substitute for a regulation it wishes to
be waived?
1000.230 How is a waiver approval documented for the record?

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1000.231 How does a Tribe/Consortium request a reconsideration of the Secretary’s denial of a waiver?
1000.232 When must DOI respond to a request for reconsideration?

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Subpart K—Construction
1000.240 What construction programs included in an AFA are subject to this subpart?
1000.241 Does this subpart create an agency
relationship?
1000.242 What provisions relating to a construction program may be included in an
AFA?
1000.243 What special provisions must be included in an AFA that contains a construction program?
1000.244 May the Secretary suspend construction activities under an AFA?
1000.245 May a Tribe/Consortium continue
work with construction funds remaining
in an AFA at the end of the funding
year?
1000.246 Must an AFA that contains a construction project or activity incorporate
provisions of Federal construction standards?
1000.247 May the Secretary require design
provisions and other terms and conditions for construction programs or activities included in an AFA under section
403(c) of the Act?
1000.248 What is the Tribe’s/Consortium’s
role in a construction program included
in an AFA?
1000.249 What is the Secretary’s role in a
construction program in an AFA?
1000.250 How are property and funding returned if there is a reassumption for substantial failure to carry out an AFA?
1000.251 What happens when a Tribe/Consortium is suspended for substantial failure
to carry out the terms of an AFA without good cause and does not correct the
failure during the suspension?
1000.252 Do all provisions of other subparts
apply to construction portions of AFAs?
1000.253 When a Tribe withdraws from a
Consortium, is the Secretary required to
award to the withdrawing Tribe a portion
of funds associated with a construction
project if the withdrawing Tribe so requests?
1000.254 May a Tribe/Consortium reallocate
funds from a construction program to a
non-construction program?
1000.255 May a Tribe/Consortium reallocate
funds among construction programs?
1000.256 Must the Secretary retain project
funds to ensure proper health and safety
standards in construction projects?

Subpart L—Federal Tort Claims
1000.270

What does this subpart cover?

Pt. 1000
1000.271 What other statutes and regulations apply to FTCA coverage?
1000.272 Do Tribes/Consortia need to be
aware of areas which FTCA does not
cover?
1000.273 Is there a deadline for filing FTCA
claims?
1000.274 How long does the Federal government have to process a FTCA claim after
the claim is received by the Federal
agency, before a lawsuit may be filed?
1000.275 Is it necessary for a self-governance
AFA to include any clauses about FTCA
coverage?
1000.276 Does FTCA apply to a self-governance AFA if FTCA is not referenced in
the AFA?
1000.277 To what extent shall the Tribe/Consortium cooperate with the Federal government in connection with tort claims
arising out of the Tribe’s/Consortium’s
performance?
1000.278 Does this coverage extend to subcontractors of self-governance AFAs?
1000.279 Is FTCA the exclusive remedy for a
tort claim, including a claim concerning
personal injury or death, resulting from
the performance of a self-governance
AFA?
1000.280 What employees are covered by
FTCA for medical-related claims?
1000.281 Does FTCA cover employees of the
Tribe/Consortium who are paid by the
Tribe/Consortium from funds other than
those provided through the self-governance AFA?
1000.282 May persons who are not Indians or
Alaska Natives assert claims under
FTCA?
1000.283 If the Tribe/Consortium or the
Tribe’s/Consortium’s employee receives a
summons and/or complaint alleging a
tort covered by FTCA, what should a
Tribe/Consortium do?

Subpart M—Reassumption
1000.300 What is the purpose of this subpart?
1000.301 When may the Secretary reassume
a Federal program operated by a Tribe/
Consortium under an AFA?
1000.302 What is ‘‘imminent jeopardy’’ to a
trust asset?
1000.303 What is imminent jeopardy to natural resources?
1000.304 What is imminent jeopardy to public health and safety?
1000.305 In an imminent jeopardy situation,
what must the Secretary do?
1000.306 Must the Secretary always reassume a program, upon a finding of imminent jeopardy?
1000.307 What happens if the Secretary’s
designated representative determines
that the Tribe/Consortium cannot mitigate the conditions within 60 days?

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25 CFR Ch. VI (4–1–10 Edition)

1000.308 What will the notice of reassumption include?
1000.309 How much time will a Tribe/Consortium have to respond to a notice of imminent jeopardy?
1000.310 What information must the Tribe’s/
Consortium’s response contain?
1000.311 How will the Secretary reply to the
Tribe’s/Consortium’s response?
1000.312 What happens if the Secretary accepts the Tribe’s/Consortium’s proposed
measures?
1000.313 What happens if the Secretary does
not accept the Tribe’s/Consortium’s proposed measures?
1000.314 What must a Tribe/Consortium do
when a program is reassumed?
1000.315 When must the Tribe/Consortium
return funds to the Department?
1000.316 May the Tribe/Consortium be reimbursed for actual and reasonable ‘‘wind
up costs’’ incurred after the effective
date of retrocession?
1000.317 Is a Tribe’s/Consortium’s general
right to negotiate an AFA adversely affected by a reassumption action?
1000.318 When will the Secretary return
management of a reassumed program?

Subpart N—Retrocession
1000.330 What is the purpose of this subpart?
1000.331 Is a decision by a Tribe/Consortium
not to include a program in a successor
agreement considered a retrocession?
1000.332 Who may retrocede a program in an
AFA?
1000.333 How does a Tribe/Consortium retrocede a program?
1000.334 When will the retrocession become
effective?
1000.335 How will retrocession affect the
Tribe’s/Consortium’s existing and future
AFAs?
1000.336 Does the Tribe/Consortium have to
return funds used in the operation of a
retroceded program?
1000.337 Does the Tribe/Consortium have to
return property used in the operation of
a retroceded program?
1000.338 What happens to a Tribe’s/Consortium’s mature contractor status if it has
retroceded a program that is also available for self-determination contracting?
1000.339 How does retrocession affect a bureau’s operation of the retroceded program?

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Subpart O—Trust Evaluation Review
1000.350 What is the purpose of this subpart?
1000.351 Does the Tribal Self-Governance
Act of 1994 alter the trust responsibility
of the United States to Indian Tribes and
individuals under self-governance?
1000.352 What are ‘‘trust resources’’ for the
purposes of the trust evaluation process?

1000.353 What are ‘‘trust functions’’ for the
purposes of the trust evaluation process?
ANNUAL TRUST EVALUATIONS
1000.354 What is a trust evaluation?
1000.355 How are trust evaluations conducted?
1000.356 May the trust evaluation process be
used for additional reviews?
1000.357 May the parties negotiate standards of review for purposes of the trust
evaluation?
1000.358 Can an initial review of the status
of the trust asset be conducted?
1000.359 What are the responsibilities of the
Secretary’s designated representative(s)
after the annual trust evaluation?
1000.360 Is the trust evaluation standard or
process different when the trust asset is
held in trust for an individual Indian or
Indian allottee?
1000.361 Will the annual review include a review of the Secretary’s residual trust
functions?
1000.362 What are the consequences of a
finding of imminent jeopardy in the annual trust evaluation?
1000.363 What if the trust evaluation reveals
problems that do not rise to the level of
imminent jeopardy?
1000.364 Who is responsible for corrective
action?
1000.365 What are the requirements of the
review team report?
1000.366 Can the Department conduct more
than one trust evaluation per Tribe per
year?
1000.367 Will the Department evaluate a
Tribe’s/Consortium’s performance of nontrust related programs?

Subpart P—Reports
1000.380 What is the purpose of this subpart?
1000.381 How is information about self-governance developed and reported?
1000.382 What may the Tribe’s/Consortium’s
annual report on self-governance address?

Subpart Q—Miscellaneous Provisions
1000.390 How can a Tribe/Consortium hire a
Federal employee to help implement an
AFA?
1000.391 Can a Tribe/Consortium employee
be detailed to a Federal service position?
1000.392 How does the Freedom of Information Act apply?
1000.393 How does the Privacy Act apply?
1000.394 What audit requirements must a
self-governance Tribe/Consortium follow?
1000.395 Do OMB circulars and revisions
apply to self-governance funding agreements?
1000.396 Does a Tribe/Consortium have additional ongoing requirements to maintain

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Office of the Assistant Secretary, Interior
minimum standards for Tribe/Consortium management systems?
1000.397 Are there any restrictions on how
AFA funds may be spent?
1000.398 May a Tribe/Consortium invest
funds received under a self-governance
agreement?
1000.399 How may interest or investment income that accrues on AFAs be used?
1000.400 Can a Tribe/Consortium retain savings from programs?
1000.401 Can a Tribe/Consortium carry over
funds not spent during the term of the
AFA?
1000.402 After a non-BIA AFA has been executed and the funds transferred to a
Tribe/Consortium, can a bureau request
the return of funds?
1000.403 How can a person or group appeal a
decision or contest an action related to a
program operated by a Tribe/Consortium
under an AFA?
1000.404 Must self-governance Tribes/Consortia comply with the Secretarial approval requirements of 25 U.S.C. 81, 82a,
and 476 regarding professional and attorney contracts?
1000.405 Are AFA funds non-Federal funds
for the purpose of meeting matching requirements?
1000.406 Does Indian preference apply to
services, activities, programs and functions performed under a self-governance
AFA?
1000.407 Do the wage and labor standards in
the Davis-Bacon Act apply to Tribes and
Tribal Consortia?

compact or amendment to an AFA or
compact has been signed?
1000.429 What statutes and regulations govern resolution of disputes concerning
signed AFAs or compacts that are appealed to IBCA?
1000.430 To whom are appeals directed regarding reassumption for imminent jeopardy?
1000.431 Does the Equal Access to Justice
Act (EAJA) apply to appeals under this
subpart?
1000.432 To whom may a Tribe appeal a decision made before the AFA or an amendment to the AFA or compact is signed?
1000.433 When and how must a Tribe/Consortium appeal an adverse pre-award decision?
1000.434 When must the bureau head (or appropriate Assistant Secretary) issue a
final decision in the pre-award appeal?
1000.435 When and how will the Assistant
Secretary respond to an appeal by a
Tribe/Consortium?
1000.436 How may a Tribe/Consortium seek
reconsideration of the Secretary’s decision involving a self-governance compact?
1000.437 When will the Secretary respond to
a request for reconsideration of a decision involving a self-governance compact?
1000.438 May Tribes/Consortia appeal Department decisions to a Federal court?

SUPPLY SOURCES

Subpart S—Conflicts of Interest

1000.408 Can a Tribe/Consortium use Federal
supply sources in the performance of an
AFA?

1000.460 What is an organizational conflict
of interest?
1000.461 What must a Tribe/Consortium do if
an organizational conflict of interest
arises under an AFA?
1000.462 When must a Tribe/Consortium regulate its employees or subcontractors to
avoid a personal conflict of interest?
1000.463 What types of personal conflicts of
interest involving Tribal officers, employees or subcontractors would have to
be regulated by a Tribe/Consortium?
1000.464 What personal conflicts of interest
must the standards of conduct regulate?
1000.465 May a Tribe/Consortium negotiate
AFA provisions on conflicts of interest
to take the place of this subpart?

PROMPT PAYMENT ACT
1000.409 Does the Prompt Payment Act (31
U.S.C. 3901) apply to a non-BIA, non-Indian program AFA?
SUBPART R—APPEALS

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Pt. 1000

1000.420 What does ‘‘Title-I eligible programs’’ mean in this subpart?
1000.421 What is the purpose of this subpart?
1000.422 How must disputes be handled?
1000.423 Are there any decisions that are not
administratively appealable under this
subpart?
1000.424 Does a Tribe/Consortium have a
right to an informal conference to resolve any disputes?
1000.425 How does a Tribe/Consortium request an informal conference?
1000.426 How is an informal conference held?
1000.427 What happens after the informal
conference?
1000.428 How may a Tribe/Consortium appeal a decision made after the AFA or

APPENDIX A TO PART 1000—MODEL COMPACT
OF SELF-GOVERNANCE BETWEEN THE TRIBE
AND THE DEPARTMENT OF THE INTERIOR
AUTHORITY: 25 U.S.C. 458aa–gg.
SOURCE: 65 FR 78703, Dec. 15, 2000, unless
otherwise noted.

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§ 1000.1

25 CFR Ch. VI (4–1–10 Edition)

Subpart A—General Provisions

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§ 1000.1 Authority.
This part is prepared and issued by
the Secretary of the Interior under the
negotiated rulemaking procedures in 5
U.S.C. 565.
§ 1000.2 Definitions.
403(c) Program means a non-BIA program eligible under section 403(c) of
the Indian Self-Determination and
Education Assistance Act of 1975, as
amended, 25 U.S.C. 450 et seq. and, specifically, a program, function, service,
or activity that is of special geographic, historical or cultural significance to a self-governance Tribe/Consortium. These programs may be referred to, also, as ‘‘nexus’’ programs.
Act means the Tribal Self-Governance Act, Title IV of the Indian SelfDetermination and Education Assistance Act of 1975, Pub. L. 93–638, as
added by Pub. L. 103–413, amended by
Pub. L. 104–109, as amended.
Applicant pool means Tribes/Consortia that the Director of the Office of
Self-Governance has determined are eligible to participate in self-governance
in accordance with § 1000.16 of these
regulations.
BIA means the Bureau of Indian Affairs of the Department of the Interior.
BIA Program means any program,
service, function, or activity, or portion thereof, that is performed or administered by the Department through
the Bureau of Indian Affairs.
Bureau means a bureau or office of
the Department of the Interior.
Compact means an executed document that affirms the government-togovernment relationship between a
self-governance Tribe and the United
States. The compact differs from an
annual funding agreement (AFA) in
that parts of the compact apply to all
bureaus within the Department of the
Interior rather than a single bureau.
Consortium means an organization of
Indian Tribes that is authorized by
those Tribes to participate in self-governance under this part and is responsible for negotiating, executing, and
implementing annual funding agreements and compacts.
Construction
management
services
(CMS) means activities limited to ad-

ministrative support services, coordination, oversight of engineers and construction activities. CMS services include services that precede project design: all project design and actual construction activities are subject to Subpart K of these regulations whether
performed by a Tribe subcontractor, or
consultant.
Days means calendar days, except
where the last day of any time period
specified in this part falls on a Saturday, Sunday, or a Federal holiday, the
period must carry over to the next
business day unless otherwise prohibited by law.
Director means the Director of the Office of Self-Governance (OSG).
DOI or Department means the Department of the Interior.
Funding year means either fiscal or
calendar year.
Indian means a person who is a member of an Indian Tribe.
Indian Tribe or Tribe means any Indian Tribe, band, nation or other organized group or community, including
pueblos, rancherias, colonies and any
Alaska Native village, or regional or
village corporations as defined in or established pursuant to the Alaska Native Claims Settlement Act, that is
recognized as eligible for special programs and services provided by the
United States to Indians because of
their status as Indians.
Indirect cost rates means the rate(s)
arrived at through negotiation between
an Indian Tribe/Consortium and the appropriate Federal agency.
Indirect costs means costs incurred for
a common or joint purpose benefitting
more than one program and that are
not readily assignable to individual
programs.
Nexus Program means a 403(c) Program as defined in this section.
Non-BIA Bureau means any bureau or
office within the Department of the Interior other than the Bureau of Indian
Affairs.
Non-BIA programs means those programs administered by bureaus or offices other than the Bureau of Indian
Affairs within the Department of the
Interior.

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Office of the Assistant Secretary, Interior

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Office of Self-Governance (OSG) means
the office within the Office of the Assistant Secretary-Indian Affairs responsible for the implementation and
development of the Tribal Self-Governance Program.
Program means any program, service,
function, or activity, or portions of
programs administered by a bureau
within the Department of the Interior.
Pub. L. 93–638 means sections 1–9 and
Title I of the Indian Self-Determination and Education Assistance Act of
1975, as amended.
Reassumption means that the Secretary reassumes control or operation
of a program under § 1000.300 et seq.
Retained Tribal shares means those
funds that were available as a Tribal
share but under the AFA were left with
BIA to administer.
Retrocession means the voluntary return by a Tribe/Consortium to a bureau
of a program operated under an AFA
before the agreement expires.
Secretary means the Secretary of the
Interior (DOI) or his or her designee
authorized to act on the behalf of the
Secretary as to the matter at hand.
Self-governance
Tribe/Consortium
means a Tribe or Consortium that participates in permanent self-governance
through application and selection from
the applicant pool or has participated
in the Tribal self-governance demonstration project. May also be referred to as ‘‘participating Tribe/Consortium.’’
Successor AFA means a funding agreement negotiated after a Tribe’s/Consortium’s initial agreement with a bureau
for continuing to perform a particular
program. The parties to the AFA
should generally use the terms of the
existing AFA to expedite and simplify
the exchange of information and the
negotiation process.
Tribal share means the amount determined for that Tribe/Consortium for a
particular program at BIA region,
agency, and central office levels under
sec. 403(g)(3) and 405(d) of the Act.
§ 1000.3 Purpose and scope.
(a) General. This part codifies uniform and consistent rules for the Department of the Interior (DOI) in implementing Title IV of the Indian SelfDetermination and Education Assist-

§ 1000.4
ance Act (ISDEA) Public Law 93–638, 25
U.S.C. 450 et seq., as amended by Title
II of Pub. L. 103–413, the Tribal SelfGovernance Act of 1994 (108 Stat. 4250,
October 25, 1994).
(b) Information Collection. The information provided by the Tribes will be
used by the Department for a variety
of purposes. The first purpose will be to
ensure that qualified applicants are admitted into the applicant pool consistent with the requirements of the
Act. In addition, Tribes seeking grant
assistance to meet the planning requirements for admission into the applicant pool, will provide information
so that grants can be awarded to Tribes
meeting basic eligibility (i.e. Tribal
resolution indicating that the Tribe
wants to plan for Self-Governance and
has no material audit exceptions for
the last three years of audits). There is
no confidential information being solicited and confidentiality is not extended under the law. Other documentation is required to meet the reporting requirements as called for in
section 405 of the Act. The information
being provided by the Tribes is required to obtain a benefit, however, no
person is required to respond to an information collection request unless the
form or regulation requesting the information has a currently valid OMB
control (clearance) number. Comments
were solicited from the Tribes and the
general public with respect to this collection. No adverse comments were received. The information collection has
been cleared by OMB. The number is
OMB control #1076–0143. The approval
expires on April 30, 2003.
§ 1000.4

Policy statement.

(a) Congressional findings. In the Tribal Self-Governance Act of 1994, the
Congress found that:
(1) The Tribal right of self-governance flows from the inherent sovereignty of Indian Tribes and nations;
(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 statues, and the
course of dealings of the United States
with Indian Tribes;

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§ 1000.4

25 CFR Ch. VI (4–1–10 Edition)

(3) Although progress had been made,
the Federal bureaucracy, with its centralized rules and regulations, had
eroded Tribal self-governance and
dominated Tribal affairs;
(4) The Tribal Self-Governance Demonstration Project was designed to improve and perpetuate the governmentto-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 Self-Governance demonstration project and finds that:
(i) Transferring control over funding
and decision making to Tribal governments, upon Tribal request, for Federal
programs is an effective way to implement the Federal policy of government-to-government relations with Indian Tribes; and
(ii) Transferring control over funding
and decision making to Tribal governments, upon request, for Federal programs strengthens the Federal policy
of Indian self-determination.
(b) Congressional declaration of policy.
It is the policy of the Tribal Self-Governance Act to permanently establish
and implement 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 Tribe to choose
the extent of its participation in selfgovernance;
(3) To coexist with the provisions of
the Indian Self-Determination and
Education Assistance 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;
(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.
(c) Secretarial self-governance policies.
(1) It is the policy of the Secretary to
fully support and implement the foregoing policies to the full extent of the
Secretary’s authority.
(2) It is the policy of the Secretary to
recognize and respect the unique government-to-government
relationship
between Tribes, as sovereign governments, and the United States.
(3) It is the policy of the Secretary to
have all bureaus of the Department
work cooperatively and pro-actively
with Tribes and Tribal Consortia on a
government-to-government basis within the framework of the Act and any
other applicable provision of law, so as
to make the ideals of self-determination and self-governance a reality.
(4) It is the policy of the Secretary to
have all bureaus of the Department actively share information with Tribes
and Tribal Consortia to encourage
Tribes and Tribal Consortia to become
knowledgeable about the Department’s
programs and the opportunities to include them in an annual funding agreement.
(5) It is the policy of the Secretary
that all bureaus of the Department will
negotiate in good faith, interpret each
applicable Federal law and regulation
in a manner that will facilitate the inclusion of programs in each annual
funding agreement authorized, and
enter into such annual funding agreements under Title IV, whenever possible.
(6) It is the policy of the Secretary to
afford Tribes and Tribal Consortia the
maximum flexibility and discretion
necessary to meet the needs of their
communities consistent with their diverse demographic, geographic, economic, cultural, health, social, religious, and institutional needs. These
policies are designed to facilitate and
encourage Tribes and Tribal Consortia
to participate in the planning, conduct,
and administration of those Federal
programs, included, or eligible for inclusion in an annual funding agreement.
(7) It is the policy of the Secretary,
to the extent of the Secretary’s authority, to maintain active communication
with Tribal governments regarding

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Office of the Assistant Secretary, Interior
budgetary matters applicable to programs subject to the Act, and that are
included in an individual self-governance annual funding agreement.
(8) It is the policy of the Secretary to
implement policies, procedures, and
practices at the Department to ensure
that the letter, spirit, and goals of the
Tribal Self-Governance Act are fully
and successfully implemented.
(9) Executive Order 13084 on Consultation and Coordination with Indian
Tribal Governments and any subsequent Executive Orders regarding consultation will apply to the implementation of these regulations.

Subpart B—Selection of Additional
Tribes for Participation in Tribal
Self-Governance
PURPOSE AND DEFINITIONS
§ 1000.10 What is the purpose of this
subpart?
This subpart describes the selection
process and eligibility criteria that the
Secretary uses to decide that Indian
Tribes may participate in Tribal selfgovernance as authorized by section 402
of the Tribal Self-Governance Act of
1994.
§ 1000.11

What is the ‘‘applicant pool’’?

The applicant pool is the pool of
Tribes/Consortia that the Director of
the Office of Self-Governance has determined are eligible to participate in
self-governance.
§ 1000.12

What is a ‘‘signatory’’?

A signatory is a Tribe or Consortium
that meets the eligibility criteria in
§ 1000.16 and directly signs the agreements. A signatory may exercise all of
the rights and responsibilities outlined
in the compact and annual funding
agreement and is legally responsible
for all financial and administrative decisions made by the signatory.

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§ 1000.13 What
Tribe’’?

is

a

‘‘nonsignatory

(a) A nonsignatory Tribe is a Tribe
that either:
(1) Does not meet the eligibility criteria in § 1000.16 and, by resolution of
its governing body, authorizes a Con-

§ 1000.17
sortium to participate in self-governance on its behalf.
(2) Meets the eligibility criteria in
§ 1000.16 but chooses to be a member of
a Consortium and have a representative of the Consortium sign the compact and AFA on its behalf.
(b) A non-signatory tribe under paragraph (a)(1) of this section:
(1) May not sign the compact and
AFA. A representative of the Consortium must sign both documents on behalf of the Tribe.
(2) May only become a ‘‘signatory
Tribe’’ if it independently meets the
eligibility criteria in § 1000.16.
ELIGIBILITY
§ 1000.14 Who is eligible to participate
in Tribal self-governance?
Two types of entities are eligible to
participate in Tribal self-governance:
(a) Indian Tribes; and
(b) Consortia of Indian Tribes.
§ 1000.15 How many additional Tribes/
Consortia may participate in selfgovernance per year?
(a) Sections 402(b) and (c) of the Act
authorize the Director to select up to
50 additional Indian Tribes per year
from an ‘‘applicant pool’’. A Consortium of Indian Tribes counts as one
Tribe for purposes of calculating the 50
additional Tribes per year.
(b) Any signatory Tribe that signed a
compact and AFA under the Tribal
Self-Governance
Demonstration
project may negotiate its own compact
and AFA in accordance with this subpart without being counted against the
50-Tribe limitation in any given year.
§ 1000.16 What criteria must a Tribe/
Consortium satisfy to be eligible for
admission to the ‘‘applicant pool’’?
To be admitted into the applicant
pool, a Tribe/Consortium must either
be an Indian Tribe or a Consortium of
Indian Tribes and comply with § 1000.17.
§ 1000.17 What documents must a
Tribe/Consortium submit to OSG to
apply for admission to the applicant pool?
In addition to the application required by § 1000.23, the Tribe/Consortium must submit to OSG documentation that shows all of the following:

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§ 1000.18

25 CFR Ch. VI (4–1–10 Edition)

(a) Successful completion of a planning
phase and a planning report. The requirements for both of these are described in § 1000.19 and § 1000.20. A Consortium’s planning activities satisfy
this requirement for all its member
Tribes for the purpose of the Consortium meeting this requirement;
(b) A request for participation in selfgovernance by a Tribal resolution and/or
a final official action by the Tribal governing body. For a Consortium, the governing body of each Tribe must authorize its participation by a Tribal resolution and/or a final official action by the
Tribal governing body that specifies
the scope of the Consortium’s authority to act on behalf of the Tribe.
(c) A demonstration of financial stability and financial management capability for the previous 3 fiscal years. This
will be done by providing, as part of
the application, an audit report prepared in accordance with procedures
promulgated under the Single Audit
Act Amendments of 1996, 31 U.S.C. 7501,
et seq., for the previous 3 years of the
self-determination contracts. These audits must not contain material audit
exceptions as defined in § 1000.21.

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§ 1000.18 May a Consortium member
Tribe withdraw from the Consortium and become a member of the
applicant pool?
In accordance with the expressed
terms of the compact or written agreement of the Consortium, a Consortium
member Tribe (either a signatory or
nonsignatory Tribe) may withdraw
from the Consortium to directly negotiate a compact and AFA. The withdrawing Tribe must do the following.
(a) Independently meet all of the eligibility criteria in §§ 1000.14 through
1000.20. If a Consortium’s planning activities and report specifically consider
self-governance activities for a member
Tribe, that planning activity and report may be used to satisfy the planning requirements for the member
Tribe if it applies for self-governance
status on its own.
(b) Submit a notice of withdrawal to
OSG and the Consortium as evidenced
by a resolution of the Tribal governing
body.

§ 1000.19 What is done
‘‘planning phase’’?

during

The Act requires that all Tribes/Consortia seeking to participate in Tribal
self-governance complete a planning
phase. During the planning phase, the
Tribe/Consortium must conduct legal
and budgetary research and internal
Tribal government and organizational
planning. The availability of BIA grant
funds for planning activities will be in
accordance with subpart C. The planning phase may be completed without a
planning grant.
§ 1000.20 What is required in a planning report?
As evidence that the Tribe/Consortium has completed the planning
phase, the Tribe/Consortium must prepare and submit to the Secretary a
final planning report.
(a) The planning report must:
(1) Identify BIA and non-BIA programs that the Tribe/Consortium may
wish to subsequently negotiate for inclusion in a compact and AFA;
(2) Describe the Tribe’s/Consortium’s
planning activities for both BIA and
non-BIA programs that may be negotiated;
(3) Identify the major benefits derived from the planning activities;
(4) Identify the process that the
Tribe/Consortium will use to resolve
any complaints by service recipients;
(5) Identify any organizational planning that the Tribe/Consortium has
completed in anticipation of implementing Tribal self-governance; and
(6) Indicate if the Tribe’s/Consortium’s planning efforts have revealed
that its current organization is adequate to assume programs under Tribal
self-governance.
(b) In supplying the information required by paragraph (a)(5) of this section:
(1) For BIA programs, a Tribe/Consortium should describe the process that
it will use to debate and decide the setting of priorities for the funds it will
receive from its AFA.
(2) For non-BIA programs that the
Tribe/Consortium may wish to negotiate, the report should describe how
the Tribe/Consortium proposes to perform the programs.

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Office of the Assistant Secretary, Interior
§ 1000.21 When does a Tribe/Consortium have a ‘‘material audit exception’’?
A Tribe/Consortium has a material
audit exception if any of the audits
that it submitted under § 1000.17(c)
identifies:
(a) A material weakness, that is a
condition in which the design or operation of one or more of the internal
control components does reduce to a
relatively low level the risk that
misstatements in amounts that would
be material in relation to the financial
statements being audited may occur
and not be detected within a timely period by employees in the normal course
of performing their assigned functions;
(b) a single finding of known questioned costs subsequently disallowed
by a contracting officer or awarding official that exceeds $10,000. If the audits
submitted under § 1000.17(c) identify
any of the conditions described in this
section, the Tribe/Consortium must
also submit copies of the contracting
officer’s findings and determinations.
§ 1000.22 What are the consequences of
having a material audit exception?
If a Tribe/Consortium has a material
audit exception, the Tribe/Consortium
is ineligible to participate in self-governance until the Tribe/Consortium
meets the eligibility criteria in
§ 1000.16.
ADMISSION INTO THE APPLICANT POOL
§ 1000.23 How is a Tribe/Consortium
admitted to the applicant pool?

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To be considered for admission in the
applicant pool, a Tribe/Consortium
must submit an application to the Director, Office of Self-Governance, 1849
C Street NW; MS 2542–MIB; Department of the Interior; Washington, DC
20240. The application must contain the
documentation required in § 1000.17.
§ 1000.24 When does OSG accept applications to become a member of the
applicant pool?
OSG accepts applications to become
a member of the applicant pool at any
time.

§ 1000.28
§ 1000.25 What are the deadlines for a
Tribe/Consortium in the applicant
pool to negotiate a compact and annual funding agreement (AFA)?
(a) To be considered for negotiations
in any year, a Tribe/Consortium must
be a member of the applicant pool on
March 1 of the year in which the negotiations are to take place.
(b) An applicant may be admitted
into the applicant pool during one year
and selected to negotiate a compact
and AFA in a subsequent year. In this
case, the applicant must, before March
1 of the negotiation year, submit to
OSG updated documentation that permits OSG to evaluate whether the
Tribe/Consortium still satisfies the application criteria in 1000.17.
§ 1000.26 Under what circumstances
will a Tribe/Consortium be removed
from the applicant pool?
Once admitted into the applicant
pool, a Tribe/Consortium will only be
removed if it:
(a) Fails to satisfy the audit criteria
in § 1000.17(c); or
(b) Submits to OSG a Tribal resolution and/or official action by the Tribal
governing body requesting removal.
§ 1000.27 How does the Director select
which Tribes in the applicant pool
become self-governance Tribes?
The Director selects up to the first 50
Tribes from the applicant pool in any
given year ranked according to the earliest postmark date of complete applications. If multiple complete applications have the same postmark date and
there are insufficient slots available
for that year, the Director will determine priority through random selection. A representative of each Tribe/
Consortium that has submitted an application subject to random selection
may, at the option of the Tribe/Consortium, be present when the selection is
made.
§ 1000.28 What happens if an application is not complete?
(a) If OSG determines that a Tribe’s/
Consortium’s application is deficient,
OSG will immediately notify the Tribe/
Consortium of the deficiency by letter,
certified mail, return receipt requested. The letter will explain what

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§ 1000.29

25 CFR Ch. VI (4–1–10 Edition)

the Tribe/Consortium must do to correct the deficiency.
(b) The Tribe/Consortium will have 20
working days from the date of receiving the letter to mail or telefax the
corrected material and retain the applicant’s original postmark.
(c) If the corrected material is deficient, the date of entry into the applicant pool will be the date the complete
application is postmarked.
(d) If the postmark or date on the applicant’s response letter or telefax is
more than 20 working days after the
date the applicant received the noticeof-deficiency letter, the date of entry
into the applicant pool will be the date
of full receipt of a completed application.
§ 1000.29 What happens if a Tribe/Consortium is selected from the applicant pool but does not execute a
compact and an AFA during the calendar year?
(a) The Tribe/Consortium remains eligible to negotiate a compact and annual funding agreement at any time
unless:
(1) It notifies the Director in writing
that it no longer wishes to be eligible
to participate in the Tribal Self-Governance Program;
(2) Fails to satisfy the audit requirements of § 1000.17(c); or
(3) Submits documentation evidencing a Tribal resolution requesting removal from the application pool.
(b) The failure of the Tribe/Consortium to execute an agreement has no
effect on the selection of up to 50 additional Tribes/Consortia in a subsequent
year.

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§ 1000.30 May a Tribe/Consortium be
selected to negotiate an AFA under
section 403(b)(2) without having or
negotiating an AFA under section
403(b)(1)?
Yes, a Tribe/Consortium may be selected to negotiate an AFA under section 403(b)(2) without having or negotiating an AFA under section 403(b)(1).

§ 1000.31 May a Tribe/Consortium be
selected to negotiate an AFA under
section 403(c) without negotiating
an AFA under section 403(b)(1) and/
or section 403(b)(2)?
No, section 403(c) of the Act states
that any programs of special geographic, cultural, or historical significance to the Tribe/Consortium must be
included in AFAs negotiated under section 403(a) and/or section 403(b). A
Tribe may be selected to negotiate an
AFA under section 403(c) at the same
time that it negotiates an AFA under
section 403(b)(1) and/or section 403(b)(2).
WITHDRAWAL FROM A CONSORTIUM
ANNUAL FUNDING AGREEMENT
§ 1000.32 What happens when a Tribe
wishes to withdraw from a Consortium annual funding agreement?
(a) A Tribe wishing to withdraw from
a Consortium’s AFA must notify the
Consortium, bureau, and OSG of the intent to withdraw. The notice must be:
(1) In the form of a Tribal resolution
or other official action by the Tribal
governing body; and
(2) Received no later than 180 days
before the effective date of the next
AFA.
(b) The resolution referred to in paragraph (a)(1) of this section must indicate whether the Tribe wishes the
withdrawn programs to be administered under a Title IV AFA, Title I
contract, or directly by the bureau.
(c) The effective date of the withdrawal will be the date on which the
current agreement expires, unless the
Consortium, the Tribe, OSG, and the
appropriate bureau agree otherwise.
§ 1000.33 What amount of funding is to
be removed from the Consortium’s
AFA for the withdrawing Tribe?
When a Tribe withdraws from a Consortium, the Consortium’s AFA must
be reduced by the portion of funds attributable to the withdrawing Tribe.
The Consortium must reduce the AFA
on the same basis or methodology upon
which the funds were included in the
Consortium’s AFA.
(a) If there is not a clear identifiable
methodology upon which to base the
reduction for a particular program, the

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Office of the Assistant Secretary, Interior
Consortium, Tribe, OSG, and the bureau must negotiate an appropriate
amount on a case-by-case basis.
(b) If a Tribe withdraws in the middle
of a funding year, the Consortium
agreement must be amended to reflect:
(1) A reduction based on the amount
of funds passed directly to the Tribe, or
already spent or obligated by the Consortium on behalf of the Tribe; and
(2) That the Consortium is no longer
providing those programs associated
with the withdrawn funds.
(c) Carryover funds from a previous
fiscal year may be factored into the
amount by which the Consortium
agreement is reduced if:
(1) The Consortium, Tribe, OSG, and
bureau agree it is appropriate; and
(2) The funds are clearly identifiable.
§ 1000.34 What happens if there is a
dispute between the Consortium
and the withdrawing Tribe?
(a) At least 15 days before the 90-day
Congressional review period of the next
AFA, the Consortium, OSG, bureau,
and the withdrawing Tribe must reach
an agreement on the amount of funding
and other issues associated with the
program or programs involved.
(b) If agreement is not reached:
(1) For BIA and OIEP programs, at
least 5 days before the 90-day Congressional review, the Director must make
a decision on the funding or other
issues involved.
(2) For non-BIA programs, the bureau
head will make a decision on the funding or other issues involved.
(c) A copy of the decision made under
paragraph (b) of this section must be
distributed in accordance with the following table.
If the program is
. . .

then a copy of the decision must be
sent to . . .

(1) A BIA program ..

BIA regional director, the Deputy Commissioner of Indian Affairs, the withdrawing Tribe, and the Consortium.
the OIEP line officer, the Director of
OIEP, the withdrawing Tribe, and the
Consortium.

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(2) An OIEP program.

(d) Any decision made under paragraph (b) of this section is appealable
under subpart R of this part.

§ 1000.41
§ 1000.35 When a Tribe withdraws
from a Consortium, is the Secretary
required to award to the withdrawing Tribe a portion of funds
associated with a construction
project if the withdrawing Tribe so
requests?
Under § 1000.32 of this part, a Tribe
may withdraw from a Consortium and
request that the Secretary award the
Tribe its portion of a construction
project’s funds. The Secretary may decide not to award these funds if the
Secretary determines that the award of
the withdrawing Tribe’s portion of
funds would affect the ability of the remaining members of the Consortium to
complete a severable or non-severable
phase of the project within available
funding.
(a) An example of a non-severable
phase of a project would be the construction of a single building to serve
all members of a Consortium.
(b) An example of a severable phase
of a project would be the funding of a
road in one village where the Consortium would be able to complete the
roads in other villages that were part
of the project approved initially in the
AFA.
(c) The Secretary’s decision under
this section may be appealed under
§ 1000.428 of these regulations.

Subpart C—Section 402(d)
Planning and Negotiation Grants
PURPOSE AND TYPES OF GRANTS
§ 1000.40 What is the purpose of this
subpart?
This subpart describes the availability and process of applying for
planning and negotiation grants authorized by section 402(d) of the Act to
help Tribes meet costs incurred in:
(a) Meeting the planning phase requirement of the Act, including planning to negotiate for non-BIA programs; and
(b) Conducting negotiations.
§ 1000.41 What types of grants are
available?
Three categories of grants may be
available:
(a) Negotiation grants may be awarded to the Tribes/Consortia that have

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§ 1000.42

25 CFR Ch. VI (4–1–10 Edition)

been selected from the applicant pool
as described in subpart B of this part;
(b) Planning grants may be available
to Tribes/Consortia requiring advance
funding to meet the planning phase requirement of the Act; and
(c) Financial assistance may be
available to Tribes/Consortia to plan
for negotiating for non-BIA programs,
as described in subpart D and §§ 1000.42–
1000.45 of this subpart.
AVAILABILITY, AMOUNT, AND NUMBER OF
GRANTS
§ 1000.42 Will grants always be made
available to meet the planning
phase requirement as described in
section 402(d) of the Act?
No, grants to cover some or all of the
planning costs that a Tribe/Consortium
may incur, depend upon the availability of funds appropriated by Congress. Notice of availability of grants
will be published in the FEDERAL REGISTER as described in § 1000.45.
§ 1000.43 May a Tribe/Consortium use
its own resources to meet its selfgovernance planning and negotiation expenses?
Yes, a Tribe/Consortium may use its
own resources to meet these costs. Receiving a grant is not necessary to
meet the planning phase requirement
of the Act or to negotiate a compact
and an AFA.

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§ 1000.44 What happens if there are insufficient funds to meet the Tribal
requests for planning/negotiation
grants in any given year?
If appropriated funds are available
but insufficient to meet the total requests from Tribes/Consortia:
(a) First priority will be given to
Tribes/Consortia that have been selected from the applicant pool to negotiate an AFA; and
(b) Second priority will be given to
Tribes/Consortia that require advance
funds to meet the planning requirement for entry into the self-governance
program.
§ 1000.45 How many grants will the
Department make each year and
what funding will be available?
The number and size of grants awarded each year will depend on Congres-

sional appropriations and Tribal interest. By no later than January 1 of each
year, the Director will publish a notice
in the FEDERAL REGISTER that provides
relevant details about the application
process, including the funds available,
timeframes, and requirements for negotiation grants, advance planning
grants, and financial assistance as described in subpart D of this part.
SELECTION CRITERIA
§ 1000.46 Which Tribes/Consortia may
be selected to receive a negotiation
grant?
Any Tribe/Consortium that has been
accepted into the applicant pool and
has been accepted to negotiate a selfgovernance AFA may apply for a negotiation grant. By March 15 of each
year, the Director will publish a list of
additional Tribes/Consortia that have
been selected for negotiation along
with information on how to apply for
negotiation grants.
§ 1000.47 What must a Tribe/Consortium do to receive a negotiation
grant?
If funds are available, a grant will be
awarded to help cover the costs of preparing for and negotiating a compact
and an AFA. These grants are not competitive. To receive a negotiation
grant, a Tribe/Consortium must:
(a) Be selected from the applicant
pool to negotiate an AFA;
(b) Be qualified as eligible to receive
a negotiation grant in the FEDERAL
REGISTER notice discussed in § 1000.45;
(c) Not have received a negotiation
grant within the 3 years preceding the
date of the latest FEDERAL REGISTER
announcement;
(d) Submit a letter affirming its
readiness to negotiate; and
(e) Formally request a negotiation
grant to prepare for and negotiate an
AFA.
§ 1000.48 What must a Tribe do if it
does not wish to receive a negotiation grant?
A selected Tribe/Consortium may
elect to negotiate without applying for
a negotiation grant. In such a case, the
Tribe/Consortium should notify OSG in
writing so that funds can be reallocated for other grants.

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Office of the Assistant Secretary, Interior
ADVANCE PLANNING GRANT FUNDING
§ 1000.49 Who can apply for an advance planning grant?
Any Tribe/Consortium that is not a
self-governance Tribe and needs advance funding to complete the planning phase requirement may apply.
Tribes/Consortia that have received a
planning grant within 3 years preceding the date of the latest FEDERAL
REGISTER announcement are not eligible.

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§ 1000.50 What must a Tribe/Consortium seeking a planning grant submit in order to meet the planning
phase requirements?
A Tribe/Consortium must submit the
following material:
(a) A Tribal resolution or other final
action of the Tribal governing body indicating a desire to plan for Tribal selfgovernance.
(b) Audits from the last 3 years that
document that the Tribe/Consortium is
free from material audit exceptions. In
order to meet this requirement, a
Tribe/Consortium may use the audit
currently being conducted on its operations if this audit is submitted before
the Tribe/Consortium completes the
planning activity.
(c) A proposal that includes:
(1) The Tribe’s/Consortium’s plans for
conducting legal and budgetary research;
(2) The Tribe’s/Consortium’s plans for
conducting internal Tribal government
and organizational planning;
(3) A timeline indicating when planning will start and end, and;
(4) Evidence that the Tribe/Consortium can perform the tasks associated
with its proposal (i.e., resumes and position descriptions of key staff or consultants to be used).
§ 1000.51 How will Tribes/Consortia
know when and how to apply for
planning grants?
The number and size of grants awarded each year will depend on Congressional appropriations. By no later than
January 1 of each year, the Director
will publish in the FEDERAL REGISTER a
notice concerning the availability of
planning grants for additional Tribes.
This notice must identify the specific
details for applying.

§ 1000.55
§ 1000.52 What criteria will the Director use to award advance planning
grants?
Advance planning grants are discretionary and based on need. The Director will use the following criteria to
determine whether or not to award a
planning grant to a Tribe/Consortium
before the Tribe/Consortium is selected
into the applicant pool.
(a) Completeness of application as described in § 1000.50.
(b) Financial need. The Director will
rank applications according to the percent of Tribal resources that comprise
total resources covered by the latest
A–133 audit. Priority will be given to
applications that have a lower level of
Tribal resources as a percent of total
resources.
(c) Other factors that the Tribe may
identify as documenting its previous
efforts to participate in self-governance and demonstrating its readiness
to enter into a self-governance agreement.
§ 1000.53 Can Tribes/Consortia that receive advance planning grants also
apply for a negotiation grant?
Yes, Tribes/Consortia that successfully complete the planning activity
and are selected may apply to be included in the applicant pool. Once approved for inclusion in the applicant
pool, the Tribe/Consortium may apply
for a negotiation grant according to
the process in §§ 1000.46–1000.48.
§ 1000.54 How will a Tribe/Consortium
know whether or not it has been selected to receive an advance planning grant?
No later than June 1, the Director
will notify the Tribe/Consortium by
letter whether it has been selected to
receive an advance planning grant.
§ 1000.55 Can a Tribe/Consortium appeal within DOI the Director’s decision not to award a grant under
this subpart?
No, the Director’s decision to award
or not to award a grant under this subpart is final for the Department.

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§ 1000.60

25 CFR Ch. VI (4–1–10 Edition)

Subpart D—Other Financial Assistance for Planning and Negotiation Grants for Non-BIA Programs
PURPOSE AND ELIGIBILITY
§ 1000.60 What is the purpose of this
subpart?
This subpart describes the availability and process of applying for
other financial assistance that may be
available for planning and negotiating
for a non-BIA program.
§ 1000.61 Are other funds available to
self-governance
Tribes/Consortia
for planning and negotiating with
non-BIA bureaus?
Yes, Tribes/Consortia may contact
OSG to determine if OSG has funds
available for the purpose of planning
and negotiating with non-BIA bureaus
under this subpart. A Tribe/Consortium
may also ask a non-BIA bureau for information on any funds that may be
available from that bureau.
ELIGIBILITY AND APPLICATION PROCESS
§ 1000.62 Who can apply to OSG for
grants to plan and negotiate nonBIA programs?
Any Tribe/Consortium that is in the
applicant pool, or has been selected
from the applicant pool or that has an
existing AFA.
§ 1000.63 Under what circumstances
may planning and negotiation
grants be awarded to Tribes/Consortia?
At the discretion of the Director,
grants may be awarded when requested
by the Tribe. Tribes/Consortia may
submit only one application per year
for a grant under this section.

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§ 1000.64 How does the Tribe/Consortium know when and how to apply
to OSG for a planning and negotiation grant?
When funds are available, the Director will publish a notice in the FEDERAL REGISTER announcing their availability and a deadline for submitting
an application.

§ 1000.65 What kinds of activities do
planning and negotiation grants
support?
The planning and negotiation grants
support activities such as, but not limited to, the following:
(a) Information gathering and analysis;
(b) Planning activities, that may include notification and consultation
with the appropriate non-BIA bureau
and identification and/or analysis of
activities, resources, and capabilities
that may be needed for the Tribe/Consortium to assume non-BIA programs;
and
(c) Negotiation activities.
§ 1000.66 What must be included in the
application?
The application for a planning and
negotiation grant must include:
(a) Written notification by the governing body or its authorized representative of the Tribe’s/Consortium’s
intent to engage in planning/negotiation activities like those described in
§ 1000.65;
(b) Written description of the planning and/or negotiation activities that
the Tribe/Consortium intends to undertake, including, if appropriate, documentation of the relationship between
the proposed activities and the Tribe/
Consortium;
(c) The proposed timeline for completion of the planning and/or negotiation
activities to be undertaken; and
(d) The amount requested from OSG.
§ 1000.67 How will the Director award
planning and negotiation grants?
The Director must review all grant
applications received by the date specified in the announcement to determine
whether or not the applications include
the required elements outlined in the
announcement. OSG must rank the
complete applications submitted by
the deadline using the criteria in
§ 1000.70.
§ 1000.68 May non-BIA bureaus provide technical assistance to a Tribe/
Consortium in drafting its planning
grant application?
Yes, upon request from the Tribe/
Consortium, a non-BIA bureau may
provide technical assistance to the

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Office of the Assistant Secretary, Interior
Tribe/Consortium in the drafting of its
planning grant application.
§ 1000.69 How can a Tribe/Consortium
obtain comments or selection documents received or utilized after
OSG has made a decision on a planning grant application?
A Tribe/Consortium may request
comments or selection documents
under the Freedom of Information Act.
§ 1000.70 What criteria will the Director use to rank the applications and
how many maximum points can be
awarded for each criterion?
The Director will use the following
criteria and point system to rank the
applications:
(a) The application contains a clear
statement of objectives and timelines
to complete the proposed planning or
negotiation activity and demonstrates
that the objectives are legally authorized and achievable. (20 points)
(b) The proposed budget expenses are
reasonable. (10 points)
(c) The proposed project demonstrates a new or unique approach to
Tribal self-governance or broadens selfgovernance to include new activities
within the Department. (5 points)
§ 1000.71 Can an applicant appeal a
decision not to award a grant?
No, all decisions made by the Director to award or not to award a grant
under this subpart are final for the Department.
§ 1000.72 Will OSG notify Tribes/Consortia and affected non-BIA bureaus of the results of the selection
process?
Yes, OSG will notify all applicant
Tribes/Consortia and affected non-BIA
bureaus in writing as soon as possible
after completing the selection process.

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§ 1000.73 Once a Tribe/Consortium has
been awarded a grant, may the
Tribe/Consortium obtain information from a non-BIA bureau?
Yes, see § 1000.169.

§ 1000.85

Subpart
E—Annual
Funding
Agreements for Bureau of Indian Affairs Programs
§ 1000.80 What is the purpose of this
subpart?
This subpart describes the components of annual funding agreements for
BIA programs.
§ 1000.81 What is an annual funding
agreement (AFA)?
Annual funding agreements are legally binding and mutually enforceable
written agreements negotiated and entered into annually between a self-governance Tribe/Consortium and BIA.
CONTENTS AND SCOPE OF ANNUAL
FUNDING AGREEMENTS
§ 1000.82 What types of provisions
must be included in a BIA AFA?
Each AFA must specify the programs
and it must also specify the applicable
funding:
(a) Retained by BIA for ‘‘inherently
Federal functions’’ identified as ‘‘residuals’’ (See § 1000.94);
(b) Transferred or to be transferred
to the Tribe/Consortium (See § 1000.91);
and
(c) Retained by BIA to carry out
functions that the Tribe/Consortium
could have assumed but elected to
leave with BIA. (See § 1000.101).
§ 1000.83 Can additional provisions be
included in an AFA?
Yes, any provision that the parties
mutually agreed upon may be included
in an AFA.
§ 1000.84 Does
a
Tribe/Consortium
have the right to include provisions
of Title I of Pub. L. 93–638 in an
AFA?
Yes, under Pub. L. 104–109, a Tribe/
Consortium has the right to include
any provision of Title I of Pub. L. 93–
638 in an AFA.
§ 1000.85 Can a Tribe/Consortium negotiate an AFA with a term that exceeds one year?
Yes, at the option of the Tribe/Consortium, and subject to the availability
of Congressional appropriations, a
Tribe/Consortium may negotiate an

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§ 1000.86

25 CFR Ch. VI (4–1–10 Edition)

AFA with a term that exceeds one year
in accordance with section 105(c)(1) of
Title I of Pub. L. 93–638.

§ 1000.89 Can the terms and conditions
in an AFA be amended during the
year it is in effect?

DETERMINING WHAT PROGRAMS MAY BE
INCLUDED IN AN AFA

Yes, terms and conditions in an AFA
may be amended during the year it is
in effect as agreed to by both the Tribe/
Consortium and the Secretary.

§ 1000.86 What types of programs may
be included in an AFA?
A Tribe/Consortium may include in
its AFA programs administered by
BIA, without regard to the BIA agency
or office that administers the program,
including any program identified in
section 403(b)(1) of the Act.
§ 1000.87 How does the AFA specify
the services provided, functions
performed, and responsibilities assumed by the Tribe/Consortium and
those retained by the Secretary?
(a) The AFA must specify in writing
the services, functions, and responsibilities to be assumed by the Tribe/Consortium and the functions, services,
and responsibilities to be retained by
the Secretary.
(b) Any division of responsibilities
between the Tribe/Consortium and BIA
should be clearly stated in writing as
part of the AFA. Similarly, when there
is a relationship between the program
and BIA’s residual responsibility, the
relationship should be in writing.

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§ 1000.88 Do Tribes/Consortia need
Secretarial approval to redesign
BIA programs that the Tribe/Consortium administers under an AFA?
No, the Secretary does not have to
approve a redesign of a program under
the AFA, except when the redesign involves a waiver of a regulation.
(a) The Secretary must approve any
waiver, in accordance with subpart J of
this part, before redesign takes place.
(b) This section does not authorize
redesign of programs where other prohibitions exist.
(c) Redesign shall not result in the
Tribe/Consortium being entitled to receive more or less funding for the program from BIA.
(d)
Redesign
of
construction
project(s) included in an AFA must be
done in accordance with subpart K of
this part.

§ 1000.90 What happens if an AFA expires before the effective date of
the successor AFA?
If the effective date of the successor
AFA is not on or before the expiration
of the current AFA, subject to terms
mutually agreed upon by the Tribe/
Consortium and the Department at the
time the current AFA was negotiated
or in a subsequent amendment, the
Tribe/Consortium may continue to
carry out the program authorized
under the AFA to the extent adequate
resources are available. During this extension period, the current AFA shall
remain in effect, including coverage of
the Tribe/Consortium under the Federal Tort Claims Act (FTCA) 28 U.S.C.
2671–2680 (1994), and the Tribe/Consortium may use any funds remaining
under the AFA, savings from other programs or Tribal funds to carry out the
program. Nothing in this section authorizes an AFA to be continued beyond the completion of the program
authorized under the AFA or the
amended AFA. This section also does
not entitle a Tribe/Consortium to receive, nor does it prevent a Tribe from
receiving, additional funding under any
successor AFA. The successor AFA
must provide funding to the Tribe/Consortium at a level necessary for the
Tribe/Consortium to perform the programs, functions, services, and activities or portions thereof (PFSAs) for the
full period it was or will be performed.
DETERMINING AFA AMOUNTS
§ 1000.91 What funds must be transferred to a Tribe/Consortium under
an AFA?
(a) At the option of the Tribe/Consortium, the Secretary must provide the
following program funds to the Tribe/
Consortium through an AFA:
(1) An amount equal to the amount
that the Tribe/Consortium would have
been eligible to receive under contracts
and grants for direct programs and

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Office of the Assistant Secretary, Interior
contract support under Title I of Pub.
L. 93–638, as amended;
(2) Any funds that are specifically or
functionally related to providing services and benefits to the Tribe/Consortium or its members by the Secretary
without regard to the organizational
level within BIA where such functions
are carried out; and
(3) Any funds otherwise available to
Indian Tribes or Indians for which appropriations are made to agencies
other than the Department of the Interior;
(b) Examples of the funds referred to
in paragraphs (a)(1) and (a)(2) of this
section are:
(1) A Tribe’s/Consortium’s Pub. L. 93–
638 contract amounts;
(2) Negotiated amounts of agency, regional and central office funds, including previously undistributed funds or
new programs on the same basis as
they are made available to other
Tribes;
(3) Other recurring funding;
(4) Non-recurring funding;
(5) Special projects, if applicable;
(6) Construction;
(7) Wildland firefighting accounts;
(8) Competitive grants; and
(9) Congressional earmarked funding.
(c) An example of the funds referred
to in paragraph (a)(3) of this section is
Federal
Highway
Administration
funds.
§ 1000.92 What funds may not be included in an AFA?
Funds associated with programs prohibited from inclusion under section
403(b)(4) of the Act may not be included
in an AFA.

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§ 1000.93 May the Secretary place any
requirements on programs and
funds that are otherwise available
to Tribes/Consortia or Indians for
which appropriations are made to
agencies other than DOI?
No, unless the Secretary is required
to develop terms and conditions that
are required by law or that are required by the agency to which the appropriation is made.

§ 1000.95
§ 1000.94

What are BIA residual funds?

BIA residual funds are the funds necessary to carry out BIA residual functions. BIA residual functions are those
functions that only BIA employees
could perform if all Tribes were to assume responsibilities for all BIA programs that the Act permits.
§ 1000.95 How is BIA’s residual determined?
(a) Generally, residual information
will be determined through a process
that is consistent with the overall
process used by the BIA. Residual information will consist of residual functions performed by the BIA, brief justification why the function is not compactible, and the estimated funding
level for each residual function. Each
regional office and the central office
will compile a single document for distribution each year that contains all
the residual information of that respective office. The development of the residual information will be based on the
following principles. The BIA will:
(1) Develop uniform residual information to be used to negotiate residuals;
(2) Ensure functional consistency
throughout BIA in the determination
of residuals;
(3) Make the determination of residuals based upon the functions actually
being performed by BIA at the respective office;
(4) Annually consult with Tribes on a
region-by-region basis as requested by
Tribes/Consortia; and
(5) Notify Tribal leaders each year by
March 1 of the availability of residual
information.
(b) BIA shall use the residual information determined under subparagraph
(a) as the basis for negotiating with individual Tribes.
(c) In accordance with the appeals
procedures in subpart R of this part, if
BIA and a participating Tribe/Consortium disagree over the content of residual functions or amounts, Tribe/Consortium can appeal as shown in the following table.

If a Tribe/Consortium . . .

the Tribe/Consortium may . . .

and . . .

(1) Disagrees with BIA’s determination .....

appeal to the Deputy Commissioner .......

the Deputy Commissioner must make a
written determination within 30 days of
receiving the request.

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§ 1000.96

25 CFR Ch. VI (4–1–10 Edition)

If a Tribe/Consortium . . .

the Tribe/Consortium may . . .

and . . .

(2) Disagrees with the Deputy Commissioner’s determination.

appeal to the Assistant Secretary—Indian Affairs.

the Assistant Secretary’s determination
is final for the Department.

(d) Information on residual functions
may be amended if programs are added
or deleted, if statutory or final judicial
determinations mandate or if the Deputy Commissioner makes a determination that would alter the residual information or funding amounts. The decision may be appealed to the Assistant Secretary in accordance with subpart R of this part. The Assistant Secretary shall make a written determination within 30 days.
§ 1000.96 May a Tribe/Consortium continue to negotiate an AFA pending
an appeal of residual functions or
amounts?
Yes, pending appeal of a residual
function or amount, any Tribe/Consortium may continue to negotiate an
AFA using the residual information
that is being appealed. The residual information will be subject to later adjustment based on the final determination of a Tribe’s/Consortium’s appeal.

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§ 1000.97 What is a Tribal share?
A Tribal share is the amount determined for a particular Tribe/Consortium for a particular program at BIA
regional, agency and central office levels under section 403(g)(3) and 405(d) of
the Act.
§ 1000.98 How does BIA determine a
Tribe’s/Consortium’s share of funds
to be included in an AFA?
There are typically two methods for
determining the amount of funds to be
included in the AFA:
(a) Formula-driven. For formula-driven programs, a Tribe’s/Consortium’s
amount is determined by first identifying the residual funds to be retained
by BIA and second, by applying the distribution formula to the remaining eligible funding for each program involved.
(1) Distribution formulas must be
reasonably related to the function or
service performed by an office, and
must be consistently applied to all
Tribes within each regional and agency
office.

(2) The process in paragraph (a) of
this section for calculating a Tribe’s
funding under self-governance must be
consistent with the process used for
calculating funds available to non-selfgovernance Tribes.
(b) Tribal-specific. For programs
whose funds are not distributed on a
formula basis as described in paragraph
(a) of this section, a Tribe’s funding
amount will be determined on a Tribeby-Tribe basis and may differ between
Tribes. Examples of these funds may
include special project funding, awarded competitive grants, earmarked
funding, and construction or other onetime or non-recurring funding for
which a Tribe is eligible.
§ 1000.99 Can a Tribe/Consortium negotiate a Tribal share for programs
outside its region/agency?
Yes, where BIA services for a particular Tribe/Consortium are provided
from a location outside its immediate
agency or region, the Tribe may negotiate its share from BIA location where
the service is actually provided.
§ 1000.100 May a Tribe/Consortium obtain discretionary or competitive
funding that is distributed on a discretionary or competitive basis?
Funds provided for Indian services/
programs that have not been mandated
by Congress to be distributed on a competitive/discretionary basis may be distributed to a Tribe/Consortium under a
formula-driven method. In order to receive such funds, a Tribe/Consortium
must be eligible and qualified to receive such funds. A Tribe/Consortium
that receives such funds under a formula-driven methodology would no
longer be eligible to compete for these
funds.
§ 1000.101 Are all funds identified as
Tribal shares always paid to the
Tribe/Consortium under an AFA?
No, at the discretion of the Tribe/
Consortium, Tribal shares may be left,

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Office of the Assistant Secretary, Interior

§ 1000.106

in whole or in part, with BIA for certain programs. This is referred to as a
‘‘retained Tribal share’’.
§ 1000.102 How are savings that result
from downsizing allocated?
Funds that are saved as a result of
downsizing in BIA are allocated to
Tribes/Consortia in the same manner
as Tribal shares as provided for in
§ 1000.98.
§ 1000.103 Do Tribes/Consortia need
Secretarial approval to reallocate
funds between programs that the
Tribe/Consortium
administers
under the AFA?
No, unless otherwise required by law,
the Secretary does not have to approve
the reallocation of funds between programs that a Tribe/Consortium administers under an AFA.

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§ 1000.104 Can funding amounts negotiated in an AFA be adjusted during
the year it is in effect?
Yes, funding amounts negotiated in
an AFA may be adjusted under the following circumstances:
(a) Congressional action. (1) Increases/
decreases as a result of Congressional
appropriations and/or a directive in the
statement of managers accompanying
a conference report on an appropriations bill or continuing resolution.
(2) General decreases due to Congressional action must be applied consistently to BIA, self-governance Tribes/
Consortia, and Tribes/Consortia not
participating in self-governance.
(3) General increases due to Congressional appropriations must be applied
consistently, except where used to
achieve equitable distribution among
regions and Tribes.
(4) A Tribe/Consortium will be notified of any decrease and be provided an
opportunity to reconcile.
(b) Mistakes. If the Tribe/Consortium
or the Secretary can identify and document substantive errors in calculations, the parties will renegotiate the
amounts and make every effort to correct such errors.
(c) Mutual Agreement. Both the Tribe/
Consortium and the Secretary may
agree to renegotiate amounts at any
time.

ESTABLISHING SELF-GOVERNANCE BASE
BUDGETS
§ 1000.105 What are
base budgets?

self-governance

(a) A Tribe/Consortium self-governance base budget is the amount of recurring funding identified in the President’s annual budget request to Congress. This amount must be adjusted to
reflect subsequent Congressional action. It includes amounts that are eligible to be base transferred or have
been base transferred from BIA budget
accounts to self-governance budget accounts. As allowed by Congress, selfgovernance base budgets are derived
from:
(1) A Tribe’s/Consortium’s Pub. L. 93–
638 contract amounts;
(2) Negotiated agency, regional, and
central office amounts;
(3) Other recurring funding;
(4) Special projects, if applicable;
(5) Programmatic shortfall;
(6) Tribal priority allocation increases and decreases;
(7) Pay costs and retirement cost adjustments; and
(8) Any other inflationary cost adjustments.
(b) Self-governance base budgets
must not include any non-recurring
program
funds,
construction
and
wildland firefighting accounts, Congressional earmarks, or other funds
specifically excluded by Congress.
These funds are negotiated annually
and may be included in the AFA but
must not be included in the self-governance base budget.
(c) Self-governance base budgets may
not include other recurring type programs that are currently in Tribal priority allocations (TPA) such as general
assistance, housing improvement program (HIP), road maintenance and contract support. Should these later four
programs ever become base transferred
to Tribes, then they may be included in
a self-governance Tribe’s base budget.
§ 1000.106 Once a Tribe/Consortium establishes a base budget, are funding
amounts renegotiated each year?
No, unless otherwise requested by the
Tribe/Consortium, these amounts are
not renegotiated each year. If a Tribe/

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§ 1000.107

25 CFR Ch. VI (4–1–10 Edition)

Consortium renegotiates funding levels:
(a) It must negotiate all funding levels in the AFA using the process for determining
residuals
and
funding
amounts on the same basis as other
Tribes; and
(b) It is eligible for funding amounts
of new programs or available programs
not previously included in the AFA on
the same basis as other Tribes.
§ 1000.107 Must a Tribe/Consortium
with a base budget or base budgeteligible program amounts negotiated before January 16, 2001 negotiate new Tribal shares and residual amounts?
No, if a Tribe/Consortium negotiated
amounts before January 16, 2001, it
does not need to renegotiate new Tribal shares and residual amounts.
(a) At Tribal option, a Tribe/Consortium may retain funding amounts that:
(1) Were either base eligible or in the
Tribe’s base; and
(2) Were negotiated before this part is
promulgated.
(b) If a Tribe/Consortium desires to
renegotiate the amounts referred to in
paragraph (a) of this section, the Tribe/
Consortium must:
(1) Negotiate all funding included in
the AFA; and
(2) Use the process for determining
residuals and funding amounts on the
same basis as other Tribes.
(c) Self-governance Tribes/Consortia
are eligible for funding amounts for
new or available programs not previously included in the AFA on the
same basis as other Tribes/Consortia.

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§ 1000.108 How are self-governance
base budgets established?
At the request of the Tribe/Consortium, a self-governance base budget
identifying
each
Tribe’s
funding
amount is included in BIA’s budget justification for the following year, subject to Congressional appropriation.
§ 1000.109 How are self-governance
base budgets adjusted?
Self-governance base budgets must
be adjusted as follows:
(a) Congressional action. (1) Increases/
decreases as a result of Congressional
appropriations and/or a directive in the
statement of managers accompanying

a conference report on an appropriations bill or continuing resolution.
(2) General decreases due to Congressional action must be applied consistently to BIA, self-governance Tribes/
Consortia, and Tribes/Consortia not
participating in self-governance.
(3) General increases due to Congressional appropriations must be applied
consistently, except where used to
achieve equitable distribution among
regions and Tribes.
(4) A Tribe/Consortium will be notified of any decrease and be provided an
opportunity to reconcile.
(b) Mistakes. If the Tribe/Consortium
or the Secretary can identify and document substantive errors in calculations, the parties will renegotiate such
amounts and make every effort to correct the errors.
(c) Mutual agreement. Both the Tribe/
Consortium and the Secretary may
agree to renegotiate amounts at any
time.

Subpart F—Non-BIA Annual SelfGovernance Compacts and
Funding Agreements
PURPOSE
§ 1000.120 What is the purpose of this
subpart?
This subpart describes program eligibility, funding, terms, and conditions
of AFAs for non-BIA programs.
§ 1000.121 What is an annual funding
agreement for a non-BIA program?
Annual funding agreements for nonBIA programs are legally binding and
mutually enforceable agreements between a bureau and a Tribe/Consortium
participating in the self-governance
program that contain:
(a) A description of that portion or
portions of a bureau program that are
to be performed by the Tribe/Consortium; and
(b) Associated funding, terms and
conditions under which the Tribe/Consortium will assume a program, or portion of a program.

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Office of the Assistant Secretary, Interior
ELIGIBILITY
§ 1000.122 What non-BIA programs are
eligible for inclusion in an annual
funding agreement?
Programs authorized by sections
403(b)(2) and 403(c) of the Act are eligible for inclusion in AFAs. The Secretary will publish annually a list of
these programs in accordance with section 405(c)(4).
§ 1000.123 Are there non-BIA programs
for which the Secretary must negotiate for inclusion in an AFA subject to such terms as the parties
may negotiate?
Yes, those programs, or portions
thereof, that are eligible for contracting under Pub. L. 93–638.

(b) Historical generally refers to programs or lands having a particular history that is relevant to the Tribe. For
example, particular trails, forts, significant sites, or educational activities
that relate to the history of a particular Tribe.
(c) Cultural refers to programs, sites,
or activities as defined by individual
Tribal traditions and may include, for
example:
(1) Sacred and medicinal sites;
(2) Gathering of medicines or materials such as grasses for basket weaving; or
(3) Other traditional activities, including, but not limited to, subsistence
hunting, fishing, and gathering.

§ 1000.124 What programs are included
under Section 403(b)(2) of the Act?

§ 1000.127 Under
Section
403(b)(2),
when must programs be awarded
non-competitively?

Those programs, or portions thereof,
that are eligible for contracting under
Pub. L. 93–638.

Programs eligible for contracts under
Pub. L. 93–638 must be awarded noncompetitively.

§ 1000.125 What programs are included
under Section 403(c)?

§ 1000.128 Is there a contracting preference for programs of special geographic, historical, or cultural significance?

Department of the Interior programs
of special geographic, historical, or
cultural significance to participating
Tribes, individually or as members of a
Consortium, are eligible for inclusion
in AFAs under section 403(c).
§ 1000.126 What does ‘‘special geographic, historical or cultural’’
mean?

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§ 1000.130

(a) Geographic generally refers to all
lands presently ‘‘on or near’’ an Indian
reservation, and all other lands within
‘‘Indian country,’’ as defined by 18
U.S.C. 1151. In addition, ‘‘geographic’’
includes:
(1) Lands of former reservations;
(2) Lands on or near those conveyed
or to be conveyed under the Alaska Native Claims Settlement Act (ANCSA);
(3) Judicially established aboriginal
lands of a Tribe or a Consortium member or as verified by the Secretary; and
(4) Lands and waters pertaining to
Indian rights in natural resources,
hunting, fishing, gathering, and subsistence activities, provided or protected by treaty or other applicable
law.

Yes, if there is a special geographic,
historical, or cultural significance to
the program or activity administered
by the bureau, the law affords the bureau the discretion to include the programs or activities in an AFA on a
non-competitive basis.
§ 1000.129 Are there any programs that
may not be included in an AFA?
Yes, section 403(k) of the Act excludes from the program:
(a) Inherently Federal functions; and
(b) Programs where the statute establishing the existing program does
not authorize the type of participation
sought by the Tribe/Consortium, except
as provided in § 1000.134.
§ 1000.130 Does a Tribe/Consortium
need to be identified in an authorizing statute in order for a program
or element of a program to be included in a non-BIA AFA?
No, the Act favors the inclusion of a
wide range of programs.

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§ 1000.131

25 CFR Ch. VI (4–1–10 Edition)

§ 1000.131 Will Tribes/Consortia participate in the Secretary’s determination of what is to be included
on the annual list of available programs?
Yes, the Secretary must consult each
year with Tribes/Consortia participating in self-governance programs regarding which bureau programs are eligible for inclusion in AFAs.
§ 1000.132 How will the Secretary consult with Tribes/Consortia in developing the list of available programs?
(a) On, or as near as possible to, October 1 of each year, the Secretary
must distribute to each participating
self-governance Tribe/Consortium the
previous year’s list of available programs in accordance with section
405(c)(4) of the Act. The list must include:
(1) All of the Secretary’s proposed additions and revisions for the coming
year with an explanation; and
(2) Programmatic targets and an initial point of contact for each bureau.
(b) The Tribes/Consortia receiving
the proposed list will have 30 days from
receipt to comment in writing on the
Secretary’s proposed revisions and to
provide additions and revisions of their
own for the Secretary to consider.
(c) The Secretary will carefully consider these comments before publishing
the list as required by section 405(c)(4)
of the Act.
(d) If the Secretary does not plan to
include a Tribal suggestion or revision
in the final published list, he/she must
provide an explanation of his/her reasons if requested by a Tribe.

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§ 1000.133 What else is on the list in
addition to eligible programs?
The list will also include programmatic targets and an initial point
of contact for each bureau. Programmatic targets will be established
as part of the consultation process described in § 1000.132.
§ 1000.134 May a bureau negotiate
with a Tribe/Consortium for programs not specifically included on
the annual section 405(c) list?
Yes, the annual list will specify that
bureaus will negotiate for other programs eligible under section 403(b)(2)

when requested by a Tribe/Consortium.
Bureaus may negotiate for section
403(c) programs whether or not they
are on the list.
§ 1000.135 How will a bureau negotiate
an annual funding agreement for a
program of special geographic, historical, or cultural significance to
more than one Tribe?
(a) If a program is of special geographic, historical, or cultural significance to more than one Tribe, the bureau may allocate the program among
the several Tribes/Consortia or select
one Tribe/Consortium with whom to
negotiate an AFA.
(b) In making a determination under
paragraph (a) of this section, the bureau will, in consultation with the affected Tribes, consider:
(1) The special significance of each
Tribe’s or Consortium member’s interest; and
(2) The statutory objectives being
served by the bureau program.
(c) The bureau’s decision will be final
for the Department.
§ 1000.136 When will this determination be made?
It will occur during the pre-negotiation process, subject to the timeframes
in § 1000.171 and § 1000.172.
FUNDING
§ 1000.137 What funds are included in
an AFA?
Bureaus determine the amount of
funding to be included in the AFA
using the following principles:
(a) 403(b)(2) programs. In general,
funds are provided in an AFA to the
Tribe/Consortium in an amount equal
to the amount that it is eligible to receive under section 106 of Pub. L. 93–
638.
(b) 403(c) programs. (1) The AFA will
include:
(i) Amounts equal to the direct costs
the bureau would have incurred were it
to operate that program at the level of
work mutually agreed to in the AFA;
and
(ii) Allowable indirect costs.
(2) A bureau is not required to include management and support funds
from the regional or central office level
in an AFA, unless:

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Office of the Assistant Secretary, Interior
(i) The Tribe/Consortium will perform work previously performed at the
regional or central office level;
(ii) The work is not compensated in
the indirect cost rate; and
(iii) Including management and support costs in the AFA does not result
in the Tribe/Consortium being paid
twice for the same work when negotiated indirect cost rate is applied.
(c) Funding Limitations. The amount
of funding must be subject to the availability and level of Congressional appropriations to the bureau for that program or activity. As the various bureaus use somewhat differing budgeting
practices, determining the amount of
funds available for inclusion in the
AFA for a particular program or activity is likely to vary among bureaus or
programs.
(1) The AFA may not exceed the
amount of funding the bureau would
have spent for direct operations and indirect support and management of that
program in that year.
(2) The AFA must not include funding for programs still performed by the
bureau.
§ 1000.138 How are indirect cost rates
determined?
The Department’s Office of the Inspector General (OIG) or other cognizant Federal agency and the Tribe/
Consortium negotiate indirect cost
rates. These rates are based on the provisions of the Office of Management
and Budget (OMB) Circular A–87 or
other applicable OMB cost circular and
the provisions of Title I of Pub. L. 93–
638 (See § 1000.142). These rates are used
generally by all Federal agencies for
contracts and grants with the Tribe/
Consortium, including self-governance
agreements.

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§ 1000.139 Will the established indirect
cost rates always apply to new
AFAs?
No, the established indirect cost
rates will not always apply to new
AFAs.
(a) A Tribe’s/Consortium’s existing
indirect cost rate should be reviewed
and renegotiated with the inspector
general or other cognizant agency if:
(1) Using the previously negotiated
rate would include the recovery of indi-

§ 1000.142
rect costs that are not reasonable, allocable, or allowable to the relevant program; or
(2) The previously negotiated rate
would result in an under-recovery by
the Tribe/Consortium.
(b) If a Tribe/Consortium has a fixed
amount indirect cost agreement under
OMB Circular A–87, then:
(1) Renegotiation is not required and
the duration of the fixed amount agreement will be that provided for in the
fixed amount agreement; or
(2) The Tribe/Consortium and bureau
may negotiate an indirect cost amount
or rate for use only in that AFA without the involvement of the inspector
general or other cognizant agency.
§ 1000.140 How does the Secretary determine the amount of indirect contract support costs?
The
Secretary
determines
the
amount of indirect contract support
costs by:
(a) Applying the negotiated indirect
cost rate to the appropriate direct cost
base;
(b) Using the provisional rate; or
(c) Negotiating the amount of indirect contract support.
§ 1000.141 Is there a predetermined
cap or limit on indirect cost rates
or a fixed formula for calculating
indirect cost rates?
No, indirect cost rates vary from
Tribe to Tribe. The Secretary should
refer to the appropriate negotiated indirect cost rates for individual Tribes,
that apply government-wide. Although
this cost rate is not capped, the
amount of funds available for inclusion
is capped at the level available under
the relevant appropriation.
§ 1000.142 Instead of the negotiated indirect cost rate, is it possible to establish a fixed amount or another
negotiated rate for indirect costs
where funds are limited?
Yes, OMB Circular A–87 encourages
agencies to test fee-for-service alternatives. If the parties agree to a fixed
price, fee-for-service agreement, then
they must use OMB Circular A–87 as a
guide in determining the appropriate
price (OMB circulars are available at
http://www.whitehouse.gov/omb/ or see 5
CFR 1310.3).Where limited appropriated

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§ 1000.143

25 CFR Ch. VI (4–1–10 Edition)

funds are available, negotiating the
fixed cost option or another rate may
facilitate reaching an agreement with
that Tribe/Consortium.
OTHER TERMS AND CONDITIONS
§ 1000.143 May the bureaus negotiate
terms to be included in an AFA for
non-Indian programs?
Yes, as provided for by section
403(b)(2) and 403(c) and as necessary to
meet program mandates.
REALLOCATION, DURATION, AND
AMENDMENTS
§ 1000.144 Can a Tribe reallocate funds
for a non-BIA non-Indian program?
Yes, section 403(b) permits such reallocation upon joint agreement of the
Secretary and the Tribe/Consortium.
§ 1000.145 Do Tribes/Consortia need
Secretarial approval to reallocate
funds between Title-I eligible programs that the Tribe/Consortium
administers under a non-BIA AFA?
No, unless otherwise required by law,
the Secretary does not have to approve
the reallocation of funds with the exception of construction projects.
§ 1000.146 Can a Tribe/Consortium negotiate an AFA with a non-BIA bureau for which the performance period exceeds one year?
Yes, subject to the terms of the AFA,
a Tribe/Consortium and a non-BIA bureau may agree to provide for the performance under the AFA to extend beyond the fiscal year. However, the Department may not obligate funds in excess and advance of available appropriations.

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§ 1000.147 Can the terms and conditions in a non-BIA AFA be amended
during the year it is in effect?
Yes, terms and conditions in a nonBIA AFA may be amended during the
year it is in effect as agreed to by both
the Tribe/Consortium and the Secretary.

§ 1000.148 What happens if an AFA expires before the effective date of
the successor AFA?
If the effective date of a successor
AFA is not on or before the expiration
of the current AFA, subject to terms
mutually agreed upon by the Tribe/
Consortium and the Department at the
time the current AFA was negotiated
or in a subsequent amendment, the
Tribe/Consortium may continue to
carry out the program authorized
under the AFA to the extent resources
permit. During this extension period,
the current AFA shall remain in effect,
including coverage of the Tribe/Consortium under the Federal Tort Claims
Act (FTCA) 28 U.S.C. 2671–2680 (1994);
and the Tribe/Consortium may use any
funds remaining under the AFA, savings from other programs or Tribal
funds to carry out the program. Nothing in this section authorizes an AFA
to be continued beyond the completion
of the program authorized under the
AFA or the amended AFA. This section
also does not entitle a Tribe/Consortium to receive, nor does it prevent a
Tribe from receiving, additional funding under any successor AFA. The successor AFA must provide funding to
the Tribe/Consortium at a level necessary for the Tribe/Consortium to perform the programs, functions, services,
and activities (PFSA) or portions
thereof for the full period they were or
will be performed.

Subpart G—Negotiation Process
for Annual Funding Agreements
PURPOSE
§ 1000.160 What is the purpose of this
subpart?
This subpart provides the process and
timelines for negotiating a self-governance compact with the Department and
an AFA with any bureau.
(a) For a newly selected or currently
participating Tribe/Consortium negotiating an initial AFA with any bureau,
see §§ 1000.173 through 1000.179.
(b) For a participating Tribe/Consortium negotiating a successor AFA with
any bureau, see §§ 1000.180 through
1000.182.

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Office of the Assistant Secretary, Interior
NEGOTIATING A SELF-GOVERNANCE
COMPACT
§ 1000.161 What is a self-governance
compact?
A self-governance compact is an executed document that affirms the government-to-government
relationship
between a self-governance Tribe and
the United States. The compact differs
from an AFA in that parts of the compact apply to all bureaus within the
Department of the Interior rather than
a single bureau.
§ 1000.162 What is included in a selfgovernance compact?
A model format for self-governance
compacts appears in appendix A. A selfgovernance compact should generally
include the following:
(a) The authority and purpose;
(b) Terms, provisions, and conditions
of the compact;
(c) Obligations of the Tribe and the
United States; and
(d) Other provisions.
§ 1000.163 Can a Tribe/Consortium negotiate other terms and conditions
not contained in the model compact?
Yes, the Secretary and a self-governance Tribe/Consortium may negotiate
into the model compact contained in
appendix A additional terms relating
to the government-to-government relationship between the Tribe(s) and the
United States. For BIA programs, a
Tribe/Consortium and the Secretary
may agree to include any term in a
contract and funding agreement under
Title I in the model compact contained
in appendix A to this part.

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§ 1000.164 Can
a
Tribe/Consortium
have an AFA without entering into
a compact?
Yes, at the Tribe’s/Consortium’s option.
§ 1000.165 Are provisions in compacts
negotiated before January 16, 2001,
effective after implementation?
(a) Yes, all provisions in compacts
that were negotiated with BIA before
January 16, 2001, shall remain in effect
for BIA programs only after January
16, 2001, provided that each compact
contains provisions:

§ 1000.169
(1) That are authorized by the Tribal
Self-Governance Act of 1994;
(2) Are in compliance with other applicable Federal laws; and,
(3) Are consistent with this part.
(b) BIA will notify the Tribe/Consortium in writing when BIA asserts that
a provision or provisions of that
Tribe’s/Consortium’s previously negotiated compact is not in compliance
with the terms and conditions of this
part. BIA and the Tribe/Consortium
will renegotiate the provision within 60
days of the Tribe’s/Consortium’s receipt of the notification.
(c) If renegotiation is not successful
within 60 days of the notice being provided, BIA’s determination is final for
the bureau and enforceability of the
provisions shall be subject to the appeals process described in subpart R of
this part. Pending a final appeal
through the appeals process, BIA’s determination shall be stayed.
NEGOTIATION OF INITIAL ANNUAL
FUNDING AGREEMENTS
§ 1000.166 What are the phases of the
negotiation process?
There are two phases of the negotiation process:
(a) The information phase; and
(b) The negotiation phase.
§ 1000.167 Who may initiate the information phase?
Any Tribe/Consortium that has been
admitted to the program or to the applicant pool may initiate the information phase.
§ 1000.168 Is it mandatory to go
through the information phase before initiating the negotiation
phase?
No, a Tribe/Consortium may go directly to the negotiation phase.
§ 1000.169 How does a Tribe/Consortium
initiate
the
information
phase?
A Tribe/Consortium initiates the information phase by submitting a letter
of interest to the bureau administering
a program that the Tribe/Consortium
may want to include in its AFA. A letter of interest may be mailed,
telefaxed, or hand-delivered to:

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§ 1000.170

25 CFR Ch. VI (4–1–10 Edition)

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(a) The Director, OSG, if the request
is for information about BIA programs;
(b) The non-BIA bureau’s self-governance representative identified in the
Secretary’s annual section 405(c) listing in the FEDERAL REGISTER, if the request is for information concerning
programs of non-BIA bureaus.
§ 1000.170 What is the letter of interest?
A letter of interest is the initial indication of interest submitted by the
Tribe/Consortium informing the bureau
of the Tribe’s/Consortium’s interest in
seeking information for the possible
negotiation of one or more bureau programs. For non-BIA bureaus, the program and budget information request
should relate to the program and activities identified in the Secretary’s
section 405(c) list in the FEDERAL REGISTER or a section 403(c) request. A letter of interest should identify the following:
(a) As specifically as possible, the
program a Tribe/Consortium is interested in negotiating under an AFA;
(b) A preliminary brief explanation of
the cultural, historical, or geographic
significance to the Tribe/Consortium of
the program, if applicable;
(c) The scope of activity that a Tribe/
Consortium is interested in including
in an AFA;
(d) Other information that may assist the bureau in identifying the programs that are included or related to
the Tribe’s/Consortium’s request;
(e) A request for information that indicates the type and/or description of
information that will assist the Tribe/
Consortium in pursuing the negotiation process;
(f) A designated Tribal contact;
(g) A request for information on any
funds that may be available within the
bureau or other known possible sources
of funding for planning and negotiating
an AFA;
(h) A request for information on any
funds available within the bureau or
from other sources of funding that the
Tribe/Consortium may include in the
AFA for planning or performing programs or activities; and
(i) Any requests for technical assistance to be provided by the bureau in
preparing documents of materials that

may be required for the Tribe/Consortium in the negotiation process.
§ 1000.171 When should a Tribe/Consortium submit a letter of interest?
A letter of interest may be submitted
at any time. To meet the negotiation
deadlines below, letters should be submitted to the appropriate non-BIA bureaus by March 1; letters should be submitted to BIA by April 1 for fiscal year
Tribes/Consortia or May 1 for calendar
year Tribes/Consortia.
§ 1000.172 What steps does the bureau
take after a letter of interest is submitted by a Tribe/Consortium?
(a) Within 15 calendar days of receipt
of a Tribe’s/Consortium’s letter of interest, the bureau will notify the Tribe/
Consortium about who will be designated as the bureau’s representative
to be responsible for responding to the
Tribal requests for information. The
bureau representative shall act in good
faith in fulfilling the following responsibilities:
(1) Providing all budget and program
information identified in paragraph (b)
of this section, from each organizational level of the bureau(s); and
(2) Notifying any other bureau requiring notification and participation
under this part.
(b) Within 30 calendar days of receipt
of the Tribe’s/Consortium’s letter of interest:
(1) To the extent that such reasonably related information is available,
the bureau representative is to provide
the information listed in paragraph (c)
of this section, if available and consistent with the bureau’s budgetary
process;
(2) A written explanation of why the
information is not available or not
being provided to the Tribe’s/Consortium’s contact and the date by which
other available information will be
provided; or
(3) If applicable, a written explanation of why the program is unavailable for negotiation.
(c) Information to be made available
to the Tribe’s/Consortium’s contact,
subject to the conditions of paragraph
(b) of this section, includes:
(1) Information regarding program,
budget, staffing, and locations of the

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Office of the Assistant Secretary, Interior
offices administering the program and
related administrative support program identified by the Tribe/Consortium,
(2) Information contained in the previous year, present year, and next
year’s budget proposed by the President at the national program level and
the regional/local level.
(3) When appropriate, the bureau will
be available to meet the Tribal representatives to explain the budget information provided.
(4) Information used to support budget allocations for the programs identified (e.g., full time equivalents and
other relevant factors).
(5) Information used to operate and/
or evaluate a program, such as statutory and regulatory requirements and
program standards.
(6) If applicable, information regarding how a program is administered by

§ 1000.174
more than one bureau, including a
point of contact for information for the
other bureau(s); and
(7) Other information requested by
the Tribe/Consortium in its letter of interest.
(d) If a bureau fails to provide reasonably related information requested by
a Tribe/Consortium, the Tribe/Consortium may appeal the failure in accordance with subpart R of this part. These
requests shall be considered for a fee
waiver under the Freedom of Information Act.
§ 1000.173 How does a newly selected
Tribe/Consortium initiate the negotiation phase?
(a) To initiate the negotiation phase,
an authorized official of the newly selected Tribe/Consortium submits a
written request to negotiate an AFA as
indicated in the following table:

For a . . .

the Tribe/Consortium should submit the
request to . . .

and the request should identify . . .

(1) BIA program ..............
(2) Non-BIA program .......

the Director, OSG. ................................................
the bureau representative designated to respond
to the Tribe’s/Consortium’s request for information.

the lead negotiator(s) for the Tribe/Consortium.
the lead negotiator(s) for the Tribe/Consortium
and the specific program(s) that the Tribe/Consortium seeks to negotiate.

(b) The Tribal/Consortium official
must submit the information required

by paragraph (a) of this section by the
deadline shown in the following table:

Type of program

Type of tribe/consortium

(1) BIA ......................................
(2) BIA ......................................
(3) Non-BIA ..............................

Fiscal year .................................................................................
Calendar year ...........................................................................
Fiscal year or calendar year .....................................................

Submission deadline
April 1.
May 1.
May 1*.

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* The request may be submitted later than this date where the bureau and the Tribe/Consortium agree that administration for a
partial year funding agreement is feasible.

§ 1000.174 How and when does the bureau respond to a request to negotiate?
(a) Within 15 days of receiving a
Tribe’s/Consortium’s request to negotiate, the bureau will take the steps in
this section. If more than one bureau is
involved, a lead bureau must be designated to conduct negotiations.
(b) If the program is contained on the
section 405(c) list, the bureau will identify the lead negotiator(s) and awarding official(s) for executing the AFA.
(c) If the program is potentially of a
special geographic, cultural, or historic
significance to a Tribe/Consortium, the
bureau will schedule a pre-negotiation

meeting with the Tribe/Consortium as
soon as possible. The purpose of the
meeting is to assist the bureau in determining if the program is available
for negotiation.
(d) Within 10 days after convening a
meeting under paragraph (c) of this
section:
(1) If the program is available for negotiation, the bureau will identify the
lead negotiator(s) and awarding official(s); or
(2) If the program is unavailable for
negotiation, the bureau will give to the
Tribe/Consortium a written explanation of why the program is unavailable for negotiation.

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§ 1000.175

25 CFR Ch. VI (4–1–10 Edition)

§ 1000.175 What is the process for conducting the negotiation phase?
(a) Within 30 days of receiving a written request to negotiate, the bureau
and the Tribe/Consortium will agree to
a date to conduct an initial negotiation
meeting. Subsequent meetings will be
held with reasonable frequency at reasonable times.
(b) Tribe/Consortium and bureau lead
negotiators must:
(1) Be authorized to negotiate on behalf of their government; and
(2) Involve all necessary persons in
the negotiation process.
(c) Once negotiations have been successfully completed, the bureau and
Tribe/Consortium will prepare and either execute or disapprove an AFA
within 30 days or by a mutually agreed
upon date.
§ 1000.176 What issues must the bureau and the Tribe/Consortium address at negotiation meetings?
The negotiation meetings referred to
in § 1000.175 must address at a minimum
the following:
(a) The specific Tribe/Consortium
proposal(s) and intentions;
(b) Legal or program issues that the
bureau or the Tribe/Consortium identify as concerns;
(c) Options for negotiating programs
and related budget amounts, including
mutually agreeable options for developing alternative formats for presenting budget information to the
Tribe/Consortium;
(d) Dates for conducting and concluding negotiations;
(e) Protocols for conducting negotiations;
(f) Responsibility for preparation of a
written summary of the discussions;
and
(g) Who will prepare an initial draft
of the AFA.

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§ 1000.177 What happens
AFA is signed?

when

the

(a) After all parties have signed the
AFA, a copy is sent to the Tribe/Consortium.
(b) The Secretary forwards copies of
the AFA to:
(1) The House Subcommittee on Native Americans and Insular Affairs; and

(2) The Senate Committee on Indian
Affairs;
(c) For BIA programs, the AFA is
also forwarded to each Indian Tribe/
Consortium served by the BIA Agency
that serves any Tribe/Consortium that
is a party to the AFA.
§ 1000.178 When does the AFA become
effective?
The effective date is not earlier than
90 days after the AFA is submitted to
the Congressional committees under
§ 1000.177(b).
§ 1000.179 What happens if the Tribe/
Consortium and bureau negotiators
fail to reach an agreement?
(a) If the Tribe/Consortium and bureau representatives do not reach
agreement during the negotiation
phase by the mutually agreed to date
for completing negotiations, the Tribe/
Consortium and the bureau may each
make a last and best offer to the other
party.
(b) If a last and best offer is not accepted within 15 days, the bureau will
provide a written explanation to the
Tribe/Consortium explaining its reasons for not entering into an AFA for
the requested program, together with
the applicable statement prescribed in
subpart R of this part, concerning appeal or review rights.
(c) The Tribe/Consortium has 30 days
from receipt of the bureau’s written explanation to file an appeal. Appeals are
handled in accordance with subpart R
of this part.
NEGOTIATION PROCESS FOR SUCCESSOR
ANNUAL FUNDING AGREEMENTS
§ 1000.180 What is a successor AFA?
A successor AFA is a funding agreement negotiated after a Tribe’s/Consortium’s initial agreement with a bureau
for continuing to perform a particular
program. The parties to the AFA
should generally use the terms of the
existing AFA to expedite and simplify
the exchange of information and the
negotiation process.
§ 1000.181 How does the Tribe/Consortium initiate the negotiation of a
successor AFA?
Although a written request is desirable to document the precise request

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Office of the Assistant Secretary, Interior
and date of the request, a written request is not mandatory. If either party
anticipates a significant change in an
existing program in the AFA, it should
notify the other party of the change at
the earliest possible date so that the
other party may plan accordingly.

limits or reduces particular services,
contracts, or funding for which it is eligible.

§ 1000.182 What is the process for negotiating a successor AFA?

(a) From the beginning of the negotiation period until the end of the first
year of implementation of an AFA, BIA
may raise the issue of limitation or reduction of services, contracts, or funding. If BIA and a participating Tribe/
Consortium disagree over the residual
information, a participating Tribe/Consortium may ask the Deputy Commissioner—Indian Affairs to reconsider residual levels for particular programs.
[See § 1000.95(d)]
(b) After the AFA is signed, BIA must
raise the issue of any undetermined
funding amounts within 30 days after
the final funding level is determined.
BIA may not raise this issue after this
period has elapsed.

The Tribe/Consortium and the bureau
use the procedures in §§ 1000.173–
1000.179.

Subpart H—Limitation and/or Reduction of BIA Services, Contracts, and Funds
§ 1000.190 What is the purpose of this
subpart?
This subpart prescribes the process
that the Secretary uses to determine
whether a BIA self-governance funding
agreement causes a limitation or reduction in the services, contracts, or
funds that any other Tribe/Consortium
or Tribal organization is eligible to receive under self-determination contracts, other self-governance compacts,
or direct services from BIA. This type
of limitation is prohibited by section
406(a) of Pub. L. 93–638. For the purposes of this subpart, Tribal organization means an organization eligible to
receive services, contracts, or funds
under section 102 of Pub. L. 93–638.
§ 1000.191 To whom does this subpart
apply?
Participating and non-participating
Tribes/Consortia and Tribal organizations are subject to this subpart. It
does not apply to the general public
and non-Indians.
§ 1000.192 What services, contracts, or
funds are protected under section
406(a)?
Section 406(a) protects against the
actual reduction or limitations of services, contracts, or funds.

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§ 1000.195

§ 1000.193 Who may raise the issue of
limitation or reduction of services,
contracts, or funding?
BIA or any affected Tribe/Consortium
or Tribal organization may raise the
issue that a BIA self-governance AFA

§ 1000.194 When must BIA raise the
issue of limitation or reduction of
services, contracts, or funding?

§ 1000.195 When must an affected
Tribe/Consortium or Tribal organization raise the issue of a limitation
or reduction of services, contracts,
or funding for which it is eligible?
(a) A Tribe/Consortium or Tribal organization may raise the issue of limitation or reduction of services, contracts, or funding for which it is eligible during:
(1) Region-wide Tribal shares meetings occurring before the first year of
implementation of an AFA;
(2) Within the 90-day review period
before the effective date of the AFA;
and
(3) The first year of implementation
of an AFA.
(b) Any Tribe/Consortium or Tribal
organization claiming a limitation or
reduction of contracts, services, or
funding for which it is eligible must
notify, in writing, both the Department and negotiating Tribe/Consortium. Claims may only be filed within
the periods specified in paragraph (a) of
this section.

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§ 1000.196

25 CFR Ch. VI (4–1–10 Edition)

§ 1000.196 What must be included in a
finding by BIA or in a claim by an
affected Tribe/Consortium or Tribal
organization regarding the issue of
a limitation or reduction of services?
An affected Tribe/Consortium must
include in its claim a written explanation identifying the alleged limitation or reduction of services, contracts,
or funding for which it is eligible. A
finding by BIA must likewise identify
the limitation or reduction.
§ 1000.197 How
claim?

will

BIA

resolve

a

All findings and claims timely made
in accordance with §§ 1000.194 through
1000.195 will be resolved in accordance
with 25 CFR part 2.
§ 1000.198 How must a limitation or reduction in services, contracts, or
funds be remedied?
(a) If funding a participating Tribe/
Consortium will limit or reduce services, contracts, or funds for which another Tribe/Consortium or Tribal organization is eligible, BIA must remedy
the reduction as follows:
(1) In the current AFA year BIA must
use shortfall funding, supplemental
funding, or other available BIA resources; and
(2) In a subsequent AFA year, BIA
may adjust the AFA funding in an AFA
to correct a finding of actual reduction
in services, contracts, or funds for that
subsequent year.
(b) All adjustments under this section must be mutually agreed between
BIA and the participating Tribe/Consortium.

Subpart I—Public Consultation
Process

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§ 1000.210 When does a non-BIA bureau use a public consultation process related to the negotiation of an
AFA?
When required by law or when appropriate under bureau discretion, a bureau may use a public consultation
process in negotiating an AFA.

§ 1000.211 Will the bureau contact the
Tribe/Consortium before initiating
public consultation process for a
non-BIA AFA under negotiation?
Yes, the bureau and the Tribe/Consortium will discuss the consultation
process to be used in negotiating a nonBIA AFA.
(a) When public consultation is required by law, the bureau will follow
the required process and will involve
the Tribe/Consortium in that process
to the maximum extent possible.
(b) When public consultation is a
matter of bureau discretion, at Tribal
request the Tribe/Consortium and the
bureau, unless prohibited by law, will
jointly develop guidelines for that
process, including the conduct of any
future public meetings. The bureau and
the Tribe/Consortium will jointly identify a list of potential project beneficiaries, third-party stakeholders, or
third-party users (affected parties) for
use in the public consultation process.
§ 1000.212 What is the role of the
Tribe/Consortium when a bureau
initiates a public meeting?
When a bureau initiates a public
meeting with affected parties it will
take the following actions:
(a) The bureau will notify the Tribe/
Consortium of the meeting time, place,
and invited parties:
(1) Ten days in advance, if possible;
or
(2) If less than 10 days in advance, at
the earliest practical time.
(b) When the bureau notifies the
Tribe/Consortium, the bureau will invite the Tribe/Consortium to participate in and, unless prohibited by law,
to co-sponsor or co-facilitate the meeting.
(c) When possible, the bureau and the
Tribe/Consortium should meet to plan
and discuss the conduct of the meeting,
meeting protocols, and general participation in the proposed consultation
meeting.
(d) The bureau and the Tribe/Consortium will conduct the meeting in a
manner that facilitates and does not
undermine the government-to-government relationship and self-governance;
(e) The Tribe/Consortium may provide technical support to the bureau to

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Office of the Assistant Secretary, Interior
enhance the consultation process, as
mutually agreed.
§ 1000.213 What should the bureau do
if it is invited to attend a meeting
with respect to the Tribe’s/Consortium’s proposed AFA?
If the bureau is invited to participate
in meetings, hearings, etc., held or conducted by other parties, where the subject matter of the AFA under negotiation is expected to be raised, the bureau:
(a) Shall notify the Tribe/Consortium
at the earliest practical time; and
(b) Should encourage the meeting
sponsor to invite the Tribe/Consortium
to participate.
§ 1000.214 Will the bureau and the
Tribe/Consortium share information concerning inquiries about the
Tribes/Consortia and the AFA?
Yes, the bureau and the Tribe/Consortium will exchange information
about inquiries from affected or interested parties relating to the AFA under
negotiation.

Subpart J—Waiver of Regulations
§ 1000.220 What regulations apply to
self-governance Tribes?
All regulations that govern the operation of programs included in an AFA
apply unless waived under this subpart.
To the maximum extent practical, the
parties should identify these regulations in the AFA.
§ 1000.221 Can the Secretary grant a
waiver of regulations to a Tribe/
Consortium?
Yes, a Tribe/Consortium may ask the
Secretary to grant a waiver of some or
all Department of the Interior regulation(s) applicable to a program, in
whole or in part, operated by a Tribe/
Consortium under an AFA.

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§ 1000.222 How does a Tribe/Consortium obtain a waiver?
To obtain a waiver, the Tribe/Consortium must:
(a) Submit a written request from
the designated Tribal official to the Director for BIA programs or the appropriate bureau/office director for nonBIA programs;

§ 1000.226
(b) Identify the regulation to be
waived and the reasons for the request;
(c) Identify the programs to which
the waiver would apply;
(d) Identify what provisions, if any,
would be substituted in the AFA for
the regulation to be waived; and
(e) When applicable, identify the effect of the waiver on any trust programs or resources.
§ 1000.223 When can a Tribe/Consortium request a waiver of a regulation?
A Tribe/Consortium may request a
waiver of a regulation:
(a) As part of the negotiation process; or
(b) After an AFA has been executed.
§ 1000.224 How can a Tribe/Consortium expedite the review of a regulation waiver request?
A Tribe/Consortium may request a
meeting or other informal discussion
with the appropriate bureau officials
before submitting a waiver request.
(a) To set up a meeting, the Tribe/
Consortium should contact:
(1) For BIA programs, the Director,
OSG; or
(2) For non-BIA programs, the designated representative of the bureau.
(b) The meeting or discussion is intended to provide:
(1) A clear understanding of the nature of the request;
(2) Necessary background and information; and
(3) An opportunity for the bureau to
offer appropriate technical assistance.
§ 1000.225 Are meetings or discussions
mandatory?
No, a meeting with the bureau officials is not necessary to submit a waiver request.
§ 1000.226 On what basis may the Secretary deny a waiver request?
The Secretary may deny a waiver request if:
(a) For a Title-I-eligible program, the
requested waiver is prohibited by Federal law; or
(b) For a non-Title-I-eligible program, the requested waiver is:
(1) Prohibited by Federal law; or
(2) Inconsistent with the express provisions of the AFA.

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§ 1000.227

25 CFR Ch. VI (4–1–10 Edition)

§ 1000.227 What happens if the Secretary denies the waiver request?
If the Secretary denies a waiver request, the Secretary issues a written
decision stating:
(a) The basis for the decision;
(b) The decision is final for the Department; and
(c) The Tribe/Consortium may request reconsideration of the denial.
§ 1000.228 What are examples of waivers prohibited by law?
Examples of when a waiver is prohibited by Federal law include:
(a) When the effect would be to waive
or eliminate express statutory requirements;
(b) When a statute authorizes civil
and criminal penalties;
(c) When it would result in a failure
to ensure that proper health and safety
standards are included in an AFA (section 403(e)(2));
(d) When it would result in a reduction of the level of trust services that
would have been provided by the Secretary to individual Indians (section
403(g)(4));
(e) When it would limit or reduce the
services, contracts, or funds to any
other Indian Tribe or Tribal organization (section 406(a));
(f) When it would diminish the Federal trust responsibility to Tribes, individual Indians or Indians with trust allotments (Section 406(b)); or
(g) When it would violate Federal
case law.

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§ 1000.229 May a Tribe/Consortium
propose a substitute for a regulation it wishes to be waived?
Yes, where a Tribe/Consortium wishes to replace the waived regulation
with a substitute that otherwise maintains the requirements of the applicable Federal law, the Secretary may be
able to approve the waiver request. The
Tribe/Consortium and bureau officials
must negotiate to develop a suggested
substitution.
§ 1000.230 How is a waiver approval
documented for the record?
The waiver decision is made part of
the AFA by attaching a copy of it to
the AFA and by mutually executing
any necessary conforming amendments

to the AFA. The decisions announcing
the waiver also will be posted on the
Office of Self-Governance web site and
all such decisions shall be made available on request.
§ 1000.231 How does a Tribe/Consortium request reconsideration of the
Secretary’s denial of a waiver?
(a) The Tribe/Consortium may request reconsideration of a waiver denial. To do so, the Tribe/Consortium
must submit a request to:
(1) The Director, OSG, for BIA programs; or
(2) The appropriate bureau head, for
non-BIA programs.
(b) The request must be filed within
30 days of the day the decision is received by certified mail (return receipt
requested) or by hand delivery. A request submitted by mail will be considered filed on the postmark date.
(c) The request must identify the
issues to be addressed, including a
statement of reasons supporting the request.
§ 1000.232 When must DOI respond to
a request for reconsideration?
The Secretary must issue a written
decision within 30 days of the Department’s receipt of a request for reconsideration. This decision is final for the
Department and no administrative appeal may be made.

Subpart K—Construction
§ 1000.240 What construction programs
included in an AFA are subject to
this subpart?
(a) All BIA and non-BIA construction
programs included in an AFA are subject to this subpart. This includes design, construction, repair, improvement, expansion, replacement or demolition of buildings or facilities, and
other related work for Federal, or Federally funded Tribal, facilities and
projects.
(b) The following programs and activities are not construction programs
and activities:
(1) Activities limited to providing
planning services, administrative support services, coordination, responsibility for the construction project, dayto-day on-site management on site-

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Office of the Assistant Secretary, Interior
management and administration of the
project, which may include cost management, project budgeting, project
scheduling and procurement except
that all project design and actual construction activities are subject to all
the requirements of subpart K, whether
performed by a Tribe/Consortium, subcontractor, or consultant.
(2) Housing Improvement Program or
road maintenance program activities
of BIA;
(3) Operation and maintenance programs; and
(4) Non-403(c) programs that are less
than $100,000, subject to section
403(e)(2) of the Act, other applicable
Federal law, and § 1000.256 of this subpart.

No, a BIA or non-BIA construction
program does not automatically create
an agency relationship. However, Federal law, provisions of an AFA, or Federal actions may create an agency relationship.

engineering standards, appropriate for
the particular project; and
(3) Necessary inspections and testing
by the Tribe.
(b) The AFA must comply with applicable Federal laws, program statutes
and regulations.
(c) The AFA must specify the services to be provided, the work to be performed, and the responsibilities of the
Tribe/Consortium and the Secretary
under the AFA.
(d) The Secretary may require the
Tribe/Consortium to provide brief
progress reports and financial status
reports. The parties may negotiate in
the AFA the frequency, format and
content of the reporting requirement.
As negotiated, these reports may include:
(1) A narrative of the work accomplished;
(2) The percentage of the work completed;
(3) A report of funds expended during
the reporting period; and
(4) The total funds expended for the
project.

§ 1000.242 What provisions relating to
a construction program may be included in an AFA?

§ 1000.244 May the Secretary suspend
construction activities under an
AFA?

The Secretary and the Tribe/Consortium may negotiate to apply specific
provisions of the Office of Federal Procurement and Policy Act and Federal
Acquisition Regulations to a construction part of an AFA. Absent a negotiated agreement, such provisions and
regulatory requirements do not apply.

(a) The Secretary may require a
Tribe/Consortium to suspend certain
work under a construction portion of
an AFA for up to 30 days only if:
(1) Site conditions adversely affect
health and safety; or
(2) Work in progress or completed
fails to substantially carry out the
terms of the AFA without good cause.
(b) The Secretary may suspend only
work directly related to the criteria
specified in paragraph (a) of this section unless other reasons for suspension are specifically negotiated in the
AFA.
(c) Unless the Secretary determines
that a health and safety emergency requiring immediate action exists, before
suspending work the Secretary must
provide:
(1) A 5 working days written notice;
and
(2) An opportunity for the Tribe/Consortium to correct the problem.
(d) The Tribe/Consortium must be
compensated for reasonable costs due

§ 1000.241 Does this subpart create an
agency relationship?

§ 1000.243 What
special
provisions
must be included in an AFA that
contains a construction program?

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§ 1000.244

An AFA that contains a construction
program must address the requirements listed in this section.
(a) The AFA must specify how the
Secretary and the Tribe/Consortium
must ensure that proper health and
safety standards are provided for in the
implementation of the AFA, including
but not limited to:
(1) The use of architects and engineers licensed to perform the type of
construction involved in the AFA;
(2) Applicable Federal, state, local or
Tribal building codes and applicable

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§ 1000.245

25 CFR Ch. VI (4–1–10 Edition)

to any suspension of work that occurred through no fault of the Tribe/
Consortium. Project funds will not be
used for this purpose. However, if suspension occurs due to the action or inaction of the Tribe/Consortium, then
project funds will be used to cover suspension related activities.
§ 1000.245 May a Tribe/Consortium
continue work with construction
funds remaining in an AFA at the
end of the funding year?
Yes, any funds remaining in an AFA
at the end of the funding year may be
spent for construction under the terms
of the AFA.
§ 1000.246 Must an AFA that contains a
construction project or activity incorporate provisions of Federal
construction standards?
No, the Secretary may provide information about Federal standards as
early as possible in the construction
process. If Tribal construction standards are consistent with or exceed applicable Federal standards, then the
Secretary must accept the Indian
Tribe/Consortium’s proposed standards.
The Secretary may accept commonly
accepted industry construction standards.

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§ 1000.247 May the Secretary require
design provisions and other terms
and conditions for construction
programs or activities included in
an AFA under section 403(c) of the
Act?
Yes, the relevant bureau may provide
to the Tribe/Consortium project design
criteria and other terms and conditions
that are required for such a project.
The project must be completed in accordance with the terms and conditions
set forth in the AFA.
§ 1000.248 What is the Tribe’s/Consortium’s role in a construction program included in an AFA?
The Tribe/Consortium has the following role regarding a construction
portion of an AFA:
(a) Under the Act, the Indian Tribe/
Consortium must successfully complete the project in accordance with
the terms and conditions in the AFA.
(b) The Tribe/Consortium must give
the Secretary timely notice of any pro-

posed changes to the project that require an increase to the negotiated
funding amount or an increase in the
negotiated performance period or any
other significant departure from the
scope or objective of the project. The
Tribe/Consortium and Secretary may
negotiate to include timely notice requirements in the AFA.
§ 1000.249 What is the Secretary’s role
in a construction program in an
AFA?
The Secretary has the following role
regarding a construction program contained in an AFA:
(a) Except as provided in § 1000.256,
the Secretary may review and approve
planning and design documents in accordance with terms negotiated in the
AFA to ensure health and safety standards and compliance with Federal law
and other program mandates;
(b) Unless otherwise agreed to in an
AFA, the Secretary reserves a royaltyfree, nonexclusive, and irrevocable license to reproduce, publish, or otherwise use for Federal Government purposes, designs produced in the construction program that are funded by
AFA monies, including:
(1) The copyright to any work developed under a contract or subcontract;
and
(2) Any rights of copyright that an
Indian Tribe/Consortium or a Tribal
contractor purchases through the AFA;
(c) The Secretary may conduct onsite monitoring visits as negotiated in
the AFA;
(d) The Secretary must approve any
proposed changes in the construction
program or activity that require an increase in the negotiated AFA funding
amount or an increase in the negotiated performance period or are a significant departure from the scope or
objective of the construction program
as agreed to in the AFA;
(e) The Secretary may conduct final
project inspection jointly with the Indian Tribe/Consortium and may accept
the construction project or activity as
negotiated in the AFA;
(f) Where the Secretary and the
Tribe/Consortium share construction
program activities, the AFA may provide for the exchange of information;

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Office of the Assistant Secretary, Interior
(g) The Secretary may reassume the
construction portion of an AFA if there
is a finding of:
(1) A significant failure to substantially carry out the terms of the AFA
without good cause; or
(2) Imminent jeopardy to a physical
trust asset, to a natural resource, or
that adversely affects public health
and safety as provided in subpart M of
this part.
§ 1000.250 How are property and funding returned if there is a reassumption for substantial failure to carry
out an AFA?
If there is a reassumption
stantial failure to carry out
property and funding will be
as provided in subparts M and
part.

for suban AFA,
returned
N of this

§ 1000.251 What happens when a Tribe/
Consortium is suspended for substantial failure to carry out the
terms of an AFA without good
cause and does not correct the failure during the suspension?
(a) Except when the Secretary makes
a finding of imminent jeopardy to a
physical trust asset, a natural resource, or public health and safety as
provided in subpart M of these regulations a finding of substantial failure to
carry out the terms of the AFA without good cause must be processed
under the suspension of work provision
of § 1000.244.
(b) If the substantial failure to carry
out the terms of the AFA without good
cause is not corrected or resolved during the suspension of work, the Secretary may initiate a reassumption at
the end of the 30-day suspension of
work if an extension has not been negotiated. Any unresolved dispute will be
processed in accordance with the Contract Disputes Act of 1978, 41 U.S.C. 601,
et seq.

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§ 1000.252 Do all provisions of other
subparts apply to construction portions of AFAs?
Yes, all provisions of other subparts
apply to construction portions of AFAs
unless those provisions are inconsistent with this subpart.

§ 1000.256
§ 1000.253 When a Tribe withdraws
from a Consortium, is the Secretary
required to award to the withdrawing Tribe a portion of funds
associated with a construction
project if the withdrawing Tribe so
requests?
Under § 1000.35 of this part, a Tribe
may withdraw from a Consortium and
request its portion of a construction
project’s funds. The Secretary may decide not to award these funds if the
award will affect the Consortium’s
ability to complete a non-severable
phase of the project within available
funding. An example of a non-severable
phase of a project would be the construction of a single building serving
all members of the Consortium. An example of a severable phase of a project
would be the funding for a road in one
village where the Consortium would be
able to complete the roads in the other
villages that were part of the project
approved initially in the AFA. The Secretary’s decision under this section
may be appealed under subpart R of
this part.
§ 1000.254 May a Tribe/Consortium reallocate funds from a construction
program to a non-construction program?
No, a Tribe/Consortium may not reallocate funds from a construction program to a non-construction program
unless otherwise provided under the
relevant appropriation acts.
§ 1000.255 May a Tribe/Consortium reallocate funds among construction
programs?
Yes, a Tribe/Consortium may reallocate funds among construction programs if permitted by appropriation
law or if approved in advance by the
Secretary.
§ 1000.256 Must the Secretary retain
project funds to ensure proper
health and safety standards in construction projects?
Yes, the Secretary must retain
project funds to ensure proper health
and safety standards in construction
projects. Examples of purposes for
which bureaus may retain funds include:

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§ 1000.270

25 CFR Ch. VI (4–1–10 Edition)

(a) Determining or approving appropriate construction standards to be
used in AFAs;
(b) Verifying that there is an adequate Tribal inspection system utilizing licensed professionals;
(c) Providing for sufficient monitoring of design and construction by
the Secretary; and
(d) Requiring corrective action during performance when appropriate.

Subpart L—Federal Tort Claims

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§ 1000.270 What does this subpart
cover?
This subpart explains the applicability of the Federal Tort Claims Act
(FTCA). This section covers:
(a) Coverage of claims arising out of
the performance of functions under
Self-Governance AFA’s; and
(b) Procedures for filing claims under
FTCA.

(b) What claims may not be pursued
under FTCA?
(1) Claims against subcontractors
arising out of the performance of subcontracts with a Self-Governance
Tribe/Consortium;
(2) Claims for on-the-job injuries
which are covered by workmen’s compensation;
(3) Claims for breach of contract
rather than tort claims; or
(4) Claims resulting from activities
performed by an employee which are
outside the scope of employment.
(c) What remedies are expressly excluded by FTCA and therefore are
barred?
(1) Punitive damages, unless otherwise authorized by 28 U.S.C. 2674; and
(2) Other remedies not permitted
under applicable state law.
§ 1000.273 Is there a deadline for filing
FTCA claims?

§ 1000.271 What other statutes and regulations apply to FTCA coverage?
A number of other statutes and regulations apply to FTCA coverage, including the Federal Tort Claims Act (28
U.S.C. 1346(b), 2401, 2671–2680) and related Department of Justice regulations in 28 CFR part 14.

Yes, claims shall be filed within 2
years of the date of accrual. (28 U.S.C.
2401).

§ 1000.272 Do Tribes/Consortia need to
be aware of areas which FTCA does
not cover?
Yes, there are claims against SelfGovernance Tribes/Consortia which are
not covered by FTCA, claims which
may not be pursued under FTCA, and
remedies that are excluded by FTCA.
The following general guidance is not
intended as a definitive description of
coverage, which is subject to review by
the Department of Justice and the
courts on a case-by-case basis.
(a) What claims are expressly barred
by FTCA and therefore may not be
made against the United States, a
Tribe or Consortium? Any claim under
28 U.S.C. 2680, including claims arising
out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract rights, unless
otherwise authorized by 28 U.S.C.
2680(h).

The Federal government has 6
months to process a FTCA claim after
the claim is received by the Federal
agency, before a lawsuit may be filed.

§ 1000.274 How long does the Federal
government have to process a FTCA
claim after the claim is received by
the Federal agency, before a lawsuit may be filed?

§ 1000.275 Is it necessary for a self-governance AFA to include any clauses
about FTCA coverage?
No, clauses about FTCA coverage are
optional. At the request of Tribes/Consortia, self-governance AFA’s shall include the following clause to clarify
the scope of FTCA coverage:
For purposes of Federal Tort Claims Act
coverage, the Tribe/Consortium and its employees (including individuals performing
personal services contracts with the tribe/
consortium) are deemed to be employees of
the Federal government while performing
work under this AFA. This status is not
changed by the source of the funds used by
the Tribe/Consortium to pay the employee’s
salary and benefits unless the employee receives additional compensation for performing covered services from anyone other
than the Tribe/Consortium.

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Office of the Assistant Secretary, Interior

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§ 1000.276 Does FTCA apply to a selfgovernance AFA if FTCA is not referenced in the AFA?
Yes, FTCA applies even if the AFA
does not mention it.
§ 1000.277 To what extent shall the
Tribe/Consortium cooperate with
the Federal government in connection with tort claims arising out of
the Tribe’s/Consortium’s performance?
(a) The Tribe/Consortium shall designate an individual to serve as tort
claims liaison with the Federal government.
(b) As part of the notification required by 28 U.S.C. 2679(c), the Tribe/
Consortium shall notify the Secretary
immediately in writing of any tort
claim (including any proceeding before
an administrative agency or court)
filed against the Tribe/Consortium or
any of its employees that relates to
performance of a self-governance AFA
or subcontract.
(c) The Tribe/Consortium, through its
designated tort claims liaison, shall assist the appropriate Federal agency in
preparing a comprehensive, accurate,
and unbiased report of the incident so
that the claim may be properly evaluated. This report should be completed
within 60 days of notification of the filing of the tort claim. The report should
be complete in every significant detail
and include as appropriate:
(1) The date, time and exact place of
the accident or incident;
(2) A concise and complete statement
of the circumstances of the accident or
incident;
(3) The names and addresses of Tribal
and/or Federal employees involved as
participants or witnesses;
(4) The names and addresses of all
other eyewitnesses;
(5) An accurate description of all government and other privately-owned
property involved and the nature and
amount of damage, if any;
(6) A statement as to whether any
person involved was cited for violating
a Federal, State or tribal law, ordinance, or regulation;
(7) The Tribe’s/Consortium’s determination as to whether any of its employees (including Federal employees
assigned to the Tribe/Consortium) involved in the incident giving rise to the

§ 1000.279
tort claim were acting within the scope
of their employment in carrying out
the contract at the time the incident
occurred;
(8) Copies of all relevant documentation, including available police reports,
statements of witnesses, newspaper accounts, weather reports, plats and photographs of the site or damaged property, such as may be necessary or useful for purposes of claim determination
by the Federal agency; and
(9) Insurance coverage information,
copies of medical bills, and relevant
employment records.
(d) The Tribe/Consortium shall cooperate with and provide assistance to
the U.S. Department of Justice attorneys assigned to defend the tort claim,
including, but not limited to, case
preparation, discovery, and trial.
(e) If requested by the Secretary, the
Tribe/Consortium shall make an assignment and subrogation of all the
Tribe’s/Consortium’s rights and claims
(except those against the Federal government) arising out of a tort claim
against the Tribe/Consortium.
(f) If requested by the Secretary, the
Tribe/Consortium shall authorize representatives of the Secretary to settle
or defend any claim and to represent
the Tribe/Consortium in or take charge
of any action.
(g) If the Federal government undertakes the settlement or defense of any
claim or action, the Tribe/Consortium
shall provide all reasonable additional
assistance in reaching a settlement or
asserting a defense.
§ 1000.278 Does this coverage extend
to subcontractors of self-governance AFAs?
No, subcontractors or subgrantees
providing services to a Pub. L. 93–638
Tribe/Consortium are generally not
covered.
§ 1000.279 Is FTCA the exclusive remedy for a tort claim, including a
claim concerning personal injury or
death, resulting from the performance of a self-governance AFA?
Yes,
except
as
explained
in
§ 1000.272(b). No claim may be filed
against a self-governance Tribe/Consortium or employee based upon performance of functions under a self-governance AFA. All claims shall be filed

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§ 1000.280

25 CFR Ch. VI (4–1–10 Edition)

against the United States and are subject to the limitations and restrictions
of FTCA.
§ 1000.280 What employees are covered
by
FTCA
for
medical-related
claims?
The following employees are covered
by FTCA for medical-related claims:
(a) Permanent employees;
(b) Temporary employees;
(c) Persons providing services without compensation in carrying out a
contract;
(d) Persons required because of their
employment by a self-governance
Tribe/Consortium to serve non-IHS
beneficiaries (even if the services are
provided in facilities not owned by the
Tribe/Consortium; and,
(e) Federal employees assigned to the
AFA.
§ 1000.281 Does FTCA cover employees
of the Tribe/Consortium who are
paid by the Tribe/Consortium from
funds other than those provided
through the self-governance AFA?
Yes, FTCA covers employees of the
Tribe/Consortium who are not paid
from AFA funds as long as the services
out of which the claim arose were performed in carrying out the self-governance AFA.
§ 1000.282 May persons who are not Indians or Alaska Natives assert
claims under FTCA?
Yes, non-Indian individuals served
under the self-governance AFA, may
assert claims under this Subpart.

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§ 1000.283 If the Tribe/Consortium or
Tribe’s/Consortium’s employee receives a summons and/or a complaint alleging a tort covered by
FTCA, what should the Tribe/Consortium do?
As part of the notification required
by 28 U.S.C. 2679(c), if the Tribe/Consortium or Tribe’s/Consortium’s employee
receives a summons and/or complaint
alleging a tort covered by FTCA, the
Tribe/Consortium should immediately:
(a) Inform the Assistant Solicitor,
Procurement and Patents, Office of the
Solicitor, Department of the Interior,
Room 6511, 1849 C Street NW., Washington, DC 20240,

(b) Inform the Tribe’s/Consortium’s
tort claims liaison, and
(c) Forward all of the materials identified in § 1000.277(c) to the contacts
given in § 1000.283 (a) and (b).

Subpart M—Reassumption
§ 1000.300 What is the purpose of this
subpart?
This subpart explains when the Secretary can reassume a program without the consent of a Tribe/Consortium.
§ 1000.301 When may the Secretary reassume a Federal program operated
by a Tribe/Consortium under an
AFA?
The Secretary may reassume any
Federal program operated by a Tribe/
Consortium upon a finding of imminent
jeopardy to:
(a) A physical trust asset;
(b) A natural resource; or
(c) Public health and safety.
§ 1000.302 ‘‘What is imminent
ardy’’ to a trust asset?

Imminent jeopardy means an immediate threat and likelihood of significant devaluation, degradation, damage,
or loss of a trust asset, or the intended
benefit from the asset caused by the
actions or inactions of a Tribe/Consortium in performing trust functions.
This includes disregarding Federal
trust standards and/or Federal law
while performing trust functions if the
disregard creates such an immediate
threat.
§ 1000.303 What is imminent jeopardy
to natural resources?
The standard for natural resources is
the same as for a physical trust asset,
except that a review for compliance
with the specific mandatory statutory
provisions related to the program as
reflected in the funding agreement
must also be considered.
§ 1000.304 What is imminent jeopardy
to public health and safety?
Imminent jeopardy to public health
and safety means an immediate and
significant threat of serious harm to
human well-being, including conditions
that may result in serious injury, or

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Office of the Assistant Secretary, Interior
death, caused by Tribal action or inaction or as otherwise provided in an
AFA.
§ 1000.305 In an imminent jeopardy situation, what must the Secretary
do?
In an imminent jeopardy situation,
the Secretary must:
(a) The Secretary must immediately
notify the Tribe/Consortium in writing
following discovery of imminent jeopardy; or
(b) If there is an immediate threat to
human health, safety, or welfare, the
Secretary may immediately reassume
operation of the program regardless of
the timeframes specified in this subpart.
§ 1000.306 Must the Secretary always
reassume a program, upon a finding
of imminent jeopardy?
Yes, the Secretary must reassume a
program within 60 days of a finding of
imminent jeopardy, unless the Secretary’s designated representative determines that the Tribe/Consortium is
able to mitigate the conditions.

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§ 1000.307 What happens if the Secretary’s designated representative
determines that the Tribe/Consortium cannot mitigate the conditions
within 60 days?
The Secretary will proceed with the
reassumption in accordance with this
subpart by sending the Tribe/Consortium a written notice of the Secretary’s intent to reassume.
§ 1000.308 What will the notice of reassumption include?
The notice of reassumption under
§ 1000.307 will include all of the following items. In addition, if resources
are available, the Secretary may offer
technical assistance to mitigate the
imminent jeopardy.
(a) A statement of the reasons supporting the Secretary’s finding.
(b) To the extent practical, a description of specific measures that must be
taken by the Tribe/Consortium to
eliminate imminent jeopardy.
(c) A notice that funds for the management of the trust asset, natural resource, or public health and safety
found to be in imminent jeopardy may
not be reallocated or otherwise trans-

§ 1000.311
ferred without the Secretary’s written
consent.
(d) A notice of intent to invoke the
return of property provision of the
AFA.
(e) The effective date of the reassumption if the Tribe/Consortium
does not eliminate the imminent jeopardy. If the deadline is less than 60
days after the date of receipt, the Secretary must include a justification.
(f) The amount of funds, if any, that
the Secretary believes the Tribe/Consortium should refund to the Department for operation of the reassumed
program. This amount cannot exceed
the amount provided for that program
under the AFA and must be based on
such factors as the time or functions
remaining in the funding cycle.
§ 1000.309 How much time will a Tribe/
Consortium have to respond to a
notice of imminent jeopardy?
The Tribe/Consortium will have 5
days to respond to a notice of imminent jeopardy. The response must be
written and may be mailed, telefaxed,
or sent by electronic mail. If sent by
mail, it must be sent by certified mail,
return receipt requested; the postmark
date will be considered the date of response.
§ 1000.310 What information must the
Tribe’s/Consortium’s response contain?
(a) The Tribe’s/Consortium’s response
must indicate the specific measures
that the Tribe/Consortium will take to
eliminate the finding of imminent
jeopardy.
(b) If the Tribe/Consortium proposes
mitigating actions different from those
prescribed in the Secretary’s notice of
imminent jeopardy, the response must
explain the reasons for deviating from
the Secretary’s recommendations and
how the proposed actions will eliminate imminent jeopardy.
§ 1000.311 How will the Secretary
reply to the Tribe’s/Consortium’s response?
The Secretary will make a written
determination within 10 days of the
Tribe’s/Consortium’s written response
as to whether the proposed measures
will eliminate the finding of imminent
jeopardy.

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§ 1000.312

25 CFR Ch. VI (4–1–10 Edition)

§ 1000.312 What happens if the Secretary accepts the Tribe’s/Consortium’s proposed measures?
The Secretary must notify the Tribe/
Consortium in writing of the acceptance and suspend the reassumption
process.
§ 1000.313 What happens if the Secretary does not accept the Tribe’s/
Consortium’s proposed measures?
(a) If the Secretary finds that the
Tribes/Consortia proposed measures
will not mitigate imminent jeopardy,
he/she will notify the Tribe/Consortium
in writing of this determination and of
the Tribe’s/Consortium’s right to appeal
(b) After the reassumption, the Secretary is responsible for the reassumed
program, and will take appropriate corrective action to eliminate the imminent jeopardy which may include sending Department employees to the site.
§ 1000.314 What must a Tribe/Consortium do when a program is reassumed?
On the effective date of reassumption, the Tribe/Consortium must, at
the request of the Secretary, deliver all
property and equipment, and title
thereto:
(a) That the Tribe/Consortium received for the program under the AFA;
and
(b) That has a per item value in excess of $5,000, or as otherwise provided
in the AFA.
§ 1000.315 When must the Tribe/Consortium return funds to the Department?
The Tribe/Consortium must repay
funds to the Department as soon as
practical after the effective date of the
reassumption.

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§ 1000.316 May the Tribe/Consortium
be reimbursed for actual and reasonable ‘‘wind up costs’’ incurred
after the effective date of retrocession?
Yes, the Tribe/Consortium may be reimbursed for actual and reasonable
‘‘wind up costs’’ to the extent that
funds are available.

§ 1000.317 Is a Tribe’s/Consortium’s
general right to negotiate an AFA
adversely affected by a reassumption action?
A reassumption action taken by the
Secretary does not affect the Tribe’s/
Consortium’s ability to negotiate an
AFA for programs not affected by the
reassumption.
§ 1000.318 When will the Secretary return management of a reassumed
program?
A reassumed program may be included in future AFAs, but the Secretary may include conditions in the
terms of the AFA to ensure that the
circumstances that caused jeopardy to
attach do not reoccur.

Subpart N—Retrocession
§ 1000.330 What is the purpose of this
subpart?
This subpart explains what happens
when a Tribe/Consortium voluntarily
returns a program to a bureau.
§ 1000.331 Is a decision by a Tribe/Consortium not to include a program in
a successor agreement considered a
retrocession?
No, a decision by a Tribe/Consortium
not to include a program in a successor
agreement is not a retrocession because the Tribe/Consortium is under no
obligation beyond an existing AFA.
§ 1000.332 Who may retrocede a program in an AFA?
A Tribe/Consortium may retrocede a
program. However, the right of a Consortium member to retrocede may be
subject to the terms of the agreement
among the members of the Consortium.
§ 1000.333 How does a Tribe/Consortium retrocede a program?
The Tribe/Consortium must submit:
(a) A written notice to:
(1) The Office of Self-Governance for
BIA programs; or
(2) The appropriate bureau for nonBIA programs; and
(b) A Tribal resolution or other official action of its governing body.

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Office of the Assistant Secretary, Interior
§ 1000.334 When will the retrocession
become effective?
Unless subsequently rescinded by the
Tribe/Consortium, a retrocession is
only effective on a date mutually
agreed upon by the Tribe/Consortium
and the Secretary, or as provided in
the AFA.
§ 1000.335 How will retrocession affect
the Tribe’s/Consortium’s existing
and future AFAs?
Retrocession does not affect other
parts of the AFA or funding agreements with other bureaus. A Tribe/Consortium may request to negotiate for
and include retroceded programs in future AFAs or through a self-determination contract.
§ 1000.336 Does the Tribe/Consortium
have to return funds used in the operation of a retroceded program?
The Tribe/Consortium and the Secretary must negotiate the amount of
funding to be returned to the Secretary
for the operation of the retroceded program. This amount must be based on
such factors as the time remaining or
functions remaining in the funding
cycle or as provided in the AFA.
§ 1000.337 Does the Tribe/Consortium
have to return property used in the
operation of a retroceded program?
On the effective date of any retrocession, the Tribe/Consortium must return
all property and equipment, and title
thereto:
(a) That was acquired under the AFA
for the program being retroceded; and
(b) That has a per item value in excess of $5,000 at the time of the retrocession, or as otherwise provided in
the AFA.

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§ 1000.338 What happens to a Tribe’s/
Consortium’s mature contract status if it has retroceded a program
that is also available for self-determination contracting?
Retrocession has no effect on mature
contract status, provided that the 3
most recent audits covering activities
administered by the Tribe have no unresolved material audit exceptions.

§ 1000.352
§ 1000.339 How does retrocession affect a bureau’s operation of the
retroceded program?
The level of operation of the program
will depend upon the amount of funding that is returned with the retrocession.

Subpart O—Trust Evaluation
Review
§ 1000.350 What is the purpose of this
subpart?
This subpart describes how the trust
responsibility of the United States is
legally maintained through a system of
trust evaluations when Tribes/Consortia perform trust functions through
AFAs under the Tribal Self-Governance
Act of 1994. It describes the principles
and processes upon which trust evaluations will be based.
§ 1000.351 Does the Tribal Self-Governance Act of 1994 alter the trust responsibility of the United States to
Indian Tribes and individuals
under self-governance?
No, the Act does, however, permit a
Tribe/Consortium to assume management responsibilities for trust assets
and resources on its own behalf and on
behalf of individual Indians. Under the
Act, the Secretary has a trust responsibility to conduct annual trust evaluations of Tribal performance of trust
functions to ensure that Tribal and individual trust assets and resources are
managed in accordance with the legal
principles and standards governing the
performance of trust functions if trust
assets or resources are found to be in
imminent jeopardy.
§ 1000.352 What are ‘‘trust resources’’
for the purposes of the trust evaluation process?
(a) Trust resources include property
and interests in property:
(1) That are held in trust by the
United States for the benefit of a Tribe
or individual Indians; or
(2) That are subject to restrictions
upon alienation.
(b) Trust assets include:
(1) Other assets, trust revenue, royalties, or rental, including natural resources, land, water, minerals, funds,

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§ 1000.353

25 CFR Ch. VI (4–1–10 Edition)

property, assets, or claims, and any intangible right or interest in any of the
foregoing;
(2) Any other property, asset, or interest therein, or treaty right for
which the United States is charged
with a trust responsibility. For example, water rights and off-reservation
treaty rights.
(c) This definition defines trust resources for purposes of the trust evaluation process only.
§ 1000.353 What are ‘‘trust functions’’
for the purposes of the trust evaluation process?
Trust functions are those programs
necessary to the management of assets
held in trust by the United States for
an Indian Tribe or individual Indian.
ANNUAL TRUST EVALUATIONS
§ 1000.354

What is a trust evaluation?

A trust evaluation is an annual review and evaluation of trust functions
performed by a Tribe/Consortium to ensure that the functions are performed
in accordance with trust standards as
defined by Federal law. Trust evaluations address trust functions performed
by the Tribe/Consortium on its own behalf as well as trust functions performed by the Tribe/Consortium for the
benefit of individual Indians or Alaska
Natives.

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§ 1000.355 How are trust evaluations
conducted?
(a) Each year the Secretary’s designated representative(s) will conduct
trust evaluations for each self-governance AFA. The Secretary’s designated
representative(s) will coordinate with
the designated Tribe’s/Consortium’s
representative(s) throughout the review process, including the written report required by § 1000.365.
(b) This section describes the general
framework for trust reviews. However,
each Tribe/Consortium may develop,
with the appropriate bureau, an individualized trust evaluation process to
allow for the Tribe’s/Consortium’s
unique history and circumstances and
the terms and conditions of its AFA.
An individualized trust evaluation
process must, at a minimum, contain

the measures in paragraph (d) of this
section.
(c) To facilitate the review process so
as to mitigate costs and maximize efficiency, each Tribe/Consortium must
provide access to all records, plans, and
other pertinent documents relevant to
the program(s) under review not otherwise available to the Department.
(d) The Secretary’s designated representative(s) will:
(1) Review trust transactions;
(2) Conduct on-site inspections of
trust resources, as appropriate;
(3) Review compliance with applicable statutory and regulatory requirements;
(4) Review compliance with the trust
provisions of the AFA;
(5) Ensure that the same level of
trust services is provided to individual
Indians as would have been provided by
the Secretary;
(6) Document deficiencies in the performance of trust functions discovered
during the review process; and
(7) Ensure the fulfillment of the Secretary’s trust responsibility to Tribes
and individual Indians by documenting
the existence of:
(i) Systems of internal controls;
(ii) Trust standards; and
(iii) Safeguards against conflicts of
interest in the performance of trust
functions.
(e) At the request of a Tribe/Consortium, at the time the AFA is negotiated, the standards will be negotiated, except where standards are otherwise provided for by law.
§ 1000.356 May the trust evaluation
process be used for additional reviews?
Yes, if the parties agree.
§ 1000.357 May the parties negotiate
standards of review for purposes of
the trust evaluation?
Yes, unless standards are otherwise
provided by Federal treaties, statutes,
case law or regulations not waived, the
Secretary’s designated representative
will negotiate standards of review at
the request of the Tribe/Consortium.

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Office of the Assistant Secretary, Interior
§ 1000.358 Can an initial review of the
status of the trust asset be conducted?

§ 1000.362 What are the consequences
of a finding of imminent jeopardy
in the annual trust evaluation?

If the parties agree and it is practical, the Secretary may determine the
status of the trust resource at the time
of the transfer of the function or at a
later time.

(a) A finding of imminent jeopardy
triggers the Federal reassumption
process (see subpart M of this part), unless the conditions in paragraph (b) of
this section are met.
(b) The reassumption process will not
be triggered if the Secretary’s designated representative determines that
the Tribe/Consortium:
(1) Can cure the conditions causing
jeopardy within 60 days; and
(2) Will not cause significant loss,
harm, or devaluation of a trust asset,
natural resources, or the public health
and safety.

§ 1000.359 What are the responsibilities of the Secretary’s designated
representative(s) after the annual
trust evaluation?
The
Secretary’s
representative(s)
must prepare a written report documenting the results of the trust evaluation.
(a) Upon Tribal/Consortium request,
the representative(s) will provide the
Tribal/Consortium
representative(s)
with a copy of the report for review
and comment before finalization.
(b) The representative(s) will attach
to the report any Tribal/Consortium
comments that the representative does
not accept.
§ 1000.360 Is the trust evaluation
standard or process different when
the trust asset is held in trust for
an individual Indian or Indian allottee?
No, Tribes/Consortia are under the
same obligation as the Secretary to
perform trust functions and related activities in accordance with trust protection standards and principles whether managing Tribally or individually
owned trust assets. The process for
conducting annual trust evaluations of
Tribal performance of trust functions
on behalf of individual Indians is the
same as that used in evaluating performance of Tribal trust functions.
§ 1000.361 Will the annual review include a review of the Secretary’s residual trust functions?

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§ 1000.365

Yes, if the annual evaluation reveals
that deficient performance of a trust
function is due to the action or inaction of a bureau, the evaluation report
will note the deficiency and the appropriate Department official will be notified of the need for corrective action.
The review of the Secretary’s trust
functions shall be based on the standards in this subpart, other applicable
law, and other Federal law.

§ 1000.363 What if the trust evaluation
reveals problems that do not rise to
the level of imminent jeopardy?
Where problems not rising to the
level of imminent jeopardy are caused
by Tribal action or inaction, the conditions must be:
(a) Documented in the annual trust
evaluation report;
(b) Reported to the Secretary; and
(c) Reported in writing to:
(1) The governing body of the Tribe;
and
(2) In the case of a Consortium, to
the governing body of each Tribe on
whose behalf the Consortium is performing the trust functions.
§ 1000.364 Who is responsible for corrective action?
The Tribe/Consortium is primarily
responsible for identifying and implementing corrective actions for matters
contained in the AFA, but the Department may also suggest possible corrective measures for Tribal consideration.
§ 1000.365 What are the requirements
of the review team report?
A report summarizing the results of
the trust evaluation will be prepared
and copies provided to the Tribe/Consortium. The report must:
(a) Be written objectively, concisely,
and clearly; and
(b) Present information accurately
and fairly, including only relevant and
adequately
supported
information,
findings, and conclusions.

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§ 1000.366

25 CFR Ch. VI (4–1–10 Edition)

§ 1000.366 Can the Department conduct more than one trust evaluation per Tribe per year?
Trust evaluations are normally conducted annually. When the Department
receives information of a threat of imminent jeopardy to a trust asset, natural resource, or the public health and
safety, the Secretary, as trustee, may
conduct a preliminary investigation. If
the preliminary investigation shows
that appropriate, sufficient data are
present to indicate there may be imminent jeopardy, the Secretary’s designated representative:
(a) Will notify the Tribe/Consortium
in writing; and
(b) May conduct an on-site inspection
upon 2 days’ advance written notice to
the Tribe/Consortium.
§ 1000.367 Will the Department evaluate a Tribe’s/Consortium’s performance of non-trust related programs?
This depends on the terms contained
in the AFA.

Subpart P—Reports
§ 1000.380 What is the purpose of this
subpart?
This subpart describes what reports
are developed under self-governance.

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§ 1000.381 How is information about
self-governance developed and reported?
Annually, the Secretary will compile
a report on self-governance for submission to the Congress. The report will be
based on:
(a) Audit reports routinely submitted
by Tribes/Consortia;
(b) The number of retrocessions requested by Tribes/Consortia in the reporting year;
(c) The number of reassumptions that
occurred in the reporting year;
(d) Federal reductions-in-force and
reorganizations resulting from selfgovernance activity;
(e) The type of residual functions and
amount of residual funding retained by
BIA; and
(f) An annual report submitted to the
Secretary by each Tribe/Consortium as
described in

§ 1000.382 What may the Tribe’s/Consortium’s annual report on self-governance address?
(a) The Tribe’s/Consortium’s annual
self-governance report may address:
(1) A list of unmet Tribal needs in
order of priority;
(2) The approved, year-end Tribal
budget for the programs and services
funded under self-governance, summarized and annotated as the Tribe may
deem appropriate;
(3) Identification of any reallocation
of trust programs;
(4) Program and service delivery
highlights, which may include a narrative of specific program redesign or
other accomplishments or benefits attributed to self-governance; and
(5) At the Tribe’s/Consortium’s option, a summary of the highlights of
the report referred to in paragraph
(a)(2) of this section and other pertinent information the Tribes may wish
to report.
(b) The report submitted under this
section is intended to provide the Department with information necessary
to meet its Congressional reporting responsibilities and to fulfill its responsibility as an advocate for self-governance. The Tribal reporting requirement
is not intended to be burdensome, and
Tribes are encouraged to design and
present the report in a brief and concise manner.

Subpart Q—Miscellaneous
Provisions
§ 1000.390 How can a Tribe/Consortium hire a Federal employee to
help implement an AFA?
If a Tribe/Consortium chooses to hire
a Federal employee, it can use one of
the arrangements listed in this section:
(a) The Tribe can use its own Tribal
personnel hiring procedures. Federal
employees hired by the Tribe/Consortium are separated from Federal service.
(b) The Tribe can ‘‘direct hire’’ a Federal employee as a Tribal employee.
The employee will be separated from
Federal service and work for the Tribe/
Consortium, but maintain a negotiated
Federal benefit package that is paid for
by the Tribe/Consortium out of AFA
program funds; or

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Office of the Assistant Secretary, Interior
(c) The Tribe can negotiate an agreement under the Intergovernmental
Personnel Act, 25 U.S.C. 48, or other applicable Federal law. The employee
will remain a Federal employee during
the term of the agreement.

(a) Listed exceptions for Tribes and
Tribal Consortia;
(b) Exceptions in 25 U.S.C. 450j–1(k);
and
(c) Additional exceptions that OMB
may grant.

§ 1000.391 Can a Tribe/Consortium employee be detailed to a Federal
service position?
Yes, under the Intergovernmental
Personnel Act, 25 U.S.C. 48, or other applicable law, when permitted by the
Secretary.

§ 1000.396 Does a Tribe/Consortium
have additional ongoing requirements to maintain minimum standards for Tribe/Consortium management systems?
Yes, the Tribe/Consortium must
maintain management systems that
are determined to be adequate by an
independent audit through the annual
single agency audit report that is required by the Act and OMB Circular A–
133.

§ 1000.392 How does the Freedom of
Information Act apply?
(a) Access to records maintained by
the Secretary is governed by the Freedom of Information Act (5 U.S.C. 552)
and other applicable Federal law.
(b) At the option of the Tribe/Consortium under section 108 of the Pub. L.
93–638, except for previously provided
copies of Tribe/Consortium records
that the Secretary demonstrates are
clearly required to be maintained as
part of the record keeping system of
the Department of the Interior, records
of the Tribe/Consortium shall not be
considered Federal records for the purpose of the Freedom of Information
Act.
(c) The Freedom of Information Act
does not apply to records maintained
solely by Tribes/Consortia.
§ 1000.393 How does the Privacy Act
apply?
At the option of the Tribe/Consortium, section 108(b) of Pub. L. 93–638, as
amended, provides that records of the
Tribe/Consortium must not be considered Federal records for the purposes of
the Privacy Act.
§ 1000.394 What audit requirements
must a self-governance Tribe/Consortium follow?
The Tribe/Consortium must provide
to the designated official an annual
single organization-wide audit as prescribed by the Single Audit Act of 1984,
31 U.S.C. 7501, et seq.
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§ 1000.399

§ 1000.395 Do OMB circulars and revisions apply to self-governance funding agreements?
Yes, OMB circulars and revisions
apply, except for:

§ 1000.397 Are there any restrictions
on how AFA funds may be spent?
Yes, funds may be spent only for
costs associated with programs, services, functions, and activities contained in self-governance AFAs.
§ 1000.398 May a Tribe/Consortium invest funds received under a selfgovernance agreement?
Yes, self-governance funds may be invested if such investment is in:
(a) Obligations of the United States;
(b) Obligations or securities that are
within the limits guaranteed or insured
by the United States or mutual (or
other) funds registered with the Securities and Exchange Commission and
that only invest in obligations of the
United States or securities that are
guaranteed or insured by the United
States; or
(c) Deposits insured by an agency or
instrumentality of the United States
or are fully collateralized to ensure
protection of the funds even in the
event of a bank failure.
§ 1000.399 How may interest or investment income that accrues on AFAs
be used?
Unless restricted by the AFA, interest or income earned on investments or
deposits of self-governance awards may
be:
(a) Placed in the Tribe’s general fund
and used for any purpose approved by
the Tribe; or
(b) Used to provide expanded services
under the self-governance AFA and to

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§ 1000.400

25 CFR Ch. VI (4–1–10 Edition)

support some or all of the costs of investment services.
§ 1000.400 Can a Tribe/Consortium retain savings from programs?
Yes, for BIA programs, the Tribe/
Consortium may retain savings for
each fiscal year during which an AFA
is in effect. A Tribe/Consortium must
use any savings that it realizes under
an AFA, including a construction contract:
(a) To provide additional services or
benefits under the AFA; or
(b) As carryover; and
(c) For purposes of this subpart only,
programs administered by BIA using
appropriations made to other Federal
agencies, such as the Department of
Transportation, will be treated in accordance with paragraph (b) of this section.

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§ 1000.401 Can
a
Tribe/Consortium
carry over funds not spent during
the term of the AFA?
This section applies to BIA programs,
services, functions, or activities, notwithstanding any other provision of
law. Any funds appropriated under the
Snyder Act of 1921 (42 Stat. 208), for
any fiscal year that are not obligated
or spent by the end of the fiscal year
for which they were appropriated shall
remain available for obligation or expenditure during the following fiscal
year. In the case of amounts made
available to a Tribe/Consortium under
an AFA, if the funds are to be expended
in the succeeding fiscal year for the
purpose for which they were originally
appropriated, contracted or granted, or
for which they are authorized to be
used under the provisions of § 106(a)(3)
of the Act, no additional justification
or documentation of such purposes
need be provided by the Tribe/Consortium to the Secretary as a condition of
receiving or expending such funds.
§ 1000.402 After a non-BIA AFA has
been executed and the funds transferred to a Tribe/Consortium, can a
bureau request the return of funds?
The bureau may request the return of
funds already transferred to a Tribe/
Consortium only under the following
circumstances:
(a) Retrocession;
(b) Reassumption;

(c) Construction, when there are special legal requirements; or
(d) As otherwise provided for in the
AFA.
§ 1000.403 How can a person or group
appeal a decision or contest an action related to a program operated
by a Tribe/Consortium under an
AFA?
(a) BIA programs. A person or group
who is aggrieved by an action of a
Tribe/Consortium with respect to programs that are provided by the Tribe/
Consortium under an AFA must follow
Tribal administrative procedures.
(b) Non-BIA programs. Procedures will
vary depending on the program. Aggrieved parties should initially contact
the local program administrator (the
Indian program contact). Thereafter,
appeals will follow the relevant bureau’s appeal procedures.
§ 1000.404 Must
self-governance
Tribes/Consortia comply with the
Secretarial approval requirements
of 25 U.S.C. 81; 82a; and 476 regarding professional and attorney contracts?
No, for the period that an agreement
entered into under this part is in effect, the provisions of 25 U.S.C. 81, 82a,
and 476, do not apply to attorney and
other professional contracts by participating Tribes/Consortia.
§ 1000.405 Are AFA funds non-Federal
funds for the purpose of meeting
matching requirements?
Yes, self-governance AFA funds can
be treated as non-Federal funding for
the purpose of meeting matching requirements under Federal law.
§ 1000.406 Does
Indian
preference
apply to services, activities, programs, and functions performed
under a self-governance AFA?
Tribal law must govern Indian preference in employment, where permissible, in contracting and subcontracting in performance of an AFA.
§ 1000.407 Do the wage and labor
standards in the Davis-Bacon Act
apply to Tribes and Tribal Consortia?
No, wage and labor standards of the
Davis-Bacon Act do not apply to employees of Tribes and Tribal Consortia.

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Office of the Assistant Secretary, Interior
They do apply to all other laborers and
mechanics employed by contractors
and subcontractors in the construction, alteration, and repair (including
painting or redecorating of buildings or
other facilities) in connection with an
AFA.
SUPPLY SOURCES
§ 1000.408 Can a Tribe/Consortium use
Federal supply sources in the performance of an AFA?
A Tribe/Consortium and its employees may use Federal supply sources (including lodging, airline, interagency
motor pool vehicles, and other means
of transportation) that must be available to the Tribe/Consortium and to its
employees to the same extent as if the
Tribe/Consortium were a Federal agency. While implementation of this provision is the responsibility of the General
Services Administration, the Department shall assist the Tribe/Consortium
to resolve any barriers to full implementation that may arise. While implementation of this provision is the
responsibility of the General Services
Administration, the Department shall
assist the Tribes/Consortia to resolve
any barriers to full implementation
that may arise to the fullest extent
possible.
PROMPT PAYMENT ACT
§ 1000.409 Does the Prompt Payment
Act (31 U.S.C. 3901) apply to a nonBIA, non-Indian program AFA?
Yes, upon mutual agreement of the
parties, an AFA may incorporate the
Prompt Payment Act.

Subpart R—Appeals

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§ 1000.420 What does ‘‘Title-I eligible
programs’’ mean in this subpart?
Throughout this subpart, the phrase
‘‘Title I-eligible programs’’ is used to
refer to all programs, functions, services, and activities that the Secretary
provides for the benefit of Indians because of their status as Indians without regard to the agency or office of
the Department within which the programs, functions, services, and activities have been performed.

§ 1000.422
§ 1000.421 What is the purpose of this
subpart?
This subpart prescribes the process
Tribes/Consortia may use to resolve
disputes with the Department arising
before or after execution of an AFA or
compact and certain other disputes related to self-governance. It also describes the administrative process for
reviewing disputes related to compact
provisions. This subpart describes the
process for administrative appeals to:
(a) The Interior Board of Indian Appeals (IBIA) for certain pre-AFA disputes;
(b) The Interior Board of Contract
Appeals (IBCA) for certain post-AFA
disputes;
(c) The Assistant Secretary for the
bureau responsible for certain disputed
decisions;
(d) The Secretary for reconsideration
of decisions involving self-governance
compacts; and
(e) The agency head for certain preaward AFA disputes.
§ 1000.422
dled?

How must disputes be han-

(a) The Department encourages its
Bureaus to seek all means of dispute
resolution before the Tribe/Consortium
files a formal appeal(s).
(b) Disputes shall be addressed
through
government-to-government
discourse. This discourse must be respectful of government-to-government
relationships and relevant FederalTribal agreements, treaties, judicial
decisions, and policies pertaining to Indian Tribes.
(c) Title I-eligible program disputes
may use an informal conference as set
forth in 25 CFR 900.153–157.
(d) All disputes arising under this
rule, including but not limited to Title
I-eligible program disputes may use
non-binding informal alternative dispute resolution at the option of the
Tribe/Consortium, as prescribed in § 402
of this subpart. The Tribe/Consortium
may ask for this alternative dispute
resolution any time before the issuance
of an initial decision of a formal appeal(s). The appeals timetable will be
suspended while alternative dispute
resolution is pending.

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§ 1000.423

25 CFR Ch. VI (4–1–10 Edition)

§ 1000.423 Are there any decisions that
are not administratively appealable
under this subpart?
Yes, the following types of decisions
are not administratively appealable
under this subpart but may be appealable under other substantive provisions
of the Code of Federal Regulations:
(a) Decisions relating to planning and
negotiation grants (subparts C and D of
this part) and certain discretionary
grants not awarded under Title IV (25
CFR part 2);
(b) Decisions involving a limitation
and/or reduction of services for BIA
programs (subpart H of this part)(25
CFR part 2);
(c) Decisions regarding requests for
waivers of regulations (subpart J of
this part);
(d) Decisions regarding construction
(subpart K of this part) addressed in
§ 1000.251(b); and
(e) Decisions under any other statute, such as the Freedom of Information Act and the Privacy Act (see 43
CFR part 2).
§ 1000.424 Does a Tribe/Consortium
have a right to an informal conference to resolve any disputes?
Yes, the Tribe/Consortium may request an informal conference (a nonbinding alternative dispute resolution
process). An informal conference is a
way to resolve both Title I-eligible program and other disputes as quickly as
possible, without the need for a formal
appeal.

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§ 1000.425 How does a Tribe/Consortium request an informal conference?
The Tribe/Consortium shall file its
request for an informal conference with
the office of the person whose decision
it is appealing, within 30 days of the
day it receives the decision.
(a) The Tribe/Consortium may either
hand-deliver the request for an informal conference to that person’s office,
fax the request with confirmation or
mail it by certified mail, return receipt
requested.
(b) If the Tribe/Consortium mails the
request, it will be considered filed on
the date the Tribe/Consortium mailed
it by certified mail.

§ 1000.426 How is an informal conference held?
For all purposes relating to these informal conference procedures, the parties are the designated representatives
of the Tribe/Consortium and the bureau.
(a) The informal conference shall be
held within 30 days of the date the request was received, unless the parties
agree on another date.
(b) Where practicable, at the option
of the Tribe/Consortium, the informal
conference will be held at the Tribe’s/
Consortium’s office. If the meeting
cannot be held at the Tribe’s/Consortium’s office, the parties must agree on
an alternative meeting place.
(c) The informal conference shall be
conducted by a designated representative of the Secretary.
(d) Only the parties may make presentations at the informal conference.
(e) The informal conference is not a
hearing on the record. Nothing said
during an informal conference may be
used by either party in litigation.
§ 1000.427 What happens after the informal conference?
(a) Within 10 business days of the informal conference, the person who conducted the informal conference shall
mail to the Tribe/Consortium a brief
summary of the informal conference.
The summary must include any agreements reached or changes from the initial position of the bureau or the Tribe/
Consortium.
(b) If in its judgment no agreement
was reached, the Tribe/Consortium
may choose to appeal the initial decision, as modified by any changes made
as a result of the informal conference,
under § 1000.421 of this subpart to the
IBIA, bureau head/Assistant Secretary,
or IBCA.
§ 1000.428 How may a Tribe/Consortium appeal a decision made after
the AFA or compact or amendment
to an AFA or compact has been
signed?
With the exception of certain decisions concerning reassumption for imminent jeopardy (see § 1000.408 of this
subpart), the Tribe/Consortium may
appeal post-award administrative decisions to the IBCA.

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§ 1000.429 What statutes and regulations govern resolution of disputes
concerning signed AFAs or compacts that are appealed to IBCA?
Section 110 of Pub. L. 93–638 (25
U.S.C. 450 m–1) and the regulations at
25 CFR 900.216–900.230 apply to disputes
concerning signed AFAs and compacts
that are appealed to the IBCA, except
that any references to the Department
of Health and Human Services are inapplicable. For the purposes of such appeals:
(a) The terms ‘‘contract’’ and ‘‘selfdetermination contract’’ mean compacts and AFAs under the Tribal SelfGovernance Act; and
(b) The term ‘‘Tribe’’ means ‘‘Tribe/
Consortium’.
§ 1000.430 To whom are appeals directed regarding reassumption for
imminent jeopardy?
Appeals regarding reassumption of
Title I-eligible PFSAs are handled by
the IBIA under those procedures set
out in 25 CFR 900.171 through 900.176.
Appeals regarding reassumption of
PFSAs that are not Title I-eligible are
handled by the IBCA under those procedures set out in 43 CFR part 4.

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§ 1000.431 Does the Equal Access to
Justice Act (EAJA) apply to appeals
under this subpart?
Yes, EAJA claims against the DOI
will be heard by IBIA or IBCA, as appropriate, under 43 CFR 4.601 through
4.619, Equal Access to Justice Act (Pub.
L. No. 96–481, 92 Stat. 2325, as amended), section 504 of Title 5 U.S.C. and
Section 2412 of Title 28 U.S.C.
§ 1000.432 To whom may a Tribe appeal a decision made before the
AFA or an amendment to the AFA
or compact is signed?
(a) Title I-eligible PFSA pre-award disputes. For Title I—eligible PFSA disputes, appeal may only be filed with
IBIA under the provisions set forth in
25 CFR 900.150(a) through (h), 900.152
through 900.169.
(b) Other pre-award disputes. For all
other pre-award disputes, including
those involving PFSAs that are not
Title I-eligible, appeals may be filed
with the bureau head/Assistant Secretary or IBIA as noted below. However, the Tribe/Consortium may not

§ 1000.433
avail itself of both paths for the same
dispute.
(1) Bureau head/Assistant Secretary appeal. Unless the initial decision being
appealed is one that was made by the
bureau head (those appeals are forwarded to the appropriate Assistant
Secretary—see § 1000.433(c) of this subpart), the bureau head will decide appeals relating to these pre-award matters, that include but are not limited
to disputes regarding:
(i) PFSAs that are not Title 1-eligible;
(ii) Eligibility for the applicant pool
of self-governance Tribes;
(iii) BIA residual functions;
(iv) Decisions declining to provide requested information as addressed in
§ 1000.172 of this part;
(v) Allocations of program funds
when a dispute arises between a Consortium and a withdrawing Tribe; and
(vi) Inherently Federal functions.
(2) IBIA appeal. The Tribe/Consortium may choose to forego the administrative appeal through the bureau or
the Assistant Secretary, as described
in the paragraph (b)(1) of this section,
and instead appeal directly to IBIA.
The standard of review for such IBIA
appeals will be an ‘‘abuse of discretion’’
standard.
§ 1000.433 When and how must a Tribe/
Consortium appeal an adverse preaward decision?
(a) If a Tribe/Consortium wishes to
exercise its appeal rights under
§ 1000.432(b)(1), it must make a written
request for review to the appropriate
bureau head within 30 days of receiving
the initial adverse decision. In addition, the Tribe/Consortium may request the opportunity to have a meeting with appropriate bureau personnel
in an effort to clarify the matter under
dispute before a formal decision by the
bureau head.
(b) The written request for review
should include a statement describing
its reasons for a review, with any supporting documentation, or indicate
that such a statement or documentation will be submitted within 30 days.
A copy of the request must also be sent
to the Director of the Office of SelfGovernance.

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§ 1000.434

25 CFR Ch. VI (4–1–10 Edition)

(c) If the initial decision was made by
the bureau head, any appeal shall be directed to the appropriate Assistant
Secretary. If a Tribe does not request a
review within 30 days of receipt of the
decision, the initial decision will be
final for the Department.
§ 1000.434 When must the bureau head
(or appropriate Assistant Secretary)
issue a final decision in the preaward appeal?
Within 30 days of receiving the request for review and the statement of
reasons described in § 1000.433, the bureau head or, where applicable, the appropriate Assistant Secretary must:
(a) Issue a written final decision stating the reasons for the decision; and
(b) Send the decision to the Tribe/
Consortium.

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§ 1000.435 When and how will the Assistant Secretary respond to an appeal by a Tribe/Consortium?
The appropriate Assistant Secretary
will decide an appeal of any initial decision made by a bureau head (see
§ 1000.433). If the Tribe/Consortium has
appealed the bureau’s initial adverse
decision of the bureau to the bureau
head and the bureau head’s decision on
initial appeal is contrary to the
Tribe’s/Consortium’s request for relief,
or the bureau head fails to make a decision within 30 days of receipt by the
bureau of the Tribe’s/Consortium’s initial request for review and any accompanying statement and documentation,
the Tribe’s/Consortium’s appeal will be
sent automatically to the appropriate
Assistant Secretary for decision. The
Assistant Secretary must either concur
with the bureau head’s decision or
issue a separate decision within 60 days
of receipt by the bureau of the Tribe’s/
Consortium’s initial request for review
and any accompanying statement and
documentation. The decision of the Assistant Secretary is final for the Department.
§ 1000.436 How may a Tribe/Consortium seek reconsideration of the
Secretary’s decision involving a
self-governance compact?
A Tribe/Consortium may request reconsideration of the Secretary’s decision involving a self-governance compact by sending a written request for

reconsideration to the Secretary within 30 days of receipt of the decision. A
copy of this request must also be sent
to the Director of the Office of SelfGovernance.
§ 1000.437 When will the Secretary respond to a request for reconsideration of a decision involving a selfgovernance compact?
The Secretary must respond in writing to the Tribe/Consortium within 30
days of receipt of the Tribe’s/Consortium’s request for reconsideration.
§ 1000.438 May Tribes/Consortia appeal Department decisions to a Federal court?
Yes, Tribes/Consortia may appeal decisions of Department officials relating
to the self-governance program to an
appropriate Federal court, as authorized by section 110 of Pub. L. 93–638 (25
U.S.C. 405m-1), or any other applicable
law.

Subpart S—Conflicts of Interest
§ 1000.460 What is an organizational
conflict of interest?
(a) An organizational conflict of interest arises when there is a direct conflict between the financial interests of
the self-governance Tribe/Consortium
and:
(1) The financial interests of beneficial owners of Indian trust resources;
(2) The financial interests of the
United States relating to trust resources, trust acquisitions, or lands
conveyed or to be conveyed under the
Alaska Native Claims Settlement Act
43 U.S. C. 1601 et seq.; or
(3) An express statutory obligation of
the United States to third parties. This
section only applies if the conflict was
not addressed when the AFA was first
negotiated.
(b) This section only applies where
the financial interests of the Tribe/
Consortium are significant enough to
impair the Tribe’s/Consortium’s objectivity in carrying out the AFA, or a
portion of the AFA.

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Office of the Assistant Secretary, Interior
§ 1000.461 What must a Tribe/Consortium do if an organizational conflict
of interest arises under an AFA?
This section only applies if the conflict was not addressed when the AFA
was first negotiated. When a Tribe/Consortium becomes aware of an organizational conflict of interest, the Tribe/
Consortium must immediately disclose
the conflict to the Secretary.
§ 1000.462 When must a Tribe/Consortium regulate its employees or subcontractors to avoid a personal conflict of interest?
A Tribe/Consortium must maintain
written standards of conduct to govern
officers, employees, and agents (including subcontractors) engaged in functions related to the management of
trust assets.
§ 1000.463 What types of personal conflicts of interest involving tribal officers, employees or subcontractors
would have to be regulated by a
Tribe/Consortium?

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The Tribe/Consortium would need a
tribally-approved mechanism to ensure
that no officer, employee, or agent (including a subcontractor) of the Tribe/
Consortium reviews a trust transaction
in which that person has a financial or
employment interest that conflicts
with that of the trust beneficiary,
whether the tribe/consortium or an allottee. Interests arising from membership in, or employment by, a Tribe/
Consortium or rights to share in a tribal claim need not be regulated.

Pt. 1000, App. A
(c) Provide for sanctions or remedies
for violation of the standards.
§ 1000.465 May a Tribe/Consortium negotiate AFA provisions on conflicts
of interest to take the place of this
subpart?
(a) A Tribe/Consortium and the Secretary may agree to AFA provisions,
concerning either personal or organizational conflicts, that:
(1) Address the issues specific to the
program and activities contracted; and
(2) Provide equivalent protection
against conflicts of interest to these
regulations.
(b) Agreed-upon AFA provisions shall
be followed, rather than the related
provisions of this subpart. For example, the Tribe/Consortium and the Secretary may agree that using the
Tribe’s/Consortium’s own written code
of ethics satisfies the objectives of the
personal conflicts provisions of subpart, in whole or in part.
APPENDIX A TO PART 1000—MODEL COMPACT
OF
SELF-GOVERNANCE BETWEEN THE TRIBE AND THE DEPARTMENT OF THE INTERIOR
ARTICLE I—AUTHORITY AND PURPOSE
Section 1—Authority

§ 1000.464 What personal conflicts of
interest must the standards of conduct regulate?

This agreement, denoted a compact of SelfGovernance (hereinafter referred to as the
‘‘compact’’), is entered into by the Secretary
of the Interior (hereinafter referred to as the
‘‘Secretary’’), for and on behalf of the United
States of America under the authority
granted by Title IV of the Indian Self Determination and Education Assistance Act,
Pub. L. 93–638, as amended, and by the Tribe,
under the authority of the Constitution and
By-Laws of the Tribe (hereinafter referred to
as the ‘‘Tribe’’).

The personal conflicts of interest
standards must:
(a) Prohibit an officer, employee, or
agent (including a subcontractor) from
participating in the review, analysis,
or inspection of trust transactions involving an entity in which such persons have a direct financial interest or
an employment relationship;
(b) Prohibit such officers, employees,
or agents from accepting any gratuity,
favor, or anything of more than nominal value, from a party (other than the
Tribe/Consortium) with an in the trust
transactions under review; and

This compact shall be liberally construed
to achieve its purposes:
(a) This compact is to carry out Self-Governance as authorized by Title IV of Pub. L.
93–638, as amended, that built upon the Self
Governance Demonstration Project, and
transfer control to Tribal governments, upon
Tribal request and through negotiation with
the United States government, over funding
and decision-making of certain Federal programs as an effective way to implement the
Federal policy of government-to-government
relations with Indian Tribes.
(b) This compact is to enable the United
States to maintain and improve its unique

Section 2—Purpose

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Pt. 1000, App. A

25 CFR Ch. VI (4–1–10 Edition)

and continuing relationship with and responsibility to the Tribe through Tribal self-governance, so that the Tribe may take its
rightful place in the family of governments;
remove Federal obstacles to effective selfgovernance; reorganize Tribal government
programs and services; achieve efficiencies
in service delivery; and provide a documented example for the development of future Federal Indian policy. This policy of
Tribal self-governance shall permit an orderly transition from Federal domination of
Indian programs and services to allow Indian
Tribes meaningful authority to plan, conduct, and administer those programs and
services to meet the needs of their people. In
implementing Self-Governance, the Bureau
of Indian Affairs is expected to provide the
same level of service to other Tribal governments and to demonstrate new policies and
methods to improve service delivery and address Tribal needs. In fulfilling its responsibilities under the compact, the Secretary
hereby pledges that the Department will
conduct all relations with the Tribe on a
government-to-government basis.

all rights and interests that Indians, or
groups of Indians, may have with respect to
services, activities, programs, and functions
that are provided under the compact.
ARTICLE III—OBLIGATIONS OF THE TRIBE
Section 1—AFA Programs
The Tribe will perform the programs as
provided in the specific AFA negotiated
under the Act. The Tribe pledges to practice
utmost good faith in upholding its responsibility to provide such programs, under the
Act.
Section 2—Trust Services for Individual Indians
To the extent that the AFAs have provisions for trust services to individual Indians
that were formerly provided by the Secretary, the Tribe will maintain at least the
same level of service as was previously provided by the Secretary. The Tribe pledges to
practice utmost good faith in upholding
their responsibility to provide such service.
ARTICLE IV—OBLIGATIONS OF THE UNITED
STATES

ARTICLE II—TERMS, PROVISIONS AND
CONDITIONS

Section 1—Trust Responsibility

Section 1—Term
This compact shall be effective when
signed by the Secretary or an authorized representative and the authorized representative of the Tribe. The term of this compact
shall commence [negotiated effective date]
and must remain in effect as provided by
Federal law or agreement of the parties.

The United States reaffirms the trust responsibility of the United States to the
llllll Tribe(s) to protect and conserve
the trust resources of the Tribe(s) and the
trust resources of individual Indians associated with this compact and any annual funding agreement negotiated under the Tribal
Self-Governance Act.
Section 2—Trust Evaluations

Section 2—Funding Amount
In accordance with Section 403(g) of Title
IV of Pub. L. 93–638, as amended, and subject
to the availability of appropriations, the
Secretary shall provide to the Tribe the
total amount specified in each annual funding agreement.

Under Section 403(d) of Pub. L. 93–638, as
amended, annual funding agreements negotiated between the Secretary and an Indian
Tribe shall include provisions to monitor the
performance of trust functions by the Tribe
through the annual trust evaluation.
ARTICLE V—OTHER PROVISIONS

Section 3—Reports to Congress

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To implement Section 405 of Pub. L. 93–638,
as amended, on each January 1 throughout
the period of the compact, the Secretary
shall make a written report to the Congress
that shall include the views of the Tribe concerning the matters encompassed by Section
405(b) and (d).

Section 1—Facilitation
Nothing in this compact may be construed
to terminate, waive, modify, 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.

Section 4—Regulatory Authority

Section 2—Officials Not To Benefit

The Tribe shall abide by all Federal regulations as published in the FEDERAL REGISTER unless waived in accordance with Section 403(i)(2) of Pub. L. 93–638, as amended.

No Member of Congress, or resident commissioner, shall be admitted to any share or
part of any annual funding agreement or
contract thereunder executed under this
compact, or to any benefit that may arise
from such compact. This paragraph may not
be construed to apply to any contract with a
third party entered into under an annual
funding agreement under this compact if

Section 5—Tribal Administrative Procedure
The Tribe shall provide administrative due
process right under the Indian Civil Rights
Act of 1968, 25 U.S.C. 1301, et seq., to protect

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Office of the Assistant Secretary, Interior
such contract is made with a corporation for
the general benefit of the corporation.
Section 3—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 under
this compact 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.
Section 4—Sovereign Immunity
Nothing in this compact or any AFA shall
be construed as—
(1) affecting, modifying, diminishing, or
otherwise impairing the sovereign immunity
from suit enjoyed by the Tribe; or
(2) authorizing or requiring the termination of any existing trust responsibility of
the United States with respect to the Indian
people.
In witness whereof, the parties have executed, delivered and formed this compact, effective the llll day of llllll, 20ll.
THE llllllll Tribe
The Department of the Interior.
By:
lllllllllllllllllllll
By:
lllllllllllllllllllll

PART 1001—SELF-GOVERNANCE
PROGRAM
Sec.
1001.1 Purpose.
1001.2 Applicant eligibility.
1001.3 Priority ranking for negotiations.
1001.4 Application review and approval.
1001.5 Application review and selection
process for negotiations for funding
agreements.
1001.6 Submitting applications.
1001.7 Availability, amount, and number of
planning and negotiation grants.
1001.8 Selection criteria for tribes/consortia
to receive a negotiation grant.
1001.9 Selection criteria for tribes/consortia
seeking advance planning grant funding.
1001.10 Selection criteria for other planning
and negotiating financial assistance.
AUTHORITY: 25 U.S.C. 450 note, 458aa–458gg.

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SOURCE: 60 FR 8554, Feb. 15, 1995, unless
otherwise noted.

§ 1001.1 Purpose.
The purpose of this rule is to establish the process for tribes to apply for
entry into the Self-Governance program and to establish the selection cri-

§ 1001.3
teria by which the Department will
identify eligible tribes and select tribes
to begin the negotiations process.
§ 1001.2 Applicant eligibility.
Any tribe or consortium of tribes
seeking inclusion in the applicant pool
must meet the following eligibility criteria:
(a) Be a federally recognized tribe or
a consortium of federally recognized
tribes as defined in Public Law 93–638.
(b) Document, with an official action
of the tribal governing body, a formal
request to enter negotiations with the
Department of Interior (Department)
under the Tribal Self-Governance Act
authority. In the case of a consortium
of tribes, the governing body of each
participating tribe must authorize participation by an official action by the
tribal governing body.
(c) Demonstrate financial stability
and financial management capability
by furnishing organization-wide single
audit reports as prescribed by Public
Law 96–502, the Single Audit Act of
1984, for the previous three years.
These audits must not contain material audit exceptions. In the case of
tribal consortiums, each signatory to
the agreement must meet this requirement. Non-signatory tribes participating in the consortium do not have
to meet this requirement.
(d) Successfully complete the planning phase for self-governance. A final
planning report must be submitted
which demonstrates that the tribe has
conducted—
(1) Legal and budgetary research; and
(2) Internal tribal government and
organizational planning.
(e) To be included in the applicant
pool, tribes or tribal consortiums may
submit their applications at any time.
The application should state which
year the tribe desires to enter negotiations.
§ 1001.3 Priority ranking for negotiations.
In addition to the eligibility criteria
identified above, a tribe or consortium
of tribes seeking priority ranking for
negotiations must submit a description
of the efforts of the tribe or consortium
to seek to enter negotiations and/or
prepare for operations under the self-

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