25 U.s.c. 5361-5368

§ 5208

TITLE 25—INDIANS

§ 5208. Application of provisions to Osage County
This chapter shall not relate to or affect Osage
County, Oklahoma.
(June 26, 1936, ch. 831, § 8, 49 Stat. 1968.)
Editorial Notes
CODIFICATION
Section was formerly classified to section 508 of this
title prior to editorial reclassification and renumbering
as this section.

§ 5209. Rules and regulations; repeals
The Secretary of the Interior is authorized to
prescribe such rules and regulations as may be
necessary to carry out the provisions of this
chapter. All Acts or parts of Acts inconsistent
with this chapter are repealed.
(June 26, 1936, ch. 831, § 9, 49 Stat. 1968.)

Sec.

5325.
5326.

Contract funding and indirect costs.
Indian Health Service: availability of
funds for Indian self-determination or
self-governance contract or grant support costs.
5327.
Department of the Interior: availability
of funds for Indian self-determination
or self-governance contract or grant
support costs.
5328.
Rules and regulations.
5329.
Contract or grant specifications.
5330.
Rescission of contract or grant and assumption of control of program, etc.;
authority; grounds; procedure; correction of violation as prerequisite to new
contract or grant agreement; construction with occupational safety and
health requirements.
5331.
Contract disputes and claims.
5332.
Sovereign immunity and trusteeship
rights unaffected.
SUBCHAPTER II—CONTRACTS WITH STATES

Editorial Notes

5341.

CODIFICATION

5342.

Section was formerly classified to section 509 of this
title prior to editorial reclassification and renumbering
as this section.

5343.

§ 5210. Payment of gross production taxes; method
Whenever restricted Indian lands in the State
of Oklahoma are subject to gross production tax
on minerals, including oil and gas, the Secretary
of the Interior, in his discretion, may cause such
tax or taxes due the State of Oklahoma to be
paid in the manner provided for by the statutes
of the State of Oklahoma.
(Aug. 25, 1937, ch. 772, 50 Stat. 806.)
Editorial Notes

5344.
5345.

5346.
5347.
5348.

CODIFICATION
This section was not enacted as part of act June 26,
1936, ch. 831, 49 Stat. 1967, which comprises this chapter.
Section was formerly classified to section 510 of this
title prior to editorial reclassification and renumbering
as this section.

CHAPTER 46—INDIAN SELF-DETERMINATION
AND EDUCATION ASSISTANCE
Sec.

5301.
5302.
5303.
5304.
5305.

5306.
5307.
5308.
5309.
5310.

Congressional statement of findings.
Congressional declaration of policy.
Tribal and Federal advisory committees.
Definitions.
Reporting and audit requirements for recipients of Federal financial assistance.
Criminal activities involving grants,
contracts, etc.; penalties.
Wage and labor standards.
Grant and cooperative agreements.
Use of excess funds.
Investment of advance payments; restrictions.

SUBCHAPTER I—INDIAN SELF-DETERMINATION
5321.
5322.
5323.

5324.

Self-determination contracts.
Grants to tribal organizations or tribes.
Retention of Federal employee coverage,
rights and benefits by employees of
tribal organizations.
Contract or grant provisions and administration.

Page 690

Donations for Indians; use of gifts; annual report to Congress.
Contracts for education, medical attention, relief and social welfare of Indians.
Use of Government property by States
and Territories.
Rules and regulations; minimum standards of service.
Contracts for education in public
schools; submission of education plan
by contractor as prerequisite; criteria
for approval of plan by Secretary of
the Interior; participation by non-Indian students.
Local committee of Indian parents in
school districts having school boards
composed of non-Indian majority.
Reimbursement to school districts for
educating non-resident students.
Computation of student count.
SUBCHAPTER III—INDIAN EDUCATION
ASSISTANCE

5351.

School construction, acquisition, or renovation contracts.
5352.
General education contract and grant
provisions and requirements; school
district quality and standards of excellence.
5353.
Availability of funds to agencies, institutions, and organizations.
5354.
Rules and regulations.
5355.
Eligibility for funds of tribe or tribal organization controlling or managing
private schools.
5356.
Supplemental assistance to funds provided to local educational agencies.
SUBCHAPTER IV—TRIBAL SELF-GOVERNANCE—
DEPARTMENT OF THE INTERIOR
5361.
5362.
5363.
5364.
5365.
5366.
5367.
5368.
5369.
5370.
5371.
5372.
5373.
5374.

Definitions.
Tribal Self-Governance Program.
Funding agreements.
Compacts.
General provisions.
Provisions relating to the Secretary.
Construction programs and projects.
Payment.
Facilitation.
Discretionary application of other sections.
Annual budget list.
Reports.
Regulations.
Effect of circulars, policies, manuals,
guidance, and rules.

Page 691
Sec.

5375.
5376.
5377.

Appeals.
Application of other provisions.
Authorization of appropriations.

SUBCHAPTER V—TRIBAL SELF-GOVERNANCE—
INDIAN HEALTH SERVICE
5381.
5382.
5383.
5384.
5385.
5386.
5387.
5388.
5389.
5390.
5391.
5392.
5393.
5394.
5395.
5396.
5397.
5398.
5399.

Definitions.
Establishment.
Selection of participating Indian tribes.
Compacts.
Funding agreements.
General provisions.
Provisions relating to the Secretary.
Transfer of funds.
Construction projects.
Federal procurement laws and regulations.
Civil actions.
Facilitation.
Budget request.
Reports.
Disclaimers.
Application of other sections of this
chapter.
Regulations.
Appeals.
Authorization of appropriations.

SUBCHAPTER VI—INDIAN LAW ENFORCEMENT
FOUNDATION
5411.
5412.
5413.

Definitions.
Indian Law Enforcement Foundation.
Administrative services and support.

SUBCHAPTER VII—NATIONAL FUND FOR
EXCELLENCE IN AMERICAN INDIAN EDUCATION
5421.
5422.
5423.

§ 5301

TITLE 25—INDIANS

National Fund for Excellence in American Indian Education.
Administrative services and support.
Definitions.

§ 5301. Congressional statement of findings
(a) Findings respecting historical and special
legal relationship, and resultant responsibilities
The Congress, after careful review of the Federal Government’s historical and special legal
relationship with, and resulting responsibilities
to, American Indian people, finds that—
(1) the prolonged Federal domination of Indian service programs has served to retard
rather than enhance the progress of Indian
people and their communities by depriving Indians of the full opportunity to develop leadership skills crucial to the realization of selfgovernment, and has denied to the Indian people an effective voice in the planning and implementation of programs for the benefit of Indians which are responsive to the true needs of
Indian communities; and
(2) the Indian people will never surrender
their desire to control their relationships both
among themselves and with non-Indian governments, organizations, and persons.
(b) Further findings
The Congress further finds that—
(1) true self-determination in any society of
people is dependent upon an educational process which will insure the development of qualified people to fulfill meaningful leadership
roles;
(2) the Federal responsibility for and assistance to education of Indian children has not

effected the desired level of educational
achievement or created the diverse opportunities and personal satisfaction which education
can and should provide; and
(3) parental and community control of the
educational process is of crucial importance to
the Indian people.
(Pub. L. 93–638, § 2, Jan. 4, 1975, 88 Stat. 2203.)
Editorial Notes
CODIFICATION
Section was formerly classified to section 450 of this
title prior to editorial reclassification and renumbering
as this section.
Statutory Notes and Related Subsidiaries
SHORT TITLE OF 2020 AMENDMENT
Pub. L. 116–260, div. DD, § 1, Dec. 27, 2020, 134 Stat.
3008, provided that: ‘‘This division [amending section
5363 of this title and repealing in part and omitting in
part section 671 of Title 16, Conservation] may be cited
as the ‘Montana Water Rights Protection Act’.’’
Pub. L. 116–180, § 1(a), Oct. 21, 2020, 134 Stat. 857, provided that: ‘‘This Act [enacting sections 5364 to 5377 of
this title, amending sections 5304, 5305, 5321, 5324, 5325,
5329, and 5361 to 5363 of this title, repealing sections
5364 to 5368 of this title, and enacting provisions set out
as notes under sections 5305 and 5361 of this title] may
be cited as the ‘Practical Reforms and Other Goals To
Reinforce the Effectiveness of Self-Governance and
Self-Determination for Indian Tribes Act of 2019’ or the
‘PROGRESS for Indian Tribes Act’.’’
SHORT TITLE OF 2018 AMENDMENT
Pub. L. 115–404, § 1, Dec. 31, 2018, 132 Stat. 5349, provided that: ‘‘This Act [enacting section 5348 of this
title] may be cited as the ‘Johnson-O’Malley Supplemental Indian Education Program Modernization
Act’.’’
SHORT TITLE OF 2000 AMENDMENT
Pub. L. 106–568, title VIII, § 801, Dec. 27, 2000, 114 Stat.
2916, provided that: ‘‘This title [see Tables for classification] may be cited as the ‘Native American Laws
Technical Corrections Act of 2000’.’’
Pub. L. 106–568, title XIII, § 1301, Dec. 27, 2000, 114 Stat.
2936, provided that: ‘‘This title [enacting subchapter
VII of this chapter] may be cited as the ‘American Indian Education Foundation Act of 2000’.’’
Pub. L. 106–260, § 1, Aug. 18, 2000, 114 Stat. 711, provided that: ‘‘This Act [see Tables for classification]
may be cited as the ‘Tribal Self-Governance Amendments of 2000’.’’
SHORT TITLE OF 1994 AMENDMENT
Pub. L. 103–413, § 1, Oct. 25, 1994, 108 Stat. 4250, provided that: ‘‘This Act [see Tables for classification]
may be cited as the ‘Indian Self-Determination Act
Amendments of 1994’.’’
Pub. L. 103–413, title I, § 101, Oct. 25, 1994, 108 Stat.
4250, provided that: ‘‘This title [see Tables for classification] may be cited as the ‘Indian Self-Determination Contract Reform Act of 1994’.’’
Pub. L. 103–413, title II, § 201, Oct. 25, 1994, 108 Stat.
4270, provided that: ‘‘This title [enacting subchapter IV
(§ 5361 et seq.) of this chapter and provisions set out as
notes under section 5361 of this title] may be cited as
the ‘Tribal Self-Governance Act of 1994’.’’
SHORT TITLE OF 1990 AMENDMENT
Pub. L. 101–644, title II, § 201, Nov. 29, 1990, 104 Stat.
4665, provided that: ‘‘This title [see Tables for classification] may be cited as the ‘Indian Self-Determination and Education Assistance Act Amendments of
1990’.’’

§ 5301

TITLE 25—INDIANS
SHORT TITLE OF 1988 AMENDMENT

Pub. L. 100–472, title I, § 101, Oct. 5, 1988, 102 Stat. 2285,
provided that: ‘‘This Act [see Tables for classification]
may be cited as the ‘Indian Self-Determination and
Education Assistance Act Amendments of 1988’.’’
SHORT TITLE
Pub. L. 93–638, § 1, Jan. 4, 1975, 88 Stat. 2203, provided:
‘‘That this Act [enacting this chapter, section 13a of
this title, and section 2004b of Title 42, The Public
Health and Welfare, and amending section 3371 of Title
5, Government Organization and Employees, section
4762 of Title 42, and section 3806 of Title 50, War and National Defense] may be cited as the ‘Indian Self-Determination and Education Assistance Act’.’’
Pub. L. 93–638, title I, § 101, Jan. 4, 1975, 88 Stat. 2206,
provided that: ‘‘This title [enacting subchapter I (§ 5321
et seq.) of this chapter and section 2004b of Title 42, The
Public Health and Welfare, and amending section 3371
of Title 5, Government Organization and Employees,
section 4762 of Title 42, and section 3806 of Title 50, War
and National Defense] may be cited as the ‘Indian SelfDetermination Act’.’’
Pub. L. 93–638, title II, § 201, Jan. 4, 1975, 88 Stat. 2213,
provided that: ‘‘This title [enacting subchapter III
(§ 5351 et seq.) of this chapter, sections 5345 to 5347 of
this title, and provisions set out as a note under section 5347 of this title] may be cited as the ‘Indian Education Assistance Act’.’’
Act April 16, 1934, ch. 147, 48 Stat. 596, which enacted
sections 5342 to 5348 of this title, is popularly known as
the ‘‘Johnson-O’Malley Act’’.
SAVINGS PROVISIONS
Pub. L. 100–472, title II, § 210, Oct. 5, 1988, 102 Stat.
2298, provided that: ‘‘Nothing in this Act [see Tables for
classification] shall be construed as—
‘‘(1) affecting, modifying, diminishing, or otherwise
impairing the sovereign immunity from suit enjoyed
by an Indian tribe; or
‘‘(2) authorizing or requiring the termination of any
existing trust responsibility of the United States
with respect to Indian people.’’
SEVERABILITY
Pub. L. 100–472, title II, § 211, Oct. 5, 1988, 102 Stat.
2298, provided that: ‘‘If any provision of this Act [see
Tables for classification] or the application thereof to
any Indian tribe, entity, person or circumstance is held
invalid, neither the remainder of this Act, nor the application of any provisions herein to other Indian
tribes, entities, persons, or circumstances, shall be affected thereby.’’
CONSULTATION WITH ALASKA NATIVE CORPORATIONS
Pub. L. 108–199, div. H, § 161, Jan. 23, 2004, 118 Stat. 452,
as amended by Pub. L. 108–447, div. H, title V, § 518, Dec.
8, 2004, 118 Stat. 3267, provided that: ‘‘The Director of
the Office of Management and Budget and all Federal
agencies shall hereafter consult with Alaska Native
corporations on the same basis as Indian tribes under
Executive Order No. 13175 [set out below].’’
Executive Documents
EX. ORD. NO. 13175. CONSULTATION AND COORDINATION
WITH INDIAN TRIBAL GOVERNMENTS
Ex. Ord. No. 13175, Nov. 6, 2000, 65 F.R. 67249, provided:
By the authority vested in me as President by the
Constitution and the laws of the United States of
America, and in order to establish regular and meaningful consultation and collaboration with tribal officials in the development of Federal policies that have
tribal implications, to strengthen the United States
government-to-government relationships with Indian
tribes, and to reduce the imposition of unfunded mandates upon Indian tribes; it is hereby ordered as follows:

Page 692

SECTION 1. Definitions. For purposes of this order:
(a) ‘‘Policies that have tribal implications’’ refers to
regulations, legislative comments or proposed legislation, and other policy statements or actions that have
substantial direct effects on one or more Indian tribes,
on the relationship between the Federal Government
and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and
Indian tribes.
(b) ‘‘Indian tribe’’ means an Indian or Alaska Native
tribe, band, nation, pueblo, village, or community that
the Secretary of the Interior acknowledges to exist as
an Indian tribe pursuant to the Federally Recognized
Indian Tribe List Act of 1994, 25 U.S.C. 479a [now 25
U.S.C. 5130].
(c) ‘‘Agency’’ means any authority of the United
States that is an ‘‘agency’’ under 44 U.S.C. 3502(1),
other than those considered to be independent regulatory agencies, as defined in 44 U.S.C. 3502(5).
(d) ‘‘Tribal officials’’ means elected or duly appointed
officials of Indian tribal governments or authorized
intertribal organizations.
SEC. 2. Fundamental Principles. In formulating or implementing policies that have tribal implications,
agencies shall be guided by the following fundamental
principles:
(a) The United States has a unique legal relationship
with Indian tribal governments as set forth in the Constitution of the United States, treaties, statutes, Executive Orders, and court decisions. Since the formation
of the Union, the United States has recognized Indian
tribes as domestic dependent nations under its protection. The Federal Government has enacted numerous
statutes and promulgated numerous regulations that
establish and define a trust relationship with Indian
tribes.
(b) Our Nation, under the law of the United States, in
accordance with treaties, statutes, Executive Orders,
and judicial decisions, has recognized the right of Indian tribes to self-government. As domestic dependent
nations, Indian tribes exercise inherent sovereign powers over their members and territory. The United
States continues to work with Indian tribes on a government-to-government basis to address issues concerning Indian tribal self-government, tribal trust resources, and Indian tribal treaty and other rights.
(c) The United States recognizes the right of Indian
tribes to self-government and supports tribal sovereignty and self-determination.
SEC. 3. Policymaking Criteria. In addition to adhering
to the fundamental principles set forth in section 2,
agencies shall adhere, to the extent permitted by law,
to the following criteria when formulating and implementing policies that have tribal implications:
(a) Agencies shall respect Indian tribal self-government and sovereignty, honor tribal treaty and other
rights, and strive to meet the responsibilities that arise
from the unique legal relationship between the Federal
Government and Indian tribal governments.
(b) With respect to Federal statutes and regulations
administered by Indian tribal governments, the Federal
Government shall grant Indian tribal governments the
maximum administrative discretion possible.
(c) When undertaking to formulate and implement
policies that have tribal implications, agencies shall:
(1) encourage Indian tribes to develop their own policies to achieve program objectives;
(2) where possible, defer to Indian tribes to establish
standards; and
(3) in determining whether to establish Federal
standards, consult with tribal officials as to the need
for Federal standards and any alternatives that would
limit the scope of Federal standards or otherwise preserve the prerogatives and authority of Indian tribes.
SEC. 4. Special Requirements for Legislative Proposals.
Agencies shall not submit to the Congress legislation
that would be inconsistent with the policymaking criteria in Section 3.
SEC. 5. Consultation. (a) Each agency shall have an accountable process to ensure meaningful and timely

Page 693

TITLE 25—INDIANS

input by tribal officials in the development of regulatory policies that have tribal implications. Within 30
days after the effective date of this order, the head of
each agency shall designate an official with principal
responsibility for the agency’s implementation of this
order. Within 60 days of the effective date of this order,
the designated official shall submit to the Office of
Management and Budget (OMB) a description of the
agency’s consultation process.
(b) To the extent practicable and permitted by law,
no agency shall promulgate any regulation that has
tribal implications, that imposes substantial direct
compliance costs on Indian tribal governments, and
that is not required by statute, unless:
(1) funds necessary to pay the direct costs incurred by
the Indian tribal government or the tribe in complying
with the regulation are provided by the Federal Government; or
(2) the agency, prior to the formal promulgation of
the regulation,
(A) consulted with tribal officials early in the process of developing the proposed regulation;
(B) in a separately identified portion of the preamble to the regulation as it is to be issued in the
Federal Register, provides to the Director of OMB a
tribal summary impact statement, which consists of
a description of the extent of the agency’s prior consultation with tribal officials, a summary of the nature of their concerns and the agency’s position supporting the need to issue the regulation, and a statement of the extent to which the concerns of tribal officials have been met; and
(C) makes available to the Director of OMB any
written communications submitted to the agency by
tribal officials.
(c) To the extent practicable and permitted by law,
no agency shall promulgate any regulation that has
tribal implications and that preempts tribal law unless
the agency, prior to the formal promulgation of the
regulation,
(1) consulted with tribal officials early in the process
of developing the proposed regulation;
(2) in a separately identified portion of the preamble
to the regulation as it is to be issued in the Federal
Register, provides to the Director of OMB a tribal summary impact statement, which consists of a description
of the extent of the agency’s prior consultation with
tribal officials, a summary of the nature of their concerns and the agency’s position supporting the need to
issue the regulation, and a statement of the extent to
which the concerns of tribal officials have been met;
and
(3) makes available to the Director of OMB any written communications submitted to the agency by tribal
officials.
(d) On issues relating to tribal self-government, tribal trust resources, or Indian tribal treaty and other
rights, each agency should explore and, where appropriate, use consensual mechanisms for developing regulations, including negotiated rulemaking.
SEC. 6. Increasing Flexibility for Indian Tribal Waivers.
(a) Agencies shall review the processes under which
Indian tribes apply for waivers of statutory and regulatory requirements and take appropriate steps to
streamline those processes.
(b) Each agency shall, to the extent practicable and
permitted by law, consider any application by an Indian tribe for a waiver of statutory or regulatory requirements in connection with any program administered by the agency with a general view toward increasing opportunities for utilizing flexible policy approaches at the Indian tribal level in cases in which the
proposed waiver is consistent with the applicable Federal policy objectives and is otherwise appropriate.
(c) Each agency shall, to the extent practicable and
permitted by law, render a decision upon a complete
application for a waiver within 120 days of receipt of
such application by the agency, or as otherwise provided by law or regulation. If the application for waiver
is not granted, the agency shall provide the applicant

§ 5301

with timely written notice of the decision and the reasons therefor.
(d) This section applies only to statutory or regulatory requirements that are discretionary and subject
to waiver by the agency.
SEC. 7. Accountability.
(a) In transmitting any draft final regulation that
has tribal implications to OMB pursuant to Executive
Order 12866 of September 30, 1993 [5 U.S.C. 601 note],
each agency shall include a certification from the official designated to ensure compliance with this order
stating that the requirements of this order have been
met in a meaningful and timely manner.
(b) In transmitting proposed legislation that has tribal implications to OMB, each agency shall include a
certification from the official designated to ensure
compliance with this order that all relevant requirements of this order have been met.
(c) Within 180 days after the effective date of this
order the Director of OMB and the Assistant to the
President for Intergovernmental Affairs shall confer
with tribal officials to ensure that this order is being
properly and effectively implemented.
SEC. 8. Independent Agencies. Independent regulatory
agencies are encouraged to comply with the provisions
of this order.
SEC. 9. General Provisions. (a) This order shall supplement but not supersede the requirements contained in
Executive Order 12866 (Regulatory Planning and Review) [5 U.S.C. 601 note], Executive Order 12988 (Civil
Justice Reform) [28 U.S.C. 519 note], OMB Circular
A–19, and the Executive Memorandum of April 29, 1994,
on Government-to-Government Relations with Native
American Tribal Governments [set out below].
(b) This order shall complement the consultation and
waiver provisions in sections 6 and 7 of Executive Order
13132 (Federalism) [5 U.S.C. 601 note].
(c) Executive Order 13084 (Consultation and Coordination with Indian Tribal Governments) [former 25 U.S.C.
450 note] is revoked at the time this order takes effect.
(d) This order shall be effective 60 days after the date
of this order.
SEC. 10. Judicial Review. This order is intended only to
improve the internal management of the executive
branch, and is not intended to create any right, benefit,
or trust responsibility, substantive or procedural, enforceable at law by a party against the United States,
its agencies, or any person.
WILLIAM J. CLINTON.
EX. ORD. NO. 13647. ESTABLISHING THE WHITE HOUSE
COUNCIL ON NATIVE AMERICAN AFFAIRS
Ex. Ord. No. 13647, June 26, 2013, 78 F.R. 39539, provided:
By the authority vested in me as President by the
Constitution and the laws of the United States of
America, and in order to promote and sustain prosperous and resilient Native American tribal governments, it is hereby ordered as follows:
SECTION 1. Policy. The United States recognizes a government-to-government relationship, as well as a
unique legal and political relationship, with federally
recognized tribes. This relationship is set forth in the
Constitution of the United States, treaties, statutes,
Executive Orders, administrative rules and regulations,
and judicial decisions. Honoring these relationships
and respecting the sovereignty of tribal nations is critical to advancing tribal self-determination and prosperity.
As we work together to forge a brighter future for all
Americans, we cannot ignore a history of mistreatment
and destructive policies that have hurt tribal communities. The United States seeks to continue restoring
and healing relations with Native Americans and to
strengthen its partnership with tribal governments, for
our more recent history demonstrates that tribal selfdetermination—the ability of tribal governments to determine how to build and sustain their own communities—is necessary for successful and prospering com-

§ 5301

TITLE 25—INDIANS

munities. We further recognize that restoring tribal
lands through appropriate means helps foster tribal
self-determination.
This order establishes a national policy to ensure
that the Federal Government engages in a true and
lasting government-to-government relationship with
federally recognized tribes in a more coordinated and
effective manner, including by better carrying out its
trust responsibilities. This policy is established as a
means of promoting and sustaining prosperous and resilient tribal communities. Greater engagement and
meaningful consultation with tribes is of paramount
importance in developing any policies affecting tribal
nations.
To honor treaties and recognize tribes’ inherent sovereignty and right to self-government under U.S. law,
it is the policy of the United States to promote the development of prosperous and resilient tribal communities, including by:
(a) promoting sustainable economic development,
particularly energy, transportation, housing, other infrastructure, entrepreneurial, and workforce development to drive future economic growth and security;
(b) supporting greater access to, and control over, nutrition and healthcare, including special efforts to confront historic health disparities and chronic diseases;
(c) supporting efforts to improve the effectiveness
and efficiency of tribal justice systems and protect
tribal communities;
(d) expanding and improving lifelong educational opportunities for American Indians and Alaska Natives,
while respecting demands for greater tribal control
over tribal education, consistent with Executive Order
13592 of December 2, 2011 (Improving American Indian
and Alaska Native Educational Opportunities and
Strengthening Tribal Colleges and Universities); and
(e) protecting tribal lands, environments, and natural
resources, and promoting respect for tribal cultures.
SEC. 2. Establishment. There is established the White
House Council on Native American Affairs (Council).
The Council shall improve coordination of Federal programs and the use of resources available to tribal communities.
SEC. 3. Membership. (a) The Secretary of the Interior
shall serve as the Chair of the Council, which shall also
include the heads of the following executive departments, agencies, and offices:
(i) the Department of State;
(ii) the Department of the Treasury;
(iii) the Department of Defense;
(iv) the Department of Justice;
(v) the Department of Agriculture;
(vi) the Department of Commerce;
(vii) the Department of Labor;
(viii) the Department of Health and Human Services;
(ix) the Department of Housing and Urban Development;
(x) the Department of Transportation;
(xi) the Department of Energy;
(xii) the Department of Education;
(xiii) the Department of Veterans Affairs;
(xiv) the Department of Homeland Security;
(xv) the Social Security Administration;
(xvi) the Office of Personnel Management;
(xvii) the Office of the United States Trade Representative;
(xviii) the Office of Management and Budget;
(xix) the Environmental Protection Agency;
(xx) the Small Business Administration;
(xxi) the Council of Economic Advisers;
(xxii) the Office of National Drug Control Policy;
(xxiii) the Domestic Policy Council;
(xxiv) the National Economic Council;
(xxv) the Office of Science and Technology Policy;
(xxvi) the Council on Environmental Quality;
(xxvii) the White House Office of Public Engagement
and Intergovernmental Affairs;
(xxviii) the Advisory Council on Historic Preservation;
(xxix) the Denali Commission;

Page 694

(xxx) the White House Office of Cabinet Affairs; and
(xxxi) such other executive departments, agencies,
and offices as the Chair may, from time to time, designate.
(b) A member of the Council may designate a seniorlevel official, who is a full-time officer or employee of
the Federal Government, to perform his or her functions.
(c) The Department of the Interior shall provide funding and administrative support for the Council to the
extent permitted by law and within existing appropriations.
(d) The Council shall coordinate its policy development through the Domestic Policy Council.
(e) The Council shall coordinate its outreach to federally recognized tribes through the White House Office
of Public Engagement and Intergovernmental Affairs.
(f) The Council shall meet three times a year, with
any additional meetings convened as deemed necessary
by the Chair.
The Chair may invite other interested agencies and
offices to attend meetings as appropriate.
SEC. 4. Mission and Function of the Council. The Council shall work across executive departments, agencies,
and offices to coordinate development of policy recommendations to support tribal self-governance and
improve the quality of life for Native Americans, and
shall coordinate the United States Government’s engagement with tribal governments and their communities. The Council shall:
(a) make recommendations to the President, through
the Director of the Domestic Policy Council, concerning policy priorities, including improving the effectiveness of Federal investments in Native American
communities, where appropriate, to increase the impact of Federal resources and create greater opportunities to help improve the quality of life for Native
Americans;
(b) coordinate, through the Director of the Office of
Public Engagement and Intergovernmental Affairs,
Federal engagement with tribal governments and Native American stakeholders regarding issues important
to Native Americans, including with tribal consortia,
small businesses, education and training institutions
including tribal colleges and universities, health-care
providers, trade associations, research and grant institutions, law enforcement, State and local governments,
and community and non-profit organizations;
(c) coordinate a more effective and efficient process
for executive departments, agencies, and offices to
honor the United States commitment to tribal consultation as set forth in Executive Order 13175 of November 6, 2000 (Consultation and Coordination With Indian Tribal Governments), and my memorandum of November 5, 2009 (Tribal Consultation); and
(d) assist the White House Office of Public Engagement and Intergovernmental Affairs in organizing the
White House Tribal Nations Conference each year by
bringing together leaders invited from all federally recognized Indian tribes and senior officials from the Federal Government to provide for direct government-togovernment discussion of the Federal Government’s Indian country policy priorities.
SEC. 5. General Provisions. (a) The heads of executive
departments, agencies, and offices shall assist and provide information to the Council, consistent with applicable law, as may be necessary to carry out the functions of the Council.
(b) Nothing in this order shall be construed to impair
or otherwise affect:
(i) the authority granted by law to an executive department, agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(c) This order shall be implemented consistent with
applicable law and subject to the availability of appropriations.
(d) For purposes of this order, ‘‘federally recognized
tribe’’ means an Indian or Alaska Native tribe, band,

Page 695

§ 5301

TITLE 25—INDIANS

nation, pueblo, village, or community that the Secretary of the Interior acknowledges to exist as an Indian tribe pursuant to the Federally Recognized Indian
Tribe List Act of 1994, 25 U.S.C. 479a [now 25 U.S.C.
5130].
(e) For purposes of this order, ‘‘American Indian and
Alaska Native’’ means a member of an Indian tribe, as
membership is defined by the tribe.
(f) This order is not intended to, and does not, create
any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the
United States, its departments, agencies, or entities,
its officers, employees, or agents, or any other person.
BARACK OBAMA.
GOVERNMENT-TO-GOVERNMENT RELATIONS WITH NATIVE
AMERICAN TRIBAL GOVERNMENTS

The head of each executive department and agency
shall ensure that the department or agency’s bureaus
and components are fully aware of this memorandum,
through publication or other means, and that they are
in compliance with its requirements.
This memorandum is intended only to improve the
internal management of the executive branch and is
not intended to, and does not, create any right to administrative or judicial review, or any other right or
benefit or trust responsibility, substantive or procedural, enforceable by a party against the United States,
its agencies or instrumentalities, its officers or employees, or any other person.
The Director of the Office of Management and Budget
is authorized and directed to publish this memorandum
in the Federal Register.
WILLIAM J. CLINTON.

Memorandum of President of the United States, Apr.
29, 1994, 59 F.R. 22951, provided:
Memorandum for the Heads of Executive Departments and Agencies
The United States Government has a unique legal relationship with Native American tribal governments as
set forth in the Constitution of the United States, treaties, statutes, and court decisions. As executive departments and agencies undertake activities affecting Native American tribal rights or trust resources, such activities should be implemented in a knowledgeable,
sensitive manner respectful of tribal sovereignty.
Today, as part of an historic meeting, I am outlining
principles that executive departments and agencies, including every component bureau and office, are to follow in their interactions with Native American tribal
governments. The purpose of these principles is to clarify our responsibility to ensure that the Federal Government operates within a government-to-government
relationship with federally recognized Native American
tribes. I am strongly committed to building a more effective day-to-day working relationship reflecting respect for the rights of self-government due the sovereign tribal governments.
In order to ensure that the rights of sovereign tribal
governments are fully respected, executive branch activities shall be guided by the following:
(a) The head of each executive department and agency shall be responsible for ensuring that the department or agency operates within a government-to-government relationship with federally recognized tribal
governments.
(b) Each executive department and agency shall consult, to the greatest extent practicable and to the extent permitted by law, with tribal governments prior to
taking actions that affect federally recognized tribal
governments. All such consultations are to be open and
candid so that all interested parties may evaluate for
themselves the potential impact of relevant proposals.
(c) Each executive department and agency shall assess the impact of Federal Government plans, projects,
programs, and activities on tribal trust resources and
assure that tribal government rights and concerns are
considered during the development of such plans,
projects, programs, and activities.
(d) Each executive department and agency shall take
appropriate steps to remove any procedural impediments to working directly and effectively with tribal
governments on activities that affect the trust property and/or governmental rights of the tribes.
(e) Each executive department and agency shall work
cooperatively with other Federal departments and
agencies to enlist their interest and support in cooperative efforts, where appropriate, to accomplish the goals
of this memorandum.
(f) Each executive department and agency shall apply
the requirements of Executive Orders Nos. 12875 (‘‘Enhancing the Intergovernmental Partnership’’) [former 5
U.S.C. 601 note] and 12866 (‘‘Regulatory Planning and
Review’’) [5 U.S.C. 601 note] to design solutions and tailor Federal programs, in appropriate circumstances, to
address specific or unique needs of tribal communities.

Memorandum of President of the United States, Nov.
5, 2009, 74 F.R. 57881, provided:
Memorandum for the Heads of Executive Departments And Agencies
The United States has a unique legal and political relationship with Indian tribal governments, established
through and confirmed by the Constitution of the
United States, treaties, statutes, executive orders, and
judicial decisions. In recognition of that special relationship, pursuant to Executive Order 13175 of November 6, 2000, executive departments and agencies (agencies) are charged with engaging in regular and meaningful consultation and collaboration with tribal officials in the development of Federal policies that have
tribal implications, and are responsible for strengthening the government-to-government relationship between the United States and Indian tribes.
History has shown that failure to include the voices
of tribal officials in formulating policy affecting their
communities has all too often led to undesirable and,
at times, devastating and tragic results. By contrast,
meaningful dialogue between Federal officials and tribal officials has greatly improved Federal policy toward
Indian tribes. Consultation is a critical ingredient of a
sound and productive Federal-tribal relationship.
My Administration is committed to regular and
meaningful consultation and collaboration with tribal
officials in policy decisions that have tribal implications including, as an initial step, through complete
and consistent implementation of Executive Order
13175. Accordingly, I hereby direct each agency head to
submit to the Director of the Office of Management and
Budget (OMB), within 90 days after the date of this
memorandum, a detailed plan of actions the agency
will take to implement the policies and directives of
Executive Order 13175. This plan shall be developed
after consultation by the agency with Indian tribes and
tribal officials as defined in Executive Order 13175. I
also direct each agency head to submit to the Director
of the OMB, within 270 days after the date of this
memorandum, and annually thereafter, a progress report on the status of each action included in its plan
together with any proposed updates to its plan.
Each agency’s plan and subsequent reports shall designate an appropriate official to coordinate implementation of the plan and preparation of progress reports
required by this memorandum. The Assistant to the
President for Domestic Policy and the Director of the
OMB shall review agency plans and subsequent reports
for consistency with the policies and directives of Executive Order 13175.
In addition, the Director of the OMB, in coordination
with the Assistant to the President for Domestic Policy, shall submit to me, within 1 year from the date of
this memorandum, a report on the implementation of
Executive Order 13175 across the executive branch
based on the review of agency plans and progress reports. Recommendations for improving the plans and
making the tribal consultation process more effective,
if any, should be included in this report.

TRIBAL CONSULTATION

§ 5302

TITLE 25—INDIANS

The terms ‘‘Indian tribe,’’ ‘‘tribal officials,’’ and
‘‘policies that have tribal implications’’ as used in this
memorandum are as defined in Executive Order 13175.
The Director of the OMB is hereby authorized and directed to publish this memorandum in the Federal Register.
This memorandum is not intended to, and does not,
create any right or benefit, substantive or procedural,
enforceable at law or in equity by any party against
the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other
person. Executive departments and agencies shall carry
out the provisions of this memorandum to the extent
permitted by law and consistent with their statutory
and regulatory authorities and their enforcement
mechanisms.
BARACK OBAMA.

§ 5302. Congressional declaration of policy
(a) Recognition of obligation of United States
The Congress hereby recognizes the obligation
of the United States to respond to the strong expression of the Indian people for self-determination by assuring maximum Indian participation
in the direction of educational as well as other
Federal services to Indian communities so as to
render such services more responsive to the
needs and desires of those communities.
(b) Declaration of commitment
The Congress declares its commitment to the
maintenance of the Federal Government’s
unique and continuing relationship with, and responsibility to, individual Indian tribes and to
the Indian people as a whole through the establishment of a meaningful Indian self-determination policy which will permit an orderly transition from the Federal domination of programs
for, and services to, Indians to effective and
meaningful participation by the Indian people in
the planning, conduct, and administration of
those programs and services. In accordance with
this policy, the United States is committed to
supporting and assisting Indian tribes in the development of strong and stable tribal governments, capable of administering quality programs and developing the economies of their respective communities.
(c) Declaration of national goal
The Congress declares that a major national
goal of the United States is to provide the quantity and quality of educational services and opportunities which will permit Indian children to
compete and excel in the life areas of their
choice, and to achieve the measure of self-determination essential to their social and economic
well-being.
(Pub. L. 93–638, § 3, Jan. 4, 1975, 88 Stat. 2203; Pub.
L. 100–472, title I, § 102, Oct. 5, 1988, 102 Stat.
2285.)
Editorial Notes
CODIFICATION
Section was formerly classified to section 450a of this
title prior to editorial reclassification and renumbering
as this section.
AMENDMENTS
1988—Subsec. (b). Pub. L. 100–472 added subsec. (b) and
struck out former subsec. (b) which read as follows:
‘‘The Congress declares its commitment to the mainte-

Page 696

nance of the Federal Government’s unique and continuing relationship with and responsibility to the Indian people through the establishment of a meaningful
Indian self-determination policy which will permit an
orderly transition from Federal domination of programs for and services to Indians to effective and
meaningful participation by the Indian people in the
planning, conduct, and administration of those programs and services.’’

§ 5303. Tribal and Federal advisory committees
Notwithstanding any other provision of law
(including any regulation), the Secretary of the
Interior and the Secretary of Health and Human
Services are authorized to jointly establish and
fund advisory committees or other advisory bodies composed of members of Indian tribes or
members of Indian tribes and representatives of
the Federal Government to ensure tribal participation in the implementation of the Indian SelfDetermination and Education Assistance Act
(Public Law 93–638) [25 U.S.C. 5301 et seq.].
(Pub. L. 101–644, title II, § 204, as added Pub. L.
103–435, § 22(b), Nov. 2, 1994, 108 Stat. 4575.)
Editorial Notes
REFERENCES IN TEXT
The Indian Self-Determination and Education Assistance Act, referred to in text, is Pub. L. 93–638, Jan. 4,
1975, 88 Stat. 2203, which is classified principally to this
chapter. For complete classification of this Act to the
Code, see Short Title note set out under section 5301 of
this title and Tables.
CODIFICATION
Section was enacted as part of the Indian Self-Determination and Education Assistance Act Amendments
of 1990, and not as part of the Indian Self-Determination and Education Assistance Act which comprises
this chapter.
Section was formerly classified to section 450a–1 of
this title prior to editorial reclassification and renumbering as this section.

§ 5304. Definitions
For purposes of this chapter, the term—
(a) ‘‘construction programs’’ means programs for the planning, design, construction,
repair, improvement, and expansion of buildings or facilities, including, but not limited to,
housing, law enforcement and detention facilities, sanitation and water systems, roads,
schools, administration and health facilities,
irrigation and agricultural work, and water
conservation, flood control, or port facilities;
(b) ‘‘contract funding base’’ means the base
level from which contract funding needs are
determined, including all contract costs;
(c) ‘‘direct program costs’’ means costs that
can be identified specifically with a particular
contract objective;
(d) ‘‘Indian’’ means a person who is a member of an Indian tribe;
(e) ‘‘Indian tribe’’ or ‘‘Indian Tribe’’ means
any Indian tribe, band, nation, or other organized group or community, including any
Alaska Native village or regional or village
corporation as defined in or established pursuant to the Alaska Native Claims Settlement
Act (85 Stat. 688) [43 U.S.C. 1601 et seq.], which
is recognized as eligible for the special pro-

Page 697

§ 5304

TITLE 25—INDIANS

grams and services provided by the United
States to Indians because of their status as Indians;
(f) ‘‘indirect costs’’ means costs incurred for
a common or joint purpose benefiting more
than one contract objective, or which are not
readily assignable to the contract objectives
specifically benefited without effort disproportionate to the results achieved;
(g) ‘‘indirect cost rate’’ means the rate arrived at through negotiation between an Indian tribe or tribal organization and the appropriate Federal agency;
(h) ‘‘mature contract’’ means a self-determination contract that has been continuously
operated by a tribal organization for three or
more years, and for which there are no significant and material audit exceptions in the annual financial audit of the tribal organization:
Provided, That upon the request of a tribal organization or the tribal organization’s Indian
tribe for purposes of section 5321(a) of this
title, a contract of the tribal organization
which meets this definition shall be considered
to be a mature contract;
(i) ‘‘Secretary’’, unless otherwise designated,
means either the Secretary of Health and
Human Services or the Secretary of the Interior or both;
(j) ‘‘self-determination contract’’ means a
contract entered into under subchapter I (or a
grant or cooperative agreement used under
section 5308 of this title) between a Tribal organization and the appropriate Secretary for
the planning, conduct, and administration of
programs or services that are otherwise provided to Indian Tribes and members of Indian
Tribes pursuant to Federal law, subject to the
condition that, except as provided in section
5324(a)(3) of this title, no contract entered into
under subchapter I (or grant or cooperative
agreement used under section 5308 of this
title) shall be—
(1) considered to be a procurement contract; or
(2) except as provided in section 5328(a)(1)
of this title, subject to any Federal procurement law (including regulations);
(k) ‘‘State education agency’’ means the
State board of education or other agency or
officer primarily responsible for supervision
by the State of public elementary and secondary schools, or, if there is no such officer
or agency, an officer or agency designated by
the Governor or by State law;
(l) ‘‘Tribal organization’’ or ‘‘tribal organization’’ means the recognized governing body of
any Indian tribe; any legally established organization of Indians which is controlled, sanctioned, or chartered by such governing body or
which is democratically elected by the adult
members of the Indian community to be
served by such organization and which includes the maximum participation of Indians
in all phases of its activities: Provided, That in
any case where a contract is let or grant made
to an organization to perform services benefiting more than one Indian tribe, the approval of each such Indian tribe shall be a prerequisite to the letting or making of such contract or grant; and

(m) ‘‘construction contract’’ means a fixedprice or cost-reimbursement self-determination contract for a construction project, except that such term does not include any contract—
(1) that is limited to providing planning
services and construction management services (or a combination of such services);
(2) for the Housing Improvement Program
or roads maintenance program of the Bureau
of Indian Affairs administered by the Secretary of the Interior; or
(3) for the health facility maintenance and
improvement program administered by the
Secretary of Health and Human Services.
(Pub. L. 93–638, § 4, Jan. 4, 1975, 88 Stat. 2204; Pub.
L. 100–472, title I, § 103, Oct. 5, 1988, 102 Stat. 2286;
Pub. L. 100–581, title II, § 208, Nov. 1, 1988, 102
Stat. 2940; Pub. L. 101–301, § 2(a)(1)–(3), May 24,
1990, 104 Stat. 206; Pub. L. 101–644, title II,
§ 202(1), (2), Nov. 29, 1990, 104 Stat. 4665; Pub. L.
103–413, title I, § 102(1), Oct. 25, 1994, 108 Stat.
4250; Pub. L. 116–180, title II, § 201(a), Oct. 21,
2020, 134 Stat. 878.)
Editorial Notes
REFERENCES IN TEXT
This chapter, referred to in text, was in the original
‘‘this Act’’, meaning Pub. L. 93–638, Jan. 4, 1975, 88 Stat.
2203, known as the Indian Self-Determination and Education Assistance Act, which is classified principally to
this chapter. For complete classification of this Act to
the Code, see Short Title note set out under section
5301 of this title and Tables.
The Alaska Native Claims Settlement Act, referred
to in subsec. (e), is Pub. L. 92–203, Dec. 18, 1971, 85 Stat.
688, which is classified generally to chapter 33 (§ 1601 et
seq.) of Title 43, Public Lands. For complete classification of this Act to the Code, see Short Title note set
out under section 1601 of Title 43, and Tables.
Subchapter I, referred to in subsec. (j), was in the
original ‘‘title I’’, meaning title I of Pub. L. 93–638,
known as the Indian Self-Determination Act, which is
classified principally to subchapter I (§ 5321 et seq.) of
this chapter. For complete classification of title I to
the Code, see Short Title note set out under section
5301 of this title and Tables.
CODIFICATION
Section was formerly classified to section 450b of this
title prior to editorial reclassification and renumbering
as this section.
AMENDMENTS
2020—Subsec. (e). Pub. L. 116–180, § 201(a)(2)(A), substituted ‘‘ ‘Indian tribe’ or ‘Indian Tribe’ means’’ for
‘‘ ‘Indian tribe’ means’’.
Subsec. (j). Pub. L. 116–180, § 201(a)(1), added subsec. (j)
and struck out former subsec. (j) which defined ‘‘selfdetermination contract’’.
Subsec. (l). Pub. L. 116–180, § 201(a)(2)(B), substituted
‘‘ ‘Tribal organization’ or ‘tribal organization’ means’’
for ‘‘ ‘tribal organization’ means’’.
1994—Subsec. (g). Pub. L. 103–413, § 102(1)(A), substituted ‘‘indirect cost rate’’ for ‘‘indirect costs rate’’.
Subsec. (m). Pub. L. 103–413, § 102(1)(B)–(D), added subsec. (m).
1990—Subsec. (e). Pub. L. 101–301, § 2(a)(1), inserted a
comma before ‘‘which is recognized’’.
Subsec. (h). Pub. L. 101–644, § 202(1), struck out ‘‘in existence on October 5, 1988,’’ before ‘‘which meets this
definition’’.
Subsec. (j). Pub. L. 101–644, § 202(2), substituted ‘‘contract (or grant or cooperative agreement utilized under

§ 5305

TITLE 25—INDIANS

section 5308 of this title) entered’’ for ‘‘contract entered’’ in two places.
Pub. L. 101–301, § 2(a)(2), (3), substituted ‘‘under this
chapter’’ for ‘‘pursuant to this Act’’ in two places and
struck out ‘‘the’’ before ‘‘Secretary’’.
1988—Pub. L. 100–472 amended section generally, substituting subsecs. (a) to (l) for former subsecs. (a) to (d)
and (f) which defined ‘‘Indian’’, ‘‘Indian tribe’’, ‘‘Tribal
organization’’, ‘‘Secretary’’, and ‘‘State education
agency’’.
Subsec. (h). Pub. L. 100–581, § 208(a)(1), substituted ‘‘by
a tribal organization’’ for ‘‘by tribal organization’’.
Pub. L. 100–581, § 208(a)(2), which directed the amendment of subsec. (h) by substituting ‘‘a tribal organization or the tribal organization’s Indian tribe for purposes of section 5321(a) of this title’’ for ‘‘a tribal organization or a tribal governing body’’ was executed by
substituting the new language for ‘‘a tribal organization or tribal governing body’’ to reflect the probable
intent of Congress.
Subsec. (j). Pub. L. 100–581, § 208(b), substituted ‘‘the
Secretary for the planning’’ for ‘‘Secretary the planning’’ and ‘‘except as provided the last proviso in section 5324(a) of this title, no contract’’ for ‘‘no contract’’.

§ 5305. Reporting and audit requirements for recipients of Federal financial assistance
(a) Maintenance of records
(1) Each recipient of Federal financial assistance under this chapter shall keep such records
as the appropriate Secretary shall prescribe by
regulation promulgated under sections 552 and
553 of title 5, including records which fully disclose—
(A) the amount and disposition by such recipient of the proceeds of such assistance,
(B) the cost of the project or undertaking in
connection with which such assistance is
given or used,
(C) the amount of that portion of the cost of
the project or undertaking supplied by other
sources, and
(D) such other information as will facilitate
an effective audit.
(2) For the purposes of this subsection, such
records for a mature contract shall consist of
quarterly financial statements for the purpose
of accounting for Federal funds, the annual single-agency audit required by chapter 75 of title
31 1 and a brief annual program report.
(b) Access to books, documents, papers, and
records for audit and examination by Comptroller General, etc.
The Comptroller General and the appropriate
Secretary, or any of their duly authorized representatives, shall, until the expiration of three
years after the retention period for the report
that is submitted to the Secretary under subsection (a), have access (for the purpose of audit
and examination) to any books, documents, papers, and records of such recipients which in the
opinion of the Comptroller General or the appropriate Secretary may be related or pertinent to
the grants, contracts, subcontracts, subgrants,
or other arrangements referred to in the preceding subsection. The retention period shall be
defined in regulations promulgated by the Secretary pursuant to section 5373 of this title.
1 So

in original. Probably should be followed by a comma.

Page 698

(c) Availability by recipient of required reports
and information to Indian people served or
represented
Each recipient of Federal financial assistance
referred to in subsection (a) of this section shall
make such reports and information available to
the Indian people served or represented by such
recipient as and in a manner determined to be
adequate by the appropriate Secretary.
(d) Repayment to Treasury by recipient of unexpended or unused funds
Except as provided in section 13a or 5325(a)(3) 2
of this title, funds paid to a financial assistance
recipient referred to in subsection (a) of this section and not expended or used for the purposes
for which paid shall be repaid to the Treasury of
the United States through the respective Secretary.
(e) Annual report to tribes
The Secretary shall report annually in writing
to each tribe regarding projected and actual
staffing levels, funding obligations, and expenditures for programs operated directly by the Secretary serving that tribe.
(f) Single-agency audit report; additional information; declination criteria and procedures
(1) For each fiscal year during which an Indian
tribal organization receives or expends funds
pursuant to a contract entered into, or grant
made, under this chapter, the tribal organization that requested such contract or grant shall
submit to the appropriate Secretary a singleagency audit report required by chapter 75 of
title 31.
(2) In addition to submitting a single-agency
audit report pursuant to paragraph (1), a tribal
organization referred to in such paragraph shall
submit such additional information concerning
the conduct of the program, function, service, or
activity carried out pursuant to the contract or
grant that is the subject of the report as the
tribal organization may negotiate with the Secretary.
(3) Any disagreement over reporting requirements shall be subject to the declination criteria and procedures set forth in section 5321 of
this title.
(Pub. L. 93–638, § 5, formerly § 5 and title I, § 108,
Jan. 4, 1975, 88 Stat. 2204, 2212; renumbered and
amended Pub. L. 100–472, title I, § 104, title II,
§ 208, Oct. 5, 1988, 102 Stat. 2287, 2296; Pub. L.
100–581, title II, § 209, Nov. 1, 1988, 102 Stat. 2940;
Pub. L. 101–301, § 2(a)(4), May 24, 1990, 104 Stat.
206; Pub. L. 101–644, title II, § 202(3), Nov. 29, 1990,
104 Stat. 4665; Pub. L. 103–413, title I, § 102(2), Oct.
25, 1994, 108 Stat. 4250; Pub. L. 116–180, title II,
§ 201(b), Oct. 21, 2020, 134 Stat. 879.)
AMENDMENT OF SUBSECTION (f)(1)
Pub. L. 116–180, title II, § 201(b)(2), (c), Oct.
21, 2020, 134 Stat. 879, provided that, effective 14
months after Oct. 21, 2020, subsection (f)(1) of
this section is amended by inserting ‘‘if the Indian Tribal organization expends $500,000 or
more in Federal awards during such fiscal
year’’ after ‘‘under this chapter,’’. See 2020
Amendment note below.
2 See

References in Text note below.

Page 699

§ 5307

TITLE 25—INDIANS
Editorial Notes
REFERENCES IN TEXT

This chapter, referred to in subsecs. (a)(1) and (f)(1),
was in the original ‘‘this Act’’, meaning Pub. L. 93–638,
Jan. 4, 1975, 88 Stat. 2203, known as the Indian Self-Determination and Education Assistance Act, which is
classified principally to this chapter. For complete
classification of this Act to the Code, see Short Title
note set out under section 5301 of this title and Tables.
Section 5325(a)(3) of this title, referred to in subsec.
(d), was repealed and a new subsec. (a)(3) of section 5325
was added by Pub. L. 103–413, title I, § 102(14)(C), Oct. 25,
1994, 108 Stat. 4257. See section 5325(a)(4) of this title.
CODIFICATION
Section was formerly classified to section 450c of this
title prior to editorial reclassification and renumbering
as this section.
AMENDMENTS
2020—Subsec. (b). Pub. L. 116–180, § 201(b)(1), substituted ‘‘after the retention period for the report that
is submitted to the Secretary under subsection (a)’’ for
‘‘after completion of the project or undertaking referred to in the preceding subsection of this section’’
and inserted at end ‘‘The retention period shall be defined in regulations promulgated by the Secretary pursuant to section 5373 of this title.’’
Subsec. (f)(1). Pub. L. 116–180, § 201(b)(2), inserted ‘‘if
the Indian Tribal organization expends $500,000 or more
in Federal awards during such fiscal year’’ after ‘‘under
this chapter,’’.
1994—Subsec. (f). Pub. L. 103–413 added subsec. (f) and
struck out former subsec. (f) which read as follows:
‘‘For each fiscal year during which an Indian tribal organization receives or expends funds pursuant to a contract or grant under this chapter, the Indian tribe
which requested such contract or grant shall submit to
the appropriate Secretary a report including, but not
limited to, an accounting of the amounts and purposes
for which Federal funds were expended, information on
the conduct of the program or service involved, and
such other information as the appropriate Secretary
may request through regulations promulgated under
sections 552 and 553 of title 5.’’
1990—Subsec. (a)(2). Pub. L. 101–301 substituted ‘‘chapter 75 of title 31’’ for ‘‘the Single Audit Act of 1984 (98
Stat. 2327, 31 U.S.C. 7501 et seq.),’’.
Subsec. (d). Pub. L. 101–644 substituted ‘‘Except as
provided in section 13a or 5325(a)(3) of this title,’’ for
‘‘Any’’ and inserted ‘‘through the respective Secretary’’
before period at end.
1988—Subsec. (a). Pub. L. 100–472, § 104(a), amended
subsec. (a) generally. Prior to amendment, subsec. (a)
read as follows: ‘‘Each recipient of Federal financial assistance from the Secretary of Interior or the Secretary of Health, Education, and Welfare, under this
chapter, shall keep such records as the appropriate Secretary shall prescribe, including records which fully
disclose the amount and disposition by such recipient
of the proceeds of such assistance, the cost of the
project or undertaking in connection with which such
assistance is given or used, the amount of that portion
of the cost of the project or undertaking supplied by
other sources, and such other records as will facilitate
an effective audit.’’
Subsec. (e). Pub. L. 100–581 substituted ‘‘to each
tribe’’ for ‘‘to tribes’’.
Pub. L. 100–472, § 104(b), added subsec. (e).
Subsec. (f). Pub. L. 100–472, § 208, redesignated former
section 450l of this title as subsec. (f) of this section and
inserted ‘‘through regulations promulgated under sections 552 and 553 of title 5’’.
Statutory Notes and Related Subsidiaries
EFFECTIVE DATE OF 2020 AMENDMENT
Pub. L. 116–180, title II, § 201(c), Oct. 21, 2020, 134 Stat.
879, provided that: ‘‘The amendment made by sub-

section (b)(2) [amending this section] shall not take effect until 14 months after the date of enactment of this
Act [Oct. 21, 2020].’’

§ 5306. Criminal activities involving grants, contracts, etc.; penalties
Whoever, being an officer, director, agent, or
employee of, or connected in any capacity with,
any recipient of a contract, subcontract, grant,
or subgrant pursuant to this chapter or the Act
of April 16, 1934 (48 Stat. 596), as amended [25
U.S.C. 5342 et seq.], embezzles, willfully
misapplies, steals, or obtains by fraud any of the
money, funds, assets, or property which are the
subject of such a grant, subgrant, contract, or
subcontract, shall be fined not more than $10,000
or imprisoned for not more than two years, or
both, but if the amount so embezzled, misapplied, stolen, or obtained by fraud does not exceed $100, he shall be fined not more than $1,000
or imprisoned not more than one year, or both.
(Pub. L. 93–638, § 6, Jan. 4, 1975, 88 Stat. 2205.)
Editorial Notes
REFERENCES IN TEXT
This chapter, referred to in text, was in the original
‘‘this Act’’, meaning Pub. L. 93–638, Jan. 4, 1975, 88 Stat.
2203, known as the Indian Self-Determination and Education Assistance Act, which is classified principally to
this chapter. For complete classification of this Act to
the Code, see Short Title note set out under section
5301 of this title and Tables.
Act of April 16, 1934, referred to in text, is act Apr. 16,
1934, ch. 147, 48 Stat. 596, popularly known as the Johnson-O’Malley Act, which is classified generally to section 5342 et seq. of this title. For complete classification of this Act to the Code, see Short Title note set
out under section 5301 of this title and Tables.
CODIFICATION
Section was formerly classified to section 450d of this
title prior to editorial reclassification and renumbering
as this section.

§ 5307. Wage and labor standards
(a) Similar construction in locality
All laborers and mechanics employed by contractors or subcontractors (excluding tribes and
tribal organizations) in the construction, alteration, or repair, including painting or decorating of buildings or other facilities in connection with contracts or grants entered into pursuant to this chapter, shall be paid wages at not
less than those prevailing on similar construction in the locality, as determined by the Secretary of Labor in accordance with sections
3141–3144, 3146, and 3147 of title 40. With respect
to construction, alteration, or repair work to
which the Act of March 3, 1921 1 is applicable
under the terms of this section, the Secretary of
Labor shall have the authority and functions set
forth in Reorganization Plan Numbered 14, of
1950, and section 3145 of title 40.
(b) Preference requirements for wages and
grants
Any contract, subcontract, grant, or subgrant
pursuant to this chapter, the Act of April 16,
1934 (48 Stat. 596), as amended [25 U.S.C. 5342 et
1 See

References in Text note below.

§ 5308

TITLE 25—INDIANS

seq.], or any other Act authorizing Federal contracts with or grants to Indian organizations or
for the benefit of Indians, shall require that to
the greatest extent feasible—
(1) preferences and opportunities for training
and employment in connection with the administration of such contracts or grants shall
be given to Indians; and
(2) preference in the award of subcontracts
and subgrants in connection with the administration of such contracts or grants shall be
given to Indian organizations and to Indianowned economic enterprises as defined in section 1452 of this title.
(c) Self-determination contracts
Notwithstanding subsections (a) and (b) of this
section, with respect to any self-determination
contract, or portion of a self-determination contract, that is intended to benefit one tribe, the
tribal employment or contract preference laws
adopted by such tribe shall govern with respect
to the administration of the contract or portion
of the contract.
(Pub. L. 93–638, § 7, Jan. 4, 1975, 88 Stat. 2205; Pub.
L. 103–413, title I, § 102(3), (4), Oct. 25, 1994, 108
Stat. 4251.)
Editorial Notes
REFERENCES IN TEXT
This chapter, referred to in subsecs. (a) and (b), was
in the original ‘‘this Act’’, meaning Pub. L. 93–638, Jan.
4, 1975, 88 Stat. 2203, known as the Indian Self-Determination and Education Assistance Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note
set out under section 5301 of this title and Tables.
Act of March 3, 1921, referred to in subsec. (a), probably means the act of March 3, 1931, ch. 411, 46 Stat.
1494, known as the Davis Bacon Act, which was classified generally to sections 276a to 276a–5 of former Title
40, Public Buildings, Property, and Works, and was repealed and reenacted as sections 3141–3144, 3146, and 3147
of Title 40, Public Buildings, Property, and Works, by
Pub. L. 107–217, §§ 1, 6(b), Aug. 21, 2002, 116 Stat. 1062,
1304.
Reorganization Plan Numbered 14 of 1950, referred to
in subsec. (a), is set out in the Appendix to Title 5, Government Organization and Employees.
Act of April 16, 1934, referred to in subsec. (b), is act
Apr. 16, 1934, ch. 147, 48 Stat. 596, popularly known as
the Johnson-O’Malley Act, which is classified generally
to section 5342 et seq. of this title. For complete classification of this Act to the Code, see Short Title note
set out under section 5301 of this title and Tables.
CODIFICATION
Section was formerly classified to section 450e of this
title prior to editorial reclassification and renumbering
as this section.
In subsec. (a), ‘‘sections 3141–3144, 3146, and 3147 of
title 40’’ substituted for ‘‘the Davis-Bacon Act of March
3, 1931 (46 Stat. 1494), as amended’’ and ‘‘section 3145 of
title 40’’ substituted for ‘‘section 2 of the Act of June
13, 1934 (48 Stat. 948, 40 U.S.C. 276c)’’ on authority of
Pub. L. 107–217, § 5(c), Aug. 21, 2002, 116 Stat. 1303, the
first section of which enacted Title 40, Public Buildings, Property, and Works.
AMENDMENTS
1994—Subsec. (a). Pub. L. 103–413, § 102(3), substituted
‘‘or subcontractors (excluding tribes and tribal organizations)’’ for ‘‘of subcontractors’’.
Subsec. (c). Pub. L. 103–413, § 102(4), added subsec. (c).

Page 700

§ 5308. Grant and cooperative agreements
The provisions of this chapter shall not be subject to the requirements of chapter 63 of title 31:
Provided, That a grant agreement or a cooperative agreement may be utilized in lieu of a contract under section 5321 1 of this title when mutually agreed to by the appropriate Secretary
and the tribal organization involved.
(Pub. L. 93–638, § 9, as added Pub. L. 98–250, § 1,
Apr. 3, 1984, 98 Stat. 118; amended Pub. L.
101–301, § 2(a)(5), May 24, 1990, 104 Stat. 206.)
Editorial Notes
REFERENCES IN TEXT
This chapter, referred to in text, was in the original
‘‘this Act’’, meaning Pub. L. 93–638, Jan. 4, 1975, 88 Stat.
2203, known as the Indian Self-Determination and Education Assistance Act, which is classified principally to
this chapter. For complete classification of this Act to
the Code, see Short Title note set out under section
5301 of this title and Tables.
CODIFICATION
Section 5321 of this title, referred to in text, was in
the original ‘‘sections 102 and 103 of this Act’’, and was
translated as meaning section 102 of Pub. L. 93–638 because section 103(a) and (b) and the first sentence of
section 103(c) of Pub. L. 93–638 were repealed and the remainder of section 103 of Pub. L. 93–638 was redesignated as section 102(d) by Pub. L. 100–472, title II,
§ 201(b)(1), Oct. 5, 1988, 102 Stat. 2289.
Section was formerly classified to section 450e–1 of
this title prior to editorial reclassification and renumbering as this section.
AMENDMENTS
1990—Pub. L. 101–301 substituted ‘‘chapter 63 of title
31’’ for ‘‘the Federal Grant and Cooperative Agreement
Act of 1977 (Pub. L. 95–224; 92 Stat. 3)’’.

§ 5309. Use of excess funds
Beginning in fiscal year 1998 and thereafter,
where the actual costs of construction projects
under self-determination contracts, compacts,
or grants, pursuant to Public Laws 93–638,
103–413, or 100–297, are less than the estimated
costs thereof, use of the resulting excess funds
shall be determined by the appropriate Secretary after consultation with the tribes.
(Pub. L. 105–83, title III, § 310, Nov. 14, 1997, 111
Stat. 1590.)
Editorial Notes
REFERENCES IN TEXT
Public Law 93–638, referred to in text, is Pub. L.
93–638, Jan. 4, 1975, 88 Stat. 2203, known as the Indian
Self-Determination and Education Assistance Act,
which is classified principally to this chapter. For complete classification of this Act to the Code, see Short
Title note set out under section 5301 of this title and
Tables.
Public Law 103–413, referred to in text, is Pub. L.
103–413, Oct. 25, 1994, 108 Stat. 4250, known as the Indian
Self-Determination Act Amendments of 1994, which is
classified principally to subchapter IV (§ 5361 et seq.) of
this chapter. For complete classification of this Act to
the Code, see Short Title of 1994 Amendment note set
out under section 5301 of this title and Tables.
Public Law 100–297, referred to in text, is Pub. L.
100–297, Apr. 28, 1988, 102 Stat. 130, known as the Augus1 See

Codification note below.

Page 701

tus F. Hawkins-Robert T. Stafford Elementary and Secondary School Improvement Amendments of 1988. For
complete classification of this Act to the Code, see
Short Title of 1988 Amendments note set out under section 6301 of Title 20, Education, and Tables.
CODIFICATION
Section was enacted as part of the Department of the
Interior and Related Agencies Appropriations Act, 1998,
and not as part of the Indian Self-Determination and
Education Assistance Act which comprises this chapter.
Section was formerly classified to section 450e–2 of
this title prior to editorial reclassification and renumbering as this section.
PRIOR PROVISIONS
Provisions similar to those in this section were contained in the following prior appropriation acts:
Pub. L. 104–208, div. A, title I, § 101(d) [title III, § 310],
Sept. 30, 1996, 110 Stat. 3009–181, 3009–221.
Pub. L. 104–134, title I, § 101(c) [title III, § 310], Apr. 26,
1996, 110 Stat. 1321–156, 1321–197; renumbered title I,
Pub. L. 104–140, § 1(a), May 2, 1996, 110 Stat. 1327.

§ 5310. Investment of advance payments; restrictions
Advance payments made by the Department of
the Interior to Indian tribes, tribal organizations, and tribal consortia pursuant to the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.) 1 or the Tribally
Controlled Schools Act of 1988 (25 U.S.C. 2501 et
seq.) may on and after December 8, 2004, be invested by the Indian tribe, tribal organization,
or consortium before such funds are expended
for the purposes of the grant, compact, or annual funding agreement so long as such funds
are—
(1) invested by the Indian tribe, tribal organization, or consortium only in obligations of
the United States, or in obligations or securities that are guaranteed or insured by the
United States, or mutual (or other) funds registered with the Securities and Exchange Commission and which only invest in obligations
of the United States or securities that are
guaranteed or insured by the United States; or
(2) deposited only into accounts that are 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.
(Pub. L. 108–447, div. E, title I, § 111, Dec. 8, 2004,
118 Stat. 3064.)
Editorial Notes
REFERENCES IN TEXT
The Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.), referred to in text, is
Pub. L. 93–638, Jan. 4, 1975, 88 Stat. 2203, which was classified principally to subchapter II (§ 450 et seq.) of chapter 14 of this title prior to editorial reclassification as
this chapter. For complete classification of this Act to
the Code, see Short Title note set out under section
5301 of this title and Tables.
The Tribally Controlled Schools Act of 1988, referred
to in text, is part B (§§ 5201–5212) of title V of Pub. L.
100–297, Apr. 28, 1988, 102 Stat. 385, which is classified
generally to chapter 27 (§ 2501 et seq.) of this title. For
complete classification of this Act to the Code, see
1 See

§ 5321

TITLE 25—INDIANS

References in Text note below.

Short Title note set out under section 2501 of this title
and Tables.
CODIFICATION
Section was enacted as part of the Department of the
Interior and Related Agencies Appropriations Act, 2005,
and also as part of the Consolidated Appropriations
Act, 2005, and not as part of the Indian Self-Determination and Education Assistance Act which comprises
this chapter.
Section was formerly classified to section 450e–3 of
this title prior to editorial reclassification and renumbering as this section.
PRIOR PROVISIONS
Provisions similar to those in this section were contained in the following prior appropriation acts:
Pub. L. 108–108, title I, § 111, Nov. 10, 2003, 117 Stat.
1266.
Pub. L. 108–7, div. F, title I, § 111, Feb. 20, 2003, 117
Stat. 239.
Pub. L. 107–63, title I, § 111, Nov. 5, 2001, 115 Stat. 438.
Pub. L. 106–291, title I, § 111, Oct. 11, 2000, 114 Stat. 942.
Pub. L. 106–113, div. B, § 1000(a)(3), [title I, § 111], Nov.
29, 1999, 113 Stat. 1535, 1501A–156.
Pub. L. 105–277, div. A, § 101(e), [title I, § 111], Oct. 21,
1998, 112 Stat. 2681–231, 2681–254.
Pub. L. 105–83, title I, § 112, Nov. 14, 1997, 111 Stat.
1562.

SUBCHAPTER I—INDIAN SELFDETERMINATION
§ 5321. Self-determination contracts
(a) Request by tribe; authorized programs
(1) The Secretary is directed, upon the request
of any Indian tribe by tribal resolution, to enter
into a self-determination contract or contracts
with a tribal organization to plan, conduct, and
administer programs or portions thereof, including construction programs—
(A) provided for in the Act of April 16, 1934
(48 Stat. 596), as amended [25 U.S.C. 5342 et
seq.];
(B) which the Secretary is authorized to administer for the benefit of Indians under the
Act of November 2, 1921 (42 Stat. 208) [25 U.S.C.
13], and any Act subsequent thereto;
(C) provided by the Secretary of Health and
Human Services under the Act of August 5,
1954 (68 Stat. 674), as amended [42 U.S.C. 2001 et
seq.];
(D) administered by the Secretary for the
benefit of Indians for which appropriations are
made to agencies other than the Department
of Health and Human Services or the Department of the Interior; and
(E) for the benefit of Indians because of their
status as Indians without regard to the agency
or office of the Department of Health and
Human Services or the Department of the Interior within which it is performed.
The programs, functions, services, or activities
that are contracted under this paragraph shall
include administrative functions of the Department of the Interior and the Department of
Health and Human Services (whichever is applicable) that support the delivery of services to
Indians, including those administrative activities supportive of, but not included as part of,
the service delivery programs described in this
paragraph that are otherwise contractable. The
administrative functions referred to in the pre-

§ 5321

TITLE 25—INDIANS

ceding sentence shall be contractable without
regard to the organizational level within the Department that carries out such functions.
(2) If so authorized by an Indian tribe under
paragraph (1) of this subsection, a tribal organization may submit a proposal for a self-determination contract, or a proposal to amend or
renew a self-determination contract, to the Secretary for review. Subject to the provisions of
paragraph (4), the Secretary shall, within ninety
days after receipt of the proposal, approve the
proposal and award the contract unless the Secretary provides written notification to the applicant that contains a specific finding that
clearly demonstrates that, or that is supported
by a controlling legal authority that—
(A) the service to be rendered to the Indian
beneficiaries of the particular program or
function to be contracted will not be satisfactory;
(B) adequate protection of trust resources is
not assured;
(C) the proposed project or function to be
contracted for cannot be properly completed
or maintained by the proposed contract;
(D) the amount of funds proposed under the
contract is in excess of the applicable funding
level for the contract, as determined under
section 5325(a) of this title; or
(E) the program, function, service, or activity (or portion thereof) that is the subject of
the proposal is beyond the scope of programs,
functions, services, or activities covered under
paragraph (1) because the proposal includes activities that cannot lawfully be carried out by
the contractor.
Notwithstanding any other provision of law, the
Secretary may extend or otherwise alter the 90day period specified in the second sentence of
this subsection,1 if before the expiration of such
period, the Secretary obtains the voluntary and
express written consent of the tribe or tribal organization to extend or otherwise alter such period. The contractor shall include in the proposal of the contractor the standards under
which the tribal organization will operate the
contracted program, service, function, or activity, including in the area of construction, provisions regarding the use of licensed and qualified
architects, applicable health and safety standards, adherence to applicable Federal, State,
local, or tribal building codes and engineering
standards. The standards referred to in the preceding sentence shall ensure structural integrity, accountability of funds, adequate competition for subcontracting under tribal or other applicable law, the commencement, performance,
and completion of the contract, adherence to
project plans and specifications (including any
applicable Federal construction guidelines and
manuals), the use of proper materials and workmanship, necessary inspection and testing, and
changes, modifications, stop work, and termination of the work when warranted.
(3) Upon the request of a tribal organization
that operates two or more mature self-determination contracts, those contracts may be consolidated into one single contract.
1 So

in original. Probably should be ‘‘paragraph,’’.

Page 702

(4) The Secretary shall approve any severable
portion of a contract proposal that does not support a declination finding described in paragraph (2). If the Secretary determines under
such paragraph that a contract proposal—
(A) proposes in part to plan, conduct, or administer a program, function, service, or activity that is beyond the scope of programs
covered under paragraph (1), or
(B) proposes a level of funding that is in excess of the applicable level determined under
section 5325(a) of this title,
subject to any alteration in the scope of the proposal that the Secretary and the tribal organization agree to, the Secretary shall, as appropriate, approve such portion of the program,
function, service, or activity as is authorized
under paragraph (1) or approve a level of funding
authorized under section 5325(a) of this title. If
a tribal organization elects to carry out a severable portion of a contract proposal pursuant to
this paragraph, subsection (b) of this section
shall only apply to the portion of the contract
that is declined by the Secretary pursuant to
this subsection.
(b) Procedure upon refusal of request to contract
Whenever the Secretary declines to enter into
a self-determination contract or contracts pursuant to subsection (a) of this section, the Secretary shall—
(1) state any objections in writing to the
tribal organization,
(2) provide assistance to the tribal organization to overcome the stated objections, and
(3) provide the tribal organization with a
hearing on the record with the right to engage
in full discovery relevant to any issue raised
in the matter and the opportunity for appeal
on the objections raised, under such rules and
regulations as the Secretary may promulgate,
except that the tribe or tribal organization
may, in lieu of filing such appeal, exercise the
option to initiate an action in a Federal district court and proceed directly to such court
pursuant to section 5331(a) of this title.
(c) Liability insurance; waiver of defense
(1) Beginning in 1990, the Secretary shall be responsible for obtaining or providing liability insurance or equivalent coverage, on the most
cost-effective basis, for Indian tribes, tribal organizations, and tribal contractors carrying out
contracts, grant agreements and cooperative
agreements pursuant to this chapter. In obtaining or providing such coverage, the Secretary
shall take into consideration the extent to
which liability under such contracts or agreements are covered by the Federal Tort Claims
Act.
(2) In obtaining or providing such coverage,
the Secretary shall, to the greatest extent practicable, give a preference to coverage underwritten by Indian-owned economic enterprises
(as defined in section 1452 of this title), except
that, for the purposes of this subsection, such
enterprises may include non-profit corporations.
(3)(A) Any policy of insurance obtained or provided by the Secretary pursuant to this subsection shall contain a provision that the insurance carrier shall waive any right it may have

Page 703

to raise as a defense the sovereign immunity of
an Indian tribe from suit, but that such waiver
shall extend only to claims the amount and nature of which are within the coverage and limits
of the policy and shall not authorize or empower
such insurance carrier to waive or otherwise
limit the tribe’s sovereign immunity outside or
beyond the coverage or limits of the policy of insurance.
(B) No waiver of the sovereign immunity of an
Indian tribe pursuant to this paragraph shall include a waiver to the extent of any potential liability for interest prior to judgment or for punitive damages or for any other limitation on liability imposed by the law of the State in which
the alleged injury occurs.
(d) Tribal organizations and Indian contractors
deemed part of Public Health Service
For purposes of section 233 of title 42, with respect to claims by any person, initially filed on
or after December 22, 1987, whether or not such
person is an Indian or Alaska Native or is served
on a fee basis or under other circumstances as
permitted by Federal law or regulations for personal injury, including death, resulting from the
performance prior to, including, or after December 22, 1987, of medical, surgical, dental, or related functions, including the conduct of clinical
studies or investigations, or for purposes of section 2679, title 28, with respect to claims by any
such person, on or after November 29, 1990, for
personal injury, including death, resulting from
the operation of an emergency motor vehicle, an
Indian tribe, a tribal organization or Indian contractor carrying out a contract, grant agreement, or cooperative agreement under sections 2
5321 or 5322 of this title is deemed to be part of
the Public Health Service in the Department of
Health and Human Services while carrying out
any such contract or agreement and its employees (including those acting on behalf of the organization or contractor as provided in section
2671 of title 28 and including an individual who
provides health care services pursuant to a personal services contract with a tribal organization for the provision of services in any facility
owned, operated, or constructed under the jurisdiction of the Indian Health Service) are deemed
employees of the Service while acting within the
scope of their employment in carrying out the
contract or agreement: Provided, That such employees shall be deemed to be acting within the
scope of their employment in carrying out such
contract or agreement when they are required,
by reason of such employment, to perform medical, surgical, dental or related functions at a facility other than the facility operated pursuant
to such contract or agreement, but only if such
employees are not compensated for the performance of such functions by a person or entity
other than such Indian tribe, tribal organization
or Indian contractor.
(e) Burden of proof at hearing or appeal declining contract; final agency action
(1) With respect to any hearing or appeal conducted pursuant to subsection (b)(3) of this section or any civil action conducted pursuant to
section 5331(a) of this title, the Secretary shall
2 So

in original. Probably should be ‘‘section’’.

§ 5321

TITLE 25—INDIANS

have the burden of proof to establish by clearly
demonstrating the validity of the grounds for
declining the contract proposal (or portion
thereof).
(2) Notwithstanding any other provision of
law, a decision by an official of the Department
of the Interior or the Department of Health and
Human Services, as appropriate (referred to in
this paragraph as the ‘‘Department’’) that constitutes final agency action and that relates to
an appeal within the Department that is conducted under subsection (b)(3) of this section
shall be made either—
(A) by an official of the Department who
holds a position at a higher organizational
level within the Department than the level of
the departmental agency (such as the Indian
Health Service or the Bureau of Indian Affairs) in which the decision that is the subject
of the appeal was made; or
(B) by an administrative judge.
(f) Good faith requirement
In the negotiation of contracts and funding
agreements, the Secretary shall—
(1) at all times negotiate in good faith to
maximize implementation of the self-determination policy; and
(2) carry out this chapter in a manner that
maximizes the policy of Tribal self-determination, in a manner consistent with—
(A) the purposes specified in section 5302 of
this title; and
(B) the PROGRESS for Indian Tribes Act.
(g) Rule of construction
Subject to section 101(a) of the PROGRESS for
Indian Tribes Act, each provision of this chapter
and each provision of a contract or funding
agreement shall be liberally construed for the
benefit of the Indian Tribe participating in selfdetermination, and any ambiguity shall be resolved in favor of the Indian Tribe.
(Pub. L. 93–638, title I, § 102, formerly §§ 102 and
103(c), Jan. 4, 1975, 88 Stat. 2206; Pub. L. 100–202,
§ 101(g) [title II, § 201], Dec. 22, 1987, 101 Stat.
1329–213, 1329–246; Pub. L. 100–446, title II, § 201,
Sept. 27, 1988, 102 Stat. 1817; renumbered § 102 and
amended Pub. L. 100–472, title II, § 201(a), (b)(1),
Oct. 5, 1988, 102 Stat. 2288, 2289; Pub. L. 100–581,
title II, § 210, Nov. 1, 1988, 102 Stat. 2941; Pub. L.
101–644, title II, § 203(b), Nov. 29, 1990, 104 Stat.
4666; Pub. L. 103–413, title I, § 102(5)–(9), Oct. 25,
1994, 108 Stat. 4251–4253; Pub. L. 106–260, § 6, Aug.
18, 2000, 114 Stat. 732; Pub. L. 116–180, title II,
§ 202, Oct. 21, 2020, 134 Stat. 879.)
Editorial Notes
REFERENCES IN TEXT
Act of April 16, 1934, referred to in subsec. (a)(1)(A), is
act Apr. 16, 1934, ch. 147, 48 Stat. 596, popularly known
as the Johnson-O’Malley Act, which is classified generally to section 5342 et seq. of this title. For complete
classification of this Act to the Code, see Short Title
note set out under section 5301 of this title and Tables.
Act of August 5, 1954, referred to in subsec. (a)(1)(C),
is act Aug. 5, 1954, ch. 658, 68 Stat. 674, which is classified generally to subchapter I (§ 2001 et seq.) of chapter
22 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Tables.
This chapter, referred to in subsecs. (c)(1), (f)(2), and
(g), was in the original ‘‘this Act’’, meaning Pub. L.

§ 5321

TITLE 25—INDIANS

93–638, Jan. 4, 1975, 88 Stat. 2203, known as the Indian
Self-Determination and Education Assistance Act,
which is classified principally to this chapter. For complete classification of this Act to the Code, see Short
Title note set out under section 5301 of this title and
Tables.
The Federal Tort Claims Act, referred to in subsec.
(c)(1), is title IV of act Aug. 2, 1946, ch. 753, 60 Stat. 842,
which was classified principally to chapter 20 (§§ 921,
922, 931–934, 941–946) of former Title 28, Judicial Code
and Judiciary. Title IV of act Aug. 2, 1946, was substantially repealed and reenacted as sections 1346(b) and
2671 et seq. of Title 28, Judiciary and Judicial Procedure, by act June 25, 1948, ch. 646, 62 Stat. 992, the first
section of which enacted Title 28. The Federal Tort
Claims Act is also commonly used to refer to chapter
171 of Title 28, Judiciary and Judicial Procedure. For
complete classification of title IV to the Code, see Tables. For distribution of former sections of Title 28 into
the revised Title 28, see Table at the beginning of Title
28.
The PROGRESS for Indian Tribes Act, referred to in
subsec. (f)(2)(B), is Pub. L. 116–180, Oct. 21, 2020, 134
Stat. 857, also known as the Practical Reforms and
Other Goals To Reinforce the Effectiveness of Self-Governance and Self-Determination for Indian Tribes Act
of 2019. For complete classification of this Act to the
Code, see Short Title of 2020 Amendment note set out
under section 5301 of this title and Tables.
Section 101(a) of the PROGRESS for Indian Tribes
Act, referred to in subsec. (g), is section 101(a) of Pub.
L. 116–180, which is set out as a note under section 5361
of this title.
CODIFICATION
Except as provided below, section was formerly classified to section 450f of this title prior to editorial reclassification and renumbering as this section.
Subsec. (d) of this section was formerly classified to
the last sentence of subsec. (c) of former section 450g of
this title prior to redesignation as subsec. (d) of former
section 450f of this title by Pub. L. 100–472, § 201(b)(1),
and editorial reclassification and renumbering of
former section 450f of this title as this section. See 1988
Amendment note below.
AMENDMENTS
2020—Subsec. (c)(2). Pub. L. 116–180, § 202(1), substituted ‘‘economic enterprises (as defined in section
1452 of this title), except that’’ for ‘‘economic enterprises as defined in section 1452 of this title, except
that’’.
Subsecs. (f), (g). Pub. L. 116–180, § 202(2), added subsecs. (f) and (g).
2000—Subsec. (e)(1). Pub. L. 106–260 inserted ‘‘or any
civil action conducted pursuant to section 5331(a) of
this title’’ after ‘‘subsection (b)(3) of this section’’.
1994—Subsec. (a)(1). Pub. L. 103–413, § 102(5), inserted
concluding provisions.
Subsec. (a)(2). Pub. L. 103–413, § 102(6)(A)(i), (ii), (vi),
inserted ‘‘, or a proposal to amend or renew a self-determination contract,’’ before ‘‘to the Secretary for review’’ in first sentence and, in second sentence, substituted ‘‘Subject to the provisions of paragraph (4), the
Secretary’’ for ‘‘The Secretary’’, inserted ‘‘and award
the contract’’ after ‘‘approve the proposal’’, substituted
‘‘the Secretary provides written notification to the applicant that contains a specific finding that clearly
demonstrates that, or that is supported by a controlling legal authority that’’ for ‘‘, within sixty days of
receipt of the proposal, a specific finding is made that’’,
and inserted concluding provisions.
Subsec.
(a)(2)(D),
(E).
Pub.
L.
103–413,
§ 102(6)(A)(iii)–(v), added subpars. (D) and (E).
Subsec. (a)(4). Pub. L. 103–413, § 102(6)(B), added par.
(4).
Subsec. (b)(3). Pub. L. 103–413, § 102(7), inserted ‘‘with
the right to engage in full discovery relevant to any
issue raised in the matter’’ after ‘‘record’’ and

Page 704

‘‘, except that the tribe or tribal organization may, in
lieu of filing such appeal, exercise the option to initiate
an action in a Federal district court and proceed directly to such court pursuant to section 5331(a) of this
title’’ before period at end.
Subsec. (d). Pub. L. 103–413, § 102(8), substituted ‘‘as
provided in section 2671 of title 28 and including an individual who provides health care services pursuant to
a personal services contract with a tribal organization
for the provision of services in any facility owned, operated, or constructed under the jurisdiction of the Indian Health Service)’’ for ‘‘as provided in section 2671 of
title 28)’’.
Subsec. (e). Pub. L. 103–413, § 102(9), added subsec. (e).
1990—Subsec. (d). Pub. L. 101–644 inserted ‘‘or for purposes of section 2679, title 28, with respect to claims by
any such person, on or after November 29, 1990, for personal injury, including death, resulting from the operation of an emergency motor vehicle,’’ after ‘‘investigations,’’.
1988—Pub. L. 100–472, § 201(a), amended section generally, revising and restating provisions of subsecs. (a)
to (c).
Subsec. (c)(2). Pub. L. 100–581 which directed amendment of par. (2) by substituting ‘‘section 1452 of this
title’’ for ‘‘section 1425 of title 25, United States Code’’
was executed by making the substitution for ‘‘section
1425, title 25, United States Code’’ to reflect the probable intent of Congress.
Subsec. (d). Pub. L. 100–472, § 201(b)(1), redesignated
the last sentence of subsec. (c) of former section 450g of
this title as subsec. (d) of this section and substituted
reference to sections 5321 or 5322 of this title for reference to former sections 450g and 450h(b) of this title.
See Codification notes above and set out under section
5322 of this title.
Pub. L. 100–446 inserted into sentence beginning ‘‘For
purposes of’’ the words ‘‘by any person, initially filed
on or after December 22, 1987, whether or not such person is an Indian or Alaska Native or is served on a fee
basis or under other circumstances as permitted by
Federal law or regulations’’ after ‘‘claims’’, ‘‘prior to,
including, or after December 22, 1987,’’ after ‘‘performance’’, ‘‘an Indian tribe,’’ after ‘‘investigations,’’ and
‘‘: Provided, That such employees shall be deemed to be
acting within the scope of their employment in carrying out such contract or agreement when they are required, by reason of such employment, to perform medical, surgical, dental or related functions at a facility
other than the facility operated pursuant to such contract or agreement, but only if such employees are not
compensated for the performance of such functions by
a person or entity other than such Indian tribe, tribal
organization or Indian contractor’’ after ‘‘the contract
or agreement’’.
1987—Subsec. (d). Pub. L. 100–202 inserted sentence at
end deeming a tribal organization or Indian contractor
carrying out a contract, grant agreement, or cooperative agreement to be part of the Public Health Service
while carrying out any such contract or agreement and
its employees to be employees of the Service while acting within the scope of their employment in carrying
out the contract or agreement.
Statutory Notes and Related Subsidiaries
SHORT TITLE
For short title of this subchapter as the ‘‘Indian SelfDetermination Act’’, see section 101 of Pub. L. 93–638,
set out as a note under section 5301 of this title.
SAVINGS PROVISION
Pub. L. 106–260, § 11, Aug. 18, 2000, 114 Stat. 734, provided that: ‘‘Funds appropriated for title III of the Indian Self-Determination and Education Assistance Act
([Pub. L. 93–638, former] 25 U.S.C. 450f note) shall be
available for use under title V of such Act [25 U.S.C.
5381 et seq.].’’

Page 705

TITLE 25—INDIANS

INDIAN TRIBAL TORT CLAIMS AND RISK MANAGEMENT
Pub. L. 105–277, div. A, § 101(e) [title VII], Oct. 21, 1998,
112 Stat. 2681–231, 2681–335, provided that:
‘‘SEC. 701. SHORT TITLE.
‘‘This title may be cited as the ‘Indian Tribal Tort
Claims and Risk Management Act of 1998’.’’
‘‘SEC. 702. FINDINGS AND PURPOSE.
‘‘(a) FINDINGS.—Congress finds that—
‘‘(1) Indian tribes have made significant achievements toward developing a foundation for economic
self-sufficiency and self-determination, and that economic self-sufficiency and self-determination have
increased opportunities for the Indian tribes and
other entities and persons to interact more frequently in commerce and intergovernmental relationships;
‘‘(2) although Indian tribes have sought and secured
liability insurance coverage to meet their needs,
many Indian tribes are faced with significant barriers
to obtaining liability insurance because of the high
cost or unavailability of such coverage in the private
market;
‘‘(3) as a result, Congress has extended liability coverage provided to Indian tribes to organizations to
carry out activities under the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et
seq.) [now 25 U.S.C. 5301 et seq.]; and
‘‘(4) there is an emergent need for comprehensive
and cost-efficient insurance that allows the economy
of Indian tribes to continue to grow and provides
compensation to persons that may suffer personal injury or loss of property.
‘‘(b) PURPOSE.—The purpose of this title is to provide
for a study to facilitate relief for a person who is injured as a result of an official action of a tribal government.
‘‘SEC. 703. DEFINITIONS.
‘‘In this title:
‘‘(1) INDIAN TRIBE.—The term ‘Indian tribe’ has the
meaning given that term in section 4(e) of the Indian
Self-Determination and Education Assistance Act (25
U.S.C. 450b(e)) [now 25 U.S.C. 5304(e)].
‘‘(2) SECRETARY.—The term ‘Secretary’ means the
Secretary of the Interior.
‘‘(3) TRIBAL ORGANIZATION.—The term ‘tribal organization’ has the meaning given that term in section
4(l) of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450b(l)) [now 25 U.S.C.
5304(l)].
‘‘SEC. 704. STUDY AND REPORT TO CONGRESS.
‘‘(a) IN GENERAL.—
‘‘(1) STUDY.—In order to minimize and, if possible,
eliminate redundant or duplicative liability insurance coverage and to ensure that the provision of insurance to Indian tribes is cost-effective, the Secretary shall conduct a comprehensive survey of the
degree, type, and adequacy of liability insurance coverage of Indian tribes at the time of the study.
‘‘(2) CONTENTS OF STUDY.—The study conducted
under this subsection shall include—
‘‘(A) an analysis of loss data;
‘‘(B) risk assessments;
‘‘(C) projected exposure to liability, and related
matters; and
‘‘(D) the category of risk and coverage involved,
which may include—
‘‘(i) general liability;
‘‘(ii) automobile liability;
‘‘(iii) the liability of officials of the Indian
tribe;
‘‘(iv) law enforcement liability;
‘‘(v) workers’ compensation; and
‘‘(vi) other types of liability contingencies.
‘‘(3) ASSESSMENT OF COVERAGE BY CATEGORIES OF
RISK.—For each Indian tribe, for each category of risk
identified under paragraph (2), the Secretary, in conducting the study, shall determine whether insurance

§ 5321

coverage or coverage under chapter 171 of title 28,
United States Code, applies to that Indian tribe for
that activity.
‘‘(b) REPORT.—Not later than June 1, 1999, and annually thereafter, the Secretary shall submit a report to
Congress that contains legislative recommendations
that the Secretary determines to—
‘‘(1) be appropriate to improve the provision of insurance coverage to Indian tribes; or
‘‘(2) otherwise achieve the purpose of providing relief to persons who are injured as a result of an official action of a tribal government.
‘‘SEC. 705. AUTHORIZATION OF APPROPRIATIONS.
‘‘There are authorized to be appropriated to the Department of the Interior such sums as may be necessary to carry out this title.’’
CLAIMS RESULTING FROM PERFORMANCE OF CONTRACT,
GRANT AGREEMENT, OR COOPERATIVE AGREEMENT;
CIVIL ACTION AGAINST TRIBE, TRIBAL ORGANIZATION,
ETC., DEEMED ACTION AGAINST UNITED STATES; REIMBURSEMENT OF TREASURY FOR PAYMENT OF CLAIMS
Pub. L. 101–512, title III, § 314, Nov. 5, 1990, 104 Stat.
1959, as amended by Pub. L. 103–138, title III, § 308, Nov.
11, 1993, 107 Stat. 1416, provided that: ‘‘With respect to
claims resulting from the performance of functions
during fiscal year 1991 and thereafter, or claims asserted after September 30, 1990, but resulting from the
performance of functions prior to fiscal year 1991, under
a contract, grant agreement, or any other agreement or
compact authorized by the Indian Self-Determination
and Education Assistance Act of 1975, as amended (88
Stat. 2203; 25 U.S.C. 450 et seq. [now 25 U.S.C. 5301 et
seq.]) [Pub. L. 93–638, see Short Title note set out under
section 5301 of this title and Tables] or by title V, part
B, Tribally Controlled School Grants of the HawkinsStafford Elementary and Secondary School Improvement Amendments of 1988, as amended (102 Stat. 385; 25
U.S.C. 2501 et seq.), an Indian tribe, tribal organization
or Indian contractor is deemed hereafter to be part of
the Bureau of Indian Affairs in the Department of the
Interior or the Indian Health Service in the Department of Health and Human Services while carrying out
any such contract or agreement and its employees are
deemed employees of the Bureau or Service while acting within the scope of their employment in carrying
out the contract or agreement: Provided, That after
September 30, 1990, any civil action or proceeding involving such claims brought hereafter against any
tribe, tribal organization, Indian contractor or tribal
employee covered by this provision shall be deemed to
be an action against the United States and will be defended by the Attorney General and be afforded the full
protection and coverage of the Federal Tort Claims Act
[See Short Title note under section 2671 of Title 28, Judiciary and Judicial Procedure]: Provided further, That
beginning with the fiscal year ending September 30,
1991, and thereafter, the appropriate Secretary shall request through annual appropriations funds sufficient to
reimburse the Treasury for any claims paid in the prior
fiscal year pursuant to the foregoing provisions: Provided further, That nothing in this section shall in any
way affect the provisions of section 102(d) of the Indian
Self-Determination and Education Assistance Act of
1975, as amended (88 Stat. 2203; 25 U.S.C. 450 et seq. [now
25 U.S.C. 5301 et seq.]) [25 U.S.C. 5321(d)].’’
REFERENCE TO FORMER SECTION 450g(c) IN PUBLIC LAW
100–446
Pub. L. 100–472, title II, § 201(b)(2), Oct. 5, 1988, 102
Stat. 2289, provided that: ‘‘Any reference to section
103(c) [§ 103(c) of Pub. L. 93–638, former 25 U.S.C. 450g(c)]
contained in an Act making appropriations for the Department of the Interior and Related Agencies for fiscal year 1989 [Pub. L. 100–446, see Tables for classification] shall be deemed to apply to section 102(d) of such
Act [§ 102(d) of Pub. L. 93–638, former 25 U.S.C. 450f(d),
now 25 U.S.C. 5321(d)] as amended by this Act.’’
See Codification notes above.

§ 5322

TITLE 25—INDIANS

§ 5322. Grants to tribal organizations or tribes
(a) Request by tribe for contract or grant by Secretary of the Interior for improving, etc.,
tribal governmental, contracting, and program planning activities
The Secretary of the Interior is authorized,
upon the request of any Indian tribe (from funds
appropriated for the benefit of Indians pursuant
to section 13 of this title, and any Act subsequent thereto) to contract with or make a grant
or grants to any tribal organization for—
(1) the strengthening or improvement of
tribal government (including, but not limited
to, the development, improvement, and administration of planning, financial management,
or merit personnel systems; the improvement
of tribally funded programs or activities; or
the development, construction, improvement,
maintenance, preservation, or operation of
tribal facilities or resources);
(2) the planning, training, evaluation of
other activities designed to improve the capacity of a tribal organization to enter into a
contract or contracts pursuant to section 5321
of this title and the additional costs associated with the initial years of operation under
such a contract or contracts; or
(3) the acquisition of land in connection with
items (1) and (2) above: Provided, That in the
case of land within Indian country (as defined
in chapter 53 of title 18) or which adjoins on at
least two sides lands held in trust by the
United States for the tribe or for individual
Indians, the Secretary of 1 Interior may (upon
request of the tribe) acquire such land in trust
for the tribe.
(b) Grants by Secretary of Health and Human
Services for development, maintenance, etc.,
of health facilities or services and improvement of contract capabilities implementing
hospital and health facility functions
The Secretary of Health and Human Services
may, in accordance with regulations adopted
pursuant to section 5328 of this title, make
grants to any Indian tribe or tribal organization
for—
(1) the development, construction, operation, provision, or maintenance of adequate
health facilities or services including the
training of personnel for such work, from
funds appropriated to the Indian Health Service for Indian health services or Indian health
facilities; or
(2) planning, training, evaluation or other
activities designed to improve the capacity of
a tribal organization to enter into a contract
or contracts pursuant to section 103 of this
Act.2
(c) Use as matching shares for other similar Federal grant programs
The provisions of any other Act notwithstanding, any funds made available to a tribal
organization under grants pursuant to this section may be used as matching shares for any
other Federal grant programs which contribute
to the purposes for which grants under this section are made.
1 So

in original. Probably should be followed by ‘‘the’’.
References in Text note below.

2 See

Page 706

(d) Technical assistance
The Secretary is directed, upon the request of
any tribal organization and subject to the availability of appropriations, to provide technical
assistance on a nonreimbursable basis to such
tribal organization—
(1) to develop any new self-determination
contract authorized pursuant to this chapter;
(2) to provide for the assumption by such
tribal organization of any program, or portion
thereof, provided for in section 5321(a)(1) of
this title; or
(3) to develop modifications to any proposal
for a self-determination contract which the
Secretary has declined to approve pursuant to
section 5321 of this title.
(e) Grants for technical assistance and for planning, etc., Federal programs for tribe
The Secretary is authorized, upon the request
of an Indian tribe, to make a grant to any tribal
organization for—
(1) obtaining technical assistance from providers designated by the tribal organization,
including tribal organizations that operate
mature contracts, for the purposes of program
planning and evaluation, including the development of any management systems necessary
for contract management, and the development of cost allocation plans for indirect cost
rates; and
(2) the planning, designing, monitoring, and
evaluating of Federal programs serving the
tribe, including Federal administrative functions.
(Pub. L. 93–638, title I, § 103, formerly § 104, Jan.
4, 1975, 88 Stat. 2207; renumbered § 103 and
amended Pub. L. 100–472, title II, § 202, Oct. 5,
1988, 102 Stat. 2289; Pub. L. 101–644, title II,
§ 203(g)(1), Nov. 29, 1990, 104 Stat. 4666.)
Editorial Notes
REFERENCES IN TEXT
Section 103 of this Act, referred to in subsec. (b)(2),
probably means former section 103 of Pub. L. 93–638,
which was classified to former section 450g of this title,
prior to repeal in part and transfer in part to former
section 450f(d) of this title by Pub. L. 100–472, title II,
§ 201(b)(1), Oct. 5, 1988, 102 Stat. 2289, and editorial reclassification and renumbering of former section 450f(d)
as section 5321(d) of this title. See Prior Provisions
note below.
This chapter, referred to in subsec. (d)(1), was in the
original ‘‘this Act’’, meaning Pub. L. 93–638, Jan. 4,
1975, 88 Stat. 2203, known as the Indian Self-Determination and Education Assistance Act, which is classified
principally to this chapter. For complete classification
of this Act to the Code, see Short Title note set out
under section 5301 of this title and Tables.
CODIFICATION
Section was formerly classified to section 450h of this
title prior to editorial reclassification and renumbering
as this section.
PRIOR PROVISIONS
A prior section 103 of Pub. L. 93–638 was classified to
former section 450g of this title prior to repeal in part
and transfer in part to former section 450f(d) of this
title by Pub. L. 100–472, title II, § 201(b)(1), Oct. 5, 1988,
102 Stat. 2289, and editorial reclassification and renumbering of former section 450f(d) as section 5321(d) of this
title.

Page 707

TITLE 25—INDIANS
AMENDMENTS

1990—Subsec. (a)(3). Pub. L. 101–644, which directed
the substitution of ‘‘Indian country (as defined in chapter 53 of title 18)’’ for ‘‘reservation boundaries’’ in ‘‘section 301(a)(3) of the Indian Self-Determination Act’’,
was executed to this section, which is section 103(a)(3)
of that Act, to reflect the probable intent of Congress.
1988—Subsec. (a). Pub. L. 100–472, § 202(b), inserted
‘‘or’’ at end of par. (2), substituted a period for ‘‘; or’’
at end of par. (3), and struck out par. (4) which read as
follows: ‘‘the planning, designing, monitoring, and evaluating of Federal programs serving the tribe.’’
Subsec. (b). Pub. L. 100–472, § 202(c), substituted
‘‘Health and Human Services’’ for ‘‘Health, Education,
and Welfare’’.
Subsecs. (d), (e). Pub. L. 100–472, § 202(d), added subsecs. (d) and (e).
Statutory Notes and Related Subsidiaries
AUTHORITY OF SECRETARY TO ACQUIRE LANDS IN
TRUST
Pub. L. 101–644, title II, § 203(g)(2), Nov. 29, 1990, 104
Stat. 4666, provided that: ‘‘The amendment made by
paragraph (1) [amending this section] shall not alter or
otherwise modify or affect existing prohibitions or limitations on the Secretary’s authority to acquire lands
in trust.’’

§ 5323. Retention of Federal employee coverage,
rights and benefits by employees of tribal organizations
(a) to (d) Omitted
(e) Eligible employees; Federal employee programs subject to retention
Notwithstanding the provisions of sections
8347(o), 8713, and 8914 of title 5, executive order,
or administrative regulation, an employee serving under an appointment not limited to one
year or less who leaves Federal employment to
be employed by a tribal organization, the city of
St. Paul, Alaska, the city of St. George, Alaska,
upon incorporation, or the Village Corporations
of St. Paul and St. George Islands established
pursuant to section 1607 of title 43, in connection
with governmental or other activities which are
or have been performed by employees in or for
Indian communities is entitled, if the employee
and the tribal organization so elect, to the following:
(1) To retain coverage, rights, and benefits
under subchapter I of chapter 81 (‘‘Compensation for Work Injuries’’) of title 5, and for this
purpose his employment with the tribal organization shall be deemed employment by the
United States. However, if an injured employee, or his dependents in case of his death,
receives from the tribal organization any payment (including an allowance, gratuity, payment under an insurance policy for which the
premium is wholly paid by the tribal organization, or other benefit of any kind) on account
of the same injury or death, the amount of
that payment shall be credited against any
benefit payable under subchapter I of chapter
81 of title 5, as follows:
(A) payments on account of injury or disability shall be credited against disability
compensation payable to the injured employee; and
(B) payments on account of death shall be
credited against death compensation payable to dependents of the deceased employee.

§ 5323

(2) To retain coverage, rights, and benefits
under chapter 83 (‘‘Retirement’’) or chapter 84
(‘‘Federal Employees Retirement System’’) of
title 5, if necessary employee deductions and
agency contributions in payment for coverage,
rights, and benefits for the period of employment with the tribal organization are currently deposited in the Civil Service Retirement and Disability Fund (section 8348 of title
5); and the period during which coverage,
rights, and benefits are retained under this
paragraph is deemed creditable service under
section 8332 of title 5. Days of unused sick
leave to the credit of an employee under a formal leave system at the time the employee
leaves Federal employment to be employed by
a tribal organization remain to his credit for
retirement purposes during covered service
with the tribal organization.
(3) To retain coverage, rights, and benefits
under chapter 89 (‘‘Health Insurance’’) of title
5, if necessary employee deductions and agency contributions in payment for the coverage,
rights, and benefits for the period of employment with the tribal organization are currently deposited in the Employee’s Health
Benefit Fund (section 8909 of title 5); and the
period during which coverage, rights, and benefits are retained under this paragraph is
deemed service as an employee under chapter
89 of title 5.
(4) To retain coverage, rights, and benefits
under chapter 87 (‘‘Life Insurance’’) of title 5,
if necessary employee deductions and agency
contributions in payment for the coverage,
rights, and benefits for the period of employment with the tribal organizations are currently deposited in the Employee’s Life Insurance Fund (section 8714 of title 5); and the period during which coverage, rights, and benefits are retained under this paragraph is
deemed service as an employee under chapter
87 of title 5.
(f) Deposit by tribal organization of employee deductions and agency contributions in appropriate funds
During the period an employee is entitled to
the coverage, rights, and benefits pursuant to
the preceding subsection, the tribal organization
employing such employee shall deposit currently in the appropriate funds the employee deductions and agency contributions required by
paragraphs (2), (3), and (4) of such preceding subsection.
(g) Election for retention by employee and tribal
organization before date of employment by
tribal organization; transfer of employee to
another tribal organization
An employee who is employed by a tribal organization under subsection (e) of this section and
such tribal organization shall make the election
to retain the coverages, rights, and benefits in
paragraphs (1), (2), (3), and (4) of such subsection
(e) before the date of his employment by a tribal
organization. An employee who is employed by a
tribal organization under subsection (e) of this
section shall continue to be entitled to the benefits of such subsection if he is employed by another tribal organization to perform service in
activities of the type described in such subsection.

§ 5323

TITLE 25—INDIANS

(h) ‘‘Employee’’ defined
For the purposes of subsections (e), (f), and (g)
of this section, the term ‘‘employee’’ means an
employee as defined in section 2105 of title 5.
(i) Promulgation of implementation regulations
by President
The President may prescribe regulations necessary to carry out the provisions of subsections
(e), (f), (g), and (h) of this section and to protect
and assure the compensation, retirement, insurance, leave, reemployment rights, and such
other similar civil service employment rights as
he finds appropriate.
(j) Additional employee employment rights
Anything in sections 205 and 207 of title 18 to
the contrary notwithstanding—
(1) an officer or employee of the United
States assigned to a tribal organization (as defined in section 5304(l) of this title) or an intertribal consortium (as defined in section 5381 of
this title), as authorized under section 3372 of
title 5 or section 48 of this title may act as
agent or attorney for, and appear on behalf of,
such tribal organization or inter-tribal consortium in connection with any matter related to
a tribal governmental activity or Federal Indian program or service pending before any department, agency, court, or commission, including any matter in which the United States
is a party or has a direct and substantial interest: Provided, That such officer or employee
must advise in writing the head of the department, agency, court, or commission with
which the officer or employee is dealing or appearing on behalf of the tribal organization or
inter-tribal consortium of any personal and
substantial involvement with the matter involved; and
(2) a former officer or employee of the
United States who is carrying out official duties as an employee or as an elected or appointed official of a tribal organization (as defined in section 5304(l) of this title) or intertribal consortium (as defined in section 5381 of
this title) may act as agent or attorney for,
and appear on behalf of, such tribal organization or intra-tribal consortium in connection
with any matter related to a tribal governmental activity or Federal Indian program or
service pending before any department, agency, court, or commission, including any matter in which the United States is a party or
has a direct and substantial interest: Provided,
That such former officer or employee must advise in writing the head of the department,
agency, court, or commission with which the
former officer or employee is dealing or appearing on behalf of the tribal organization or
inter-tribal consortium of any personal and
substantial involvement that he or she may
have had as an officer or employee of the
United States in connection with the matter
involved.
(k), (l) Omitted
(m) Conversion to career appointment
The status of an Indian (as defined in section
5129 of this title) appointed (except temporary
appointments) to the Federal service under an

Page 708

excepted appointment under the authority of
section 5116 of this title, or any other provision
of law granting a preference to Indians in personnel actions, shall be converted to a career appointment in the competitive service after three
years of continuous service and satisfactory performance. The conversion shall not alter the Indian’s eligibility for preference in personnel actions.
(Pub. L. 93–638, title I, § 104, formerly § 105, Jan.
4, 1975, 88 Stat. 2208; Pub. L. 89–702, title II,
§ 210(a), as added Pub. L. 98–129, § 2, Oct. 14, 1983,
97 Stat. 843; Pub. L. 99–221, § 3(a), Dec. 26, 1985, 99
Stat. 1735; renumbered § 104 and amended Pub. L.
100–472, title II, § 203, Oct. 5, 1988, 102 Stat. 2290;
Pub. L. 101–301, § 2(a)(6), May 24, 1990, 104 Stat.
206; Pub. L. 110–81, title I, § 104(b), Sept. 14, 2007,
121 Stat. 740.)
Editorial Notes
CODIFICATION
Section was formerly classified to section 450i of this
title prior to editorial reclassification and renumbering
as this section.
Section is comprised of section 104 of Pub. L. 93–638.
Subsecs. (a) to (d) of section 104 of Pub. L. 93–638 are
classified to section 3371 of Title 5, Government Organization and Employees, section 2004b of Title 42, The
Public Health and Welfare, section 3806 of Title 50, War
and National Defense, and section 4762 of Title 42, respectively. Subsecs. (k) and (l) of section 104 of Pub. L.
93–638 are classified to section 3372 of Title 5.
PRIOR PROVISIONS
A prior section 104 of Pub. L. 93–638 was renumbered
section 103 by Pub. L. 100–472 and is classified to section
5322 of this title.
AMENDMENTS
2007—Subsec. (j). Pub. L. 110–81 amended subsec. (j)
generally. Prior to amendment, text read as follows:
‘‘Anything in sections 205 and 207 of title 18 to the contrary notwithstanding, officers and employees of the
United States assigned to an Indian tribe as authorized
under section 3372 of title 5, or section 48 of this title
and former officers and employees of the United States
employed by Indian tribes may act as agents or attorneys for or appear on behalf of such tribes in connection wth [sic] any matter pending before any department, agency, court, or commission, including any
matter in which the United States is a party or has a
direct and substantial interest: Provided, That each
such officer or employee or former officer or employee
must advise in writing the head of the department,
agency, court, or commission with which he is dealing
or appearing on behalf of the tribe of any personal and
substantial involvement he may have had as an officer
or employee of the United States in connection with
the matter involved.’’
1990—Subsec. (m). Pub. L. 101–301 substituted ‘‘an Indian (as defined in section 5129 of this title) appointed
(except temporary appointments)’’ for ‘‘an Indian appointed’’.
1988—Subsecs. (a), (b). Pub. L. 100–472, § 203(b), (c),
amended subsecs. (a) and (b). See Codification note
above.
Subsec. (e). Pub. L. 100–472, § 203(d), (e), in introductory provisions, substituted ‘‘Notwithstanding the provisions of sections 8347(o), 8713, and 8914 of title 5’’ for
‘‘Notwithstanding any other law’’ and struck out ‘‘on
or before December 31, 1988’’ after ‘‘title 43’’, and in par.
(2), inserted ‘‘or chapter 84 (‘Federal Employees Retirement System’)’’. Notwithstanding directory language
that the substitution of ‘‘Notwithstanding the provisions of sections 8347(o), 8713, and 8914 of title 5’’ be

Page 709

TITLE 25—INDIANS

§ 5324

made in par. (2) of subsec. (e), the substitution was
made in introductory provisions of subsec. (e) to reflect
the probable intent of Congress because the language
replaced appeared only in those introductory provisions.
Subsecs. (k), (l). Pub. L. 100–472, § 203(f), added subsecs. (k) and (l). See Codification note above.
Subsec. (m). Pub. L. 100–472, § 203(f), added subsec.
(m).
1985—Subsec. (e). Pub. L. 99–221 substituted ‘‘1988’’ for
‘‘1985’’.
1983—Subsec. (e). Pub. L. 89–702, § 210(a), as added by
Pub. L. 98–129, inserted ‘‘, the city of St. Paul, Alaska,
the city of St. George, Alaska, upon incorporation, or
the Village Corporations of St. Paul and St. George Islands established pursuant to section 1607 of title 43’’.

SEC. 2. The Office of Personnel Management shall,
after consultation with the Department of the Interior
and the Department of Health and Human Services,
issue regulations, as it deems appropriate, providing for
the establishment, granting, and exercise of reemployment rights for employees who leave Federal employment for employment by an Indian tribal organization
under provisions of the act.
SEC. 3. The Secretary of Labor is hereby designated
and empowered to exercise, without approval, ratification, or other action by the President, the authority
vested in the President by section 105(i) of the act [25
U.S.C. 5323(i)] to issue regulations necessary to carry
out the provisions of section 105(e)(1) of the act [25
U.S.C. 5323(e)(1)], except as provided in section 1 of this
order.

Statutory Notes and Related Subsidiaries

§ 5324. Contract or grant provisions and administration

EFFECTIVE DATE OF 2007 AMENDMENT
Pub. L. 110–81, title I, § 105(d), Sept. 14, 2007, 121 Stat.
741, provided that: ‘‘The amendments made by section
104 [amending this section and section 207 of Title 18,
Crimes and Criminal Procedure] shall take effect on
the date of the enactment of this Act [Sept. 14, 2007],
except that section 104(j)(2) of the Indian Self-Determination and Education Assistance Act [25 U.S.C.
5323(j)(2)] (as amended by section 104(b)) shall apply to
individuals who leave Federal office or employment to
which such amendments apply on or after the 60th day
after the date of the enactment of this Act.’’
PRIBILOF ISLAND NATIVES EMPLOYED BY FEDERAL
GOVERNMENT ON OCTOBER 28, 1983
Pub. L. 89–702, title II, § 210(b), as added by Pub. L.
98–129, § 2, Oct. 14, 1983, 97 Stat. 844, provided that: ‘‘Notwithstanding any other provision of law, any Native of
the Pribilof Islands employed by the Federal government on October 28, 1983, shall be deemed to have been
covered under chapters 81, 83, 85 and 87 of title 5, United
States Code, on such date for the purposes of determining eligibility for continuity of benefits under section 105(e) of the Act of January 4, 1975 (Public Law
93–638), known as the Indian Self-Determination and
Education Assistance Act [25 U.S.C. 5323(e)].’’
Executive Documents
EX. ORD. NO. 11899. PROVIDING FOR PROTECTION OF CERTAIN CIVIL SERVICE EMPLOYMENT RIGHTS OF FEDERAL
PERSONNEL WHO LEAVE FEDERAL EMPLOYMENT TO BE
EMPLOYED BY TRIBAL ORGANIZATIONS
Ex. Ord. No. 11899, Jan. 26, 1976, 41 F.R. 3459, as
amended by Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R.
1055; Ex. Ord. No. 12608, Sept. 9, 1987, 52 F.R. 34617, provided:
By virtue of the authority vested in me by section
105(i) of the Indian Self-Determination and Education
Assistance Act (88 Stat. 2210, 25 U.S.C. 450i) [now 25
U.S.C. 5323], section 3301 of title 5 of the United States
Code, section 301 of title 3 of the United States Code,
and as President of the United States of America, it is
hereby ordered as follows:
SECTION 1. The Office of Personnel Management is
hereby designated and empowered to exercise, without
approval, ratification, or other action by the President,
but after consultation with the Department of the Interior and the Department of Health and Human Services, the authority vested in the President by Section
105(i) of the Indian Self-Determination and Education
Assistance Act [25 U.S.C. 5323(i)] (hereinafter referred
to as the Act), to issue regulations necessary to carry
out the provisions of subsections (e)(2), (e)(3), (e)(4), (f),
(g) and (h) of section 105 of the act [25 U.S.C. 5323(e)(2),
(3), (4), (f), (g), (h)], to carry out the provisions of subsection (e)(1) of section 105 of the act [25 U.S.C.
5323(e)(1)] pertains to section 8151 of title 5 of the
United States Code, and to protect and assure any
other civil service employment rights which it finds appropriate.

(a) Applicability of Federal contracting laws and
regulations; waiver of requirements
(1) Notwithstanding any other provision of
law, subject to paragraph (3), the contracts and
cooperative agreements entered into with tribal
organizations pursuant to section 5321 of this
title shall not be subject to Federal contracting
or cooperative agreement laws (including any
regulations), except to the extent that such laws
expressly apply to Indian tribes.
(2) Program standards applicable to a nonconstruction self-determination contract shall
be set forth in the contract proposal and the
final contract of the tribe or tribal organization.
(3)(A) With respect to a construction contract
(or a subcontract of such a construction contract), the provisions of division B (except sections 1123, 2303, 2304, and 2313) of subtitle I of
title 41 and the regulations relating to acquisitions promulgated under division B (except sections 1123, 2303, 2304, and 2313) of subtitle I of
title 41 shall apply only to the extent that the
application of such provision 1 to the construction contract (or subcontract) is—
(i) necessary to ensure that the contract
may be carried out in a satisfactory manner;
(ii) directly related to the construction activity; and
(iii) not inconsistent with this chapter.
(B) A list of the Federal requirements that
meet the requirements of clauses (i) through
(iii) of subparagraph (A) shall be included in an
attachment to the contract pursuant to negotiations between the Secretary and the tribal organization.
(C)(i) Except as provided in subparagraph (B),
no Federal law listed in clause (ii) or any other
provision of Federal law (including an Executive
order) relating to acquisition by the Federal
Government shall apply to a construction contract that a tribe or tribal organization enters
into under this chapter, unless expressly provided in such law.
(ii) The laws listed in this paragraph are as
follows:
(I) Chapters 1 to 11 of title 40 and division C
(except sections 3302, 3307(e), 3501(b), 3509, 3906,
4710, and 4711) of subtitle I of title 41.
(II) Section 6101 of title 41.
(III) Section 9(c) 2 of the Act of Aug. 2, 1946
(60 Stat. 809, chapter 744).
1 So

in original. Probably should be ‘‘provisions’’.
References in Text note below.

2 See

§ 5324

TITLE 25—INDIANS

(IV) Division C (except sections 3302, 3307(e),
3501(b), 3509, 3906, 4710, and 4711) of subtitle I of
title 41.
(V) Section 13 of the Act of Oct. 3, 1944 (58
Stat. 770; chapter 479).
(VI) Chapters 21, 25, 27, 29, and 31 of title 44.
(VII) Section 3145 of title 40.
(VIII) Chapter 65 of title 41.
(IX) Chapter 67 of title 41.
(X) The Small Business Act (15 U.S.C. 631 et
seq.).
(XI) Executive Order Nos. 12138, 11246, 11701
and 11758.
(b) Payments; transfer of funds by Treasury for
disbursement by tribal organization; accountability for interest accrued prior to disbursement
Payments of any grants or under any contracts pursuant to sections 5321 and 5322 of this
title may be made in advance or by way of reimbursement and in such installments and on such
conditions as the appropriate Secretary deems
necessary to carry out the purposes of this subchapter. The transfer of funds shall be scheduled
consistent with program requirements and applicable Treasury regulations, so as to minimize
the time elapsing between the transfer of such
funds from the United States Treasury and the
disbursement thereof by the tribal organization,
whether such disbursement occurs prior to or
subsequent to such transfer of funds. Tribal organizations shall not be held accountable for interest earned on such funds, pending their disbursement by such organization.
(c) Term of self-determination contracts; annual
renegotiation
(1) A self-determination contract shall be—
(A) for a term not to exceed three years in
the case of other than a mature contract, unless the appropriate Secretary and the tribe
agree that a longer term would be advisable,
and
(B) for a definite or an indefinite term, as requested by the tribe (or, to the extent not limited by tribal resolution, by the tribal organization), in the case of a mature contract.
The amounts of such contracts shall be subject
to the availability of appropriations.
(2) The amounts of such contracts may be renegotiated annually to reflect changed circumstances and factors, including, but not limited to, cost increases beyond the control of the
tribal organization.
(d) Calendar year basis for contracts
(1) Beginning in fiscal year 1990, upon the election of a tribal organization, the Secretary shall
use the calendar year as the basis for any contracts or agreements under this chapter, unless
the Secretary and the Indian tribe or tribal organization agree on a different period.
(2) The Secretary shall, on or before April 1 of
each year beginning in 1992, submit a report to
the Congress on the amounts of any additional
obligation authority needed to implement this
subsection in the next following fiscal year.
(e) Effective date for retrocession of contract
If an Indian tribe, or a tribal organization authorized by a tribe, requests retrocession of the

Page 710

appropriate Secretary for any contract or portion of a contract entered into pursuant to this
chapter, unless the tribe or tribal organization
rescinds the request for retrocession, such retrocession shall become effective on—
(1) the earlier of—
(A) the date that is 1 year after the date
the Indian tribe or tribal organization submits such request; or
(B) the date on which the contract expires;
or
(2) such date as may be mutually agreed by
the Secretary and the Indian tribe.
(f) Use of existing school buildings, hospitals,
and other facilities and equipment therein;
acquisition and donation of excess or surplus
Government personal property
In connection with any self-determination
contract or grant made pursuant to section 5321
or 5322 of this title, the appropriate Secretary
may—
(1) permit an Indian tribe or tribal organization in carrying out such contract or grant, to
utilize existing school buildings, hospitals,
and other facilities and all equipment therein
or appertaining thereto and other personal
property owned by the Government within the
Secretary’s jurisdiction under such terms and
conditions as may be agreed upon for their use
and maintenance;
(2) donate to an Indian tribe or tribal organization title to any personal or real property
found to be excess to the needs of the Bureau
of Indian Affairs, the Indian Health Service, or
the General Services Administration, except
that—
(A) subject to the provisions of subparagraph (B), title to property and equipment
furnished by the Federal Government for use
in the performance of the contract or purchased with funds under any self-determination contract or grant agreement shall, unless otherwise requested by the tribe or tribal organization, vest in the appropriate tribe
or tribal organization;
(B) if property described in subparagraph
(A) has a value in excess of $5,000 at the time
of the retrocession, rescission, or termination of the self-determination contract or
grant agreement, at the option of the Secretary, upon the retrocession, rescission, or
termination, title to such property and
equipment shall revert to the Department of
the Interior or the Department of Health
and Human Services, as appropriate; and
(C) all property referred to in subparagraph (A) shall remain eligible for replacement on the same basis as if title to such
property were vested in the United States;
and
(3) acquire excess or surplus Government
personal or real property for donation to an
Indian tribe or tribal organization if the Secretary determines the property is appropriate
for use by the tribe or tribal organization for
a purpose for which a self-determination contract or grant agreement is authorized under
this chapter.
(g) Performance of personal services
The contracts authorized under section 5321 of
this title and grants pursuant to section 5322 of

Page 711

TITLE 25—INDIANS

this title may include provisions for the performance of personal services which would otherwise be performed by Federal employees including, but in no way limited to, functions such
as determination of eligibility of applicants for
assistance, benefits, or services, and the extent
or amount of such assistance, benefits, or services to be provided and the provisions of such assistance, benefits, or services, all in accordance
with the terms of the contract or grant and applicable rules and regulations of the appropriate
Secretary: Provided, That the Secretary shall
not make any contract which would impair his
ability to discharge his trust responsibilities to
any Indian tribe or individuals.
(h) Fair and uniform provision by tribal organization of services and assistance to covered
Indians
Contracts and grants with tribal organizations
pursuant to sections 5321 and 5322 of this title
shall include provisions to assure the fair and
uniform provision by such tribal organizations
of the services and assistance they provide to Indians under such contracts and grants.
(i) Division of administration of program
(1) If a self-determination contract requires
the Secretary to divide the administration of a
program that has previously been administered
for the benefit of a greater number of tribes
than are represented by the tribal organization
that is a party to the contract, the Secretary
shall take such action as may be necessary to
ensure that services are provided to the tribes
not served by a self-determination contract, including program redesign in consultation with
the tribal organization and all affected tribes.
(2) Nothing in this subchapter shall be construed to limit or reduce in any way the funding
for any program, project, or activity serving a
tribe under this or other applicable Federal law.
Any tribe or tribal organization that alleges
that a self-determination contract is in violation of this section may apply the provisions of
section 5331 of this title.
(j) Proposal to redesign program, activity, function, or service
Upon providing notice to the Secretary, a tribal organization that carries out a nonconstruction self-determination contract may propose a
redesign of a program, activity, function, or
service carried out by the tribal organization
under the contract, including any nonstatutory
program standard, in such manner as to best
meet the local geographic, demographic, economic, cultural, health, and institutional needs
of the Indian people and tribes served under the
contract. The Secretary shall evaluate any proposal to redesign any program, activity, function, or service provided under the contract.
With respect to declining to approve a redesigned program, activity, function, or service
under this subsection, the Secretary shall apply
the criteria and procedures set forth in section
5321 of this title.
(k) Access to Federal sources of supply
For purposes of section 501 of title 40 (relating
to Federal sources of supply, including lodging
providers, airlines and other transportation pro-

§ 5324

viders), a tribal organization carrying out a contract, grant, or cooperative agreement under
this chapter shall be deemed an executive agency and part of the Indian Health Service when
carrying out such contract, grant, or agreement
and the employees of the tribal organization
shall be eligible to have access to such sources
of supply on the same basis as employees of an
executive agency have such access. For purposes
of carrying out such contract, grant, or agreement, the Secretary shall, at the request of an
Indian tribe, enter into an agreement for the acquisition, on behalf of the Indian tribe, of any
goods, services, or supplies available to the Secretary from the General Services Administration or other Federal agencies that are not directly available to the Indian tribe under this
section or under any other Federal law, including acquisitions from prime vendors. All such
acquisitions shall be undertaken through the
most efficient and speedy means practicable, including electronic ordering arrangements.
(l) Lease of facility used for administration and
delivery of services
(1) Upon the request of an Indian tribe or tribal organization, the Secretary shall enter into a
lease with the Indian tribe or tribal organization that holds title to, a leasehold interest in,
or a trust interest in, a facility used by the Indian tribe or tribal organization for the administration and delivery of services under this chapter.
(2) The Secretary shall compensate each Indian tribe or tribal organization that enters into
a lease under paragraph (1) for the use of the facility leased for the purposes specified in such
paragraph. Such compensation may include
rent, depreciation based on the useful life of the
facility, principal and interest paid or accrued,
operation and maintenance expenses, and such
other reasonable expenses that the Secretary determines, by regulation, to be allowable.
(m) Statutory requirements; technical assistance;
precontract negotiation phase; fixed price
construction contract
(1) Each construction contract requested, approved, or awarded under this chapter, shall be
subject to—
(A) except as otherwise provided in this
chapter, the provisions of this chapter, other
than sections 5321(a)(2), 5325(l), 5329 and 5330 of
this title; and
(B) section 314 of the Department of the Interior and Related Agencies Appropriations
Act, 1991 (104 Stat. 1959).
(2) In providing technical assistance to tribes
and tribal organizations in the development of
construction contract proposals, the Secretary
shall provide, not later than 30 days after receiving a request from a tribe or tribal organization,
all information available to the Secretary regarding the construction project, including construction drawings, maps, engineering reports,
design reports, plans of requirements, cost estimates, environmental assessments or environmental impact reports, and archaeological reports.
(3) Prior to finalizing a construction contract
proposal pursuant to section 5321(a) of this title,

§ 5324

TITLE 25—INDIANS

and upon request of the tribe or tribal organization that submits the proposal, the Secretary
shall provide for a precontract negotiation
phase in the development of a contract proposal.
Such phase shall include, at a minimum, the following elements:
(A) The provision of technical assistance
pursuant to section 5322 of this title and paragraph (2).
(B) A joint scoping session between the Secretary and the tribe or tribal organization to
review all plans, specifications, engineering
reports, cost estimates, and other information
available to the parties, for the purpose of
identifying all areas of agreement and disagreement.
(C) An opportunity for the Secretary to revise the plans, designs, or cost estimates of
the Secretary in response to concerns raised,
or information provided by, the tribe or tribal
organization.
(D) A negotiation session during which the
Secretary and the tribe or tribal organization
shall seek to develop a mutually agreeable
contract proposal.
(E) Upon the request of the tribe or tribal organization, the use of an alternative dispute
resolution mechanism to seek resolution of all
remaining areas of disagreement pursuant to
the dispute resolution provisions under subchapter IV of chapter 5 of title 5.
(F) The submission to the Secretary by the
tribe or tribal organization of a final contract
proposal pursuant to section 5321(a) of this
title.
(4)(A) Subject to subparagraph (B), in funding
a fixed-price construction contract pursuant to
section 5325(a) of this title, the Secretary shall
provide for the following:
(i) The reasonable costs to the tribe or tribal
organization for general administration incurred in connection with the project that is
the subject of the contract.
(ii) The ability of the contractor that carries
out the construction contract to make a reasonable profit, taking into consideration the
risks associated with carrying out the contract and other relevant considerations.
(B) In establishing a contract budget for a construction project, the Secretary shall not be required to separately identify the components described in clauses (i) and (ii) of subparagraph
(A).
(C) The total amount awarded under a construction contract shall reflect an overall fair
and reasonable price to the parties, including
the following costs:
(i) The reasonable costs to the tribal organization of performing the contract, taking into
consideration the terms of the contract and
the requirements of this chapter and any other
applicable law.
(ii) The costs of preparing the contract proposal and supporting cost data.
(iii) The costs associated with auditing the
general and administrative costs of the tribal
organization associated with the management
of the construction contract.
(iv) In the case of a fixed-price contract, a
fair profit determined by taking into consider-

Page 712

ation the relevant risks and local market conditions.
(v) If the Secretary and the tribe or tribal
organization are unable to develop a mutually
agreeable construction contract proposal pursuant to the procedures set forth in this subsection, the tribe or tribal organization may
submit a final contract proposal to the Secretary. Not later than 30 days after receiving
such final contract proposal, the Secretary
shall approve the contract proposal and award
the contract, unless, during such period the
Secretary declines the proposal pursuant to
subsections (a)(2) and (b) 2 of section 5321 of
this title (including providing opportunity for
an appeal pursuant to section 5321(b) of this
title).
(n) Rental rates for housing for Government employees in Alaska
Notwithstanding any other provision of law,
the rental rates for housing provided to an employee by the Federal Government in Alaska
pursuant to a self-determination contract shall
be determined on the basis of—
(1) the reasonable value of the quarters and
facilities (as such terms are defined under section 5911 of title 5) to such employee, and
(2) the circumstances under which such
quarters and facilities are provided to such
employee,
as based on the cost of comparable private rental housing in the nearest established community
with a year-round population of 1,500 or more individuals.
(o) Patient records
(1) In general
At the option of an Indian tribe or tribal organization, patient records may be deemed to
be Federal records under those provisions of
title 44 that are commonly referred to as the
‘‘Federal Records Act of 1950’’ for the limited
purposes of making such records eligible for
storage by Federal Records Centers to the
same extent and in the same manner as other
Department of Health and Human Services patient records.
(2) Treatment of records
Patient records that are deemed to be Federal records under those provisions of title 44
that are commonly referred to as the ‘‘Federal
Records Act of 1950’’ pursuant to this subsection shall not be considered Federal records
for the purposes of chapter 5 of title 5.
(p) Interpretation by Secretary
Except as otherwise provided by law, the Secretary shall interpret all Federal laws (including
regulations) and Executive orders in a manner
that facilitates, to the maximum extent practicable—
(1) the inclusion in self-determination contracts and funding agreements of—
(A) applicable programs, services, functions, and activities (or portions thereof);
and
(B) funds associated with those programs,
services, functions, and activities;
(2) the implementation of self-determination
contracts and funding agreements; and

Page 713

§ 5324

TITLE 25—INDIANS

(3) the achievement of Tribal health objectives.
(q) Technical assistance for internal controls
(1) TECHNICAL ASSISTANCE FOR INTERNAL CONTROLS.— 3 In considering proposals for, amendments to, or in the course of, a contract under
this subchapter and compacts under subchapters
IV and V of this chapter, if the Secretary determines that the Indian Tribe lacks adequate internal controls necessary to manage the contracted program or programs, the Secretary
shall, as soon as practicable, provide the necessary technical assistance to assist the Indian
Tribe in developing adequate internal controls.
As part of that technical assistance, the Secretary and the Tribe shall develop a plan for assessing the subsequent effectiveness of such
technical assistance. The inability of the Secretary to provide technical assistance or lack of
a plan under this subsection shall not result in
the reassumption of an existing agreement, contract, or compact, or declination or rejection of
a new agreement, contract, or compact.
(2) The Secretary shall prepare a report to be
included in the information required for the reports
under
sections
5372(b)(2)(A)
and
5394(b)(2)(A) of this title. The Secretary shall include in this report, in the aggregate, a description of the internal controls that were inadequate, the technical assistance provided, and a
description of Secretarial actions taken to address any remaining inadequate internal controls after the provision of technical assistance
and implementation of the plan required by
paragraph (1).
(Pub. L. 93–638, title I, § 105, formerly § 106, Jan.
4, 1975, 88 Stat. 2210; renumbered § 105 and
amended Pub. L. 100–472, title II, § 204, Oct. 5,
1988, 102 Stat. 2291; Pub. L. 101–301, § 2(a)(7), May
24, 1990, 104 Stat. 207; Pub. L. 101–644, title II,
§ 203(c)–(e), Nov. 29, 1990, 104 Stat. 4666; Pub. L.
103–413, title I, §§ 102(10)–(13), 106, Oct. 25, 1994, 108
Stat. 4253–4255, 4270; Pub. L. 104–109, § 7, Feb. 12,
1996, 110 Stat. 764; Pub. L. 106–260, §§ 7, 8, Aug. 18,
2000, 114 Stat. 732, 733; Pub. L. 116–180, title II,
§ 203, Oct. 21, 2020, 134 Stat. 880.)
Editorial Notes
REFERENCES IN TEXT
This chapter, referred to in subsecs. (a)(3)(A)(iii),
(C)(i), (d)(1), (e), (f)(3), (k), (l)(1), and (m)(1), (4)(C)(i),
was in the original ‘‘this Act’’, meaning Pub. L. 93–638,
Jan. 4, 1975, 88 Stat. 2203, known as the Indian Self-Determination and Education Assistance Act, which is
classified principally to this chapter. For complete
classification of this Act to the Code, see Short Title
note set out under section 5301 of this title and Tables.
Section 9(c) of the Act of Aug. 2, 1946, referred to in
subsec. (a)(3)(C)(ii)(III), was section 9(c) of act Aug. 2,
1946, ch. 744, 60 Stat. 809, which amended section 5 of
former Title 41, Public Contracts, and was repealed by
Pub. L. 111–350, § 7(b), Jan. 4, 2011, 124 Stat. 3855, which
Act enacted Title 41, Public Contracts.
Section 13 of the Act of Oct. 3, 1944 (58 Stat. 770; chapter 479), referred to in subsec. (a)(3)(C)(ii)(V), is act Oct.
3, 1944, ch. 479, § 13, 58 Stat. 770, which is set out as a
note under section 545 of Title 40, Public Buildings,
Property, and Works.
3 So in original. The heading of par. (1) was probably meant for
subsec. (q), the heading of which was editorially supplied.

The Small Business Act, referred to in subsec.
(a)(3)(C)(ii)(X), is Pub. L. 85–536, § 2(1 et seq.), July 18,
1958, 72 Stat. 384, which is classified generally to chapter 14A (§ 631 et seq.) of Title 15, Commerce and Trade.
For complete classification of this Act to the Code, see
Short Title note set out under section 631 of Title 15
and Tables.
Executive Order Nos. 12138, 11246, 11701 and 11758, referred to in subsec. (a)(3)(C)(ii)(XI), are Ex. Ord. No.
12138, May 18, 1979, 44 F.R. 29637, which is set out as a
note under section 631 of Title 15, Commerce and Trade,
Ex. Ord. No. 11246, Sept. 24, 1965, 30 F.R. 12319, which is
set out as a note under section 2000e of Title 42, The
Public Health and Welfare, Ex. Ord. No. 11701, Jan. 24,
1973, 38 F.R. 2675, which is set out as a note under section 4212 of Title 38, Veterans’ Benefits, and Ex. Ord.
No. 11758, Jan. 15, 1974, 39 F.R. 2075, which is set out as
a note under section 701 of Title 29, Labor.
This subchapter, referred to in subsecs. (b), (i)(2), and
(q)(1), was in the original ‘‘this title’’, meaning title I
of Pub. L. 93–638, known as the Indian Self-Determination Act, which is classified principally to this subchapter (§ 5321 et seq.). For complete classification of
title I to the Code, see Short Title note set out under
section 5301 of this title and Tables.
Section 314 of the Department of the Interior and Related Agencies Appropriations Act, 1991, referred to in
subsec. (m)(1)(B), is section 314 of Pub. L. 101–512, which
is set out as a note under section 5321 of this title.
Subsections (a)(2) and (b) of section 5321 of this title,
referred to in subsec. (m)(4)(C)(v), was in the original
‘‘sections 102(a)(2) and 102(b) of section 102’’, and was
translated as reading ‘‘subsections (a)(2) and (b) of section 102’’, meaning section 102 of Pub. L. 93–638, to reflect the probable intent of Congress.
The Federal Records Act of 1950, referred to in subsec.
(o), was title V of act June 30, 1949, ch. 288, as added
Sept. 5, 1950, ch. 849, § 6(d), 64 Stat. 583, which was classified generally to sections 392 to 396 and 397 to 401 of
former Title 44, Public Printing and Documents. Section 6(d) of act Sept. 5, 1950, was repealed by Pub. L.
90–620, Oct. 22, 1968, 82 Stat. 1238, the first section of
which enacted Title 44, Public Printing and Documents.
For disposition of sections of former Title 44, see Table
at the beginning of Title 44. Title V of act June 30, 1949,
was repealed by Pub. L. 107–217, § 4, Aug. 21, 2002, 116
Stat. 1303.
CODIFICATION
Section was formerly classified to section 450j of this
title prior to editorial reclassification and renumbering
as this section.
In subsec. (a)(3)(A), ‘‘division B (except sections 1123,
2303, 2304, and 2313) of subtitle I of title 41’’ substituted
for ‘‘the Office of Federal Procurement Policy Act (41
U.S.C. 401 et seq.)’’ and for ‘‘such Act’’ on authority of
Pub. L. 111–350, § 6(c), Jan. 4, 2011, 124 Stat. 3854, which
Act enacted Title 41, Public Contracts.
In subsec. (a)(3)(C)(ii)(I), ‘‘Chapters 1 to 11 of title 40
and division C (except sections 3302, 3307(e), 3501(b),
3509, 3906, 4710, and 4711) of subtitle I of title 41’’ substituted for ‘‘The Federal Property and Administrative
Services Act of 1949 (40 U.S.C. 471 et seq.)’’ on authority
of Pub. L. 107–217, § 5(c), Aug. 21, 2002, 116 Stat. 1303,
which Act enacted Title 40, Public Buildings, Property,
and Works, and Pub. L. 111–350, § 6(c), Jan. 4, 2011, 124
Stat. 3854, which Act enacted Title 41, Public Contracts.
In subsec. (a)(3)(C)(ii)(II), ‘‘Section 6101 of title 41’’
substituted for ‘‘Section 3709 of the Revised Statutes’’
on authority of Pub. L. 111–350, § 6(c), Jan. 4, 2011, 124
Stat. 3854, which Act enacted Title 41, Public Contracts.
In subsec. (a)(3)(C)(ii)(IV), ‘‘Division C (except sections 3302, 3307(e), 3501(b), 3509, 3906, 4710, and 4711) of
subtitle I of title 41’’ substituted for ‘‘Title III of the
Federal Property and Administrative Services Act of
1949 (63 Stat. 393 et seq., chapter 288)’’ on authority of
Pub. L. 111–350, § 6(c), Jan. 4, 2011, 124 Stat. 3854, which
Act enacted Title 41, Public Contracts.

§ 5324

TITLE 25—INDIANS

In subsec. (a)(3)(C)(ii)(VII), ‘‘Section 3145 of title 40’’
substituted for ‘‘Section 2 of the Act of June 13, 1934 (48
Stat 948, chapter 483 [482])’’ on authority of Pub. L.
107–217, § 5(c), Aug. 21, 2002, 116 Stat. 1303, which Act enacted Title 40, Public Buildings, Property, and Works.
In subsec. (a)(3)(C)(ii)(VIII), ‘‘Chapter 65 of title 41’’
substituted for ‘‘Sections 1 through 12 of the Act of
June 30, 1936 (49 Stat. 2036 et seq. chapter 881)’’ on authority of Pub. L. 111–350, § 6(c), Jan. 4, 2011, 124 Stat.
3854, which Act enacted Title 41, Public Contracts.
In subsec. (a)(3)(C)(ii)(IX), ‘‘Chapter 67 of title 41’’
substituted for ‘‘The Service Control [Contract] Act of
1965 (41 U.S.C. 351 et seq.)’’ on authority of Pub. L.
111–350, § 6(c), Jan. 4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public Contracts.
In subsec. (k), ‘‘section 501 of title 40’’ substituted for
‘‘section 201(a) of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 481(a))’’ on authority
of Pub. L. 107–217, § 5(c), Aug. 21, 2002, 116 Stat. 1303,
which Act enacted Title 40, Public Buildings, Property,
and Works.
PRIOR PROVISIONS
A prior section 105 of Pub. L. 93–638 was renumbered
section 104 by Pub. L. 100–472 and is classified to section
5323 of this title.
AMENDMENTS
2020—Subsec. (b). Pub. L. 116–180, § 203(1), substituted
reference to sections 5321 and 5322 of this title for reference to section 5321 of this title, former section 103 of
Pub. L. 93–638, or section 5322 of this title. For disposition of former section 103 of Pub. L. 93–638, see Prior
Provisions note set out under section 5322 of this title.
Subsecs. (p), (q). Pub. L. 116–180, § 203(2), added subsecs. (p) and (q).
2000—Subsec. (k). Pub. L. 106–260, § 7, substituted
‘‘deemed an executive agency and part of the Indian
Health Service’’ for ‘‘deemed an executive agency’’ and
inserted at end ‘‘For purposes of carrying out such contract, grant, or agreement, the Secretary shall, at the
request of an Indian tribe, enter into an agreement for
the acquisition, on behalf of the Indian tribe, of any
goods, services, or supplies available to the Secretary
from the General Services Administration or other
Federal agencies that are not directly available to the
Indian tribe under this section or under any other Federal law, including acquisitions from prime vendors.
All such acquisitions shall be undertaken through the
most efficient and speedy means practicable, including
electronic ordering arrangements.’’
Subsec. (o). Pub. L. 106–260, § 8, added subsec. (o).
1996—Subsec. (e). Pub. L. 104–109 made technical
amendment to directory language of Pub. L. 103–413,
§ 102(11). See 1994 Amendment note below.
1994—Subsec. (a). Pub. L. 103–413, § 102(10), added subsec. (a) and struck out former subsec. (a) which read as
follows: ‘‘Contracts with tribal organizations pursuant
to section 5321 of this title shall be in accordance with
all Federal contracting laws and regulations except
that, in the discretion of the appropriate Secretary,
such contracts may be negotiated without advertising
and need not conform with the provisions of sections
270a to 270d of title 40: Provided, That the appropriate
Secretary may waive any provisions of such contracting laws or regulations which he determines are
not appropriate for the purposes of the contract involved or inconsistent with the provisions of this Act:
Provided further, That, except for construction contracts (or sub-contracts of such a construction contract), the Office of Federal Procurement Policy Act (88
Stat. 796; 41 U.S.C. 401 et seq.) and Federal acquisition
regulations promulgated thereunder shall not apply to
self-determination contracts.’’
Subsec. (e). Pub. L. 103–413, § 102(11), as amended by
Pub. L. 104–109, added subsec. (e) and struck out former
subsec. (e) which read as follows: ‘‘Whenever an Indian
tribe requests retrocession of the appropriate Secretary
for any contract entered into pursuant to this Act,

Page 714

such retrocession shall become effective one year from
the date of the request by the Indian tribe or at such
date as may be mutually agreed by the Secretary and
the Indian tribe.’’
Subsec. (f)(2). Pub. L. 103–413, § 102(12), added par. (2)
and struck out former par. (2) which read as follows:
‘‘donate to an Indian tribe or tribal organization the
title to any personal or real property found to be excess
to the needs of the Bureau of Indian Affairs, the Indian
Health Service, or the General Services Administration, including property and equipment purchased with
funds under any self-determination contract or grant
agreement; and’’.
Subsec. (h). Pub. L. 103–413, § 106, struck out ‘‘and the
rules and regulations adopted by the Secretaries of the
Interior and Health and Human Services pursuant to
section 5328 of this title’’ after ‘‘sections 5321 and 5322
of this title’’.
Subsecs. (i) to (n). Pub. L. 103–413, § 102(13), added subsecs. (i) to (n).
1990—Subsec. (a). Pub. L. 101–301 substituted ‘‘subcontracts of such a construction contract’’ for ‘‘subcontracts in such cases where the tribal contractor has
sub-contracted the activity’’.
Subsec. (c)(1)(B). Pub. L. 101–644, § 203(c), amended
subpar. (B) generally. Prior to amendment, subpar. (B)
read as follows: ‘‘for an indefinite term in the case of
a mature contract.’’
Subsec. (d). Pub. L. 101–644, § 203(d), amended subsec.
(d) generally. Prior to amendment, subsec. (d) read as
follows:
‘‘(1) No later than fiscal year 1990, the Secretary shall
begin using the calendar year as the basis for contracts
and agreements under this Act except for instances
where the Secretary and the Indian tribe or tribal organization agree on a different period.
‘‘(2) The Secretary shall submit a report to the Congress within ninety days of October 5, 1988, on the
amounts of any additional obligational authority needed to implement this subsection in fiscal year 1989.’’
Subsec. (f)(2), (3). Pub. L. 101–644, § 203(e), inserted ‘‘or
real’’ after ‘‘personal’’.
1988—Subsec. (a). Pub. L. 100–472, § 204(b), (c), substituted reference to section 5321 of this title for reference to section 5321 of this title and former section
103 of Pub. L. 93–638 and inserted proviso relating to
nonapplication of Office of Federal Procurement Policy
Act to self-determination contracts. See Prior Provisions note set out under section 5322 of this title.
Subsec. (b). Pub. L. 100–472, § 204(d), which directed
the amendment of subsec. (b) by substituting reference
to sections 5321 and 5322 of this title for text in original
Act reading ‘‘sections 102, 103, and 104’’, could not be executed because text enacted by Pub. L. 93–638 read ‘‘section 102, 103, or 104’’. Intended amendment was reenacted by Pub. L. 116–180, § 203(1), see 2020 Amendment
note above.
Subsec. (c). Pub. L. 100–472, § 204(e), added subsec. (c)
and struck out former subsec. (c) which related to limitation on term of any contract requested by a tribe
pursuant to section 5321 of this title and former section
103 of Pub. L. 93–638 and annual renegotiation of
amounts. See Prior Provisions note set out under section 5322 of this title.
Subsec. (d). Pub. L. 100–472, § 204(e), added subsec. (d)
and struck out former subsec. (d) which related to revision or amendment of contracts or grants at request or
with consent of tribal organization and effective date
for retrocession of contracts.
Subsec. (e). Pub. L. 100–472, § 204(e), added subsec. (e)
and struck out former subsec. (e) which authorized the
Secretary to permit tribal organizations to use existing
school buildings, hospitals, and other facilities and
equipment therein in carrying out grants or contracts.
Subsec. (f). Pub. L. 100–472, § 204(e), added subsec. (f).
Former subsec. (f) redesignated (g).
Subsec. (g). Pub. L. 100–472, § 204(f), redesignated
former subsec. (f) as (g) and substituted reference to
section 5321 of this title for reference to section 5321 of
this title and former section 103 of Pub. L. 93–638.

Page 715

TITLE 25—INDIANS

Former subsec. (g) redesignated (h). See Prior Provisions note set out under section 5322 of this title.
Subsec. (h). Pub. L. 100–472, § 204(g), (h), redesignated
former subsec. (g) as (h), substituted reference to sections 5321 and 5322 of this title for reference to section
5321 of this title, former section 103 of Pub. L. 93–638,
and section 5322 of this title, and reference to Health
and Human Services for reference to Health, Education,
and Welfare. Former subsec. (h), which related to minimum amount of funds under terms of contracts, was
struck out. See Prior Provisions note set out under section 5322 of this title.
Statutory Notes and Related Subsidiaries
CONTINUED AVAILABILITY OF CERTAIN FUNDS
Pub. L. 105–277, div. A, § 101(e) [title I], Oct. 21, 1998,
112 Stat. 2681–231, 2681–246, provided in part that: ‘‘hereafter funds made available to tribes and tribal organizations through contracts, compact agreements, or
grants, as authorized by the Indian Self-Determination
Act of 1975 [25 U.S.C. 5321 et seq.] or grants authorized
by the Indian Education Amendments of 1988 (25 U.S.C.
2001 and 2008A [probably means prior versions of 25
U.S.C. 2001 and 2008a]) shall remain available until expended by the contractor or grantee’’.

§ 5325. Contract funding and indirect costs
(a) Amount of funds provided
(1) The amount of funds provided under the
terms of self-determination contracts entered
into pursuant to this chapter shall not be less
than the appropriate Secretary would have otherwise provided for the operation of the programs or portions thereof for the period covered
by the contract, without regard to any organizational level within the Department of the Interior or the Department of Health and Human
Services, as appropriate, at which the program,
function, service, or activity or portion thereof,
including supportive administrative functions
that are otherwise contractable, is operated.
(2) There shall be added to the amount required by paragraph (1) contract support costs
which shall consist of an amount for the reasonable costs for activities which must be carried
on by a tribal organization as a contractor to
ensure compliance with the terms of the contract and prudent management, but which—
(A) normally are not carried on by the respective Secretary in his direct operation of
the program; or
(B) are provided by the Secretary in support
of the contracted program from resources
other than those under contract.
(3)(A) The contract support costs that are eligible costs for the purposes of receiving funding
under this chapter shall include the costs of reimbursing each tribal contractor for reasonable
and allowable costs of—
(i) direct program expenses for the operation
of the Federal program that is the subject of
the contract; and
(ii) any additional administrative or other
expense incurred by the governing body of the
Indian Tribe or Tribal organization and any
overhead expense incurred by the tribal contractor in connection with the operation of
the Federal program, function, service, or activity pursuant to the contract,
except that such funding shall not duplicate any
funding provided under subsection (a)(1) of this
section.

§ 5325

(B) In calculating the reimbursement rate for
expenses described in subparagraph (A)(ii), not
less than 50 percent of the expenses described in
subparagraph (A)(ii) that are incurred by the
governing body of an Indian Tribe or Tribal organization relating to a Federal program, function, service, or activity carried out pursuant to
the contract shall be considered to be reasonable
and allowable.
(C) On an annual basis, during such period as
a tribe or tribal organization operates a Federal
program, function, service, or activity pursuant
to a contract entered into under this chapter,
the tribe or tribal organization shall have the
option to negotiate with the Secretary the
amount of funds that the tribe or tribal organization is entitled to receive under such contract
pursuant to this paragraph.
(4) For each fiscal year during which a self-determination contract is in effect, any savings
attributable to the operation of a Federal program, function, service, or activity under a selfdetermination contract by a tribe or tribal organization (including a cost reimbursement construction contract) shall—
(A) be used to provide additional services or
benefits under the contract; or
(B) be expended by the tribe or tribal organization in the succeeding fiscal year, as provided in section 13a of this title.
(5) Subject to paragraph (6), during the initial
year that a self-determination contract is in effect, the amount required to be paid under paragraph (2) shall include startup costs consisting
of the reasonable costs that have been incurred
or will be incurred on a one-time basis pursuant
to the contract necessary—
(A) to plan, prepare for, and assume operation of the program, function, service, or activity that is the subject of the contract; and
(B) to ensure compliance with the terms of
the contract and prudent management.
(6) Costs incurred before the initial year that
a self-determination contract is in effect may
not be included in the amount required to be
paid under paragraph (2) if the Secretary does
not receive a written notification of the nature
and extent of the costs prior to the date on
which such costs are incurred.
(b) Reductions and increases in amount of funds
provided
The amount of funds required by subsection
(a) of this section—
(1) shall not be reduced to make funding
available for contract monitoring or administration by the Secretary;
(2) shall not be reduced by the Secretary in
subsequent years except pursuant to—
(A) a reduction in appropriations from the
previous fiscal year for the program or function to be contracted;
(B) a directive in the statement of the
managers accompanying a conference report
on an appropriation bill or continuing resolution;
(C) a tribal authorization;
(D) a change in the amount of passthrough funds needed under a contract; or
(E) completion of a contracted project, activity, or program;

§ 5325

TITLE 25—INDIANS

(3) shall not be reduced by the Secretary to
pay for Federal functions, including, but not
limited to, Federal pay costs, Federal employee retirement benefits, automated data
processing, contract technical assistance or
contract monitoring;
(4) shall not be reduced by the Secretary to
pay for the costs of Federal personnel displaced by a self-determination contract; and
(5) may, at the request of the tribal organization, be increased by the Secretary if necessary to carry out this chapter or as provided
in section 5324(c) of this title.
Notwithstanding any other provision in this
chapter, the provision of funds under this chapter is subject to the availability of appropriations and the Secretary is not required to reduce
funding for programs, projects, or activities
serving a tribe to make funds available to another tribe or tribal organization under this
chapter.
(c) Annual reports
Not later than May 15 of each year, the Secretary shall prepare and submit to Congress an
annual report on the implementation of this
chapter. Such report shall include—
(1) an accounting of the total amounts of
funds provided for each program and the budget activity for direct program costs and contract support costs of tribal organizations
under self-determination;
(2) an accounting of any deficiency in funds
needed to provide required contract support
costs to all contractors for the fiscal year for
which the report is being submitted;
(3) the indirect cost rate and type of rate for
each tribal organization that has been negotiated with the appropriate Secretary;
(4) the direct cost base and type of base from
which the indirect cost rate is determined for
each tribal organization;
(5) the indirect cost pool amounts and the
types of costs included in the indirect cost
pool; and
(6) an accounting of any deficiency in funds
needed to maintain the preexisting level of
services to any Indian tribes affected by contracting activities under this chapter, and a
statement of the amount of funds needed for
transitional purposes to enable contractors to
convert from a Federal fiscal year accounting
cycle, as authorized by section 5324(d) of this
title.
(d) Treatment of shortfalls in indirect cost recoveries
(1) Where a tribal organization’s allowable indirect cost recoveries are below the level of indirect costs that the tribal organizations should
have received for any given year pursuant to its
approved indirect cost rate, and such shortfall is
the result of lack of full indirect cost funding by
any Federal, State, or other agency, such shortfall in recoveries shall not form the basis for
any theoretical over-recovery or other adverse
adjustment to any future years’ indirect cost
rate or amount for such tribal organization, nor
shall any agency seek to collect such shortfall
from the tribal organization.
(2) Nothing in this subsection shall be construed to authorize the Secretary to fund less

Page 716

than the full amount of need for indirect costs
associated with a self-determination contract.
(e) Liability for indebtedness incurred before fiscal year 1992
Indian tribes and tribal organizations shall
not be held liable for amounts of indebtedness
attributable to theoretical or actual under-recoveries or theoretical over-recoveries of indirect costs, as defined in Office of Management
and Budget Circular A–87, incurred for fiscal
years prior to fiscal year 1992.
(f) Limitation on remedies relating to cost disallowances
Any right of action or other remedy (other
than those relating to a criminal offense) relating to any disallowance of costs shall be barred
unless the Secretary has given notice of any
such disallowance within three hundred and
sixty-five days of receiving any required annual
single agency audit report or, for any period
covered by law or regulation in force prior to
October 19, 1984, any other required final audit
report. Such notice shall set forth the right of
appeal and hearing to the board of contract appeals pursuant to section 5331 of this title. For
the purpose of determining the 365-day period
specified in this paragraph, an audit report shall
be deemed to have been received on the date of
actual receipt by the Secretary, if, within 60
days after receiving the report, the Secretary
does not give notice of a determination by the
Secretary to reject the single-agency report as
insufficient due to noncompliance with chapter
75 of title 31 or noncompliance with any other
applicable law. Nothing in this subsection shall
be deemed to enlarge the rights of the Secretary
with respect to section 5123 of this title.
(g) Addition to contract of full amount contractor entitled; adjustment
Upon the approval of a self-determination contract, the Secretary shall add to the contract
the full amount of funds to which the contractor
is entitled under subsection (a) of this section,
subject to adjustments for each subsequent year
that such tribe or tribal organization administers a Federal program, function, service, or
activity under such contract.
(h) Indirect costs for contracts for construction
programs
In calculating the indirect costs associated
with a self-determination contract for a construction program, the Secretary shall take into
consideration only those costs associated with
the administration of the contract and shall not
take into consideration those moneys actually
passed on by the tribal organization to construction contractors and subcontractors.
(i) Indian Health Service and Bureau of Indian
Affairs budget consultations
On an annual basis, the Secretary shall consult with, and solicit the participation of, Indian
tribes and tribal organizations in the development of the budget for the Indian Health Service
and the Bureau of Indian Affairs (including participation of Indian tribes and tribal organizations in formulating annual budget requests
that the Secretary submits to the President for
submission to Congress pursuant to section 1105
of title 31).

Page 717

§ 5325

TITLE 25—INDIANS

(j) Use of funds for matching or cost participation requirements
Notwithstanding any other provision of law, a
tribal organization may use funds provided
under a self-determination contract to meet
matching or cost participation requirements
under other Federal and non-Federal programs.
(k) Allowable uses of funds without approval of
Secretary
Without intending any limitation, a tribal organization may, without the approval of the
Secretary, expend funds provided under a selfdetermination contract for the following purposes, to the extent that the expenditure of the
funds is supportive of a contracted program:
(1) Depreciation and use allowances not otherwise specifically prohibited by law, including the depreciation of facilities owned by the
tribe or tribal organization.
(2) Publication and printing costs.
(3) Building, realty, and facilities costs, including rental costs or mortgage expenses.
(4) Automated data processing and similar
equipment or services.
(5) Costs for capital assets and repairs.
(6) Management studies.
(7) Professional services, other than services
provided in connection with judicial proceedings by or against the United States.
(8) Insurance and indemnification, including
insurance covering the risk of loss of or damage to property used in connection with the
contract without regard to the ownership of
such property.
(9) Costs incurred to raise funds or contributions from non-Federal sources for the purpose
of furthering the goals and objectives of the
self-determination contract.
(10) Interest expenses paid on capital expenditures such as buildings, building renovation,
or acquisition or fabrication of capital equipment, and interest expenses on loans necessitated due to delays by the Secretary in providing funds under a contract.
(11) Expenses of a governing body of a tribal
organization that are attributable to the management or operation of programs under this
chapter.
(12) Costs associated with the management
of pension funds, self-insurance funds, and
other funds of the tribal organization that provide for participation by the Federal Government.
(l) Suspension, withholding, or delay in payment
of funds
(1) The Secretary may only suspend, withhold,
or delay the payment of funds for a period of 30
days beginning on the date the Secretary makes
a determination under this paragraph to a tribal
organization under a self-determination contract, if the Secretary determines that the tribal organization has failed to substantially carry
out the contract without good cause. In any
such case, the Secretary shall provide the tribal
organization with reasonable advance written
notice, technical assistance (subject to available
resources) to assist the tribal organization, a
hearing on the record not later than 10 days
after the date of such determination or such

later date as the tribal organization shall approve, and promptly release any funds withheld
upon subsequent compliance.
(2) With respect to any hearing or appeal conducted pursuant to this subsection, the Secretary shall have the burden of proof to establish by clearly demonstrating the validity of the
grounds for suspending, withholding, or delaying
payment of funds.
(m) Use of program income earned
The program income earned by a tribal organization in the course of carrying out a self-determination contract—
(1) shall be used by the tribal organization to
further the general purposes of the contract;
and
(2) shall not be a basis for reducing the
amount of funds otherwise obligated to the
contract.
(n) Reduction of administrative or other responsibilities of Secretary; use of savings
To the extent that programs, functions, services, or activities carried out by tribal organizations pursuant to contracts entered into under
this chapter reduce the administrative or other
responsibilities of the Secretary with respect to
the operation of Indian programs and result in
savings that have not otherwise been included in
the amount of contract funds determined under
subsection (a) of this section, the Secretary
shall make such savings available for the provision of additional services to program beneficiaries, either directly or through contractors,
in a manner equitable to both direct and contracted programs.
(o) Rebudgeting by tribal organization
Notwithstanding any other provision of law
(including any regulation), a tribal organization
that carries out a self-determination contract
may, with respect to allocations within the approved budget of the contract, rebudget to meet
contract requirements, if such rebudgeting
would not have an adverse effect on the performance of the contract.
(Pub. L. 93–638, title I, § 106, as added Pub. L.
100–472, title II, § 205, Oct. 5, 1988, 102 Stat. 2292;
amended Pub. L. 101–301, § 2(a)(8), (9), May 24,
1990, 104 Stat. 207; Pub. L. 101–644, title II,
§ 203(a), Nov. 29, 1990, 104 Stat. 4666; Pub. L.
103–413, title I, § 102(14)–(19), Oct. 25, 1994, 108
Stat. 4257–4259; Pub. L. 105–362, title VIII, § 801(g),
Nov. 10, 1998, 112 Stat. 3288; Pub. L. 106–260, § 9,
Aug. 18, 2000, 114 Stat. 733; Pub. L. 116–180, title
II, § 204, Oct. 21, 2020, 134 Stat. 880.)
Editorial Notes
REFERENCES IN TEXT
This chapter, referred to in subsecs. (a)(1), (3), (b), (c),
(k)(11), and (n), was in the original ‘‘this Act’’, meaning
Pub. L. 93–638, Jan. 4, 1975, 88 Stat. 2203, known as the
Indian Self-Determination and Education Assistance
Act, which is classified principally to this chapter. For
complete classification of this Act to the Code, see
Short Title note set out under section 5301 of this title
and Tables.
CODIFICATION
Section was formerly classified to section 450j–1 of
this title prior to editorial reclassification and renumbering as this section.

§ 5326

TITLE 25—INDIANS
PRIOR PROVISIONS

A prior section 106 of Pub. L. 93–638 was renumbered
section 105 by Pub. L. 100–472 and is classified to section
5324 of this title.
AMENDMENTS
2020—Subsec. (a)(3)(A). Pub. L. 116–180, § 204(1), substituted ‘‘; and’’ for ‘‘, and’’ in cl. (i) and ‘‘expense incurred by the governing body of the Indian Tribe or
Tribal organization and any overhead expense incurred’’ for ‘‘expense related to the overhead incurred’’
in cl. (ii).
Subsec. (a)(3)(B), (C). Pub. L. 116–180, § 204(2), (3),
added subpar. (B) and redesignated former subpar. (B)
as (C).
2000—Subsecs. (c) to (o). Pub. L. 106–260 added subsec.
(c) and redesignated former subsecs. (c) to (n) as (d) to
(o), respectively.
1998—Subsecs. (c) to (o). Pub. L. 105–362 redesignated
subsecs. (d) to (o) as (c) to (n), respectively, and struck
out former subsec. (c) which related to Secretary’s annual report to Congress on implementation of this
chapter.
1994—Subsec. (a)(1). Pub. L. 103–413, § 102(14)(A), inserted before period at end ‘‘, without regard to any organizational level within the Department of the Interior or the Department of Health and Human Services,
as appropriate, at which the program, function, service,
or activity or portion thereof, including supportive administrative functions that are otherwise contractable,
is operated’’.
Subsec. (a)(2). Pub. L. 103–413, § 102(14)(B), inserted
‘‘an amount for’’ after ‘‘consist of’’.
Subsec. (a)(3). Pub. L. 103–413, § 102(14)(C), added par.
(3) and struck out former par. (3) which read as follows:
‘‘Any savings in operation under a self-determination
contract shall be utilized to provide additional services
or benefits under the contract or be expended in the
succeeding fiscal year as provided in section 13a of this
title.’’
Subsec. (a)(4) to (6). Pub. L. 103–413, § 102(14)(C), added
pars. (4) to (6).
Subsec. (c). Pub. L. 103–413, § 102(15)(A), substituted
‘‘May 15’’ for ‘‘March 15’’ in introductory provisions.
Subsec. (c)(1), (2). Pub. L. 103–413, § 102(15)(B), substituted ‘‘contract support costs’’ for ‘‘indirect costs’’.
Subsec. (c)(6). Pub. L. 103–413, § 102(15)(C)–(E), added
par. (6).
Subsec. (f). Pub. L. 103–413, § 102(16), inserted after
second sentence ‘‘For the purpose of determining the
365-day period specified in this paragraph, an audit report shall be deemed to have been received on the date
of actual receipt by the Secretary, if, within 60 days
after receiving the report, the Secretary does not give
notice of a determination by the Secretary to reject
the single-agency report as insufficient due to noncompliance with chapter 75 of title 31 or noncompliance
with any other applicable law.’’
Subsec. (g). Pub. L. 103–413, § 102(17), added subsec. (g)
and struck out former subsec. (g) which read as follows:
‘‘Upon the approval of a self-determination contract
and at the request of an Indian tribe or tribal organization, the Secretary shall add the indirect cost funding
amount awarded for a self-determination contract to
the amount awarded for direct program funding for the
first year and, subject to adjustments in the amount of
direct program costs for the contract, for each subsequent year that the program remains continuously
under contract.’’
Subsec. (i). Pub. L. 103–413, § 102(18), added subsec. (i)
and struck out former subsec. (i) which read as follows:
‘‘Within one month after October 5, 1988, the Secretary
is mandated to establish a team in each area of the Bureau of Indian Affairs which consists of agency personnel (area personnel in the Navajo Area and in the
case of Indian tribes not served by an agency) and tribal representatives for the purpose of analyzing the ‘Indian Priority System’ and other aspects of the budgeting and funding allocation process of the Bureau of

Page 718

Indian Affairs for the purpose of making a report to
Congress with appropriate recommendations for
changes and legislative actions to achieve greater tribal decision-making authority over the use of funds appropriated for the benefit of the tribes and their members. The report along with the analysis, findings and
recommendations of the area teams shall be submitted
to Congress within six months of October 5, 1988. The
Secretary may submit to Congress separate comments
on the information and recommendations on the report.’’
Subsecs. (j) to (o). Pub. L. 103–413, § 102(19), added subsecs. (j) to (o).
1990—Subsec. (e). Pub. L. 101–644 substituted ‘‘1992’’
for ‘‘1988’’.
Subsec. (f). Pub. L. 101–301, § 2(a)(8), substituted
‘‘prior to enactment of chapter 75 of title 31’’ for ‘‘prior
to enactment of the Single Agency Audit Act of 1984
(chapter 75 of title 31)’’, which for purposes of codification was translated as ‘‘prior to October 19, 1984’’, requiring no change in text.
Subsec. (i). Pub. L. 101–301, § 2(a)(9), substituted
‘‘agency personnel (area personnel in the Navajo Area
and in the case of Indian tribes not served by an agency)’’ for ‘‘agency personnel’’.

§ 5326. Indian Health Service: availability of
funds for Indian self-determination or selfgovernance contract or grant support costs
Before, on, and after October 21, 1998, and notwithstanding any other provision of law, funds
available to the Indian Health Service in this
Act or any other Act for Indian self-determination or self-governance contract or grant support costs may be expended only for costs directly attributable to contracts, grants and
compacts pursuant to the Indian Self-Determination Act [25 U.S.C. 5321 et seq.] and no
funds appropriated by this or any other Act
shall be available for any contract support costs
or indirect costs associated with any contract,
grant, cooperative agreement, self-governance
compact, or funding agreement entered into between an Indian tribe or tribal organization and
any entity other than the Indian Health Service.
(Pub. L. 105–277, div. A, § 101(e) [title II], Oct. 21,
1998, 112 Stat. 2681–231, 2681–280.)
Editorial Notes
REFERENCES IN TEXT
The Indian Self-Determination Act, referred to in
text, is title I of Pub. L. 93–638, Jan. 4, 1975, 88 Stat.
2206, which is classified principally to this subchapter
(§ 5321 et seq.). For complete classification of this Act
to the Code, see Short Title note set out under section
5301 of this title and Tables.
CODIFICATION
Section was enacted as part of the Department of the
Interior and Related Agencies Appropriations Act, 1999,
and also as part of the Omnibus Consolidated and
Emergency Supplemental Appropriations Act, 1999, and
not as part of the Indian Self-Determination and Education Assistance Act which comprises this chapter.
Section was formerly classified to section 450j–2 of
this title prior to editorial reclassification and renumbering as this section.

§ 5327. Department of the Interior: availability of
funds for Indian self-determination or selfgovernance contract or grant support costs
Notwithstanding any other provision of law,
including but not limited to the Indian Self-De-

Page 719

TITLE 25—INDIANS

termination Act of 1975, as amended [25 U.S.C.
5321 et seq.], on and after November 29, 1999,
funds available to the Department of the Interior for Indian self-determination or self-governance contract or grant support costs may be expended only for costs directly attributable to
contracts, grants and compacts pursuant to the
Indian Self-Determination Act of 1975 and on
and after November 29, 1999, funds appropriated
in this title 1 shall not be available for any contract support costs or indirect costs associated
with any contract, grant, cooperative agreement, self-governance compact or funding agreement entered into between an Indian tribe or
tribal organization and any entity other than an
agency of the Department of the Interior.
(Pub. L. 106–113, div. B, § 1000(a)(3) [title I, § 113],
Nov. 29, 1999, 113 Stat. 1535, 1501A–157.)
Editorial Notes
REFERENCES IN TEXT
The Indian Self-Determination Act of 1975, referred to
in text, probably means the Indian Self-Determination
Act, title I of Pub. L. 93–638, Jan. 4, 1975, 88 Stat. 2206,
which is classified principally to this subchapter (§ 5321
et seq.). For complete classification of this Act to the
Code, see Short Title note set out under section 5301 of
this title and Tables.
This title, referred to in text, is title I of the Department of the Interior and Related Agencies Appropriations Act, 2000, as enacted by Pub. L. 106–113, div. B,
§ 1000(a)(3), Nov. 29, 1999, 113 Stat. 1535, 1501A–135. For
complete classification of this title to the Code, see Tables.
CODIFICATION
Section was enacted as part of the Department of the
Interior and Related Agencies Appropriations Act, 2000,
and not as part of the Indian Self-Determination and
Education Assistance Act which comprises this chapter.
Section was formerly classified to section 450j–3 of
this title prior to editorial reclassification and renumbering as this section.
Statutory Notes and Related Subsidiaries
SIMILAR PROVISIONS
Similar provisions were contained in Pub. L. 105–277,
div. A, § 101(e) [title I, § 114], Oct. 21, 1998, 112 Stat.
2681–231, 2681–255.

§ 5328. Rules and regulations
(a) Authority of Secretaries of the Interior and of
Health and Human Services to promulgate;
time restriction
(1) Except as may be specifically authorized in
this subsection, or in any other provision of this
chapter, the Secretary of the Interior and the
Secretary of Health and Human Services may
not promulgate any regulation, nor impose any
nonregulatory requirement, relating to self-determination contracts or the approval, award, or
declination of such contracts, except that the
Secretary of the Interior and the Secretary of
Health and Human Services may promulgate
regulations under this chapter relating to chapter 171 of title 28, commonly known as the ‘‘Federal Tort Claims Act’’, chapter 71 of title 41, dec1 See

References in Text note below.

§ 5328

lination and waiver procedures, appeal procedures, reassumption procedures, discretionary
grant procedures for grants awarded under section 5322 of this title, property donation procedures arising under section 5324(f) of this title,
internal agency procedures relating to the implementation of this chapter, retrocession and
tribal organization relinquishment procedures,
contract proposal contents, conflicts of interest,
construction, programmatic reports and data requirements, procurement standards, property
management standards, and financial management standards.
(2)(A) The regulations promulgated under this
chapter, including the regulations referred to in
this subsection, shall be promulgated—
(i) in conformance with sections 552 and 553
of title 5 and subsections (c), (d), and (e) of
this section; and
(ii) as a single set of regulations in title 25
of the Code of Federal Regulations.
(B) The authority to promulgate regulations
set forth in this chapter shall expire if final regulations are not promulgated within 20 months
after October 25, 1994.
(b) Conflicting laws and regulations
The provisions of this chapter shall supersede
any conflicting provisions of law (including any
conflicting regulations) in effect on the day before October 25, 1994, and the Secretary is authorized to repeal any regulation inconsistent
with the provisions of this chapter.
(c) Revisions and amendments; procedures applicable
The Secretary of the Interior and the Secretary of Health and Human Services are authorized, with the participation of Indian tribes
and tribal organizations, to revise and amend
any rules or regulations promulgated pursuant
to this section: Provided, That prior to any revision or amendment to such rules or regulations,
the respective Secretary or Secretaries shall
present the proposed revision or amendment to
the Committee on Energy and Natural Resources of the Senate and the Committee on
Natural Resources of the House of Representatives and shall, to the extent practicable, consult with appropriate national or regional Indian organizations and shall publish any proposed revisions in the Federal Register not less
than sixty days prior to the effective date of
such rules and regulations in order to provide
adequate notice to, and receive comments from,
other interested parties.
(d) Consultation in drafting and promulgating;
negotiation process; interagency committees;
extension of deadlines
(1) In drafting and promulgating regulations
as provided in subsection (a) of this section (including drafting and promulgating any revised
regulations), the Secretary of the Interior and
the Secretary of Health and Human Services
shall confer with, and allow for active participation by, representatives of Indian tribes, tribal
organizations, and individual tribal members.
(2)(A) In carrying out rulemaking processes
under this chapter, the Secretary of the Interior
and the Secretary of Health and Human Services
shall follow the guidance of—

§ 5328

TITLE 25—INDIANS

(i) subchapter III of chapter 5 of title 5, commonly known as the ‘‘Negotiated Rulemaking
Act of 1990’’; and
(ii) the recommendations of the Administrative Conference of the United States numbered
82–4 and 85–5 entitled ‘‘Procedures for Negotiating Proposed Regulations’’ under sections
305.82–4 and 305.85–5 of title 1, Code of Federal
Regulations, and any successor recommendation or law (including any successor regulation).
(B) The tribal participants in the negotiation
process referred to in subparagraph (A) shall be
nominated by and shall represent the groups described in this paragraph and shall include tribal representatives from all geographic regions.
(C) The negotiations referred to in subparagraph (B) shall be conducted in a timely manner. Proposed regulations to implement the
amendments made by the Indian Self-Determination Contract Reform Act of 1994 shall be
published in the Federal Register by the Secretary of the Interior and the Secretary of
Health and Human Services not later than 180
days after October 25, 1994.
(D) Notwithstanding any other provision of
law (including any regulation), the Secretary of
the Interior and the Secretary of Health and
Human Services are authorized to jointly establish and fund such interagency committees or
other interagency bodies, including advisory
bodies comprised of tribal representatives, as
may be necessary or appropriate to carry out
the provisions of this chapter.
(E) If the Secretary determines that an extension of the deadlines under subsection (a)(2)(B)
of this section and subparagraph (C) of this
paragraph is appropriate, the Secretary may
submit proposed legislation to Congress for the
extension of such deadlines.
(e) Exceptions in or waiver of regulations
The Secretary may, with respect to a contract
entered into under this chapter, make exceptions in the regulations promulgated to carry
out this chapter, or waive such regulations, if
the Secretary finds that such exception or waiver is in the best interest of the Indians served by
the contract or is consistent with the policies of
this chapter, and is not contrary to statutory
law. In reviewing each request, the Secretary
shall follow the timeline, findings, assistance,
hearing, and appeal procedures set forth in section 5321 of this title.
(Pub. L. 93–638, title I, § 107, Jan. 4, 1975, 88 Stat.
2212; Pub. L. 96–88, title V, § 509(b), Oct. 17, 1979,
93 Stat. 695; Pub. L. 100–472, title II, § 207, Oct. 5,
1988, 102 Stat. 2295; Pub. L. 101–644, title II,
§ 203(f), Nov. 29, 1990, 104 Stat. 4666; Pub. L.
103–413, title I, § 105, Oct. 25, 1994, 108 Stat. 4269;
Pub. L. 103–435, § 22(a)(1), Nov. 2, 1994, 108 Stat.
4575; Pub. L. 103–437, § 10(c)(2), Nov. 2, 1994, 108
Stat. 4589; Pub. L. 104–133, § 1, Apr. 25, 1996, 110
Stat. 1320; Pub. L. 104–287, § 6(e), Oct. 11, 1996, 110
Stat. 3399.)
Editorial Notes
REFERENCES IN TEXT
This chapter, referred to in subsecs. (a), (b), (d)(2)(A),
(D), and (e), was in the original ‘‘this Act’’, meaning

Page 720

Pub. L. 93–638, Jan. 4, 1975, 88 Stat. 2203, known as the
Indian Self-Determination and Education Assistance
Act, which is classified principally to this chapter. For
complete classification of this Act to the Code, see
Short Title note set out under section 5301 of this title
and Tables.
The Indian Self-Determination Contract Reform Act
of 1994, referred to in subsec. (d)(2)(C), is title I of Pub.
L. 103–413, Oct. 25, 1994, 108 Stat. 4250, which enacted
section 5329 of this title, amended this section and sections 5304, 5305, 5307, 5321, 5324, 5325, 5330, and 5331 of
this title, and enacted provisions set out as a note
under section 5301 of this title. For complete classification of this Act to the Code, see Short Title of 1994
Amendment note set out under section 5301 of this title
and Tables.
CODIFICATION
Section was formerly classified to section 450k of this
title prior to editorial reclassification and renumbering
as this section.
In subsec. (a)(1), ‘‘chapter 71 of title 41’’ substituted
for ‘‘the Contract Disputes Act of 1978 (41 U.S.C. 601 et
seq.)’’ on authority of Pub. L. 111–350, § 6(c), Jan. 4, 2011,
124 Stat. 3854, which Act enacted Title 41, Public Contracts.
AMENDMENTS
1996—Subsec. (a)(2)(B). Pub. L. 104–133 substituted ‘‘20
months’’ for ‘‘18 months’’.
Subsec. (b). Pub. L. 104–287 repealed Pub. L. 103–437,
§ 10(c)(2)(A). See 1994 Amendment note below.
1994—Subsec. (a). Pub. L. 103–413, § 105(1), added subsec. (a) and struck out former subsec. (a) which read as
follows: ‘‘The Secretaries of the Interior and of Health
and Human Services are each authorized to perform
any and all acts and to make such rules and regulations as may be necessary and proper for the purposes
of carrying out the provisions of this chapter: Provided,
however, That all Federal requirements for self-determination contracts and grants under this Act shall be
promulgated as regulations in conformity with sections
552 and 553 of title 5.’’
Subsec. (b). Pub. L. 103–437, § 10(c)(2)(A), which directed that subsec. (b) be repealed, was itself repealed
by Pub. L. 104–287, § 6(e). See Effective Date and Construction of 1996 Amendment note below.
Pub. L. 103–435, which directed substitution of ‘‘Committee on Natural Resources’’ for ‘‘Committee on Interior and Insular Affairs’’ in par. (2), could not be executed because ‘‘Committee on Interior and Insular Affairs’’ did not appear in text subsequent to amendment
by Pub. L. 103–413, § 105(1). See below.
Pub. L. 103–413, § 105(1), added subsec. (b) and struck
out former subsec. (b) which read as follows:
‘‘(b)(1) Within three months from October 5, 1988, the
Secretary shall consider and formulate appropriate regulations to implement the provisions of this Act, with
the participation of Indian tribes. Such proposed regulations shall contain all Federal requirements applicable to self-determination contracts and grants under
this Act.
‘‘(2) Within six months from October 5, 1988, the Secretary shall present the proposed regulations to the Select Committee on Indian Affairs of the United States
Senate and to the Committee on Interior and Insular
Affairs of the United States House of Representatives.
‘‘(3) Within seven months from October 5, 1988, the
Secretary shall publish proposed regulations in the
Federal Register for the purpose of receiving comments
from tribes and other interested parties.
‘‘(4) Within ten months from October 5, 1988, the Secretary shall promulgate regulations to implement the
provisions of such Act.’’
Subsec. (c). Pub. L. 103–437, § 10(c)(2)(B), substituted
‘‘Committee on Energy and Natural Resources of the
Senate and the Committee on Natural Resources of the
House of Representatives’’ for ‘‘Committees on Interior
and Insular Affairs of the United States Senate and
House of Representatives’’.

Page 721

TITLE 25—INDIANS

Subsecs. (d), (e). Pub. L. 103–413, § 105(2), added subsecs. (d) and (e).
1990—Subsec. (c). Pub. L. 101–644 inserted ‘‘, with the
participation of Indian tribes and tribal organizations,’’
after ‘‘authorized’’.
1988—Subsec. (a). Pub. L. 100–472, § 207(a), substituted
‘‘Health and Human Services’’ for ‘‘Health, Education,
and Welfare’’, and inserted proviso relating to promulgation of Federal requirements for self-determination
contracts as regulations.
Subsec. (b). Pub. L. 100–472, § 207(b), amended subsec.
(b) generally. Prior to amendment, subsec. (b) read as
follows:
‘‘(1) Within six months from January 4, 1975, the Secretary of the Interior and the Secretary of Health and
Human Services shall each to the extent practicable,
consult with national and regional Indian organizations to consider and formulate appropriate rules and
regulations to implement the provisions of this chapter.
‘‘(2) Within seven months from January 4, 1975, the
Secretary of the Interior and the Secretary of Health
and Human Services shall each present the proposed
rules and regulations to the Committees on Interior
and Insular Affairs of the United States Senate and
House of Representatives.
‘‘(3) Within eight months from January 4, 1975, the
Secretary of the Interior and the Secretary of Health
and Human Services shall publish proposed rules and
regulations in the Federal Register for the purpose of
receiving comments from interested parties.
‘‘(4) Within ten months from January 4, 1975, the Secretary of the Interior and the Secretary of Health and
Human Services shall promulgate rules and regulations
to implement the provisions of this chapter.’’
Statutory Notes and Related Subsidiaries
CHANGE OF NAME
‘‘Secretary of Health and Human Services’’ substituted for ‘‘Secretary of Health, Education, and Welfare’’ in subsec. (c), pursuant to section 509(b) of Pub.
L. 96–88, which is classified to section 3508(b) of Title 20,
Education.
EFFECTIVE DATE AND CONSTRUCTION OF 1996
AMENDMENT
Pub. L. 104–287, § 6(e), Oct. 11, 1996, 110 Stat. 3399, provided that: ‘‘Effective November 2, 1994, section
10(c)(2)(A) of the Act of November 2, 1994 (Public Law
103–437, 108 Stat. 4589) [amending this section], is repealed and section 107(b) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450k(b))
[now 25 U.S.C. 5328(b)], as amended by section 105(1) of
the Indian Self-Determination Act (Public Law 103–413,
108 Stat. 4269), is revived and shall read as if section
10(c)(2)(A) of the Act of November 2, 1994 (Public Law
103–437, 108 Stat. 4589), had not been enacted.’’

§ 5329. Contract or grant specifications
(a) Terms
Each self-determination contract entered into
under this chapter shall—
(1) contain, or incorporate by reference, the
provisions of the model agreement described
in subsection (c) of this section (with modifications where indicated and the blanks appropriately filled in), and
(2) subject to subsections (a) and (b) of section 5321 of this title, contain such other provisions as are agreed to by the parties.
(b) Payments; Federal records
Notwithstanding any other provision of law,
the Secretary may make payments pursuant to
section 1(b)(6) of such model agreement. As pro-

§ 5329

vided in section 1(b)(7) of the model agreement,
the records of the tribal government or tribal
organization specified in such section shall not
be considered Federal records for purposes of
chapter 5 of title 5.
(c) Model agreement
The model agreement referred to in subsection
(a)(1) of this section reads as follows:
‘‘SECTION 1. AGREEMENT BETWEEN THE SECRETARY AND THE llllll TRIBAL GOVERNMENT.

‘‘(a) AUTHORITY AND PURPOSE.—
‘‘(1) AUTHORITY.—This agreement, denoted a
Self-Determination Contract (referred to in
this agreement as the ‘Contract’), is entered
into by the Secretary of the Interior or the
Secretary of Health and Human Services (referred to in this agreement as the ‘Secretary’),
for and on behalf of the United States pursuant to title I of the Indian Self-Determination
and Education Assistance Act (25 U.S.C. 450 et
seq.) 1 and by the authority of the llllll
tribal government or tribal organization (referred to in this agreement as the ‘Contractor’). The provisions of title I of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.) 1 are incorporated in this agreement.
‘‘(2) PURPOSE.—Each provision of the Indian
Self-Determination and Education Assistance
Act (25 U.S.C. 450 et seq.) 1 and each provision
of this Contract shall be liberally construed
for the benefit of the Contractor to transfer
the funding and the following related functions, services, activities, and programs (or
portions thereof), that are otherwise contractable under section 102(a) of such Act, including
all related administrative functions, from the
Federal Government to the Contractor: (List
functions, services, activities, and programs).
‘‘(b) TERMS, PROVISIONS, AND CONDITIONS.—
‘‘(1) TERM.—Pursuant to section 105(c)(1) of
the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450j(c)(1)),1 the term
of this contract shall be ll years. Pursuant
to section 105(d)(1) of such Act (25 U.S.C.
450j(d)) 1, upon the election by the Contractor,
the period of this Contract shall be determined
on the basis of a calendar year, unless the Secretary and the Contractor agree on a different
period in the annual funding agreement incorporated by reference in subsection (f)(2).
‘‘(2) EFFECTIVE DATE.—This Contract shall
become effective upon the date of the approval
and execution by the Contractor and the Secretary, unless the Contractor and the Secretary agree on an effective date other than
the date specified in this paragraph.
‘‘(3) PROGRAM STANDARD.—The Contractor
agrees to administer the program, services,
functions and activities (or portions thereof)
listed in subsection (a)(2) of the Contract in
conformity with the following standards: (list
standards).
‘‘(4) FUNDING AMOUNT.—Subject to the availability of appropriations, the Secretary shall
make available to the Contractor the total
amount specified in the annual funding agree1 See

References in Text note below.

§ 5329

TITLE 25—INDIANS

ment incorporated by reference in subsection
(f)(2). Such amount shall not be less than the
applicable amount determined pursuant to
section 106(a) of the Indian Self-Determination
and Education Assistance Act (25 U.S.C.
450j–1).1
‘‘(5) LIMITATION OF COSTS.—The Contractor
shall not be obligated to continue performance
that requires an expenditure of funds in excess
of the amount of funds awarded under this
Contract. If, at any time, the Contractor has
reason to believe that the total amount required for performance of this Contract or a
specific activity conducted under this Contract would be greater than the amount of
funds awarded under this Contract, the Contractor shall provide reasonable notice to the
appropriate Secretary. If the appropriate Secretary does not take such action as may be
necessary to increase the amount of funds
awarded under this Contract, the Contractor
may suspend performance of the Contract
until such time as additional funds are awarded.
‘‘(6) PAYMENT.—
‘‘(A) IN GENERAL.—Payments to the Contractor under this Contract shall—
‘‘(i) be made as expeditiously as practicable; and
‘‘(ii) include financial arrangements to
cover funding during periods covered by
joint resolutions adopted by Congress
making continuing appropriations, to the
extent permitted by such resolutions.
‘‘(B) QUARTERLY, SEMIANNUAL, LUMP-SUM,
AND OTHER METHODS OF PAYMENT.—
‘‘(i) IN GENERAL.—Pursuant to section
108(b) of the Indian Self-Determination
and Education Assistance Act, and notwithstanding any other provision of law,
for each fiscal year covered by this Contract, the Secretary shall make available
to the Contractor the funds specified for
the fiscal year under the annual funding
agreement incorporated by reference pursuant to subsection (f)(2) by paying to the
Contractor, on a quarterly basis, one-quarter of the total amount provided for in the
annual funding agreement for that fiscal
year, in a lump-sum payment or as semiannual payments, or any other method of
payment authorized by law, in accordance
with such method as may be requested by
the Contractor and specified in the annual
funding agreement.
‘‘(ii) METHOD OF QUARTERLY PAYMENT.—If
quarterly payments are specified in the
annual funding agreement incorporated by
reference pursuant to subsection (f)(2),
each quarterly payment made pursuant to
clause (i) shall be made on the first day of
each quarter of the fiscal year, except that
in any case in which the Contract year coincides with the Federal fiscal year, payment for the first quarter shall be made
not later than the date that is 10 calendar
days after the date on which the Office of
Management and Budget apportions the
appropriations for the fiscal year for the
programs, services, functions, and activities subject to this Contract.

Page 722

‘‘(iii) APPLICABILITY.—Chapter 39 of title
31, United States Code, shall apply to the
payment of funds due under this Contract
and the annual funding agreement referred
to in clause (i).
‘‘(7) RECORDS AND MONITORING.—
‘‘(A) IN GENERAL.—Except for previously
provided copies of tribal records that the
Secretary demonstrates are clearly required
to be maintained as part of the recordkeeping system of the Department of the Interior or the Department of Health and
Human Services (or both), records of the
Contractor shall not be considered Federal
records for purposes of chapter 5 of title 5,
United States Code.
‘‘(B) RECORDKEEPING SYSTEM.—The Contractor shall maintain a recordkeeping system and, upon reasonable advance request,
provide reasonable access to such records to
the Secretary.
‘‘(C) RESPONSIBILITIES OF CONTRACTOR.—
The Contractor shall be responsible for managing the day-to-day operations conducted
under this Contract and for monitoring activities conducted under this Contract to ensure compliance with the Contract and applicable Federal requirements. With respect
to the monitoring activities of the Secretary, the routine monitoring visits shall
be limited to not more than two performance monitoring visits for this Contract by
the head of each operating division, departmental bureau, or departmental agency, or
duly authorized representative of such head
unless—
‘‘(i) the Contractor agrees to one or more
additional visits; or
‘‘(ii) the appropriate official determines
that there is reasonable cause to believe
that grounds for reassumption of the Contract, suspension of Contract payments, or
other serious Contract performance deficiency may exist.
No additional visit referred to in clause (ii)
shall be made until such time as reasonable
advance notice that includes a description of
the nature of the problem that requires the
additional visit has been given to the Contractor.
‘‘(8) PROPERTY.—
‘‘(A) IN GENERAL.—As provided in section
105(f) of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450j(f)),1
at the request of the Contractor, the Secretary may make available, or transfer to
the Contractor, all reasonably divisible real
property, facilities, equipment, and personal
property that the Secretary has used to provide or administer the programs, services,
functions, and activities covered by this
Contract. A mutually agreed upon list specifying the property, facilities, and equipment
so furnished shall also be prepared by the
Secretary, with the concurrence of the Contractor, and periodically revised by the Secretary, with the concurrence of the Contractor.
‘‘(B) RECORDS.—The Contractor shall
maintain a record of all property referred to

Page 723

TITLE 25—INDIANS

in subparagraph (A) or other property acquired by the Contractor under section
105(f)(2)(A) of such Act for purposes of replacement.
‘‘(C) JOINT USE AGREEMENTS.—Upon the request of the Contractor, the Secretary and
the Contractor shall enter into a separate
joint use agreement to address the shared
use by the parties of real or personal property that is not reasonably divisible.
‘‘(D) ACQUISITION OF PROPERTY.—The Contractor is granted the authority to acquire
such excess property as the Contractor may
determine to be appropriate in the judgment
of the Contractor to support the programs,
services, functions, and activities operated
pursuant to this Contract.
‘‘(E) CONFISCATED OR EXCESS PROPERTY.—
The Secretary shall assist the Contractor in
obtaining such confiscated or excess property as may become available to tribes, tribal organizations, or local governments.
‘‘(F) SCREENER IDENTIFICATION CARD.—A
screener identification card (General Services Administration form numbered 2946)
shall be issued to the Contractor not later
than the effective date of this Contract. The
designated official shall, upon request, assist
the Contractor in securing the use of the
card.
‘‘(G) CAPITAL EQUIPMENT.—The Contractor
shall determine the capital equipment,
leases, rentals, property, or services the
Contractor requires to perform the obligations of the Contractor under this subsection, and shall acquire and maintain
records of such capital equipment, property
rentals, leases, property, or services through
applicable procurement procedures of the
Contractor.
‘‘(9) AVAILABILITY OF FUNDS.—Notwithstanding any other provision of law, any funds
provided under this Contract—
‘‘(A) shall remain available until expended;
and
‘‘(B) with respect to such funds, no further—
‘‘(i) approval by the Secretary, or
‘‘(ii) justifying documentation from the
Contractor,
shall be required prior to the expenditure of
such funds.
‘‘(10) TRANSPORTATION.—Beginning on the effective date of this Contract, the Secretary
shall authorize the Contractor to obtain interagency motor pool vehicles and related services for performance of any activities carried
out under this Contract.
‘‘(11) FEDERAL PROGRAM GUIDELINES, MANUALS, OR POLICY DIRECTIVES.—Except as specifically provided in the Indian Self-Determination and Education Assistance Act (25 U.S.C.
450 et seq.) 1 the Contractor is not required to
abide by program guidelines, manuals, or policy directives of the Secretary, unless otherwise agreed to by the Contractor and the Secretary, or otherwise required by law.
‘‘(12) DISPUTES.—
‘‘(A) THIRD-PARTY MEDIATION DEFINED.—
For the purposes of this Contract, the term

§ 5329

‘third-party mediation’ means a form of mediation whereby the Secretary and the Contractor nominate a third party who is not
employed by or significantly involved with
the Secretary of the Interior, the Secretary
of Health and Human Services, or the Contractor, to serve as a third-party mediator
to mediate disputes under this Contract.
‘‘(B) ALTERNATIVE PROCEDURES.—In addition to, or as an alternative to, remedies and
procedures prescribed by section 110 of the
Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450m–1),1 the parties to this Contract may jointly—
‘‘(i) submit disputes under this Contract
to third-party mediation;
‘‘(ii) submit the dispute to the adjudicatory body of the Contractor, including the
tribal court of the Contractor;
‘‘(iii) submit the dispute to mediation
processes provided for under the laws, policies, or procedures of the Contractor; or
‘‘(iv) use the administrative dispute resolution processes authorized in subchapter
IV of chapter 5 of title 5, United States
Code.
‘‘(C) EFFECT OF DECISIONS.—The Secretary
shall be bound by decisions made pursuant
to the processes set forth in subparagraph
(B), except that the Secretary shall not be
bound by any decision that significantly
conflicts with the interests of Indians or the
United States.
‘‘(13) ADMINISTRATIVE PROCEDURES OF CONTRACTOR.—Pursuant to the Indian Civil Rights
Act of 1968 (25 U.S.C. 1301 et seq.), the laws,
policies, and procedures of the Contractor
shall provide for administrative due process
(or the equivalent of administrative due process) with respect to programs, services, functions, and activities that are provided by the
Contractor pursuant to this Contract.
‘‘(14) SUCCESSOR ANNUAL FUNDING AGREEMENT.—
‘‘(A) IN GENERAL.—Negotiations for a successor annual funding agreement, provided
for in subsection (f)(2), shall begin not later
than 120 days prior to the conclusion of the
preceding annual funding agreement. Except
as provided in section 105(c)(2) of the Indian
Self-Determination and Education Assistance Act (25 U.S.C. 450j(c)(2)) 1 the funding
for each such successor annual funding
agreement shall only be reduced pursuant to
section 106(b) of such Act (25 U.S.C.
450j–1(b)).1
‘‘(B) INFORMATION.—The Secretary shall
prepare and supply relevant information,
and promptly comply with any request by
the Contractor for information that the Contractor reasonably needs to determine the
amount of funds that may be available for a
successor annual funding agreement, as provided for in subsection (f)(2) of this Contract.
‘‘(15) CONTRACT REQUIREMENTS; APPROVAL BY
SECRETARY.—
‘‘(A) IN GENERAL.—Except as provided in
subparagraph (B), for the term of the Contract, section 2103 of the Revised Statutes
(25 U.S.C. 81), section 16 of the Act of June

§ 5329

TITLE 25—INDIANS

18, 1934 (48 Stat. 987, chapter 576; 25 U.S.C.
476),1 and the Act of July 3, 1952 (25 U.S.C.
82a), shall not apply to any contract entered
into in connection with this Contract.
‘‘(B) REQUIREMENTS.—Each Contract entered into by the Contractor with a third
party in connection with performing the obligations of the Contractor under this Contract shall—
‘‘(i) be in writing;
‘‘(ii) identify the interested parties, the
authorities of such parties, and purposes of
the Contract;
‘‘(iii) state the work to be performed
under the Contract; and
‘‘(iv) state the process for making any
claim, the payments to be made, and the
terms of the Contract, which shall be
fixed.
‘‘(c) OBLIGATION OF THE CONTRACTOR.—
‘‘(1) CONTRACT PERFORMANCE.—Except as provided in subsection (d)(2), the Contractor shall
perform the programs, services, functions, and
activities as provided in the annual funding
agreement under subsection (f)(2) of this Contract.
‘‘(2) AMOUNT OF FUNDS.—The total amount of
funds to be paid under this Contract pursuant
to section 106(a) shall be determined in an annual funding agreement entered into between
the Secretary and the Contractor, which shall
be incorporated into this Contract.
‘‘(3) CONTRACTED PROGRAMS.—Subject to the
availability of appropriated funds, the Contractor shall administer the programs, services, functions, and activities identified in this
Contract and funded through the annual funding agreement under subsection (f)(2).
‘‘(4) TRUST SERVICES FOR INDIVIDUAL INDIANS.—
‘‘(A) IN GENERAL.—To the extent that the
annual funding agreement provides funding
for the delivery of trust services to individual Indians that have been provided by
the Secretary, the Contractor shall maintain at least the same level of service as the
Secretary provided for such individual Indians, subject to the availability of appropriated funds for such services.
‘‘(B) TRUST SERVICES TO INDIVIDUAL INDIANS.—For the purposes of this paragraph
only, the term ‘trust services for individual
Indians’ means only those services that pertain to land or financial management connected to individually held allotments.
‘‘(5) FAIR AND UNIFORM SERVICES.—The Contractor shall provide services under this Contract in a fair and uniform manner and shall
provide access to an administrative or judicial
body empowered to adjudicate or otherwise resolve complaints, claims, and grievances
brought by program beneficiaries against the
Contractor arising out of the performance of
the Contract.
‘‘(d) OBLIGATION OF THE UNITED STATES.—
‘‘(1) TRUST RESPONSIBILITY.—
‘‘(A) IN GENERAL.—The United States reaffirms the trust responsibility of the United
States to the llllll Indian tribe(s) to
protect and conserve the trust resources of

Page 724

the Indian tribe(s) and the trust resources of
individual Indians.
‘‘(B) CONSTRUCTION OF CONTRACT.—Nothing
in this Contract may be construed to terminate, waive, modify, or reduce the trust responsibility of the United States to the
tribe(s) or individual Indians. The Secretary
shall act in good faith in upholding such
trust responsibility.
‘‘(2) GOOD FAITH.—To the extent that health
programs are included in this Contract, and
within available funds, the Secretary shall act
in good faith in cooperating with the Contractor to achieve the goals set forth in the Indian Health Care Improvement Act (25 U.S.C.
1601 et seq.).
‘‘(3) PROGRAMS RETAINED.—As specified in
the annual funding agreement, the United
States hereby retains the programs, services,
functions, and activities with respect to the
tribe(s) that are not specifically assumed by
the Contractor in the annual funding agreement under subsection (f)(2).
‘‘(e) OTHER PROVISIONS.—
‘‘(1) DESIGNATED OFFICIALS.—Not later than
the effective date of this Contract, the United
States shall provide to the Contractor, and the
Contractor shall provide to the United States,
a written designation of a senior official to
serve as a representative for notices, proposed
amendments to the Contract, and other purposes for this Contract.
‘‘(2) CONTRACT MODIFICATIONS OR AMENDMENT.—
‘‘(A) IN GENERAL.—Except as provided in
subparagraph (B), no modification to this
Contract shall take effect unless such modification is made in the form of a written
amendment to the Contract, and the Contractor and the Secretary provide written
consent for the modification.
‘‘(B) EXCEPTION.—The addition of supplemental funds for programs, functions, and
activities (or portions thereof) already included in the annual funding agreement
under subsection (f)(2), and the reduction of
funds pursuant to section 106(b)(2), shall not
be subject to subparagraph (A).
‘‘(3) OFFICIALS NOT TO BENEFIT.—No Member
of Congress, or resident commissioner, shall be
admitted to any share or part of any contract
executed pursuant to this Contract, or to any
benefit that may arise from such contract.
This paragraph may not be construed to apply
to any contract with a third party entered
into under this Contract if such contract is
made with a corporation for the general benefit of the corporation.
‘‘(4) COVENANT AGAINST CONTINGENT FEES.—
The parties warrant that no person or selling
agency has been employed or retained to solicit or secure any contract executed pursuant
to this Contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide
employees or bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business.
‘‘(f) ATTACHMENTS.—

Page 725

§ 5329

TITLE 25—INDIANS

‘‘(1) APPROVAL OF CONTRACT.—Unless previously furnished to the Secretary, the resolution of the llllll Indian tribe(s) authorizing the contracting of the programs, services, functions, and activities identified in this
Contract is attached to this Contract as attachment 1.
‘‘(2) ANNUAL FUNDING AGREEMENT.—
‘‘(A) IN GENERAL.—The annual funding
agreement under this Contract shall only
contain—
‘‘(i) terms that identify the programs,
services, functions, and activities to be
performed or administered, the general
budget category assigned, the funds to be
provided, and the time and method of payment; and
‘‘(ii) subject to subsections (a) and (b) of
section 102 of the Indian Self-Determination and Education Assistance Act (25
U.S.C. 5321), such other provisions, including a brief description of the programs,
services, functions, and activities to be
performed (including those supported by
financial resources other than those provided by the Secretary), to which the parties agree.
‘‘(B) INCORPORATION BY REFERENCE.—The
annual funding agreement is hereby incorporated in its entirety in this Contract and
attached to this Contract as attachment 2.’’
(Pub. L. 93–638, title I, § 108, as added Pub. L.
103–413, title I, § 103, Oct. 25, 1994, 108 Stat. 4260;
amended Pub. L. 106–568, title VIII, § 812(a), Dec.
27, 2000, 114 Stat. 2917; Pub. L. 116–180, title II,
§ 205, Oct. 21, 2020, 134 Stat. 881.)
Editorial Notes
REFERENCES IN TEXT
This chapter, referred to in subsec. (a), was in the
original ‘‘this Act’’, meaning Pub. L. 93–638, Jan. 4,
1975, 88 Stat. 2203, known as the Indian Self-Determination and Education Assistance Act, which is classified
principally to this chapter. For complete classification
of this Act to the Code, see Short Title note set out
under section 5301 of this title and Tables.
The Indian Self-Determination and Education Assistance Act, referred to in the provisions of subsec. (c) setting out the model agreement, is Pub. L. 93–638, Jan. 4,
1975, 88 Stat. 2203, which was classified principally to
subchapter II (§ 450 et seq.) of chapter 14 of this title
prior to editorial reclassification as this chapter. Title
I of the Act was classified principally to part A (§ 450f
et seq.) of chapter 14 of this title prior to editorial reclassification as this subchapter. Sections 105, 106, and
110 of the Act were classified to sections 450j, 450j–1,
and 450m–1, respectively, of this title prior to editorial
reclassification as sections 5324, 5325, and 5331, respectively, of this title. Section 102(a) of the Act is classified to section 5321(a) of this title. Section 108(b) of the
Act is classified to subsec. (b) of this section. For complete classification of this Act to the Code, see Short
Title note set out under section 5301 of this title and
Tables.
The Indian Civil Rights Act of 1968, referred to in section 1(b)(13) of the provisions of subsec. (c) setting out
the model agreement, is title II of Pub. L. 90–284, Apr.
11, 1968, 82 Stat. 77, which is classified generally to subchapter I (§ 1301 et seq.) of chapter 15 of this title. For
complete classification of this Act to the Code, see Tables.
Section 16 of the Act of June 18, 1934, referred to in
section 1(b)(15)(A) of the provisions of subsec. (c) set-

ting out the model agreement, is section 16 of act June
18, 1934, ch. 576, 48 Stat. 987, which was classified to section 476 of this title prior to editorial reclassification
as section 5123 of this title.
The Act of July 3, 1952, referred to in section
1(b)(15)(A) of the provisions of subsec. (c) setting out
the model agreement, is act July 3, 1952, ch. 549, 66
Stat. 323, which enacted section 82a of this title and
provisions set out as a note under section 82a of this
title.
The Indian Health Care Improvement Act, referred to
in section 1(d)(2) of the provisions of subsec. (c) setting
out the model agreement, is Pub. L. 94–437, Sept. 30,
1976, 90 Stat. 1400, which is classified principally to
chapter 18 (§ 1601 et seq.) of this title. For complete
classification of this Act to the Code, see Short Title
note set out under section 1601 of this title and Tables.
CODIFICATION
Section was formerly classified to section 450l of this
title prior to editorial reclassification and renumbering
as this section.
PRIOR PROVISIONS
A prior section 108 of Pub. L. 93–638 was renumbered
section 5(f) and was classified to section 450c(f) of this
title prior to editorial reclassification as section 5305(f)
of this title.
AMENDMENTS
2020—Subsec. (a)(2). Pub. L. 116–180, § 205(1), inserted
‘‘subject to subsections (a) and (b) of section 5321 of this
title,’’ before ‘‘contain’’.
Subsec. (c). Pub. L. 116–180, § 205(3), substituted ‘‘two
performance monitoring visits’’ for ‘‘one performance
monitoring visit’’ in the introductory provisions of section 1(b)(7)(C) of the provisions setting out the model
agreement.
Pub. L. 116–180, § 205(2), inserted ‘‘subject to subsections (a) and (b) of section 102 of the Indian Self-Determination and Education Assistance Act (25 U.S.C.
5321),’’ before ‘‘such other provisions’’ in section
1(f)(2)(A)(ii) of the provisions setting out the model
agreement.
2000—Subsec. (c). Pub. L. 106–568 substituted
‘‘, section 16 of the Act of June 18, 1934’’ for ‘‘and section 16 of the Act of June 18, 1934’’ and ‘‘and the Act of
July 3, 1952 (25 U.S.C. 82a), shall not apply’’ for ‘‘shall
not apply’’ in section 1(b)(15)(A) of the provisions setting out the model agreement.

Statutory Notes and Related Subsidiaries
QUARTERLY PAYMENTS OF FUNDS TO TRIBES
Pub. L. 105–83, title III, § 311, Nov. 14, 1997, 111 Stat.
1590, provided that: ‘‘Notwithstanding Public Law
103–413 [see Short Title of 1994 Amendment note set out
under section 5301 of this title], quarterly payments of
funds to tribes and tribal organizations under annual
funding agreements pursuant to section 108 of Public
Law 93–638 [25 U.S.C. 5329], as amended, beginning in
fiscal year 1998 and therafter [sic], may be made on the
first business day following the first day of a fiscal
quarter.’’
Similar provisions were contained in the following
prior appropriation acts:
Pub. L. 104–208, div. A, title I, § 101(d) [title III, § 311],
Sept. 30, 1996, 110 Stat. 3009–181, 3009–221.
Pub. L. 104–134, title I, § 101(c) [title III, § 311], Apr. 26,
1996, 110 Stat. 1321–156, 1321–197; renumbered title I,
Pub. L. 104–140, § 1(a), May 2, 1996, 110 Stat. 1327.

§ 5330

TITLE 25—INDIANS

§ 5330. Rescission of contract or grant and assumption of control of program, etc.; authority; grounds; procedure; correction of violation as prerequisite to new contract or grant
agreement; construction with occupational
safety and health requirements
Each contract or grant agreement entered
into pursuant to sections 5321 and 5322 1 of this
title shall provide that in any case where the appropriate Secretary determines that the tribal
organization’s performance under such contract
or grant agreement involves (1) the violation of
the rights or endangerment of the health, safety, or welfare of any persons; or (2) gross negligence or mismanagement in the handling or
use of funds provided to the tribal organization
pursuant to such contract or grant agreement,
or in the management of trust fund, trust lands
or interests in such lands pursuant to such contract or grant agreement, such Secretary may,
under regulations prescribed by him and after
providing notice and a hearing on the record to
such tribal organization, rescind such contract
or grant agreement, in whole or in part, and assume or resume control or operation of the program, activity, or service involved if he determines that the tribal organization has not taken
corrective action as prescribed by the Secretary
to remedy the contract deficiency, except that
the appropriate Secretary may, upon written
notice to a tribal organization, and the tribe
served by the tribal organization, immediately
rescind a contract or grant, in whole or in part,
and resume control or operation of a program,
activity, function, or service, if the Secretary
finds that (i) there is an immediate threat of imminent harm to the safety of any person, or imminent substantial and irreparable harm to
trust funds, trust lands, or interests in such
lands, and (ii) such threat arises from the failure
of the contractor to fulfill the requirements of
the contract. In such cases, the Secretary shall
provide the tribal organization with a hearing
on the record within ten days or such later date
as the tribal organization may approve. Such
Secretary may decline to enter into a new contract or grant agreement and retain control of
such program, activity, or service until such
time as he is satisfied that the violations of
rights or endangerment of health, safety, or welfare which necessitated the rescission has been
corrected. In any hearing or appeal provided for
under this section, the Secretary shall have the
burden of proof to establish, by clearly demonstrating the validity of the grounds for rescinding, assuming, or reassuming the contract
that is the subject of the hearing. Nothing in
this section shall be construed as contravening
the Occupational Safety and Health Act of 1970,
as amended [29 U.S.C. 651 et seq.].
(Pub. L. 93–638, title I, § 109, Jan. 4, 1975, 88 Stat.
2212; Pub. L. 100–581, title II, § 211, Nov. 1, 1988,
102 Stat. 2941; Pub. L. 101–301, § 2(a)(10), May 24,
1990, 104 Stat. 207; Pub. L. 103–413, title I, § 104(1),
Oct. 25, 1994, 108 Stat. 4268.)
1 See

Codification note below.

Page 726
Editorial Notes
REFERENCES IN TEXT

The Occupational Safety and Health Act of 1970, referred to in text, is Pub. L. 91–596, Dec. 29, 1970, 84 Stat.
1590, which is classified principally to chapter 15 (§ 651
et seq.) of Title 29, Labor. For complete classification
of this Act to the Code, see Short Title note set out
under section 651 of Title 29 and Tables.
CODIFICATION
Sections 5321 and 5322 of this title, referred to in text,
was in the original ‘‘sections 102, 103, and 104 of this
Act’’, and was translated as meaning sections 102 and
103 of Pub. L. 93–638 because section 104 of Pub. L. 93–638
was renumbered section 103 and former section 103(a)
and (b) and the first sentence of section 103(c) of Pub.
L. 93–638 were repealed and the remainder of section 103
of Pub. L. 93–638 was redesignated as section 102(d) by
Pub. L. 100–472, title II, §§ 201(b)(1), 202, Oct. 5, 1988, 102
Stat. 2289.
Section was formerly classified to section 450m of
this title prior to editorial reclassification and renumbering as this section.
AMENDMENTS
1994—Pub. L. 103–413 inserted ‘‘or in the management
of trust fund, trust lands or interests in such lands pursuant to such contract or grant agreement,’’ after
‘‘pursuant to such contract or grant agreement,’’ and
‘‘, in whole or in part,’’ after ‘‘rescind such contract or
grant agreement’’, substituted ‘‘action as prescribed by
the Secretary to remedy the contract deficiency, except that the appropriate Secretary may, upon written
notice to a tribal organization, and the tribe served by
the tribal organization, immediately rescind a contract
or grant, in whole or in part, and resume control or operation of a program, activity, function, or service, if
the Secretary finds that (i) there is an immediate
threat of imminent harm to the safety of any person,
or imminent substantial and irreparable harm to trust
funds, trust lands, or interests in such lands, and (ii)
such threat arises from the failure of the contractor to
fulfill the requirements of the contract. In such cases,
the Secretary’’ for ‘‘action as prescribed by him: Provided, That the appropriate Secretary may, upon notice
to a tribal organization, immediately rescind a contract or grant and resume control or operation of a program, activity, or service if he finds that there is an
immediate threat to safety and, in such cases, he’’,
struck out second period after ‘‘the tribal organization
may approve’’, and inserted before last sentence ‘‘In
any hearing or appeal provided for under this section,
the Secretary shall have the burden of proof to establish, by clearly demonstrating the validity of the
grounds for rescinding, assuming, or reassuming the
contract that is the subject of the hearing.’’
1990—Pub. L. 101–301 substituted ‘‘providing notice
and a hearing’’ for ‘‘providing notice and hearing’’.
1988—Pub. L. 100–581 inserted ‘‘on the record’’ after
‘‘providing notice and hearing’’.
Pub. L. 100–581 which directed amendment of this section by substituting ‘‘in such cases, he shall provide
the tribal organization with a hearing on the record
within ten days or such later date as the tribal organization may approve.’’ for ‘‘in such cases, he shall hold
a hearing within ten days thereof’’ was executed by
substituting the new language for ‘‘in such cases, he
shall hold a hearing on such action within ten days
thereof’’ to reflect the probable intent of Congress.

§ 5331. Contract disputes and claims
(a) Civil actions; concurrent jurisdiction; relief
The United States district courts shall have
original jurisdiction over any civil action or
claim against the appropriate Secretary arising
under this chapter and, subject to the provisions

Page 727

§ 5331

TITLE 25—INDIANS

of subsection (d) of this section and concurrent
with the United States Court of Claims, over
any civil action or claim against the Secretary
for money damages arising under contracts authorized by this chapter. In an action brought
under this paragraph, the district courts may
order appropriate relief including money damages, injunctive relief against any action by an
officer of the United States or any agency thereof contrary to this chapter or regulations promulgated thereunder, or mandamus to compel
an officer or employee of the United States, or
any agency thereof, to perform a duty provided
under this chapter or regulations promulgated
hereunder (including immediate injunctive relief to reverse a declination finding under section 5321(a)(2) of this title or to compel the Secretary to award and fund an approved self-determination contract).
(b) Revision of contracts
The Secretary shall not revise or amend a selfdetermination contract with a tribal organization without the tribal organization’s consent.
(c) Application of laws to administrative appeals
The Equal Access to Justice Act (Publc 1 Law
96–481, Act of October 1,1 1980; 92 1 Stat. 2325, as
amended), section 504 of title 5, and section 2412
of title 28 shall apply to administrative appeals
pending on or filed after October 5, 1988, by tribal organizations regarding self-determination
contracts.
(d) Application of chapter 71 of title 41
Chapter 71 of title 41 shall apply to self-determination contracts, except that all administrative appeals relating to such contracts shall be
heard by the Interior Board of Contract Appeals
established pursuant to section 8 of such Act (41
U.S.C. 607).2
(e) Application of subsection (d)
Subsection (d) of this section shall apply to
any case pending or commenced on or after
March 17, 1986, before the Boards of Contract Appeals of the Department of the Interior or the
Department of Health and Human Services 2 except that in any such cases finally disposed of
before October 5, 1988, the thirty-day period referred to in section 504(a)(2) of title 5 shall be
deemed to commence on October 5, 1988.
(Pub. L. 93–638, title I, § 110, as added Pub. L.
100–472, title II, § 206(a), Oct. 5, 1988, 102 Stat.
2294; amended Pub. L. 100–581, title II, § 212, Nov.
1, 1988, 102 Stat. 2941; Pub. L. 101–301, §§ 1(a)(2),
2(b), May 24, 1990, 104 Stat. 206, 207; Pub. L.
103–413, title I, § 104(2), (3), Oct. 25, 1994, 108 Stat.
4268.)
Editorial Notes
REFERENCES IN TEXT
This chapter, referred to in subsec. (a), was in the
original ‘‘this Act’’, meaning Pub. L. 93–638, Jan. 4,
1975, 88 Stat. 2203, known as the Indian Self-Determination and Education Assistance Act, which is classified
principally to this chapter. For complete classification
of this Act to the Code, see Short Title note set out
under section 5301 of this title and Tables.
1 So in original. Probably should be ‘‘Public’’, ‘‘21,’’, and ‘‘94’’,
respectively.
2 See References in Text note below.

The Equal Access to Justice Act, referred to in subsec. (c), is Pub. L. 96–481, title II, Oct. 21, 1980, 94 Stat.
2325. For complete classification of this Act to the
Code, see Short Title note set out under section 504 of
Title 5, Government Organization and Employees, and
Tables.
The Interior Board of Contract Appeals established
pursuant to section 8 of such Act (41 U.S.C. 607), referred to in subsec. (d), terminated effective 1 year
after Jan. 6, 2006, pursuant to section 847(g) of Pub. L.
109–163, set out as an Effective Date of 2006 Amendment
note under section 5372a of Title 5, Government Organization and Employees. Any reference to such Board to
be treated as referring to the Civilian Board of Contract Appeals pursuant to Pub. L. 109–163, div. A, title
VIII, § 847(e), Jan. 6, 2006, 119 Stat. 3394, formerly set out
in a note under section 607 of former Title 41, Public
Contracts. The Civilian Board of Contract Appeals was
established by section 42 of Pub. L. 93–400 which was
classified to section 438 of former Title 41 prior to being
repealed and restated as section 7105(b) of Title 41, Public Contracts, by Pub. L. 111–350, §§ 3, 7(b), Jan. 4, 2011,
124 Stat. 3677, 3855.
The Boards of Contract Appeals of the Department of
the Interior or the Department of Health and Human
Services, referred to in subsec. (e), terminated effective
1 year after Jan. 6, 2006, pursuant to section 847(g) of
Pub. L. 109–163, set out as an Effective Date of 2006
Amendment note under section 5372a of Title 5, Government Organization and Employees. Any reference to
such Boards to be treated as referring to the Civilian
Board of Contract Appeals pursuant to Pub. L. 109–163,
div. A, title VIII, § 847(e), Jan. 6, 2006, 119 Stat. 3394, formerly set out in a note under section 607 of former
Title 41, Public Contracts. The Civilian Board of Contract Appeals was established by section 42 of Pub. L.
93–400 which was classified to section 438 of former
Title 41 prior to being repealed and restated as section
7105(b) of Title 41, Public Contracts, by Pub. L. 111–350,
§§ 3, 7(b), Jan. 4, 2011, 124 Stat. 3677, 3855.
October 5, 1988, referred to in subsec. (e), was in the
original ‘‘the date of enactment of these amendments’’
and ‘‘the date of enactment of this subsection’’, meaning the date of enactment of the Indian Self-Determination and Education Assistance Act Amendments
of 1988, Pub. L. 100–472, which enacted this section.
CODIFICATION
Section was formerly classified to section 450m–1 of
this title prior to editorial reclassification and renumbering as this section.
In subsec. (d), ‘‘Chapter 71 of title 41’’ substituted for
‘‘The Contract Disputes Act (Public Law 95–563, Act of
November 1, 1978; 92 Stat. 2383, as amended)’’ on authority of Pub. L. 111–350, § 6(c), Jan. 4, 2011, 124 Stat. 3854,
which Act enacted Title 41, Public Contracts.
PRIOR PROVISIONS
A prior section 110 of Pub. L. 93–638 was renumbered
section 111 by Pub. L. 100–472 and is classified to section
5332 of this title.
AMENDMENTS
1994—Subsec. (a). Pub. L. 103–413, § 104(2), inserted before period at end ‘‘(including immediate injunctive relief to reverse a declination finding under section
5321(a)(2) of this title or to compel the Secretary to
award and fund an approved self-determination contract)’’.
Subsec. (d). Pub. L. 103–413, § 104(3), inserted before period at end ‘‘, except that all administrative appeals
relating to such contracts shall be heard by the Interior Board of Contract Appeals established pursuant to
section 8 of such Act (41 U.S.C. 607)’’.
1990—Subsec. (a). Pub. L. 101–301, § 1(a)(2), made technical correction to directory language of Pub. L.
100–581, § 212(a). See 1988 Amendment note below.
Subsec. (b). Pub. L. 101–301, § 2(b), amended subsec. (b)
generally. Prior to amendment, subsec. (b) read as fol-

§ 5332

TITLE 25—INDIANS

lows: ‘‘Unless otherwise agreed to by the resolution of
tribal organization, the Secretary shall not revise or
amend a self-determination contract with such tribal
organization.’’
Subsec. (c). Pub. L. 101–301, § 1(a)(2), made technical
correction to directory language of Pub. L. 100–581,
§ 212(c). See 1988 Amendment note below.
1988—Subsec. (a). Pub. L. 100–581, § 212(a), as amended
by Pub. L. 101–301, § 1(a)(2), substituted ‘‘over any civil
action’’ for ‘‘over civil action’’ after ‘‘Court of
Claims,’’.
Subsec. (b). Pub. L. 100–581, § 212(b), substituted ‘‘of
tribal organization’’ for ‘‘of an Indian tribe’’ and ‘‘such
tribal organization’’ for ‘‘such tribe’’.
Subsec. (c). Pub. L. 100–581, § 212(c), as amended by
Pub. L. 101–301, § 1(a)(2), amended subsec. (c) generally.
Prior to amendment, subsec. (c) read as follows: ‘‘The
Equal Access to Justice Act (Public Law 96–481, Act of
October 1 [21], 1980; 94 Stat. 2325, as amended) shall
apply to administrative appeals by tribal organizations
regarding self-determination contracts.’’

§ 5332. Sovereign immunity
rights unaffected

and

trusteeship

Nothing in this chapter shall be construed as—
(1) affecting, modifying, diminishing, or otherwise impairing the sovereign immunity from
suit enjoyed by an Indian tribe; or
(2) authorizing or requiring the termination
of any existing trust responsibility of the
United States with respect to the Indian people.

Page 728

allocations made from such donations. This report shall include administrative costs and
other pertinent data.
(Feb. 14, 1931, ch. 171, 46 Stat. 1106; Pub. L.
90–333, June 8, 1968, 82 Stat. 171.)
Editorial Notes
CODIFICATION
Section was not enacted as part of the JohnsonO’Malley Act which comprises this subchapter, nor as
part of the Indian Self-Determination and Education
Assistance Act which comprises this chapter.
Section was formerly classified to section 451 of this
title prior to editorial reclassification and renumbering
as this section.
AMENDMENTS
1968—Pub. L. 90–333 expanded area of permissible uses
to which Secretary may put donated property by substituting provisions allowing inclusion of programs
otherwise authorized by law intended to benefit Indians
for provisions limiting permissible uses to programs
otherwise authorized by law only if it could be shown
that property would benefit a particular Indian institution or individual, and inserted provisions for an annual report to Congress on donations received and allocations made from such donations.
Statutory Notes and Related Subsidiaries
TERMINATION OF REPORTING REQUIREMENTS

(Pub. L. 93–638, title I, § 111, formerly § 110, Jan.
4, 1975, 88 Stat. 2213; renumbered § 111, Pub. L.
100–472, title II, § 206(b), Oct. 5, 1988, 102 Stat.
2295.)

For termination, effective May 15, 2000, of provisions
in this section relating to making an annual report to
Congress, see section 3003 of Pub. L. 104–66, as amended,
set out as a note under section 1113 of Title 31, Money
and Finance, and page 113 of House Document No. 103–7.

Editorial Notes

§ 5342. Contracts for education, medical attention, relief and social welfare of Indians

REFERENCES IN TEXT
This chapter, referred to in text, was in the original
‘‘this Act’’, meaning Pub. L. 93–638, Jan. 4, 1975, 88 Stat.
2203, known as the Indian Self-Determination and Education Assistance Act, which is classified principally to
this chapter. For complete classification of this Act to
the Code, see Short Title note set out under section
5301 of this title and Tables.
CODIFICATION
Section was formerly classified to section 450n of this
title prior to editorial reclassification and renumbering
as this section.

SUBCHAPTER II—CONTRACTS WITH
STATES
Editorial Notes
CODIFICATION
Subchapter, consisting of sections 5341 to 5347 of this
title, was not enacted as part of the Indian Self-Determination and Education Assistance Act which comprises this chapter.

§ 5341. Donations for Indians; use of gifts; annual
report to Congress
The Secretary of the Interior may accept donations of funds or other property for the advancement of the Indian race, and he may use
the donated property in accordance with the
terms of the donation in furtherance of any program authorized by other provision of law for
the benefit of Indians. An annual report shall be
made to the Congress on donations received and

The Secretary of the Interior is authorized, in
his discretion, to enter into a contract or contracts with any State or Territory, or political
subdivision thereof, or with any State university, college, or school, or with any appropriate
State or private corporation, agency, or institution, for the education, medical attention, agricultural assistance, and social welfare, including
relief of distress, of Indians in such State or Territory, through the agencies of the State or Territory or of the corporations and organizations
hereinbefore named, and to expend under such
contract or contracts, moneys appropriated by
Congress for the education, medical attention,
agricultural assistance, and social welfare, including relief of distress, of Indians in such
State or Territory.
(Apr. 16, 1934, ch. 147, § 1, 48 Stat. 596; June 4,
1936, ch. 490, § 1, 49 Stat. 1458.)
Editorial Notes
CODIFICATION
Section was formerly classified to section 452 of this
title prior to editorial reclassification and renumbering
as this section.
AMENDMENTS
1936—Act June 4, 1936, substituted ‘‘with any State or
Territory, or political subdivision thereof, or with any
State university, college, or school, or with any appropriate State or private corporation, agency, or institution’’, ‘‘through the agencies of the State or Territory

Page 729

§ 5346

TITLE 25—INDIANS

or of the corporations and organizations hereinbefore
named,’’, and ‘‘such State or Territory’’ for ‘‘any State
or Territory having legal authority so to do,’’,
‘‘through the qualified agencies of such State or Territory,’’, and ‘‘such State’’, respectively.
Statutory Notes and Related Subsidiaries
SHORT TITLE
Sections 5342 to 5348 of this title popularly known as
the ‘‘Johnson-O’Malley Act’’, see note under section
5301 of this title.

the purpose of carrying the provisions of sections 5342 to 5348 of this title into effect: Provided, That such minimum standards of service
are not less than the highest maintained by the
States or Territories within which said contract
or contracts, as herein provided, are to be effective.
(Apr. 16, 1934, ch. 147, § 3, 48 Stat. 596; June 4,
1936, ch. 490, § 3, 49 Stat. 1459.)
Editorial Notes

DISTRIBUTION OF PUBLIC SCHOOL ASSISTANCE

CODIFICATION

Pub. L. 100–446, title I, Sept. 27, 1988, 102 Stat. 1795,
provided that: ‘‘notwithstanding any other provision of
law, the amounts available for assistance to public
schools under the Act of April 16, 1934 (48 Stat. 596), as
amended (25 U.S.C. 452 et seq.) [now 25 U.S.C. 5342 et
seq.], shall be distributed on the basis of the formula
recommended by the Assistant Secretary of Indian Affairs in a letter to the Committees on Appropriations
dated June 27, 1988, except that for the fiscal year ending September 30, 1989, the minimum weight factor
shall be 1.1 rather than 1.3 and for the fiscal year ending September 30, 1990, the minimum weight factor
shall be 1.2 rather than 1.3’’.
Similar provisions were contained in the following
prior appropriation act:
Pub. L. 100–202, § 101(g) [title I], Dec. 22, 1987, 101 Stat.
1329–213, 1329–228.

Section was formerly classified to section 454 of this
title prior to editorial reclassification and renumbering
as this section.

LIMITATION ON CONTRACT AUTHORITY
Pub. L. 99–190, § 101(d) [title I], Dec. 19, 1985, 99 Stat.
1224, 1235, provided that: ‘‘notwithstanding any law or
regulation, in allocating funds for aid to public schools
under the Act of April 16, 1934, as amended [25 U.S.C.
5342 et seq.], the Secretary shall enter into contracts
only for the provision of supplementary educational
services for Indian children’’.

§ 5343. Use of Government property by States
and Territories
The Secretary of the Interior, in making any
contract authorized by sections 5342 to 5348 of
this title, may permit such contracting party to
utilize, for the purposes of said sections, existing school buildings, hospitals, and other facilities, and all equipment therein or appertaining
thereto, including livestock and other personal
property owned by the Government, under such
terms and conditions as may be agreed upon for
their use and maintenance.
(Apr. 16, 1934, ch. 147, § 2, 48 Stat. 596; June 4,
1936, ch. 490, § 2, 49 Stat. 1459.)
Editorial Notes
CODIFICATION
Section was formerly classified to section 453 of this
title prior to editorial reclassification and renumbering
as this section.
AMENDMENTS
1936—Act June 4, 1936, substituted ‘‘, may permit
such contracting party’’ for ‘‘with any State or Territory, may permit such State or Territory’’.

§ 5344. Rules and regulations; minimum standards of service
The Secretary of the Interior is authorized to
perform any and all acts and to make such rules
and regulations, including minimum standards
of service, as may be necessary and proper for

AMENDMENTS
1936—Act June 4, 1936, substituted ‘‘within which’’ for
‘‘with which’’.

§ 5345. Contracts for education in public schools;
submission of education plan by contractor
as prerequisite; criteria for approval of plan
by Secretary of the Interior; participation by
non-Indian students
The Secretary of the Interior shall not enter
into any contract for the education of Indians
unless the prospective contractor has submitted
to, and has had approved by the Secretary of the
Interior, an education plan, which plan, in the
determination of the Secretary, contains educational objectives which adequately address
the educational needs of the Indian students
who are to be beneficiaries of the contract and
assures that the contract is capable of meeting
such objectives: Provided, That where students
other than Indian students participate in such
programs, money expended under such contract
shall be prorated to cover the participation of
only the Indian students.
(Apr. 16, 1934, ch. 147, § 4, as added Pub. L. 93–638,
title II, § 202, Jan. 4, 1975, 88 Stat. 2213.)
Editorial Notes
CODIFICATION
Section was formerly classified to section 455 of this
title prior to editorial reclassification and renumbering
as this section.
PRIOR PROVISIONS
A prior section 4 of act Apr. 16, 1934, ch. 147, 48 Stat.
596; June 4, 1936, ch. 490, 49 Stat. 1458, directed Secretary of the Interior to report to Congress any contracts made under provisions of sections 5342 to 5344 of
this title, prior to repeal by Pub. L. 86–533, § 1(15), June
29, 1960, 74 Stat. 248.

§ 5346. Local committee of Indian parents in
school districts having school boards composed of non-Indian majority
(a) Election; functions
Whenever a school district affected by a contract or contracts for the education of Indians
pursuant to sections 5342 to 5348 of this title has
a local school board not composed of a majority
of Indians, the parents of the Indian children enrolled in the school or schools affected by such
contract or contracts shall elect a local committee from among their number. Such com-

§ 5347

TITLE 25—INDIANS

mittee shall fully participate in the development of, and shall have the authority to approve
or disapprove programs to be conducted under
such contract or contracts, and shall carry out
such other duties, and be so structured, as the
Secretary of the Interior shall by regulation
provide: Provided, however, That, whenever a
local Indian committee or committees established pursuant to section 7424(c)(4) of title 20 or
an Indian advisory school board or boards established pursuant to sections 5342 to 5348 of this
title prior to January 4, 1975, exists in such
school district, such committee or board may, in
the discretion of the affected tribal governing
body or bodies, be utilized for the purposes of
this section.
(b) Revocation of contracts
The Secretary of the Interior may, in his discretion, revoke any contract if the contractor
fails to permit a local committee to perform its
duties pursuant to subsection (a) of this section.
(Apr. 16, 1934, ch. 147, § 5, as added Pub. L. 93–638,
title II, § 202, Jan. 4, 1975, 88 Stat. 2213; amended
Pub. L. 103–382, title III, § 393(d), Oct. 20, 1994, 108
Stat. 4027; Pub. L. 107–110, title VII, § 702(e), Jan.
8, 2002, 115 Stat. 1947; Pub. L. 114–95, title IX,
§ 9215(a), Dec. 10, 2015, 129 Stat. 2166.)
Editorial Notes
CODIFICATION
Section was formerly classified to section 456 of this
title prior to editorial reclassification and renumbering
as this section.
PRIOR PROVISIONS
A prior section 5 of act Apr. 16, 1934, ch. 147, 48 Stat.
596, which excluded Oklahoma from the application of
contract provisions, was omitted in the general amendment of act Apr. 16, 1934, by act June 4, 1936, ch. 490, 49
Stat. 1458.
AMENDMENTS
2015—Subsec. (a). Pub. L. 114–95 made technical
amendment to reference in original act which appears
in text as reference to section 7424(c)(4) of title 20.
2002—Subsec. (a). Pub. L. 107–110 substituted reference to section 7424(c)(4) of title 20 for reference to
section 7814(c)(4) of title 20.
1994—Subsec. (a). Pub. L. 103–382 substituted reference to section 7814(c)(4) of title 20 for reference to
section 241dd(b)(2)(B)(ii) of title 20.
Statutory Notes and Related Subsidiaries
EFFECTIVE DATE OF 2002 AMENDMENT
Amendment by Pub. L. 107–110 effective Jan. 8, 2002,
except with respect to certain noncompetitive programs and competitive programs, see section 5 of Pub.
L. 107–110, set out as an Effective Date note under section 6301 of Title 20, Education.

§ 5347. Reimbursement to school districts for
educating non-resident students
Any school district educating Indian students
who are members of recognized Indian tribes,
who do not normally reside in the State in
which such school district is located, and who
are residing in Federal boarding facilities for
the purposes of attending public schools within
such district may, in the discretion of the Secretary of the Interior, be reimbursed by him for

Page 730

the full per capita costs of educating such Indian students.
(Apr. 16, 1934, ch. 147, § 6, as added Pub. L. 93–638,
title II, § 202, Jan. 4, 1975, 88 Stat. 2214.)
Editorial Notes
CODIFICATION
Section was formerly classified to section 457 of this
title prior to editorial reclassification and renumbering
as this section.

§ 5348. Computation of student count
(a) Definitions
For the purposes of sections 5342 to 5348 of this
title, the following definitions apply:
(1) Contracting party
The term ‘‘contracting party’’ means an entity that has a contract through a program
authorized under sections 5342 to 5348 of this
title.
(2) Eligible entity
The term ‘‘eligible entity’’ means an entity
that is eligible to apply for a contract for a
supplemental or operational support program
under sections 5342 to 5348 of this title, as outlined in section 5342 of this title.
(3) Existing contracting party
The term ‘‘existing contracting party’’
means a contracting party that has a contract
under sections 5342 to 5348 of this title that is
in effect on December 31, 2018.
(4) JOM Modernization Act
The term ‘‘JOM Modernization Act’’ means
the Johnson-O’Malley Supplemental Indian
Education Program Modernization Act.
(5) New contracting party
The term ‘‘new contracting party’’ means an
entity that enters into a contract under sections 5342 to 5348 of this title after December
31, 2018.
(6) Secretary
The term ‘‘Secretary’’ means the Secretary
of the Interior.
(b) Determination of the number of eligible Indian students
(1) Initial determinations
(A) In general
The Secretary shall make an initial determination of the number of eligible Indian
students served or potentially served by
each eligible entity in accordance with subparagraph (B).
(B) Process for making the initial determination
(i) Preliminary report
Not later than 180 days after December
31, 2018, the Secretary shall publish a preliminary report describing the number of
eligible Indian students served or potentially served by each eligible entity, using
the most applicable and accurate data (as
determined by the Secretary in consultation with eligible entities) from the fiscal

Page 731

TITLE 25—INDIANS

year preceding the fiscal year for which
the initial determination is to be made
from—
(I) the Bureau of the Census;
(II) the National Center for Education
Statistics; or
(III) the Office of Indian Education of
the Department of Education.
(ii) Data reconciliation
To improve the accuracy of the preliminary report described in clause (i) prior to
publishing, the Secretary shall reconcile
the data described in the preliminary report with—
(I) each existing contracting party’s
data regarding the number of eligible Indian students served by the existing contracting party for the fiscal year preceding the fiscal year for which the initial determination is made; and
(II) identifiable tribal enrollment information.
(iii) Comment period
After publishing the preliminary report
under clause (i) in accordance with clause
(ii), the Secretary shall establish a 60-day
comment period to gain feedback about
the preliminary report from eligible entities, which the Secretary shall take into
consideration in preparing the final report
described in clause (iv).
(iv) Final report
Not later than 120 days after concluding
the consultation described in clause (iii),
the Secretary shall publish a final report
on the initial determination of the number
of eligible Indian students served or potentially served by each eligible entity, including justification for not including any
feedback gained during such consultation,
if applicable.
(2) Subsequent academic years
For each academic year following the fiscal
year for which an initial determination is
made under paragraph (1) to determine the
number of eligible Indian students served or
potentially served by a contracting party, the
Secretary shall determine the number of eligible Indian students served by the contracting
party based on the reported eligible Indian
student count numbers identified through the
reporting process described in subsection (c).
(c) Contracting party student count reporting
compliance
(1) In general
For each academic year following the fiscal
year for which an initial determination is
made under subsection (b) to determine the
number of eligible Indian students served or
potentially served by a contracting party, the
contracting party shall submit to the Secretary a report describing the number of eligible Indian students who were served using
amounts allocated to such party under sections 5342 to 5348 of this title during the previous fiscal year. The report shall also include
an accounting of the amounts and purposes for
which the contract funds were expended.

§ 5348

(2) Failure to comply
A contracting party that fails to submit a
report under paragraph (1) shall receive no
amounts under sections 5342 to 5348 of this
title for the fiscal year following the academic
year for which the report should have been
submitted.
(3) Notice
The Secretary shall provide contracting parties with timely information relating to—
(A) initial and final reporting deadlines;
and
(B) the consequences of failure to comply
outlined in paragraph (2).
(4) Technical assistance
The Secretary, acting through the Director
of the Bureau of Indian Education, shall provide technical assistance and training on compliance with the reporting requirements of
this subsection to contracting parties.
(d) Annual report
(1) In general
The Secretary shall prepare an annual report, including the most recent determination
of the number of eligible Indian students
served by each contracting party, recommendations on appropriate funding levels
for the program based on such determination,
and an assessment of the contracts under sections 5342 to 5348 of this title that the Secretary—
(A) may include in the budget request of
the Department of the Interior for each fiscal year;
(B) shall submit to—
(i) the Committee on Indian Affairs of
the Senate;
(ii) the Subcommittee on Interior, Environment, and Related Agencies of the
Committee on Appropriations of the Senate;
(iii) the Committee on Education and
the Workforce of the House of Representatives; and
(iv) the Subcommittee on Interior, Environment, and Related Agencies of the
Committee on Appropriations of the House
of Representatives; and
(C) shall make publicly available.
(2) Manner of preparation
The Secretary shall prepare the report under
paragraph (1) in a manner so as to prevent or
minimize new administrative burdens on contracting parties receiving funds under sections
5342 to 5348 of this title.
(e) Hold harmless
(1) Initial hold harmless
(A) In general
Except as provided under subparagraph (B)
and subject to subparagraphs (C) and (D), for
a fiscal year, an existing contracting party
shall not receive an amount under sections
5342 to 5348 of this title that is less than the
amount that such existing contracting party
received under sections 5342 to 5348 of this
title for the fiscal year preceding December
31, 2018.

§ 5348

TITLE 25—INDIANS

(B) Exceptions
(i) In general
An existing contracting party shall receive an amount under sections 5342 to 5348
of this title for a fiscal year that is less
than the amount that the existing contracting party received under sections 5342
to 5348 of this title for the fiscal year preceding December 31, 2018, if one or more of
the following conditions is met:
(I) Failure to report
The existing contracting party failed
to submit a complete report described in
subsection (c) that was most recently
due from the date of the determination.
(II) Violations of contract or law
The Secretary has found that the existing contracting party has violated the
terms of a contract entered into under
sections 5342 to 5348 of this title or has
otherwise violated Federal law.
(III) Student count decrease
The number of eligible Indian students
reported by such existing contracting
party under subsection (c) has decreased
below the number of eligible Indian students served by the existing contracting
party in the fiscal year preceding December 31, 2018.
(ii) Amount of funding reduction for existing contracting parties reporting decreased student counts
A reduction in an amount pursuant to
clause (i)(III) shall not be done in such a
manner that the existing contracting
party receives an amount of funding per
eligible Indian student that is less than
the amount of funding per eligible Indian
student such party received for the fiscal
year preceding December 31, 2018.
(C) Ratable reductions in appropriations
If the funds available under sections 5342
to 5348 of this title for a fiscal year are insufficient to pay the full amounts that all existing contracting parties are eligible to receive under subparagraph (A) for the fiscal
year, the Secretary shall ratably reduce
those amounts for the fiscal year.
(D) Sunset
This paragraph shall cease to be effective
4 years after December 31, 2018.
(2) Maximum decrease after 4 years
Beginning 4 years after December 31, 2018, no
contracting party shall receive for a fiscal
year more than a 10 percent decrease in funding per eligible Indian student from the previous fiscal year.
(f) Funding allocation and reform
(1) Funding reform
The Secretary may make recommendations
for legislation to increase the amount of funds
available per eligible Indian student through
contracts under sections 5342 to 5348 of this
title to equal to or greater than the amount of
funds that were available per eligible Indian

Page 732

student through contracts under sections 5342
to 5348 of this title for fiscal year 1995, and attempt to identify additional sources of funding
that do not reallocate existing funds otherwise
utilized by Indian students served—
(A) by the Bureau of Indian Education; or
(B) under title VI of the Elementary and
Secondary Education Act of 1965 (20 U.S.C.
7401 et seq.).
(2) Increases in program funding
(A) In general
Subject to subsection (e) and subparagraph
(B), for any fiscal year for which the amount
appropriated to carry out sections 5342 to
5348 of this title exceeds the amount appropriated to carry out sections 5342 to 5348 of
this title for the preceding fiscal year, the
excess amounts shall—
(i) be allocated only to those contracting
parties that did not receive their full per
student funding allocation for the previous
fiscal year; and
(ii) be allocated first to new contracting
parties that did not receive their full per
student funding allocation for the previous
fiscal year.
(B) Parity in funding
Subparagraph (A) shall have no effect after
the first fiscal year for which each contracting party receives their full per student
funding allocation.
(g) Increased geographical and tribal participation in the Johnson-O’Malley supplementary
education program
To the maximum extent practicable, the Secretary shall consult with Indian tribes and contact State educational agencies, local educational agencies, and Alaska Native organizations that have not previously entered into a
contract under sections 5342 to 5348 of this
title—
(1) to determine the interest of the Indian
tribes, State educational agencies, local educational agencies, and Alaska Native organizations, in entering into such contracts; and
(2) to share information relating to the process for entering into a contract under sections
5342 to 5348 of this title.
(h) Rulemaking
(1) In general
Not later than 1 year after December 31,
2018, the Secretary, acting through the Director of the Bureau of Indian Education, shall
undertake and complete a rulemaking process,
following the provisions of subchapter II of
chapter 5 of title 5, to—
(A) determine how the regulatory definition of ‘‘eligible Indian student’’ may be revised to clarify eligibility requirements for
contracting parties under sections 5342 to
5348 of this title;
(B) determine, as necessary, how the funding formula described in section 273.31 of
title 25, Code of Federal Regulations (as in
effect on the day before December 31, 2018)
may be clarified and revised to ensure full
participation of contracting parties and provide clarity on the funding process under
sections 5342 to 5348 of this title; and

Page 733

§ 5351

TITLE 25—INDIANS

(C) otherwise reconcile and modernize the
rules to comport with the activities of the
contracting parties under sections 5342 to
5348 of this title as of December 31, 2018.
(2) Report
Not later than 30 days after the date the
rulemaking under paragraph (1) is complete,
the Secretary shall submit a report to Congress describing the results of such rulemaking and necessary recommendations to ensure the full implementation of such rulemaking.
(i) Student privacy
The Secretary shall ensure that data is collected and each report is prepared under this
section in a manner that protects the rights of
eligible Indian students in accordance with section 1232g of title 20 (commonly referred to as
the Family Educational Rights and Privacy Act
of 1974).
(j) GAO Report
Not later than 18 months after the final report
described in subsection (b)(1)(B)(iv) is published,
the Comptroller General shall—
(1) conduct a review of the implementation
of this section during the preceding 2-year period, including any factors impacting—
(A) the accuracy of the determinations of
the number of eligible Indian students under
this section;
(B) the communication between the Bureau of Indian Education and contracting
parties; and
(C) the efforts by the Bureau of Indian
Education to ensure accurate and sufficient
distribution of funding for Indian students;
(2) submit a report describing the results of
the review under paragraph (1) to—
(A) the Committee on Indian Affairs of the
Senate;
(B) the Subcommittee on Interior, Environment, and Related Agencies of the Committee on Appropriations of the Senate;
(C) the Subcommittee on Indian, Insular
and Alaska Native Affairs of the Committee
on Natural Resources of the House of Representatives; and
(D) the Subcommittee on Interior, Environment, and Related Agencies of the Committee on Appropriations of the House of
Representatives; and
(3) make such report publicly available.
(k) Effect
Nothing in this section—
(1) creates a new program or duplicates program activities under sections 5342 to 5348 of
this title; or
(2) replaces or diminishes the effect of regulations to carry out sections 5342 to 5348 of
this title existing on the day before December
31, 2018, unless expressly provided in this section.
(Apr. 16, 1934, ch. 147, § 7, as added Pub. L.
115–404, § 2, Dec. 31, 2018, 132 Stat. 5349.)
Editorial Notes
REFERENCES IN TEXT
The Johnson-O’Malley Supplemental Indian Education Program Modernization Act, referred to subsec.

(a)(4), is Pub. L. 115–404, Dec. 31, 2018, 132 Stat. 5349,
which enacted this section and provisions set out as a
note under section 5301 of this title. For complete classification of this Act to the Code, see Short Title of
2018 Amendment note set out under section 5301 of this
title and Tables.
The Elementary and Secondary Education Act of
1965, referred to in subsec. (f)(1)(B), is Pub. L. 89–10,
Apr. 11, 1965, 79 Stat. 27. Title VI of the Act is classified
generally to subchapter VI (§ 7401 et seq.) of chapter 70
of Title 20, Education. For complete classification of
this Act to the Code, see Short Title note set out under
section 6301 of Title 20 and Tables.
Statutory Notes and Related Subsidiaries
CHANGE OF NAME
Committee on Education and the Workforce of House
of Representatives changed to Committee on Education
and Labor of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9,
2019.

SUBCHAPTER III—INDIAN EDUCATION
ASSISTANCE
§ 5351. School construction, acquisition, or renovation contracts
(a) Authorization; prerequisites
The Secretary is authorized to enter into a
contract or contracts with any State education
agency or school district for the purpose of assisting such agency or district in the acquisition
of sites for, or the construction, acquisition, or
renovation of facilities (including all necessary
equipment) in school districts on or adjacent to
or in close proximity to any Indian reservation
or other lands held in trust by the United States
for Indians, if such facilities are necessary for
the education of Indians residing on any such
reservation or lands.
(b) Eligibility requirements for assistance in federally-affected areas; applicability to projects
in determining maximum amount, allocation,
of funds, etc.
The Secretary may expend not less than 75 per
centum of such funds as are authorized and appropriated pursuant to this section on those
projects which meet the eligibility requirements
under subsections (a) and (b) of section 644 1 of
title 20. Such funds shall be allocated on the
basis of existing funding priorities, if any, established by the Secretary of Education under subsections (a) and (b) of section 644 1 of title 20.
The Secretary of Education is directed to submit to the Secretary, at the beginning of each
fiscal year, commencing with the first full fiscal
year after January 4, 1975, a list of those
projects eligible for funding under subsections
(a) and (b) of section 644 1 of title 20.
(c) Eligibility of private schools to receive funds;
maximum amount
The Secretary may expend not more than 25
per centum of such funds as may be authorized
and appropriated pursuant to this section on
any school eligible to receive funds under section 5355 of this title.
(d) Duties of State education agencies pursuant
to contracts
Any contract entered into by the Secretary
pursuant to this section shall contain provisions
1 See

References in Text note below.

§ 5352

TITLE 25—INDIANS

requiring the relevant State educational agency
to—
(1) provide Indian students attending any
such facilities constructed, acquired, or renovated, in whole or in part, from funds made
available pursuant to this section with standards of education not less than those provided
non-Indian students in the school district in
which the facilities are situated; and
(2) meet, with respect to such facilities, the
requirements of the State and local building
codes, and other building standards set by the
State educational agency or school district for
other public school facilities under its jurisdiction or control or by the local government
in the jurisdiction within which the facilities
are situated.
(e) Advisory consultations by Secretary with affected entities and governing bodies prior to
contracts; applicability
The Secretary shall consult with the entity
designated pursuant to section 5346 of this title,
and with the governing body of any Indian tribe
or tribes the educational opportunity for the
members of which will be significantly affected
by any contract entered into pursuant to this
section. Such consultation shall be advisory
only, but shall occur prior to the entering into
of any such contract. The foregoing provisions
of this subsection shall not be applicable where
the application for a contract pursuant to this
section is submitted by an elected school board
of which a majority of its members are Indians.
(f) Evaluation and report to Congress of effectiveness of construction, etc., programs;
scope and content of report
Within ninety days following the expiration of
the three year period following January 4, 1975,
the Secretary shall evaluate the effectiveness of
the program pursuant to this section and transmit a report of such evaluation to the Congress.
Such report shall include—
(1) an analysis of construction costs and the
impact on such costs of the provisions of subsection (f) of this section and the Act of March
3, 1921 (46 Stat. 1491), as amended; 1
(2) a description of the working relationship
between the Department of the Interior and
the Department of Education including any
memorandum of understanding in connection
with the acquisition of data pursuant to subsection (b) of this section;
(3) projections of the Secretary of future
construction needs of the public schools serving Indian children residing on or adjacent to
Indian reservations;
(4) a description of the working relationship
of the Department of the Interior with local or
State educational agencies in connection with
the contracting for construction, acquisition,
or renovation of school facilities pursuant to
this section; and
(5) the recommendations of the Secretary
with respect to the transfer of the responsibility for administering subsections (a) and (b)
of section 644 1 of title 20 from the Department
of Education to the Department of the Interior.
(g) Authorization of appropriations
For the purpose of carrying out the provisions
of this section, there is authorized to be appro-

Page 734

priated the sum of $35,000,000 for the fiscal year
ending June 30, 1974; $35,000,000 for each of the
four succeeding fiscal years; and thereafter,
such sums as may be necessary, all of such sums
to remain available until expended.
(Pub. L. 93–638, title II, § 204, Jan. 4, 1975, 88 Stat.
2214; Pub. L. 96–88, title III, § 301, title V, § 507,
Oct. 17, 1979, 93 Stat. 677, 692.)
Editorial Notes
REFERENCES IN TEXT
Section 644 of title 20, referred to in subsecs. (b) and
(f)(5), was repealed by Pub. L. 103–382, title III, § 331(a),
Oct. 20, 1994, 108 Stat. 3965.
Act of March 3, 1921, referred to in subsec. (f)(1), probably means the act of Mar. 3, 1931, ch. 411, 46 Stat. 1494,
known as the Davis-Bacon Act, which was classified
generally to sections 276a to 276a–5 of former Title 40,
Public Buildings, Property, and Works, and was repealed and reenacted as sections 3141–3144, 3146, and 3147
of Title 40, Public Buildings, Property, and Works, by
Pub. L. 107–217, §§ 1, 6(b), Aug. 21, 2002, 116 Stat. 1062,
1304.
CODIFICATION
Section was formerly classified to section 458 of this
title prior to editorial reclassification and renumbering
as this section.
SHORT TITLE
For short title of this subchapter as the ‘‘Indian Education Assistance Act’’, see section 201 of Pub. L.
93–638, set out as a note under section 5301 of this title.
Statutory Notes and Related Subsidiaries
TRANSFER OF FUNCTIONS
‘‘Secretary of Education’’ substituted for ‘‘United
States Commissioner of Education’’ in subsec. (b), and
‘‘Department of Education’’ substituted for ‘‘Department of Health, Education, and Welfare’’ in subsec.
(f)(2), (5), pursuant to sections 301 and 507 of Pub. L.
96–88, which is classified to sections 3441 and 3507 of
Title 20, Education, and which transferred functions
and offices (relating to education) of Commissioner of
Education and Department of Health, Education, and
Welfare to Secretary and Department of Education.

§ 5352. General education contract and grant
provisions and requirements; school district
quality and standards of excellence
No funds from any grant or contract pursuant
to this subchapter shall be made available to
any school district unless the Secretary is satisfied that the quality and standard of education,
including facilities and auxiliary services, for
Indian students enrolled in the schools of such
district are at least equal to that provided all
other students from resources, other than resources provided in this subchapter, available to
the local school district.
(Pub. L. 93–638, title II, § 205, Jan. 4, 1975, 88 Stat.
2216.)
Editorial Notes
REFERENCES IN TEXT
This subchapter, referred to in text, was in the original ‘‘this title’’, meaning title II of Pub. L. 93–638,
known as the Indian Education Assistance Act, which
is classified principally to this subchapter. For complete classification of title II to the Code, see Short

Page 735

§ 5355

TITLE 25—INDIANS

Title note set out under section 5301 of this title and
Tables.

Editorial Notes

CODIFICATION

Section was formerly classified to section 458c of this
title prior to editorial reclassification and renumbering
as this section.

Section was formerly classified to section 458a of this
title prior to editorial reclassification and renumbering
as this section.

CODIFICATION

Statutory Notes and Related Subsidiaries

§ 5353. Availability of funds to agencies, institutions, and organizations
No funds from any contract or grant pursuant
to this subchapter shall be made available by
any Federal agency directly to other than public
agencies and Indian tribes, institutions, and organizations: Provided, That school districts,
State education agencies, and Indian tribes, institutions, and organizations assisted by this
subchapter may use funds provided herein to
contract for necessary services with any appropriate individual, organization, or corporation.
(Pub. L. 93–638, title II, § 206, Jan. 4, 1975, 88 Stat.
2216.)
Editorial Notes
CODIFICATION
Section was formerly classified to section 458b of this
title prior to editorial reclassification and renumbering
as this section.

§ 5354. Rules and regulations
(a) Prerequisites for promulgation
(1) Within six months from January 4, 1975, the
Secretary shall, to the extent practicable, consult with national and regional Indian organizations with experiences in Indian education to
consider and formulate appropriate rules and
regulations to implement the provisions of this
subchapter.
(2) Within seven months from January 4, 1975,
the Secretary shall present the proposed rules
and regulations to the Committees on Interior
and Insular Affairs of the United States Senate
and House of Representatives.
(3) Within eight months from January 4, 1975,
the Secretary shall publish proposed rules and
regulations in the Federal Register for the purpose of receiving comments from interested parties.
(4) Within ten months from January 4, 1975,
the Secretary shall promulgate rules and regulations to implement the provisions of this subchapter.
(b) Revision and amendment
The Secretary is authorized to revise and
amend any rules or regulations promulgated
pursuant to subsection (a) of this section: Provided, That prior to any revision or amendment
to such rules or regulations the Secretary shall,
to the extent practicable, consult with appropriate national and regional Indian organizations, and shall publish any proposed revisions
in the Federal Register not less than sixty days
prior to the effective date of such rules and regulations in order to provide adequate notice to,
and receive comments from, other interested
parties.
(Pub. L. 93–638, title II, § 207, Jan. 4, 1975, 88 Stat.
2216.)

CHANGE OF NAME
Committee on Interior and Insular Affairs of the Senate abolished and replaced by Committee on Energy
and Natural Resources of the Senate, effective Feb. 11,
1977. See Rule XXV of Standing Rules of the Senate, as
amended by Senate Resolution No. 4, Ninety-fifth Congress (popularly cited as the ‘‘Committee System Reorganization Amendments of 1977’’), approved Feb. 4, 1977.
Section 105 of Senate Resolution No. 4 established a
temporary Select Committee on Indian Affairs having
jurisdiction over matters relating to Indian affairs
(such matters previously having been within the jurisdiction of the Committee on Interior and Insular Affairs). Senate Resolution No. 127, June 6, 1984, Ninetyeighth Congress, established the Select Committee on
Indian Affairs as a permanent committee of the Senate,
and section 25 of Senate Resolution No. 71, Feb. 25, 1993,
One Hundred Third Congress, redesignated the Select
Committee on Indian Affairs as the Committee on Indian Affairs.
Committee on Interior and Insular Affairs of the
House of Representatives changed to Committee on
Natural Resources of the House of Representatives on
Jan. 5, 1993, by House Resolution No. 5, One Hundred
Third Congress.

§ 5355. Eligibility for funds of tribe or tribal organization controlling or managing private
schools
The Secretary is authorized and directed to
provide funds, pursuant to this chapter; the the 1
Act of April 16, 1934 (48 Stat. 596), as amended [25
U.S.C. 5342 et seq.]; or any other authority
granted to him to any tribe or tribal organization which controls and manages any previously
private school.
(Pub. L. 93–638, title II, § 208, Jan. 4, 1975, 88 Stat.
2216; Pub. L. 97–375, title I, § 108(d), Dec. 21, 1982,
96 Stat. 1820.)
Editorial Notes
REFERENCES IN TEXT
This chapter, referred to in text, was in the original
‘‘this Act’’, meaning Pub. L. 93–638, Jan. 4, 1975, 88 Stat.
2203, known as the Indian Self-Determination and Education Assistance Act, which is classified principally to
this chapter. For complete classification of this Act to
the Code, see Short Title note set out under section
5301 of this title and Tables.
Act of April 16, 1934, referred to in text, is act Apr. 16,
1934, ch. 147, 48 Stat. 596, popularly known as the Johnson-O’Malley Act, which is classified generally to section 5342 et seq. of this title. For complete classification of this Act to the Code, see Short Title note set
out under section 5301 of this title and Tables.
CODIFICATION
Section was formerly classified to section 458d of this
title prior to editorial reclassification and renumbering
as this section.
AMENDMENTS
1982—Pub. L. 97–375 struck out provisions relating to
annual reporting requirements of Secretary to Congres1 So

in original.

§ 5356

TITLE 25—INDIANS

sional committees respecting educational assistance
program conducted pursuant to this section.

§ 5356. Supplemental assistance to funds provided to local educational agencies
The assistance provided in this chapter for the
education of Indians in the public schools of any
State is in addition and supplemental to assistance provided under title VI of the Elementary
and Secondary Education Act of 1965 [20 U.S.C.
7401 et seq.].
(Pub. L. 93–638, title II, § 209, Jan. 4, 1975, 88 Stat.
2217; Pub. L. 103–382, title III, § 393(c), Oct. 20,
1994, 108 Stat. 4027; Pub. L. 114–95, title IX,
§ 9215(rr), Dec. 10, 2015, 129 Stat. 2181.)
Editorial Notes
REFERENCES IN TEXT
This chapter, referred to in text, was in the original
‘‘this Act’’, meaning Pub. L. 93–638, Jan. 4, 1975, 88 Stat.
2203, known as the Indian Self-Determination and Education Assistance Act, which is classified principally to
this chapter. For complete classification of this Act to
the Code, see Short Title note set out under section
5301 of this title and Tables.
The Elementary and Secondary Education Act of
1965, referred to in text, is Pub. L. 89–10, Apr. 11, 1965,
79 Stat. 27, as amended. Title VI of the Act is classified
generally to subchapter VI (§ 7401 et seq.) of chapter 70
of Title 20, Education. For complete classification of
this Act to the Code, see Short Title note set out under
section 6301 of Title 20 and Tables.
CODIFICATION
Section was formerly classified to section 458e of this
title prior to editorial reclassification and renumbering
as this section.
AMENDMENTS
2015—Pub. L. 114–95 substituted ‘‘assistance provided
under title VI of the Elementary and Secondary Education Act of 1965.’’ for ‘‘assistance provided under title
IX of the Elementary and Secondary Education Act of
1965.’’
1994—Pub. L. 103–382 substituted ‘‘title IX of the Elementary and Secondary Education Act of 1965’’ for
‘‘title IV of the Act of June 23, 1972 (86 Stat. 235)’’.

SUBCHAPTER IV—TRIBAL SELF-GOVERNANCE—DEPARTMENT OF THE INTERIOR
§ 5361. Definitions
In this subchapter:
(1) Compact
The term ‘‘compact’’ means a self-governance compact entered into under section 5364
of this title.
(2) Construction program; construction project
The term ‘‘construction program’’ or ‘‘construction project’’ means a Tribal undertaking
relating to the administration, planning, environmental determination, design, construction, repair, improvement, or expansion of
roads, bridges, buildings, structures, systems,
or other facilities for purposes of housing, law
enforcement, detention, sanitation, water supply, education, administration, community,
health, irrigation, agriculture, conservation,
flood control, transportation, or port facilities, or for other Tribal purposes.
(3) Department
The term ‘‘Department’’ means the Department of the Interior.

Page 736

(4) Funding agreement
The term ‘‘funding agreement’’ means a
funding agreement entered into under section
5363 of this title.
(5) Gross mismanagement
The term ‘‘gross mismanagement’’ means a
significant violation, shown by a preponderance of the evidence, of a compact, funding
agreement, or statutory or regulatory requirement applicable to Federal funds for a program administered by an Indian Tribe under a
compact or funding agreement.
(6) Inherent Federal function
The term ‘‘inherent Federal function’’
means a Federal function that may not legally
be delegated to an Indian Tribe.
(7) Non-BIA program
The term ‘‘non-BIA program’’ means all or a
portion of a program, function, service, or activity that is administered by any bureau,
service, office, or agency of the Department of
the Interior other than—
(A) the Bureau of Indian Affairs;
(B) the Office of the Assistant Secretary
for Indian Affairs; or
(C) the Office of the Special Trustee for
American Indians.
(8) Program
The term ‘‘program’’ means any program,
function, service, or activity (or portion thereof) within the Department that is included in
a funding agreement.
(9) Secretary
The term ‘‘Secretary’’ means the Secretary
of the Interior.
(10) Self-determination contract
The term ‘‘self-determination contract’’
means a self-determination contract entered
into under section 5321 of this title.
(11) Self-governance
The term ‘‘self-governance’’ means the Tribal Self-Governance Program established under
section 5362 of this title.
(12) Tribal share
The term ‘‘Tribal share’’ means the portion
of all funds and resources of an Indian Tribe
that—
(A) support any program within the Bureau of Indian Affairs, the Office of the Special Trustee for American Indians, or the Office of the Assistant Secretary for Indian Affairs; and
(B) are not required by the Secretary for
the performance of an inherent Federal function.
(13) Tribal water rights settlement
The term ‘‘Tribal water rights settlement’’
means any settlement, compact, or other
agreement expressly ratified or approved by
an Act of Congress that—
(A) includes an Indian Tribe and the
United States as parties; and
(B) quantifies or otherwise defines any
water right of the Indian Tribe.
(Pub. L. 93–638, title IV, § 401, as added Pub. L.
103–413, title II, § 204, Oct. 25, 1994, 108 Stat. 4271;

Page 737

TITLE 25—INDIANS

Pub. L. 116–180, title I, § 101(b), Oct. 21, 2020, 134
Stat. 858.)
Editorial Notes
CODIFICATION
Section was formerly classified to section 458aa of
this title prior to editorial reclassification and renumbering as this section.
AMENDMENTS
2020—Pub. L. 116–180 amended section generally. Prior
to amendment, section related to establishment of a
Tribal Self-Governance program. See section 5362 of
this title.
Statutory Notes and Related Subsidiaries
SHORT TITLE
For short title of this subchapter as the ‘‘Tribal SelfGovernance Act of 1994’’, see section 201 of Pub. L.
103–413, set out as a Short Title of 1994 Amendment
note under section 5301 of this title.
CONSTRUCTION OF 2020 AMENDMENT
Pub. L. 116–180, title I, § 101(a), Oct. 21, 2020, 134 Stat.
857, provided that: ‘‘Nothing in this Act [see Short
Title of 2020 Amendment note set out under section 5301
of this title], or the amendments made by this Act,
shall be construed—
‘‘(1) to modify, limit, expand, or otherwise affect—
‘‘(A) the authority of the Secretary of the Interior, as provided for under the Indian Self-Determination and Education Assistance Act [25 U.S.C.
5301 et seq.] (as in effect on the day before the date
of enactment of this Act [Oct. 21, 2020]), regarding—
‘‘(i) the inclusion of any non-BIA program (as
defined in section 401 of the Indian Self-Determination and Education Assistance Act [25 U.S.C.
5361]) in a self-determination contract or funding
agreement under section 403(c) of such Act [25
U.S.C. 5363(c)] (as so in effect); or
‘‘(ii) the implementation of any contract or
agreement described in clause (i) that is in effect
on the day described in subparagraph (A);
‘‘(B) the meaning, application, or effect of any
Tribal water rights settlement, including the performance required of a party thereto or any payment or funding obligation thereunder;
‘‘(C) the authority, jurisdiction, or responsibility
of a State to manage, control, or regulate fish and
wildlife under State law (including regulations) on
land or water in the State, including Federal public
land;
‘‘(D) except for the authority provided to the Secretary as described in subparagraph (A), the applicability or effect of any Federal law related to the
protection or management of fish or wildlife; or
‘‘(E) any treaty-reserved right or other right of
any Indian Tribe as recognized by any other means,
including treaties or agreements with the United
States, Executive orders, statutes, regulations, or
case law; or
‘‘(2) to authorize any provision of a contract or
agreement that is not consistent with the terms of a
Tribal water rights settlement.’’
APPLICATION OF OTHER PROVISIONS
Pub. L. 116–180, title II, § 201(d), Oct. 21, 2020, 134 Stat.
879, provided that: ‘‘Sections 4, 5, 6, 7, 102(c), 104,
105(a)(1), 105(f), 110, and 111 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304,
5305, 5306, 5307, 5321(c), 5323, 5324(a)(1), 5324(f), 5331, and
5332) and section 314 of the Department of the Interior
and Related Agencies Appropriations Act, 1991 (Public
Law 101–512; 104 Stat. 1959) [25 U.S.C. 5321 note], apply
to compacts and funding agreements entered into under
title IV of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5361 et seq.).’’

§ 5362

CONGRESSIONAL STATEMENT OF FINDINGS
Pub. L. 103–413, title II, § 202, Oct. 25, 1994, 108 Stat.
4270, provided that: ‘‘Congress finds that—
‘‘(1) the tribal right of self-government 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
statutes, and the course of dealings of the United
States with Indian tribes;
‘‘(3) although progress has been made, the Federal
bureaucracy, with its centralized rules and regulations, has eroded tribal self-governance and dominates tribal affairs;
‘‘(4) the Tribal Self-Governance Demonstration
Project [see Pub. L. 93–638, title III, as added by Pub.
L. 100–472, title II, § 209, Oct. 5, 1988, 102 Stat. 2296, formerly set out as a note under former 25 U.S.C. 450f]
was designed to improve and perpetuate the government-to-government relationship between Indian
tribes and the United States and to strengthen tribal
control over Federal funding and program management; and
‘‘(5) Congress has reviewed the results of the Tribal
Self-Governance Demonstration Project and finds
that—
‘‘(A) transferring control to tribal governments,
upon tribal request, over funding and decisionmaking for Federal programs, services, functions,
and activities, or portions thereof, is an effective
way to implement the Federal policy of government-to-government relations with Indian tribes;
and
‘‘(B) transferring control to tribal governments,
upon tribal request, over funding and decisionmaking for Federal programs, services, functions,
and activities strengthens the Federal policy of Indian self-determination.’’
CONGRESSIONAL DECLARATION OF POLICY
Pub. L. 103–413, title II, § 203, Oct. 25, 1994, 108 Stat.
4271, provided that: ‘‘It is the policy of this title [enacting this subchapter] to permanently establish and implement tribal self-governance—
‘‘(1) to enable the United States to maintain and
improve its unique and continuing relationship with,
and responsibility to, Indian tribes;
‘‘(2) to permit each Indian tribe to choose the extent of the participation of such tribe in self-governance;
‘‘(3) to coexist with the provisions of the Indian
Self-Determination Act [title I of Pub. L. 93–638, see
Short Title note set out under section 5301 of this
title] relating to the provision of Indian services by
designated Federal agencies;
‘‘(4) to ensure the continuation of the trust responsibility of the United States to Indian tribes and Indian individuals;
‘‘(5) to permit an orderly transition from Federal
domination of programs and services to provide Indian tribes with meaningful authority to plan, conduct, redesign, and administer programs, services,
functions, and activities that meet the needs of the
individual tribal communities; and
‘‘(6) to provide for an orderly transition through a
planned and measurable parallel reduction in the
Federal bureaucracy.’’

§ 5362. Tribal Self-Governance Program
(a) Establishment
The Secretary shall establish and carry out a
program within the Department to be known as
the ‘‘Tribal Self-Governance Program’’.
(b) Selection of participating Indian Tribes
(1) In general
(A) Eligibility
The Secretary, acting through the Director of the Office of Self-Governance, may se-

§ 5362

TITLE 25—INDIANS

lect not more than 50 new Indian Tribes per
year from those tribes eligible under subsection (c) to participate in self-governance.
(B) Joint participation
On the request of each participating Indian Tribe, 2 or more otherwise eligible Indian Tribes may be treated as a single Indian Tribe for the purpose of participating in
self-governance.
(2) Other authorized Indian Tribe or Tribal organization
If an Indian Tribe authorizes another Indian
Tribe or a Tribal organization to plan for or
carry out a program on its behalf under this
subchapter, the authorized Indian Tribe or
Tribal organization shall have the rights and
responsibilities of the authorizing Indian
Tribe (except as otherwise provided in the authorizing resolution).
(3) Joint participation as organization
Two or more Indian Tribes that are not otherwise eligible under subsection (c) may be
treated as a single Indian Tribe for the purpose of participating in self-governance as a
Tribal organization if—
(A) each Indian Tribe so requests; and
(B) the Tribal organization itself, or at
least one of the Indian Tribes participating
in the Tribal organization, is eligible under
subsection (c).
(4) Tribal withdrawal from a Tribal organization
(A) In general
An Indian Tribe that withdraws from participation in a Tribal organization, in whole
or in part, shall be entitled to participate in
self-governance if the Indian Tribe is eligible
under subsection (c).
(B) Effect of withdrawal
If an Indian Tribe withdraws from participation in a Tribal organization, the Indian
Tribe shall be entitled to its Tribal share of
funds and resources supporting the programs
that the Indian Tribe is entitled to carry out
under the compact and funding agreement of
the Indian Tribe.
(C) Participation in self-governance
The withdrawal of an Indian Tribe from a
Tribal organization shall not affect the eligibility of the Tribal organization to participate in self-governance on behalf of one or
more other Indian Tribes, if the Tribal organization still qualifies under subsection (c).
(D) Withdrawal process
(i) In general
An Indian Tribe may, by Tribal resolution, fully or partially withdraw its Tribal
share of any program in a funding agreement from a participating Tribal organization.
(ii) Notification
The Indian Tribe shall provide a copy of
the Tribal resolution described in clause
(i) to the Secretary.

Page 738

(iii) Effective date
(I) In general
A withdrawal under clause (i) shall become effective on the date that is specified in the Tribal resolution and mutually agreed upon by the Secretary, the
withdrawing Indian Tribe, and the Tribal
organization that signed the compact
and funding agreement on behalf of the
withdrawing Indian Tribe or Tribal organization.
(II) No specified date
In the absence of a date specified in
the resolution, the withdrawal shall become effective on—
(aa) the earlier of—
(AA) 1 year after the date of submission of the request; and
(BB) the date on which the funding
agreement expires; or
(bb) such date as may be mutually
agreed upon by the Secretary, the
withdrawing Indian Tribe, and the
Tribal organization that signed the
compact and funding agreement on behalf of the withdrawing Indian Tribe or
Tribal organization.
(E) Distribution of funds
If an Indian Tribe or Tribal organization
eligible to enter into a self-determination
contract or a compact or funding agreement
fully or partially withdraws from a participating Tribal organization, the withdrawing
Indian Tribe—
(i) may elect to enter into a self-determination contract or compact, in which
case—
(I) the withdrawing Indian Tribe or
Tribal organization shall be entitled to
its Tribal share of unexpended funds and
resources supporting the programs that
the Indian Tribe will be carrying out
under its own self-determination contract or compact and funding agreement
(calculated on the same basis as the
funds were initially allocated to the
funding agreement of the Tribal organization); and
(II) the funds referred to in subclause
(I) shall be withdrawn by the Secretary
from the funding agreement of the Tribal organization and transferred to the
withdrawing Indian Tribe, on the condition that sections 5321 and 5324(i) of this
title, as appropriate, shall apply to the
withdrawing Indian Tribe; or
(ii) may elect not to enter into a self-determination contract or compact, in which
case all unexpended funds and resources
associated with the withdrawing Indian
Tribe’s returned programs (calculated on
the same basis as the funds were initially
allocated to the funding agreement of the
Tribal organization) shall be returned by
the Tribal organization to the Secretary
for operation of the programs included in
the withdrawal.

Page 739

§ 5363

TITLE 25—INDIANS

(F) Return to mature contract status
If an Indian Tribe elects to operate all or
some programs carried out under a compact
or funding agreement under this subchapter
through a self-determination contract under
subchapter I, at the option of the Indian
Tribe, the resulting self-determination contract shall be a mature self-determination
contract as long as the Indian Tribe meets
the requirements set forth in section 5304(h)
of this title.
(c) Eligibility
To be eligible to participate in self-governance, an Indian Tribe shall—
(1) successfully complete the planning phase
described in subsection (d);
(2) request participation in self-governance
by resolution or other official action by the
Tribal governing body; and
(3) demonstrate, for the 3 fiscal years preceding the date on which the Indian Tribe requests participation, financial stability and financial management capability as evidenced
by the Indian Tribe having no uncorrected significant and material audit exceptions in the
required annual audit of its self-determination
or self-governance agreements with any Federal agency.
(d) Planning phase
(1) In general
An Indian Tribe seeking to begin participation in self-governance shall complete a planning phase as provided in this subsection.
(2) Activities
The planning phase shall—
(A) be conducted to the satisfaction of the
Indian Tribe; and
(B) include—
(i) legal and budgetary research; and
(ii) internal Tribal government planning,
training, and organizational preparation.
(e) Grants
(1) In general
Subject to the availability of appropriations,
an Indian Tribe or Tribal organization that
meets the requirements of paragraphs (2) and
(3) of subsection (c) shall be eligible for
grants—
(A) to plan for participation in self-governance; and
(B) to negotiate the terms of participation
by the Indian Tribe or Tribal organization in
self-governance, as set forth in a compact
and a funding agreement.
(2) Receipt of grant not required
Receipt of a grant under paragraph (1) shall
not be a requirement of participation in selfgovernance.
(Pub. L. 93–638, title IV, § 402, as added Pub. L.
103–413, title II, § 204, Oct. 25, 1994, 108 Stat. 4272;
amended Pub. L. 104–208, div. A, title I, § 101(d)
[title I, § 117], Sept. 30, 1996, 110 Stat. 3009–181,
3009–201; Pub. L. 116–180, title I, § 101(c), Oct. 21,
2020, 134 Stat. 859.)
Editorial Notes
REFERENCES IN TEXT
Subchapter I, referred to in subsec. (b)(4)(F), was in
the original ‘‘title I’’, meaning title I of Pub. L. 93–638,

known as the Indian Self-Determination Act, which is
classified principally to subchapter I (§ 5321 et seq.) of
this chapter. For complete classification of title I to
the Code, see Short Title note set out under section
5301 of this title and Tables.
CODIFICATION
Section was formerly classified to section 458bb of
this title prior to editorial reclassification and renumbering as this section.
AMENDMENTS
2020—Pub. L. 116–180 amended section generally. Prior
to amendment, section related to selection of Indian
tribes to participate in Self-Governance.
1996—Subsec. (b)(1). Pub. L. 104–208 amended par. (1)
generally. Prior to amendment, par. (1) read as follows:
‘‘In addition to those Indian tribes participating in
Self-Governance under subsection (a) of this section,
the Secretary, acting through the Director of the Office
of Self-Governance, may select up to 20 new tribes per
year from the applicant pool described in subsection (c)
of this section to participate in Self-Governance.’’

§ 5363. Funding agreements
(a) Authorization
The Secretary shall, on the request of any Indian Tribe or Tribal organization, negotiate and
enter into a written funding agreement with the
governing body of the Indian Tribe or the Tribal
organization in a manner consistent with—
(1) the trust responsibility of the Federal
Government, treaty obligations, and the government-to-government relationship between
Indian Tribes and the United States; and
(2) subsection (b).
(b) Contents
Each funding agreement shall—
(1) authorize the tribe to plan, conduct, consolidate, and administer programs, services,
functions, and activities, or portions thereof,
administered by the Department of the Interior through the Bureau of Indian Affairs, the
Office of the Assistant Secretary for Indian
Affairs, and the Office of the Special Trustee
for American Indians, without regard to the
agency or office of that Bureau or those Offices within which the program, service, function, and activity, or portion thereof, is performed, including funding for agency, area,
and central office functions in accordance
with subsection (g)(3) of this section, and including—
(A) any program, service, function, and activity, or portion thereof, administered
under the authority of—
(i) the Act of April 16, 1934 (25 U.S.C. 452
et seq.); 1 and
(ii) section 13 of this title;
(B) programs, services, functions, and activities or portions thereof administered by
the Secretary of the Interior that are otherwise available to Indian tribes or Indians for
which appropriations are made to agencies
other than the Department of the Interior;
and
(C) any other program, service, function,
or activity (or portion thereof) that is provided through the Bureau of Indian Affairs,
1 See

References in Text note below.

§ 5363

TITLE 25—INDIANS

the Office of the Assistant Secretary for Indian Affairs, or the Office of the Special
Trustee for American Indians with respect
to which Indian Tribes or Indians are primary or significant beneficiaries;
(2) subject to such terms as may be negotiated, authorize the tribe to plan, conduct,
consolidate, and administer programs, services, functions, and activities, or portions
thereof, administered by the Department of
the Interior, other than through the Bureau of
Indian Affairs, that are otherwise available to
Indian tribes or Indians, as identified in section 5372(c) of this title, except that nothing in
this subsection may be construed to provide
any tribe with a preference with respect to the
opportunity of the tribe to administer programs, services, functions, and activities, or
portions thereof, unless such preference is otherwise provided for by law; and
(3) subject to the terms of the agreement,
authorize the tribe to redesign or consolidate
programs, services, functions, and activities,
or portions thereof, and reallocate funds for
such programs, services, functions, and activities, or portions thereof, except that, with respect to the reallocation, consolidation, and
redesign of programs described in paragraph
(2), a joint agreement between the Secretary
and the tribe shall be required.
(c) Additional activities
Each funding agreement negotiated pursuant
to subsections (a) and (b) of this section may, in
accordance to such additional terms as the parties deem appropriate, also include other programs, services, functions, and activities, or
portions thereof, administered by the Secretary
of the Interior which are of special geographic,
historical, or cultural significance to the participating Indian tribe requesting a compact.
(d) Provisions relating to Secretary
Funding agreements negotiated between the
Secretary and an Indian tribe shall include provisions—
(1) to monitor the performance of trust functions by the tribe through the annual trust
evaluation, and
(2) for the Secretary to reassume a program,
service, function, or activity, or portions
thereof, if there is a finding of imminent jeopardy to a physical trust asset, natural resources, or public health and safety.
(e) Construction projects
(1) Regarding construction programs or
projects, the Secretary and Indian tribes may
negotiate for the inclusion of specific provisions
of division B (except sections 1123, 2303, 2304, and
2313) of subtitle I of title 41 and Federal acquisition regulations in any funding agreement entered into under this chapter. Absent a negotiated agreement, such provisions and regulatory requirements shall not apply.
(2) In all construction projects performed pursuant to this subchapter, the Secretary shall ensure that proper health and safety standards are
provided for in the funding agreements.
(f) Submission
Not later than 90 days before the proposed effective date of an agreement entered into under

Page 740

this section, the Secretary shall submit a copy
of such agreement to each Indian Tribe that is
served by the Agency that is serving the tribe
that is a party to the funding agreement.
(g) Payment
(1) At the request of the governing body of the
tribe and under the terms of an agreement entered into under this section, the Secretary
shall provide funding to the tribe to carry out
the agreement.
(2) The funding agreements authorized by this
subchapter and title III of this Act shall provide
for advance payments to the tribes in the form
of annual or semi-annual installments at the
discretion of the tribes.
(3) Subject to paragraph (4) of this subsection
and paragraphs (1) through (3) of subsection (b)
of this section, the Secretary shall provide funds
to the tribe under an agreement under this subchapter for programs, services, functions, and
activities, or portions thereof, in an amount
equal to the amount that the tribe would have
been eligible to receive under contracts and
grants under this chapter, including amounts for
direct program and contract support costs and,
in addition, any funds that are specifically or
functionally related to the provision by the Secretary of services and benefits to the tribe or its
members, without regard to the organization
level within the Department where such functions are carried out.
(4) Funds for trust services to individual Indians shall be available under an agreement entered into under this section only to the extent
that the same services that would have been
provided by the Secretary are provided to individual Indians by the tribe.
(h) Civil actions
(1) Except as provided in paragraph (2), for the
purposes of section 5331 of this title, the term
‘‘contract’’ shall include agreements entered
into under this subchapter.
(2) For the period that an agreement entered
into under this subchapter is in effect, the provisions of section 81 of this title, section 5123 of
this title, and the Act of July 3, 1952 (25 U.S.C.
82a), shall not apply to attorney and other professional contracts by Indian tribal governments
participating in Self-Governance under this subchapter.
(i) Facilitation
(1) Except as otherwise provided by law, the
Secretary shall interpret each Federal law and
regulation in a manner that will facilitate—
(A) the inclusion of programs, services, functions, and activities in the agreements entered
into under this section; and
(B) the implementation of agreements entered into under this section.
(2)(A) A tribe may submit a written request
for a waiver to the Secretary identifying the
regulation sought to be waived and the basis for
the request.
(B) Not later than 60 days after receipt by the
Secretary of a written request by a tribe to
waive application of a Federal regulation for an
agreement entered into under this section, the
Secretary shall either approve or deny the requested waiver in writing to the tribe. A denial

Page 741

TITLE 25—INDIANS

may be made only upon a specific finding by the
Secretary that identified language in the regulation may not be waived because such waiver is
prohibited by Federal law. The Secretary’s decision shall be final for the Department.
(j) Funds
All funds provided under funding agreements
entered into pursuant to this chapter, and all
funds provided under contracts or grants made
pursuant to this chapter, shall be treated as
non-Federal funds for purposes of meeting
matching requirements under any other Federal
law.
(k) Disclaimer
Nothing in this section is intended or shall be
construed to expand or alter existing statutory
authorities in the Secretary so as to authorize
the Secretary to enter into any agreement
under subsection (b)(2) of this section and section 5372(c) of this title with respect to functions that are inherently Federal or where the
statute establishing the existing program does
not authorize the type of participation sought
by the tribe: Provided, however an Indian tribe
or tribes need not be identified in the authorizing statute in order for a program or element
of a program to be included in a compact under
subsection (b)(2) of this section.
(l) Incorporate self-determination provisions
At the option of a participating tribe or tribes,
any or all provisions of subchapter I of this
chapter shall be made part of an agreement entered into under title III of this Act or this subchapter. The Secretary is obligated to include
such provisions at the option of the participating tribe or tribes. If such provision is incorporated it shall have the same force and effect
as if set out in full in title III or this subchapter.
(m) Other provisions
(1) Excluded funding
A funding agreement shall not authorize an
Indian Tribe to plan, conduct, administer, or
receive Tribal share funding under any program that—
(A) is provided under the Tribally Controlled Colleges and Universities Assistance
Act of 1978 (25 U.S.C. 1801 et seq.); or
(B) is provided for elementary and secondary schools under the formula developed
under section 2007 of this title.
(2) Services, functions, and responsibilities
A funding agreement shall specify—
(A) the services to be provided under the
funding agreement;
(B) the functions to be performed under
the funding agreement; and
(C) the responsibilities of the Indian Tribe
and the Secretary under the funding agreement.
(3) Base budget
(A) In general
A funding agreement shall, at the option
of the Indian Tribe, provide for a stable base
budget specifying the recurring funds (which
may include funds available under section
5325(a) of this title) to be transferred to the

§ 5363

Indian Tribe, for such period as the Indian
Tribe specifies in the funding agreement,
subject to annual adjustment only to reflect
changes in congressional appropriations.
(B) Limitations
Notwithstanding subparagraph (A), a funding agreement shall not specify funding associated with a program described in subsection (b)(2) or (c) unless the Secretary
agrees.
(4) No waiver of trust responsibility
A funding agreement shall prohibit the Secretary from waiving, modifying, or diminishing in any way the trust responsibility of
the United States with respect to Indian
Tribes and individual Indians that exists
under treaties, Executive orders, court decisions, and other laws.
(n) Amendment
The Secretary shall not revise, amend, or require additional terms in a new or subsequent
funding agreement without the consent of the
Indian Tribe, unless such terms are required by
Federal law.
(o) Effective date
A funding agreement shall become effective on
the date specified in the funding agreement.
(p) Existing and subsequent funding agreements
(1) Subsequent funding agreements
Absent notification from an Indian Tribe
that the Indian Tribe is withdrawing or retroceding the operation of one or more programs
identified in a funding agreement, or unless
otherwise agreed to by the parties to the funding agreement or by the nature of any noncontinuing program, service, function, or activity
contained in a funding agreement—
(A) a funding agreement shall remain in
full force and effect until a subsequent funding agreement is executed, with funding paid
annually for each fiscal year the agreement
is in effect; and
(B) the term of the subsequent funding
agreement shall be retroactive to the end of
the term of the preceding funding agreement
for the purposes of calculating the amount
of funding to which the Indian Tribe is entitled.
(2) Disputes
Disputes over the implementation of paragraph (1)(A) shall be subject to section 5366(c)
of this title.
(3) Existing funding agreements
An Indian Tribe that was participating in
self-governance under this subchapter on October 21, 2020, shall have the option at any
time after that date—
(A) to retain its existing funding agreement (in whole or in part) to the extent that
the provisions of that funding agreement are
not directly contrary to any express provision of this subchapter; or
(B) to negotiate a new funding agreement
in a manner consistent with this subchapter.
(4) Multiyear funding agreements
An Indian Tribe may, at the discretion of
the Indian Tribe, negotiate with the Secretary

§ 5363

TITLE 25—INDIANS

for a funding agreement with a term that exceeds 1 year.
(Pub. L. 93–638, title IV, § 403, as added Pub. L.
103–413, title II, § 204, Oct. 25, 1994, 108 Stat. 4272;
amended Pub. L. 104–109, § 19, Feb. 12, 1996, 110
Stat. 766; Pub. L. 105–244, title IX, § 901(d), Oct. 7,
1998, 112 Stat. 1828; Pub. L. 106–568, title VIII,
§ 812(b), Dec. 27, 2000, 114 Stat. 2917; Pub. L.
110–315, title IX, § 941(k)(2)(H), Aug. 14, 2008, 122
Stat. 3467; Pub. L. 116–180, title I, § 101(d), Oct. 21,
2020, 134 Stat. 862; Pub. L. 116–260, div. DD,
§ 13(a)(3), Dec. 27, 2020, 134 Stat. 3033.)
Editorial Notes
REFERENCES IN TEXT
Act of April 16, 1934 (25 U.S.C. 452 et seq.), referred to
in subsec. (b)(1)(A)(i), is act Apr. 16, 1934, ch. 147, 48
Stat. 596, popularly known as the Johnson-O’Malley
Act, which was classified generally to section 452 et
seq. of this title prior to editorial reclassification as
section 5342 et seq. of this title. For complete classification of this Act to the Code, see Short Title note
set out under section 5301 of this title and Tables.
This chapter, referred to in subsecs. (e)(1), (g)(3), and
(j), was in the original ‘‘this Act’’, meaning Pub. L.
93–638, Jan. 4, 1975, 88 Stat. 2203, known as the Indian
Self-Determination and Education Assistance Act,
which is classified principally to this chapter. For complete classification of this Act to the Code, see Short
Title note set out under section 5301 of this title and
Tables.
Title III of this Act, referred to in subsecs. (g)(2) and
(l), is title III of Pub. L. 93–638, as added by Pub. L.
100–472, title II, § 209, Oct. 5, 1988, 102 Stat. 2296, which
was set out as a note under former section 450f of this
title prior to repeal by Pub. L. 106–260, § 10, Aug. 18,
2000, 114 Stat. 734.
The Act of July 3, 1952, referred to in subsec. (h)(2),
is act July 3, 1952, ch. 549, 66 Stat. 323, which enacted
section 82a of this title and provisions set out as a note
under section 82a of this title.
Subchapter I of this chapter, referred to in subsec. (l),
was in the original ‘‘title I of this Act’’, meaning title
I of Pub. L. 93–638, known as the Indian Self-Determination Act, which is classified principally to subchapter I
(§ 5321 et seq.) of this chapter. For complete classification of title I to the Code, see Short Title note set out
under section 5301 of this title and Tables.
The Tribally Controlled Colleges and Universities Assistance Act of 1978, referred to in subsec. (m)(1)(A), is
Pub. L. 95–471, Oct. 17, 1978, 92 Stat. 1325, which is classified principally to chapter 20 (§ 1801 et seq.) of this
title. For complete classification of this Act to the
Code, see Short Title note set out under section 1801 of
this title and Tables.
CODIFICATION
Section was formerly classified to section 458cc of
this title prior to editorial reclassification and renumbering as this section.
In subsec. (e)(1), ‘‘division B (except sections 1123,
2303, 2304, and 2313) of subtitle I of title 41’’ substituted
for ‘‘the Office of Federal Procurement and Policy Act’’
on authority of Pub. L. 111–350, § 6(c), Jan. 4, 2011, 124
Stat. 3854, which Act enacted Title 41, Public Contracts.

Page 742

Subsec. (b)(1). Pub. L. 116–180, § 101(d)(2)(A), in introductory provisions, substituted ‘‘the Office of the Assistant Secretary for Indian Affairs, and the Office of
the Special Trustee for American Indians, without regard to the agency or office of that Bureau or those Offices’’ for ‘‘without regard to the agency or office of the
Bureau of Indian Affairs’’ and ‘‘and including—’’ for
‘‘and including’’, inserted subpar. (A) designation before ‘‘any program’’, added subpar. (C), and redesignated former subpars. (A), (B), and (C) as subpars.
(A)(i), (A)(ii), and (B), respectively, and realigned margins.
Subsec. (b)(2). Pub. L. 116–180, § 101(d)(2)(B), substituted ‘‘section 5372(c) of this title’’ for ‘‘section
5365(c) of this title’’ and inserted ‘‘and’’ at end.
Subsec. (b)(3). Pub. L. 116–180, § 101(d)(2)(C), substituted period for semicolon at end.
Subsec. (b)(4). Pub. L. 116–260, which directed amendment of par. (4) by adding ‘‘and’’ at end of subpar. (A),
striking out ‘‘and’’ at end of subpar. (B), and striking
out subpar. (C), could not be executed due to intervening amendment by Pub. 116–180, § 101(d)(2)(D). See
note below.
Pub. L. 116–180, § 101(d)(2)(D), struck out par. (4) which
read as follows: ‘‘prohibit the inclusion of funds provided—
‘‘(A) pursuant to the Tribally Controlled Colleges
and Universities Assistance Act of 1978 (25 U.S.C. 1801
et seq.);
‘‘(B) for elementary and secondary schools under
the formula developed pursuant to section 2008 of this
title; and
‘‘(C) the Flathead Agency Irrigation Division or the
Flathead Agency Power Division, except that nothing
in this section shall affect the contract authority of
such divisions under section 5321 of this title;’’.
Subsec. (b)(5) to (9). Pub. L. 116–180, § 101(d)(2)(D),
struck out pars. (5) to (9) which set out various requirements and responsibilities related to funding agreements.
Subsec. (f). Pub. L. 116–180, § 101(d)(3), struck out ‘‘for
review’’ after ‘‘Submission’’ in heading, substituted
‘‘such agreement to’’ for ‘‘such agreement to—’’, struck
out par. (1) designation before ‘‘each Indian tribe’’, substituted ‘‘agreement.’’ for ‘‘agreement;’’, and struck
out pars. (2) and (3) which read as follows:
‘‘(2) the Committee on Indian Affairs of the Senate;
and
‘‘(3) the Subcommittee on Native American Affairs of
the Committee on Natural Resources of the House of
Representatives.’’
Subsec. (k). Pub. L. 116–180, § 101(d)(4), substituted
‘‘section 5372(c) of this title’’ for ‘‘section 5365(c)(1) of
this title’’.
Subsecs. (m) to (p). Pub. L. 116–180, § 101(d)(5), added
subsecs. (m) to (p).
2008—Subsec. (b)(4)(A). Pub. L. 110–315 substituted
‘‘the Tribally Controlled Colleges and Universities Assistance Act of 1978’’ for ‘‘the Tribally Controlled College or University Assistance Act of 1978’’.
2000—Subsec. (h)(2). Pub. L. 106–568 struck out ‘‘and’’
before ‘‘section 5123 of this title’’ and substituted ‘‘and
the Act of July 3, 1952 (25 U.S.C. 82a), shall not apply’’
for ‘‘shall not apply’’.
1998—Subsec. (b)(4)(A). Pub. L. 105–244 substituted
‘‘Tribally Controlled College or University Assistance
Act of 1978’’ for ‘‘Tribally Controlled Community College Assistance Act of 1978’’.
1996—Subsec. (l). Pub. L. 104–109 added subsec. (l).

AMENDMENTS
2020—Subsec. (a). Pub. L. 116–180, § 101(d)(1), added
subsec. (a) and struck out former subsec. (a). Prior to
amendment, text read as follows: ‘‘The Secretary shall
negotiate and enter into an annual written funding
agreement with the governing body of each participating tribal government in a manner consistent with
the Federal Government’s laws and trust relationship
to and responsibility for the Indian people.’’

Statutory Notes and Related Subsidiaries
EFFECTIVE DATE OF 1998 AMENDMENT
Amendment by Pub. L. 105–244 effective Oct. 1, 1998,
except as otherwise provided in Pub. L. 105–244, see section 3 of Pub. L. 105–244, set out as a note under section
1001 of Title 20, Education.

Page 743

TITLE 25—INDIANS

§ 5365

§ 5364. Compacts

(b) Conflicts of interest

(a) In general
The Secretary shall negotiate and enter into a
written compact with each Indian Tribe participating in self-governance in a manner consistent
with the trust responsibility of the Federal Government, treaty obligations, and the government-to-government relationship between Indian Tribes and the United States.
(b) Contents
A compact under subsection (a) shall—
(1) specify and affirm the general terms of
the government-to-government relationship
between the Indian Tribe and the Secretary;
and
(2) include such terms as the parties intend
shall control during the term of the compact.
(c) Amendment
A compact under subsection (a) may be
amended only by agreement of the parties.
(d) Effective date
The effective date of a compact under subsection (a) shall be—
(1) the date of the execution of the compact
by the parties; or
(2) such date as is mutually agreed upon by
the parties.
(e) Duration
A compact under subsection (a) shall remain
in effect—
(1) for so long as permitted by Federal law;
or
(2) until termination by written agreement,
retrocession, or reassumption.
(f) Existing compacts
An Indian Tribe participating in self-governance under this subchapter, as in effect on October 21, 2020, shall have the option at any time
after that date—
(1) to retain its negotiated compact (in
whole or in part) to the extent that the provisions of the compact are not directly contrary
to any express provision of this subchapter; or
(2) to negotiate a new compact in a manner
consistent with this subchapter.

An Indian Tribe participating in self-governance shall ensure that internal measures are in
place to address, pursuant to Tribal law and procedures, conflicts of interest in the administration of programs.
(c) Audits
(1) Single Agency Audit Act

(Pub. L. 93–638, title IV, § 404, as added Pub. L.
116–180, title I, § 101(e), Oct. 21, 2020, 134 Stat.
864.)
Editorial Notes
PRIOR PROVISIONS
A prior section 5364, Pub. L. 93–638, title IV, § 404, as
added Pub. L. 103–413, title II, § 204, Oct. 25, 1994, 108
Stat. 4275, related to identification of funds in annual
budget request, prior to repeal by Pub. L. 116–180, title
I, § 101(e), Oct. 21, 2020, 134 Stat. 864. See section 5371 of
this title. Such section was formerly classified to section 458dd of this title prior to editorial reclassification
and renumbering as section 5364.

§ 5365. General provisions
(a) Applicability
An Indian Tribe and the Secretary shall include in any compact or funding agreement provisions that reflect the requirements of this subchapter.

Chapter 75 of title 31 shall apply to a funding
agreement under this subchapter.
(2) Cost principles
An Indian Tribe shall apply cost principles
under the applicable Office of Management
and Budget circular, except as modified by—
(A) any provision of law, including section
5325 of this title; or
(B) any exemptions to applicable Office of
Management and Budget circulars subsequently granted by the Office of Management and Budget.
(3) Federal claims
Any claim by the Federal Government
against an Indian Tribe relating to funds received under a funding agreement based on
any audit under this subsection shall be subject to section 5325(f) of this title.
(d) Redesign and consolidation
Except as provided in section 5367 of this title,
an Indian Tribe may redesign or consolidate programs, or reallocate funds for programs, in a
compact or funding agreement in any manner
that the Indian Tribe determines to be in the
best interest of the Indian community being
served—
(1) so long as the redesign or consolidation
does not have the effect of denying eligibility
for services to population groups otherwise eligible to be served under applicable Federal
law; and
(2) except that, with respect to the reallocation, consolidation, and redesign of programs
described in subsection (b)(2) or (c) of section
5363 of this title, a joint agreement between
the Secretary and the Indian Tribe shall be required.
(e) Retrocession
(1) In general
An Indian Tribe may fully or partially retrocede to the Secretary any program under a
compact or funding agreement.
(2) Effective date
(A) Agreement
Unless an Indian Tribe rescinds a request
for retrocession under paragraph (1), the retrocession shall become effective on the date
specified by the parties in the compact or
funding agreement.
(B) No agreement
In the absence of a specification of an effective date in the compact or funding agreement, the retrocession shall become effective on—
(i) the earlier of—
(I) 1 year after the date on which the
request is submitted; and

§ 5366

TITLE 25—INDIANS
(II) the date on which the funding
agreement expires; or

(ii) such date as may be mutually agreed
upon by the Secretary and the Indian
Tribe.
(f) Nonduplication
A funding agreement shall provide that, for
the period for which, and to the extent to which,
funding is provided to an Indian Tribe under this
subchapter, the Indian Tribe—
(1) shall not be entitled to contract with the
Secretary for funds under section 5321 of this
title, except that the Indian Tribe shall be eligible for new programs on the same basis as
other Indian Tribes; and
(2) shall be responsible for the administration of programs in accordance with the compact or funding agreement.
(g) Records
(1) In general
Unless an Indian Tribe specifies otherwise in
the compact or funding agreement, records of
an Indian Tribe shall not be considered to be
Federal records for purposes of chapter 5 of
title 5.
(2) Recordkeeping system
An Indian Tribe shall—
(A) maintain a recordkeeping system; and
(B) on a notice period of not less than 30
days, provide the Secretary with reasonable
access to the records to enable the Department to meet the requirements of sections
3101 through 3106 of title 44.
(Pub. L. 93–638, title IV, § 405, as added Pub. L.
116–180, title I, § 101(e), Oct. 21, 2020, 134 Stat.
865.)
Editorial Notes
PRIOR PROVISIONS
A prior section 5365, Pub. L. 93–638, title IV, § 405, as
added Pub. L. 103–413, title II, § 204, Oct. 25, 1994, 108
Stat. 4276, related to reports, prior to repeal by Pub. L.
116–180, title I, § 101(e), Oct. 21, 2020, 134 Stat. 864. See
section 5372 of this title. Such section was formerly
classified to section 458ee of this title prior to editorial
reclassification and renumbering as section 5365.

§ 5366. Provisions relating to the Secretary
(a) Trust evaluations
A funding agreement shall include a provision
to monitor the performance of trust functions
by the Indian Tribe through the annual trust
evaluation.
(b) Reassumption
(1) In general
A compact or funding agreement shall include provisions for the Secretary to reassume
a program and associated funding if there is a
specific finding relating to that program of—
(A) imminent jeopardy to a trust asset, a
natural resource, or public health and safety
that—
(i) is caused by an act or omission of the
Indian Tribe; and
(ii) arises out of a failure to carry out
the compact or funding agreement; or

Page 744

(B) gross mismanagement with respect to
funds transferred to an Indian Tribe under a
compact or funding agreement, as determined by the Secretary in consultation with
the Inspector General, as appropriate.
(2) Prohibition
The Secretary shall not reassume operation
of a program, in whole or part, unless—
(A) the Secretary first provides written
notice and a hearing on the record to the Indian Tribe; and
(B) the Indian Tribe does not take corrective action to remedy the mismanagement
of the funds or programs, or the imminent
jeopardy to a trust asset, natural resource,
or public health and safety.
(3) Exception
(A) In general
Notwithstanding paragraph (2), the Secretary may, on written notice to the Indian
Tribe, immediately reassume operation of a
program if—
(i) the Secretary makes a finding of imminent and substantial jeopardy and irreparable harm to a trust asset, a natural resource, or the public health and safety
caused by an act or omission of the Indian
Tribe; and
(ii) the imminent and substantial jeopardy and irreparable harm to the trust
asset, natural resource, or public health
and safety arises out of a failure by the Indian Tribe to carry out the terms of an applicable compact or funding agreement.
(B) Reassumption
If the Secretary reassumes operation of a
program under subparagraph (A), the Secretary shall provide the Indian Tribe with a
hearing on the record not later than 10 days
after the date of reassumption.
(c) Inability to agree on compact or funding
agreement
(1) Final offer
If the Secretary and a participating Indian
Tribe are unable to agree, in whole or in part,
on the terms of a compact or funding agreement (including funding levels), the Indian
Tribe may submit a final offer to the Secretary.
(2) Determination
Not more than 60 days after the date of receipt of a final offer by one or more of the officials designated pursuant to paragraph (4), the
Secretary shall review and make a determination with respect to the final offer, except that
the 60-day period may be extended for up to 30
days for circumstances beyond the control of
the Secretary, upon written request by the
Secretary to the Indian tribe.
(3) Extensions
The deadline described in paragraph (2) may
be extended for any length of time, as agreed
upon by both the Indian Tribe and the Secretary.
(4) Designated officials
(A) In general
The Secretary shall designate one or more
appropriate officials in the Department to

Page 745

TITLE 25—INDIANS

receive a copy of the final offer described in
paragraph (1).
(B) No designation
If no official is designated, the Director of
the Office of the Executive Secretariat and
Regulatory Affairs shall be the designated
official.
(5) No timely determination
If the Secretary fails to make a determination with respect to a final offer within the period specified in paragraph (2), including any
extension agreed to under paragraph (3), the
Secretary shall be deemed to have agreed to
the offer, except that with respect to any compact or funding agreement provision concerning a program described under section
5363(c) of this title, the Secretary shall be
deemed to have rejected the offer with respect
to such provision and the terms of clauses (ii)
through (iv) of paragraphs 1 (6)(A) shall apply.
(6) Rejection of final offer
(A) In general
If the Secretary rejects a final offer (or
one or more provisions or funding levels in a
final offer), the Secretary shall—
(i) provide timely written notification to
the Indian Tribe that contains a specific
finding that clearly demonstrates, or that
is supported by a controlling legal authority, that—
(I) the amount of funds proposed in the
final offer exceeds the applicable funding
level as determined under section
5325(a)(1) of this title;
(II) the program that is the subject of
the final offer is an inherent Federal
function or is subject to the discretion of
the Secretary under section 5363(c) of
this title;
(III) the Indian Tribe cannot carry out
the program in a manner that would not
result in significant danger or risk to the
public health or safety, to natural resources, or to trust resources;
(IV) the Indian Tribe is not eligible to
participate in self-governance under section 5362(c) of this title;
(V) the funding agreement would violate a Federal statute or regulation; or
(VI) with respect to a program or portion of a program included in a final
offer pursuant to section 5363(b)(2) of this
title, the program or the portion of the
program is not otherwise available to Indian Tribes or Indians under section
5321(a)(1)(E) of this title;
(ii) provide technical assistance to overcome the objections stated in the notification required by clause (i);
(iii) provide the Indian Tribe with a
hearing on the record with the right to engage in full discovery relevant to any issue
raised in the matter, and the opportunity
for appeal on the objections raised, except
that the Indian Tribe may, in lieu of filing
such appeal, directly proceed to initiate an
1 So

in original. Probably should be ‘‘paragraph’’.

§ 5366

action in a United States district court
under section 5331(a) of this title; and
(iv) provide the Indian Tribe the option
of entering into the severable portions of a
final proposed compact or funding agreement (including a lesser funding amount,
if any), that the Secretary did not reject,
subject to any additional alterations necessary to conform the compact or funding
agreement to the severed provisions.
(B) Effect of exercising certain option
If an Indian Tribe exercises the option
specified in subparagraph (A)(iv)—
(i) the Indian Tribe shall retain the right
to appeal the rejection by the Secretary
under this section; and
(ii) clauses (i), (ii), and (iii) of subparagraph (A) shall apply only to the portion of
the proposed final compact or funding
agreement that was rejected by the Secretary.
(d) Burden of proof
In any administrative action, hearing, appeal,
or civil action brought under this section, the
Secretary shall have the burden of proof—
(1) of demonstrating, by a preponderance of
the evidence, the validity of the grounds for a
reassumption under subsection (b); and
(2) of clearly demonstrating the validity of
the grounds for rejecting a final offer made
under subsection (c).
(e) Good faith
(1) In general
In the negotiation of compacts and funding
agreements, the Secretary shall at all times
negotiate in good faith to maximize implementation of the self-governance policy.
(2) Policy
The Secretary shall carry out this subchapter in a manner that maximizes the policy of Tribal self-governance.
(f) Savings
(1) In general
To the extent that programs carried out for
the benefit of Indian Tribes and Tribal organizations under this subchapter reduce the administrative or other responsibilities of the
Secretary with respect to the operation of Indian programs and result in savings that have
not otherwise been included in the amount of
Tribal shares and other funds determined
under section 5368(c) of this title, except for
funding agreements entered into for programs
under section 5363(c) of this title, the Secretary shall make such savings available to
the Indian Tribes or Tribal organizations for
the provision of additional services to program
beneficiaries in a manner equitable to directly
served, contracted, and compacted programs.
(2) Discretionary programs of special significance
For any savings generated as a result of the
assumption of a program by an Indian Tribe
under section 5363(c) of this title, such savings
shall be made available to that Indian Tribe.
(g) Trust responsibility
The Secretary may not waive, modify, or diminish in any way the trust responsibility of the

§ 5367

TITLE 25—INDIANS

United States with respect to Indian Tribes and
individual Indians that exists under treaties,
Executive orders, other laws, or court decisions.
(h) Decision maker
A decision that constitutes final agency action and relates to an appeal within the Department conducted under subsection (c)(6)(A)(iii)
may be made by—
(1) an official of the Department who holds a
position at a higher organizational level within the Department than the level of the departmental agency in which the decision that
is the subject of the appeal was made; or
(2) an administrative law judge.
(i) Rules of construction
Subject to section 101(a) of the PROGRESS for
Indian Tribes Act, each provision of this subchapter and each provision of a compact or funding agreement shall be liberally construed for
the benefit of the Indian Tribe participating in
self-governance, and any ambiguity shall be resolved in favor of the Indian Tribe.
(Pub. L. 93–638, title IV, § 406, as added Pub. L.
116–180, title I, § 101(e), Oct. 21, 2020, 134 Stat.
866.)
REFERENCES IN TEXT
Section 101(a) of the PROGRESS for Indian Tribes
Act, referred to in subsec. (i), is section 101(a) of Pub.
L. 116–180, which is set out as a note under section 5361
of this title.
Editorial Notes
PRIOR PROVISIONS
A prior section 5366, Pub. L. 93–638, title IV, § 406, as
added Pub. L. 103–413, title II, § 204, Oct. 25, 1994, 108
Stat. 4277; amended Pub. L. 105–277, div. A, § 101(e) [title
I, § 133], Oct. 21, 1998, 112 Stat. 2681–231, 2681–264, set out
disclaimers regarding construction of provisions of this
chapter and subchapter. Such ection was formerly classified to section 458ff of this title prior to editorial reclassification and renumbering as section 5366.

§ 5367. Construction programs and projects
(a) In general
Indian Tribes participating in Tribal self-governance may carry out any construction project
included in a compact or funding agreement
under this subchapter.
(b) Tribal option to carry out certain Federal environmental activities
In carrying out a construction project under
this subchapter, an Indian Tribe may, subject to
the agreement of the Secretary, elect to assume
some Federal responsibilities under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321
et seq.), division A of subtitle III of title 54, and
related provisions of other law and regulations
that would apply if the Secretary were to undertake a construction project, by adopting a resolution—
(1) designating a certifying Tribal officer to
represent the Indian Tribe and to assume the
status of a responsible Federal official under
those Acts, laws, or regulations; and
(2) accepting the jurisdiction of the United
States courts for the purpose of enforcing the
responsibilities of the certifying Tribal officer

Page 746

assuming the status of a responsible Federal
official under those Acts, laws, or regulations.
(c) Savings clause
Notwithstanding subsection (b), nothing in
this section authorizes the Secretary to include
in any compact or funding agreement duties of
the Secretary under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.),
division A of subtitle III of title 54, and other related provisions of law that are inherent Federal
functions.
(d) Codes and standards
In carrying out a construction project under
this subchapter, an Indian Tribe shall—
(1) adhere to applicable Federal, State, local,
and Tribal building codes, architectural and
engineering standards, and applicable Federal
guidelines regarding design, space, and operational standards, appropriate for the particular project; and
(2) use only architects and engineers who—
(A) are licensed to practice in the State in
which the facility will be built; and
(B) certify that—
(i) they are qualified to perform the
work required by the specific construction
involved; and
(ii) upon completion of design, the plans
and specifications meet or exceed the applicable construction and safety codes.
(e) Tribal accountability
(1) In general
In carrying out a construction project under
this subchapter, an Indian Tribe shall assume
responsibility for the successful completion of
the construction project and of a facility that
is usable for the purpose for which the Indian
Tribe received funding.
(2) Requirements
For each construction project carried out by
an Indian Tribe under this subchapter, the Indian Tribe and the Secretary shall negotiate a
provision to be included in the funding agreement that identifies—
(A) the approximate start and completion
dates for the project, which may extend over
a period of one or more years;
(B) a general description of the project, including the scope of work, references to design criteria, and other terms and conditions;
(C) the responsibilities of the Indian Tribe
and the Secretary for the project;
(D) how project-related environmental
considerations will be addressed;
(E) the amount of funds provided for the
project;
(F) the obligations of the Indian Tribe to
comply with the codes referenced in subsection (d)(1) and applicable Federal laws
and regulations;
(G) the agreement of the parties over who
will bear any additional costs necessary to
meet changes in scope, or errors or omissions in design and construction; and
(H) the agreement of the Secretary to
issue a certificate of occupancy, if requested
by the Indian Tribe, based upon the review

Page 747

§ 5368

TITLE 25—INDIANS

and verification by the Secretary, to the satisfaction of the Secretary, that the Indian
Tribe has secured upon completion the review and approval of the plans and specifications, sufficiency of design, life safety, and
code compliance by qualified, licensed, and
independent architects and engineers.
(f) Funding
(1) In general
Funding appropriated for construction
projects carried out under this subchapter
shall be included in funding agreements as annual or semiannual advance payments at the
option of the Indian Tribe.
(2) Advance payments
The Secretary shall include all associated
project contingency funds with each advance
payment, and the Indian Tribe shall be responsible for the management of such contingency
funds.
(g) Negotiations
At the option of the Indian Tribe, construction
project funding proposals shall be negotiated
pursuant to the statutory process in section 5324
of this title, and any resulting construction
project agreement shall be incorporated into the
funding agreement as addenda.
(h) Federal review and verification
(1) In general
On a schedule negotiated by the Secretary
and the Indian Tribe—
(A) the Secretary shall review and verify,
to the satisfaction of the Secretary, that
project planning and design documents prepared by the Indian Tribe in advance of initial construction are in conformity with the
obligations of the Indian Tribe under subsection (d); and
(B) before the project planning and design
documents are implemented, the Secretary
shall review and verify to the satisfaction of
the Secretary that subsequent document
amendments which result in a significant
change in construction are in conformity
with the obligations of the Indian Tribe
under subsection (d).
(2) Reports
The Indian Tribe shall provide the Secretary
with project progress and financial reports not
less than semiannually.
(3) Oversight visits
The Secretary may conduct onsite project
oversight visits semiannually or on an alternate schedule agreed to by the Secretary and
the Indian Tribe.
(i) Application of other laws
Unless otherwise agreed to by the Indian Tribe
and except as otherwise provided in this chapter, no provision of title 41, the Federal Acquisition Regulation, or any other law or regulation
pertaining to Federal procurement (including
Executive orders) shall apply to any construction program or project carried out under this
subchapter.
(j) Future funding
Upon completion of a facility constructed
under this subchapter, the Secretary shall in-

clude the facility among those eligible for annual operation and maintenance funding support
comparable to that provided for similar facilities funded by the Department as annual appropriations are available and to the extent that
the facility size and complexity and other factors do not exceed the funding formula criteria
for comparable buildings.
(Pub. L. 93–638, title IV, § 407, as added Pub. L.
116–180, title I, § 101(e), Oct. 21, 2020, 134 Stat.
870.)
Editorial Notes
REFERENCES IN TEXT
The National Environmental Policy Act of 1969, referred to in subsecs. (b) and (c), is Pub. L. 91–190, Jan.
1, 1970, 83 Stat. 852, which is classified generally to
chapter 55 (§ 4321 et seq.) of Title 42, The Public Health
and Welfare. For complete classification of this Act to
the Code, see Short Title note set out under section
4321 of Title 42 and Tables.
This chapter, referred to in subsec. (i), was in the
original ‘‘this Act’’, meaning Pub. L. 93–638, Jan. 4,
1975, 88 Stat. 2203, known as the Indian Self-Determination and Education Assistance Act, which is classified
principally to this chapter. For complete classification
of this Act to the Code, see Short Title note set out
under section 5301 of this title and Tables.
PRIOR PROVISIONS
A prior section 5367, Pub. L. 93–638, title IV, § 407, as
added Pub. L. 103–413, title II, § 204, Oct. 25, 1994, 108
Stat. 4277, related to regulations to carry out this subchapter, prior to repeal by Pub. L. 116–180, title I,
§ 101(e), Oct. 21, 2020, 134 Stat. 864. See section 5373 of
this title. Such section was formerly classified to section 458gg of this title prior to editorial reclassification
and renumbering as section 5367.

§ 5368. Payment
(a) In general
At the request of the governing body of an Indian Tribe and under the terms of an applicable
funding agreement, the Secretary shall provide
funding to the Indian Tribe to carry out the
funding agreement.
(b) Advance annual payment
At the option of the Indian Tribe, a funding
agreement shall provide for an advance annual
payment to an Indian Tribe.
(c) Amount
(1) In general
Subject to subsection (e) and sections 5363
and 5365 of this title, the Secretary shall provide funds to the Indian Tribe under a funding
agreement for programs in an amount that is
equal to the amount that the Indian Tribe
would have been entitled to receive under contracts and grants under this chapter (including amounts for direct program and contract
support costs and, in addition, any funds that
are specifically or functionally related to the
provision by the Secretary of services and benefits to the Indian Tribe or its members) without regard to the organization level within the
Department at which the programs are carried
out.
(2) Savings clause
Nothing in this section reduces programs,
services, or funds of, or provided to, another
Indian Tribe.

§ 5368

TITLE 25—INDIANS

(d) Timing
(1) In general
Pursuant to the terms of any compact or
funding agreement entered into under this
subchapter, the Secretary shall transfer to the
Indian Tribe all funds provided for in the funding agreement, pursuant to subsection (c), and
provide funding for periods covered by joint
resolution adopted by Congress making continuing appropriations, to the extent permitted by such resolution.
(2) Transfers
Not later than 1 year after October 21, 2020,
in any instance in which a funding agreement
requires an annual transfer of funding to be
made at the beginning of a fiscal year or requires semiannual or other periodic transfers
of funding to be made commencing at the beginning of a fiscal year, the first such transfer
shall be made not later than 10 days after the
apportionment of such funds by the Office of
Management and Budget to the Department,
unless the funding agreement provides otherwise.
(e) Availability
Funds for trust services to individual Indians
shall be available under a funding agreement
only to the extent that the same services that
would have been provided by the Secretary are
provided to individual Indians by the Indian
Tribe.
(f) Multiyear funding
A funding agreement may provide for
multiyear funding.
(g) Limitations on authority of the Secretary
The Secretary shall not—
(1) fail to transfer to an Indian Tribe its full
share of any central, headquarters, regional,
area, or service unit office or other funds due
under this subchapter for programs eligible
under paragraph (1) or (2) of section 5363(b) of
this title, except as required by Federal law;
(2) withhold any portion of such funds for
transfer over a period of years; or
(3) reduce the amount of funds required
under this subchapter—
(A) to make funding available for self-governance monitoring or administration by
the Secretary;
(B) in subsequent years, except as necessary as a result of—
(i) a reduction in appropriations from
the previous fiscal year for the program to
be included in a compact or funding agreement;
(ii) a congressional directive in legislation or an accompanying report;
(iii) a Tribal authorization;
(iv) a change in the amount of passthrough funds subject to the terms of the
funding agreement; or
(v) completion of an activity under a
program for which the funds were provided;
(C) to pay for Federal functions, including—
(i) Federal pay costs;

Page 748

(ii) Federal employee retirement benefits;
(iii) automated data processing;
(iv) technical assistance; and
(v) monitoring of activities under this
subchapter; or
(D) to pay for costs of Federal personnel
displaced by self-determination contracts
under this chapter or self-governance under
this subchapter.
(h) Federal resources
If an Indian Tribe elects to carry out a compact or funding agreement with the use of Federal personnel, Federal supplies (including supplies available from Federal warehouse facilities), Federal supply sources (including lodging,
airline transportation, and other means of
transportation, including the use of interagency
motor pool vehicles), or other Federal resources
(including supplies, services, and resources
available to the Secretary under any procurement contracts in which the Department is eligible to participate), the Secretary shall, as
soon as practicable, acquire and transfer such
personnel, supplies, or resources to the Indian
Tribe under this subchapter.
(i) Prompt Payment Act
Chapter 39 of title 31 shall apply to the transfer of funds due under a compact or funding
agreement authorized under this subchapter.
(j) Interest or other income
(1) In general
An Indian Tribe may retain interest or income earned on any funds paid under a compact or funding agreement to carry out governmental purposes.
(2) No effect on other amounts
The retention of interest or income under
paragraph (1) shall not diminish the amount of
funds an Indian Tribe is entitled to receive
under a funding agreement in the year the interest or income is earned or in any subsequent fiscal year.
(3) Investment standard
Funds transferred under this subchapter
shall be managed by the Indian Tribe using
the prudent investment standard, provided
that the Secretary shall not be liable for any
investment losses of funds managed by the Indian Tribe that are not otherwise guaranteed
or insured by the Federal Government.
(k) Carryover of funds
(1) In general
Notwithstanding any provision of an appropriations Act, all funds paid to an Indian Tribe
in accordance with a compact or funding
agreement shall remain available until expended.
(2) Effect of carryover
If an Indian Tribe elects to carry over funding from one year to the next, the carryover
shall not diminish the amount of funds the Indian Tribe is entitled to receive under a funding agreement in that fiscal year or any subsequent fiscal year.

Page 749

§ 5370

TITLE 25—INDIANS

(l) Limitation of costs
(1) In general
An Indian Tribe shall not be obligated to
continue performance that requires an expenditure of funds in excess of the amount of funds
transferred under a compact or funding agreement.
(2) Notice of insufficiency
If at any time the Indian Tribe has reason to
believe that the total amount provided for a
specific activity under a compact or funding
agreement is insufficient, the Indian Tribe
shall provide reasonable notice of such insufficiency to the Secretary.
(3) Suspension of performance
If, after notice under paragraph (2), the Secretary does not increase the amount of funds
transferred under the funding agreement, the
Indian Tribe may suspend performance of the
activity until such time as additional funds
are transferred.
(4) Savings clause
Nothing in this section reduces any programs, services, or funds of, or provided to, another Indian Tribe.
(m) Distribution of funds
The Office of Self-Governance shall be responsible for distribution of all Bureau of Indian Affairs funds provided under this subchapter unless otherwise agreed by the parties to an applicable funding agreement.
(n) Applicability
Notwithstanding any other provision of this
section, section 101(a) of the PROGRESS for Indian Tribes Act applies to subsections (a)
through (m).
(Pub. L. 93–638, title IV, § 408, as added Pub. L.
116–180, title I, § 101(e), Oct. 21, 2020, 134 Stat.
872.)
Editorial Notes
REFERENCES IN TEXT
This chapter, referred to in subsecs. (c)(1) and
(g)(3)(D), was in the original ‘‘this Act’’, meaning Pub.
L. 93–638, Jan. 4, 1975, 88 Stat. 2203, known as the Indian
Self-Determination and Education Assistance Act,
which is classified principally to this chapter. For complete classification of this Act to the Code, see Short
Title note set out under section 5301 of this title and
Tables.
Section 101(a) of the PROGRESS for Indian Tribes
Act, referred to in subsec. (n), is section 101(a) of Pub.
L. 116–180, which is set out as a note under section 5361
of this title.
PRIOR PROVISIONS
A prior section 5368, Pub. L. 93–638, title IV, § 408, as
added Pub. L. 103–413, title II, § 204, Oct. 25, 1994, 108
Stat. 4278, authorized appropriations, prior to repeal by
Pub. L. 116–180, title I, § 101(e), Oct. 21, 2020, 134 Stat.
864, 872. See section 5377 of this title. Such section was
formerly classified to section 458hh of this title prior to
editorial reclassification and renumbering as section
5368.

Tribes Act), the Secretary shall interpret each
Federal law and regulation in a manner that facilitates—
(1) the inclusion of programs in funding
agreements; and
(2) the implementation of funding agreements.
(b) Regulation waiver
(1) Request
An Indian Tribe may submit to the Secretary a written request for a waiver of applicability of a Federal regulation, including—
(A) an identification of the specific text in
the regulation sought to be waived; and
(B) the basis for the request.
(2) Determination by the secretary
Not later than 120 days after receipt by the
Secretary and the designated officials under
paragraph (4) of a request under paragraph (1),
the Secretary shall approve or deny the requested waiver in writing to the Indian Tribe.
(3) Extensions
The deadline described in paragraph (2) may
be extended for any length of time, as agreed
upon by both the Indian Tribe and the Secretary.
(4) Designated officials
The Secretary shall designate one or more
appropriate officials in the Department to receive a copy of the waiver request described in
paragraph (1).
(5) Grounds for denial
The Secretary may deny a request under
paragraph (1) upon a specific finding by the
Secretary that the identified text in the regulation may not be waived because such a waiver is prohibited by Federal law.
(6) Failure to make determination
If the Secretary fails to make a determination with respect to a waiver request within
the period specified in paragraph (2) (including
any extension agreed to under paragraph (3)),
the Secretary shall be deemed to have agreed
to the request, except that for a waiver request relating to programs eligible under section 5363(b)(2) or section 5363(c) of this title,
the Secretary shall be deemed to have denied
the request.
(7) Finality
A decision of the Secretary under this section shall be final for the Department.
(Pub. L. 93–638, title IV, § 409, as added Pub. L.
116–180, title I, § 101(e), Oct. 21, 2020, 134 Stat.
874.)
Editorial Notes
REFERENCES IN TEXT
Section 101(a) of the PROGRESS for Indian Tribes
Act, referred to in subsec. (a), is section 101(a) of Pub.
L. 116–180, which is set out as a note under section 5361
of this title.

§ 5369. Facilitation

§ 5370. Discretionary application of other sections

(a) In general
Except as otherwise provided by law (including section 101(a) of the PROGRESS for Indian

(a) In general
Except as otherwise provided in section 201(d)
of the PROGRESS for Indian Tribes Act, at the

§ 5371

TITLE 25—INDIANS

option of a participating Indian Tribe or Indian
Tribes, any of the provisions of subchapter I
may be incorporated in any compact or funding
agreement under this subchapter. The inclusion
of any such provision shall be subject to, and
shall not conflict with, section 101(a) of such
Act.
(b) Effect
Each incorporated provision under subsection
(a) shall—
(1) have the same force and effect as if set
out in full in this subchapter;
(2) supplement or replace any related provision in this subchapter; and
(3) apply to any agency otherwise governed
by this subchapter.
(c) Effective date
If an Indian Tribe requests incorporation at
the negotiation stage of a compact or funding
agreement, the incorporation shall—
(1) be effective immediately; and
(2) control the negotiation and resulting
compact and funding agreement.
(Pub. L. 93–638, title IV, § 410, as added Pub. L.
116–180, title I, § 101(e), Oct. 21, 2020, 134 Stat.
875.)
Editorial Notes
REFERENCES IN TEXT
Sections 101(a) and 201(d) of the PROGRESS for Indian Tribes Act, referred to in subsec. (a), are sections
101(a) and 201(d) of Pub. L. 116–180, which are set out as
notes under section 5361 of this title.
Subchapter I, referred to in subsec. (a), was in the
original ‘‘title I’’, meaning title I of Pub. L. 93–638,
known as the Indian Self-Determination Act, which is
classified principally to subchapter I (§ 5321 et seq.) of
this chapter. For complete classification of title I to
the Code, see Short Title note set out under section
5301 of this title and Tables.

§ 5371. Annual budget list
The Secretary shall list, in the annual budget
request submitted to Congress under section 1105
of title 31, any funds proposed to be included in
funding agreements authorized under this subchapter.
(Pub. L. 93–638, title IV, § 411, as added Pub. L.
116–180, title I, § 101(e), Oct. 21, 2020, 134 Stat.
876.)
Editorial Notes
PRIOR PROVISIONS
Provisions similar to those in this section were contained in section 5364 of this title prior to repeal by
Pub. L. 116–180.

§ 5372. Reports
(a) In general
(1) Requirement
On January 1 of each year, the Secretary
shall submit to Congress a report regarding
the administration of this subchapter.
(2) Analysis
Any Indian Tribe may submit to the Office
of Self-Governance and to the appropriate

Page 750

committees of Congress a detailed annual
analysis of unmet Tribal needs for funding
agreements under this subchapter.
(b) Contents
The report under subsection (a)(1) shall—
(1) be compiled from information contained
in funding agreements, annual audit reports,
and data of the Secretary regarding the disposition of Federal funds;
(2) identify—
(A) the relative costs and benefits of selfgovernance;
(B) with particularity, all funds that are
specifically or functionally related to the
provision by the Secretary of services and
benefits to self-governance Indian Tribes and
members of Indian Tribes;
(C) the funds transferred to each Indian
Tribe and the corresponding reduction in the
Federal employees and workload; and
(D) the funding formula for individual
Tribal shares of all Central Office funds, together with the comments of affected Indian
Tribes, developed under subsection (d);
(3) before being submitted to Congress, be
distributed to the Indian Tribes for comment
(with a comment period of not less than 30
days);
(4) include the separate views and comments
of each Indian Tribe or Tribal organization;
and
(5) include a list of—
(A) all such programs that the Secretary
determines, in consultation with Indian
Tribes participating in self-governance, are
eligible for negotiation to be included in a
funding agreement at the request of a participating Indian Tribe; and
(B) all such programs which Indian Tribes
have formally requested to include in a funding agreement under section 5363(c) of this
title due to the special geographic, historical, or cultural significance of the program
to the Indian Tribe, indicating whether each
request was granted or denied, and stating
the grounds for any denial.
(c) Report on non-BIA programs
(1) In general
In order to optimize opportunities for including non-BIA programs in agreements with
Indian Tribes participating in self-governance
under this subchapter, the Secretary shall review all programs administered by the Department, other than through the Bureau of Indian
Affairs, the Office of the Assistant Secretary
for Indian Affairs, or the Office of the Special
Trustee for American Indians, without regard
to the agency or office concerned.
(2) Programmatic targets
The Secretary shall establish programmatic
targets, after consultation with Indian Tribes
participating in self-governance, to encourage
bureaus of the Department to ensure that an
appropriate portion of those programs are
available to be included in funding agreements.
(3) Publication
The lists under subsection (b)(5) and targets
under paragraph (2) shall be published in the

Page 751

§ 5375

TITLE 25—INDIANS

Federal Register and made available to any
Indian Tribe participating in self-governance.
(4) Annual review
(A) In general
The Secretary shall annually review and
publish in the Federal Register, after consultation with Indian Tribes participating in
self-governance, revised lists and programmatic targets.
(B) Contents
In preparing the revised lists and programmatic targets, the Secretary shall consider all programs that were eligible for contracting in the original list published in the
Federal Register in 1995, except for programs
specifically
determined
not
to
be
contractible as a matter of law.
(d) Report on Central Office funds

(c) Adaptation of procedures
The Secretary shall adapt the negotiated rulemaking procedures to the unique context of selfgovernance and the government-to-government
relationship between the United States and Indian Tribes.
(d) Effect
(1) Repeal

Not later than January 1, 2020, the Secretary
shall, in consultation with Indian Tribes, develop a funding formula to determine the individual Tribal share of funds controlled by the
Central Office of the Bureau of Indian Affairs
and the Office of the Special Trustee for inclusion in the compacts.

The lack of promulgated regulations on an
issue shall not limit the effect or implementation of this subchapter.

The Secretary may repeal any regulation
that is inconsistent with this chapter.
(2) Conflicting provisions
Subject to section 101(a) of the PROGRESS
for Indian Tribes Act and except with respect
to programs described under section 5363(c) of
this title, this subchapter shall supersede any
conflicting provision of law (including any
conflicting regulations).
(3) Effectiveness without regard to regulations

(Pub. L. 93–638, title IV, § 413, as added Pub. L.
116–180, title I, § 101(e), Oct. 21, 2020, 134 Stat.
877.)

(Pub. L. 93–638, title IV, § 412, as added Pub. L.
116–180, title I, § 101(e), Oct. 21, 2020, 134 Stat.
876.)
Editorial Notes
PRIOR PROVISIONS
Provisions similar to those in this section were contained in section 5365 of this title prior to repeal by
Pub. L. 116–180.

§ 5373. Regulations
(a) In general
(1) Promulgation
Not later than 90 days after October 21, 2020,
the Secretary shall initiate procedures under
subchapter III of chapter 5 of title 5 to negotiate and promulgate such regulations as are
necessary to carry out this subchapter.
(2) Publication of proposed regulations
Proposed regulations to implement this subchapter shall be published in the Federal Register not later than 21 months after October
21, 2020.
(3) Expiration of authority
The authority to promulgate regulations
under paragraph (1) shall expire on the date
that is 30 months after October 21, 2020.
(b) Committee
(1) Membership
A negotiated rulemaking committee established pursuant to section 565 of title 5 to
carry out this section shall have as its members only representatives of the Federal Government and Tribal government.
(2) Lead agency
Among the Federal representatives described in paragraph (1), the Office of Self-Governance shall be the lead agency for the Department.

Editorial Notes
REFERENCES IN TEXT
This chapter, referred to in subsec. (d)(1), was in the
original ‘‘this Act’’, meaning Pub. L. 93–638, Jan. 4,
1975, 88 Stat. 2203, known as the Indian Self-Determination and Education Assistance Act, which is classified
principally to this chapter. For complete classification
of this Act to the Code, see Short Title note set out
under section 5301 of this title and Tables.
Section 101(a) of the PROGRESS for Indian Tribes
Act, referred to in subsec. (d)(2), is section 101(a) of
Pub. L. 116–180, which is set out as a note under section
5361 of this title.
PRIOR PROVISIONS
Provisions similar to those in this section were contained in section 5367 of this title prior to repeal by
Pub. L. 116–180.

§ 5374. Effect of circulars, policies, manuals,
guidance, and rules
Unless expressly agreed to by a participating
Indian Tribe in a compact or funding agreement,
the participating Indian Tribe shall not be subject to any agency circular, policy, manual,
guidance, or rule adopted by the Department,
except for—
(1) the eligibility provisions of section
5324(g) of this title; and
(2) regulations promulgated pursuant to section 5373 of this title.
(Pub. L. 93–638, title IV, § 414, as added Pub. L.
116–180, title I, § 101(e), Oct. 21, 2020, 134 Stat.
878.)
§ 5375. Appeals
Except as provided in section 5366(d) of this
title, in any administrative action, appeal, or
civil action for judicial review of any decision
made by the Secretary under this subchapter,
the Secretary shall have the burden of proof of
demonstrating by a preponderance of the evidence—

§ 5376

TITLE 25—INDIANS

(1) the validity of the grounds for the decision; and
(2) the consistency of the decision with the
requirements and policies of this subchapter.
(Pub. L. 93–638, title IV, § 415, as added Pub. L.
116–180, title I, § 101(e), Oct. 21, 2020, 134 Stat.
878.)
§ 5376. Application of other provisions
Section 314 of the Department of the Interior
and Related Agencies Appropriations Act, 1991
(Public Law 101–512; 104 Stat. 1959), shall apply
to compacts and funding agreements entered
into under this subchapter.
(Pub. L. 93–638, title IV, § 416, as added Pub. L.
116–180, title I, § 101(e), Oct. 21, 2020, 134 Stat.
878.)
Editorial Notes
REFERENCES IN TEXT
Section 314 of the Department of the Interior and Related Agencies Appropriations Act, 1991, referred to in
text, is section 314 of Pub. L. 101–512, which is set out
as a note under section 5321 of this title.

§ 5377. Authorization of appropriations
There are authorized to be appropriated such
sums as may be necessary to carry out this subchapter.
(Pub. L. 93–638, title IV, § 417, as added Pub. L.
116–180, title I, § 101(e), Oct. 21, 2020, 134 Stat.
878.)
Editorial Notes
PRIOR PROVISIONS
Provisions similar to those in this section were contained in section 5368 of this title prior to repeal by
Pub. L. 116–180.

SUBCHAPTER V—TRIBAL SELFGOVERNANCE—INDIAN HEALTH SERVICE
Editorial Notes
CODIFICATION
Subchapter is comprised of title V of Pub. L. 93–638,
as added by Pub. L. 106–260, § 4, Aug. 18, 2000, 114 Stat.
712. Another title V of Pub. L. 93–638, as added by Pub.
L. 106–568, title XIII, § 1302, Dec. 27, 2000, 114 Stat. 2936,
was redesignated title VIII, and is classified to subchapter VII (§ 5421 et seq.) of this chapter.

§ 5381. Definitions
(a) In general
In this subchapter:
(1) Construction project
The term ‘‘construction project’’—
(A) means an organized noncontinuous undertaking to complete a specific set of predetermined objectives for the planning, environmental determination, design, construction, repair, improvement, or expansion of
buildings or facilities, as described in a construction project agreement; and
(B) does not include construction program
administration and activities described in
paragraphs (1) through (3) of section 5304(m)

Page 752

of this title, that may otherwise be included
in a funding agreement under this subchapter.
(2) Construction project agreement
The term ‘‘construction project agreement’’
means a negotiated agreement between the
Secretary and an Indian tribe, that at a minimum—
(A) establishes project phase start and
completion dates;
(B) defines a specific scope of work and
standards by which it will be accomplished;
(C) identifies the responsibilities of the Indian tribe and the Secretary;
(D) addresses environmental considerations;
(E) identifies the owner and operations and
maintenance entity of the proposed work;
(F) provides a budget;
(G) provides a payment process; and
(H) establishes the duration of the agreement based on the time necessary to complete the specified scope of work, which may
be 1 or more years.
(3) Gross mismanagement
The term ‘‘gross mismanagement’’ means a
significant, clear, and convincing violation of
a compact, funding agreement, or regulatory,
or statutory requirements applicable to Federal funds transferred to an Indian tribe by a
compact or funding agreement that results in
a significant reduction of funds available for
the programs, services, functions, or activities
(or portions thereof) assumed by an Indian
tribe.
(4) Inherent Federal functions
The term ‘‘inherent Federal functions’’
means those Federal functions which cannot
legally be delegated to Indian tribes.
(5) Inter-tribal consortium
The term ‘‘inter-tribal consortium’’ means a
coalition of two 1 more separate Indian tribes
that join together for the purpose of participating in self-governance, including tribal organizations.
(6) Secretary
The term ‘‘Secretary’’ means the Secretary
of Health and Human Services.
(7) Self-governance
The term ‘‘self-governance’’ means the program of self-governance established under section 5382 of this title.
(8) Tribal share
The term ‘‘tribal share’’ means an Indian
tribe’s portion of all funds and resources that
support secretarial programs, services, functions, and activities (or portions thereof) that
are not required by the Secretary for performance of inherent Federal functions.
(b) Indian tribe
In any case in which an Indian tribe has authorized another Indian tribe, an inter-tribal
consortium, or a tribal organization to plan for
or carry out programs, services, functions, or ac1 So

in original. Probably should be followed by ‘‘or’’.

Page 753

§ 5383

TITLE 25—INDIANS

tivities (or portions thereof) on its behalf under
this subchapter, the authorized Indian tribe,
inter-tribal consortium, or tribal organization
shall have the rights and responsibilities of the
authorizing Indian tribe (except as otherwise
provided in the authorizing resolution or in this
subchapter). In such event, the term ‘‘Indian
tribe’’ as used in this subchapter shall include
such other authorized Indian tribe, inter-tribal
consortium, or tribal organization.
(Pub. L. 93–638, title V, § 501, as added Pub. L.
106–260, § 4, Aug. 18, 2000, 114 Stat. 712.)
Editorial Notes
CODIFICATION
Section was formerly classified to section 458aaa of
this title prior to editorial reclassification and renumbering as this section.
Another section 501 of Pub. L. 93–638 was renumbered
section 801 and is classified to section 5421 of this title.
Statutory Notes and Related Subsidiaries
EFFECTIVE DATE
Pub. L. 106–260, § 13, Aug. 18, 2000, 114 Stat. 734, provided that: ‘‘Except as otherwise provided, the provisions of this Act [enacting this subchapter, amending
sections 5321, 5324, and 5325 of this title, enacting provisions set out as notes under this section and sections
5301 and 5321 of this title, and repealing provisions set
out as a note under former section 450f of this title]
shall take effect on the date of the enactment of this
Act [Aug. 18, 2000].’’
FINDINGS
Pub. L. 106–260, § 2, Aug. 18, 2000, 114 Stat. 711, provided that: ‘‘Congress finds that—
‘‘(1) the tribal right of self-government 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 Indian tribes to self-governance, as reflected in the Constitution, treaties, Federal statutes, and the course of dealings of the United
States with Indian tribes;
‘‘(3) although progress has been made, the Federal
bureaucracy, with its centralized rules and regulations, has eroded tribal self-governance and dominates tribal affairs;
‘‘(4) the Tribal Self-Governance Demonstration
Project, established under title III of the Indian SelfDetermination and Education Assistance Act ([Pub.
L. 93–638, former] 25 U.S.C. 450f note) was designed to
improve and perpetuate the government-to-government relationship between Indian tribes and the
United States and to strengthen tribal control over
Federal funding and program management;
‘‘(5) although the Federal Government has made
considerable strides in improving Indian health care,
it has failed to fully meet its trust responsibilities
and to satisfy its obligations to the Indian tribes
under treaties and other laws; and
‘‘(6) Congress has reviewed the results of the Tribal
Self-Governance Demonstration Project and finds
that transferring full control and funding to tribal
governments, upon tribal request, over decision making for Federal programs, services, functions, and activities (or portions thereof)—
‘‘(A) is an appropriate and effective means of implementing the Federal policy of government-togovernment relations with Indian tribes; and
‘‘(B) strengthens the Federal policy of Indian selfdetermination.’’
DECLARATION OF POLICY
Pub. L. 106–260, § 3, Aug. 18, 2000, 114 Stat. 712, provided that: ‘‘It is the policy of Congress—

‘‘(1) to permanently establish and implement tribal
self-governance within the Department of Health and
Human Services;
‘‘(2) to call for full cooperation from the Department of Health and Human Services and its constituent agencies in the implementation of tribal
self-governance—
‘‘(A) to enable the United States to maintain and
improve its unique and continuing relationship
with, and responsibility to, Indian tribes;
‘‘(B) to permit each Indian tribe to choose the extent of its participation in self-governance in accordance with the provisions of the Indian Self-Determination and Education Assistance Act [25
U.S.C. 5301 et seq.] relating to the provision of Federal services to Indian tribes;
‘‘(C) to ensure the continuation of the trust responsibility of the United States to Indian tribes
and Indian individuals;
‘‘(D) to affirm and enable the United States to
fulfill its obligations to the Indian tribes under
treaties and other laws;
‘‘(E) to strengthen the government-to-government relationship between the United States and
Indian tribes through direct and meaningful consultation with all tribes;
‘‘(F) to permit an orderly transition from Federal
domination of programs and services to provide Indian tribes with meaningful authority, control,
funding, and discretion to plan, conduct, redesign,
and administer programs, services, functions, and
activities (or portions thereof) that meet the needs
of the individual tribal communities;
‘‘(G) to provide for a measurable parallel reduction in the Federal bureaucracy as programs, services, functions, and activities (or portion thereof)
are assumed by Indian tribes;
‘‘(H) to encourage the Secretary to identify all
programs, services, functions, and activities (or
portions thereof) of the Department of Health and
Human Services that may be managed by an Indian
tribe under this Act [see Short Title of 2000 Amendments note set out under section 5301 of this title]
and to assist Indian tribes in assuming responsibility for such programs, services, functions, and
activities (or portions thereof); and
‘‘(I) to provide Indian tribes with the earliest opportunity to administer programs, services, functions, and activities (or portions thereof) from
throughout the Department of Health and Human
Services.’’

§ 5382. Establishment
The Secretary shall establish and carry out a
program within the Indian Health Service of the
Department of Health and Human Services to be
known as the ‘‘Tribal Self-Governance Program’’ in accordance with this subchapter.
(Pub. L. 93–638, title V, § 502, as added Pub. L.
106–260, § 4, Aug. 18, 2000, 114 Stat. 714.)
Editorial Notes
CODIFICATION
Section was formerly classified to section 458aaa–1 of
this title prior to editorial reclassification and renumbering as this section.
Another section 502 of Pub. L. 93–638 was renumbered
section 802 and is classified to section 5422 of this title.

§ 5383. Selection of participating Indian tribes
(a) Continuing participation
Each Indian tribe that is participating in the
Tribal Self-Governance Demonstration Project
under title III 1 on August 18, 2000, may elect to
1 See

References in Text note below.

§ 5384

TITLE 25—INDIANS

participate in self-governance under this subchapter under existing authority as reflected in
tribal resolution.
(b) Additional participants
(1) In general
In addition to those Indian tribes participating in self-governance under subsection (a)
of this section, each year an additional 50 Indian tribes that meet the eligibility criteria
specified in subsection (c) of this section shall
be entitled to participate in self-governance.
(2) Treatment of certain Indian tribes
(A) In general
An Indian tribe that has withdrawn from
participation in an inter-tribal consortium
or tribal organization, in whole or in part,
shall be entitled to participate in self-governance provided the Indian tribe meets the
eligibility criteria specified in subsection (c)
of this section.
(B) Effect of withdrawal
If an Indian tribe has withdrawn from participation in an inter-tribal consortium or
tribal organization, that Indian tribe shall
be entitled to its tribal share of funds supporting those programs, services, functions,
and activities (or portions thereof) that the
Indian tribe will be carrying out under the
compact and funding agreement of the Indian tribe.
(C) Participation in self-governance
In no event shall the withdrawal of an Indian tribe from an inter-tribal consortium or
tribal organization affect the eligibility of
the inter-tribal consortium or tribal organization to participate in self-governance.
(c) Applicant pool
(1) In general
The qualified applicant pool for self-governance shall consist of each Indian tribe that—
(A) successfully completes the planning
phase described in subsection (d) of this section;
(B) has requested participation in self-governance by resolution or other official action by the governing body of each Indian
tribe to be served; and
(C) has demonstrated, for 3 fiscal years, financial stability and financial management
capability.
(2) Criteria for determining financial stability
and financial management capacity
For purposes of this subsection, evidence
that, during the 3-year period referred to in
paragraph (1)(C), an Indian tribe had no uncorrected significant and material audit exceptions in the required annual audit of the Indian tribe’s self-determination contracts or
self-governance funding agreements with any
Federal agency shall be conclusive evidence of
the required stability and capability.
(d) Planning phase
Each Indian tribe seeking participation in
self-governance shall complete a planning phase.
The planning phase shall be conducted to the

Page 754

satisfaction of the Indian tribe and shall include—
(1) legal and budgetary research; and
(2) internal tribal government planning and
organizational preparation relating to the administration of health care programs.
(e) Grants
Subject to the availability of appropriations,
any Indian tribe meeting the requirements of
paragraph (1)(B) and (C) of subsection (c) of this
section shall be eligible for grants—
(1) to plan for participation in self-governance; and
(2) to negotiate the terms of participation by
the Indian tribe or tribal organization in selfgovernance, as set forth in a compact and a
funding agreement.
(f) Receipt of grant not required
Receipt of a grant under subsection (e) of this
section shall not be a requirement of participation in self-governance.
(Pub. L. 93–638, title V, § 503, as added Pub. L.
106–260, § 4, Aug. 18, 2000, 114 Stat. 714.)
Editorial Notes
REFERENCES IN TEXT
Title III, referred to in subsec. (a), means title III of
Pub. L. 93–638, as added by Pub. L. 100–472, title II, § 209,
Oct. 5, 1988, 102 Stat. 2296, which was set out as a note
under former section 450f of this title prior to repeal by
Pub. L. 106–260, § 10, Aug. 18, 2000, 114 Stat. 734.
CODIFICATION
Section was formerly classified to section 458aaa–2 of
this title prior to editorial reclassification and renumbering as this section.
Another section 503 of Pub. L. 93–638 was renumbered
section 803 and is classified to section 5423 of this title.

§ 5384. Compacts
(a) Compact required
The Secretary shall negotiate and enter into a
written compact with each Indian tribe participating in self-governance in a manner consistent
with the Federal Government’s trust responsibility, treaty obligations, and the governmentto-government relationship between Indian
tribes and the United States.
(b) Contents
Each compact required under subsection (a) of
this section shall set forth the general terms of
the government-to-government relationship between the Indian tribe and the Secretary, including such terms as the parties intend shall
control year after year. Such compacts may
only be amended by mutual agreement of the
parties.
(c) Existing compacts
An Indian tribe participating in the Tribal
Self-Governance Demonstration Project under
title III 1 on August 18, 2000, shall have the option at any time after August 18, 2000, to—
(1) retain the Tribal Self-Governance Demonstration Project compact of that Indian
tribe (in whole or in part) to the extent that
1 See

References in Text note below.

Page 755

TITLE 25—INDIANS

the provisions of that funding agreement are
not directly contrary to any express provision
of this subchapter; or
(2) instead of retaining a compact or portion
thereof under paragraph (1), negotiate a new
compact in a manner consistent with the requirements of this subchapter.
(d) Term and effective date
The effective date of a compact shall be the
date of the approval and execution by the Indian
tribe or another date agreed upon by the parties,
and shall remain in effect for so long as permitted by Federal law or until terminated by
mutual written agreement, retrocession, or reassumption.
(Pub. L. 93–638, title V, § 504, as added Pub. L.
106–260, § 4, Aug. 18, 2000, 114 Stat. 715.)
Editorial Notes
REFERENCES IN TEXT
Title III, referred to in subsec. (c), means title III of
Pub. L. 93–638, as added by Pub. L. 100–472, title II, § 209,
Oct. 5, 1988, 102 Stat. 2296, and amended, which was set
out as a note under former section 450f of this title
prior to repeal by Pub. L. 106–260, § 10, Aug. 18, 2000, 114
Stat. 734.
CODIFICATION
Section was formerly classified to section 458aaa–3 of
this title prior to editorial reclassification and renumbering as this section.

§ 5385. Funding agreements
(a) Funding agreement required
The Secretary shall negotiate and enter into a
written funding agreement with each Indian
tribe participating in self-governance in a manner consistent with the Federal Government’s
trust responsibility, treaty obligations, and the
government-to-government
relationship
between Indian tribes and the United States.
(b) Contents
(1) In general
Each funding agreement required under subsection (a) of this section shall, as determined
by the Indian tribe, authorize the Indian tribe
to plan, conduct, consolidate, administer, and
receive full tribal share funding, including
tribal shares of discretionary Indian Health
Service competitive grants (excluding congressionally earmarked competitive grants),
for all programs, services, functions, and activities (or portions thereof), that are carried
out for the benefit of Indians because of their
status as Indians without regard to the agency
or office of the Indian Health Service within
which the program, service, function, or activity (or portion thereof) is performed.
(2) Inclusion of certain programs, services,
functions, and activities
Such programs, services, functions, or activities (or portions thereof) include all programs, services, functions, activities (or portions thereof), including grants (which may be
added to a funding agreement after an award
of such grants), with respect to which Indian
tribes or Indians are primary or significant
beneficiaries, administered by the Department

§ 5385

of Health and Human Services through the Indian Health Service and all local, field, service
unit, area, regional, and central headquarters
or national office functions so administered
under the authority of—
(A) section 13 of this title;
(B) the Act of April 16, 1934 (48 Stat. 596;
chapter 147; 25 U.S.C. 452 et seq.); 1
(C) the Act of August 5, 1954 (68 Stat. 674;
chapter 658) [42 U.S.C. 2001 et seq.];
(D) the Indian Health Care Improvement
Act (25 U.S.C. 1601 et seq.);
(E) the Indian Alcohol and Substance
Abuse Prevention and Treatment Act of 1986
(25 U.S.C. 2401 et seq.);
(F) any other Act of Congress authorizing
any agency of the Department of Health and
Human Services to administer, carry out, or
provide financial assistance to such a program, service, function or activity (or portions thereof) described in this section that
is carried out for the benefit of Indians because of their status as Indians; or
(G) any other Act of Congress authorizing
such a program, service, function, or activity (or portions thereof) carried out for the
benefit of Indians under which appropriations are made available to any agency
other than an agency within the Department
of Health and Human Services, in any case
in which the Secretary administers that program, service, function, or activity (or portion thereof).
(c) Inclusion in compact or funding agreement
It shall not be a requirement that an Indian
tribe or Indians be identified in the authorizing
statute for a program or element of a program
to be eligible for inclusion in a compact or funding agreement under this subchapter.
(d) Funding agreement terms
Each funding agreement under this subchapter
shall set forth—
(1) terms that generally identify the programs, services, functions, and activities (or
portions thereof) to be performed or administered; and
(2) for the items identified in paragraph (1)—
(A) the general budget category assigned;
(B) the funds to be provided, including
those funds to be provided on a recurring
basis;
(C) the time and method of transfer of the
funds;
(D) the responsibilities of the Secretary;
and
(E) any other provision with respect to
which the Indian tribe and the Secretary
agree.
(e) Subsequent funding agreements
Absent notification from an Indian tribe that
is withdrawing or retroceding the operation of
one or more programs, services, functions, or activities (or portions thereof) identified in a funding agreement, or unless otherwise agreed to by
the parties, each funding agreement shall remain in full force and effect until a subsequent
funding agreement is executed, and the terms of
1 See

References in Text note below.

§ 5386

TITLE 25—INDIANS

the subsequent funding agreement shall be retroactive to the end of the term of the preceding
funding agreement.
(f) Existing funding agreements
Each Indian tribe participating in the Tribal
Self-Governance Demonstration Project established under title III 1 on August 18, 2000, shall
have the option at any time thereafter to—
(1) retain the Tribal Self-Governance Demonstration Project funding agreement of that
Indian tribe (in whole or in part) to the extent
that the provisions of that funding agreement
are not directly contrary to any express provision of this subchapter; or
(2) instead of retaining a funding agreement
or portion thereof under paragraph (1), negotiate a new funding agreement in a manner
consistent with the requirements of this subchapter.
(g) Stable base funding
At the option of an Indian tribe, a funding
agreement may provide for a stable base budget
specifying the recurring funds (including, for
purposes of this provision, funds available under
section 5325(a) of this title) to be transferred to
such Indian tribe, for such period as may be
specified in the funding agreement, subject to
annual adjustment only to reflect changes in
congressional appropriations by sub-sub activity
excluding earmarks.
(Pub. L. 93–638, title V, § 505, as added Pub. L.
106–260, § 4, Aug. 18, 2000, 114 Stat. 716.)
Editorial Notes
REFERENCES IN TEXT
Act of April 16, 1934, referred to in subsec. (b)(2)(B), is
act Apr. 16, 1934, ch. 147, 48 Stat. 596, popularly known
as the Johnson-O’Malley Act, which was classified generally to section 452 et seq. of this title prior to editorial reclassification as section 5342 et seq. of this
title. For complete classification of this Act to the
Code, see Short Title note set out under section 5301 of
this title and Tables.
Act of August 5, 1954, referred to in subsec. (b)(2)(C),
is act Aug. 5, 1954, ch. 658, 68 Stat. 674, which is classified generally to subchapter I (§ 2001 et seq.) of chapter
22 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Tables.
The Indian Health Care Improvement Act, referred to
in subsec. (b)(2)(D), is Pub. L. 94–437, Sept. 30, 1976, 90
Stat. 1400, which is classified principally to chapter 18
(§ 1601 et seq.) of this title. For complete classification
of this Act to the Code, see Short Title note set out
under section 1601 of this title and Tables.
The Indian Alcohol and Substance Abuse Prevention
and Treatment Act of 1986, referred to in subsec.
(b)(2)(E), is subtitle C of title IV of Pub. L. 99–570, Oct.
27, 1986, 100 Stat. 3207–137, which is classified generally
to chapter 26 (§ 2401 et seq.) of this title. For complete
classification of subtitle C to the Code, see Short Title
note set out under section 2401 of this title and Tables.
Title III, referred to in subsec. (f), means title III of
Pub. L. 93–638, as added by Pub. L. 100–472, title II, § 209,
Oct. 5, 1988, 102 Stat. 2296, which was set out as a note
under former section 450f of this title prior to repeal by
Pub. L. 106–260, § 10, Aug. 18, 2000, 114 Stat. 734.
CODIFICATION
Section was formerly classified to section 458aaa–4 of
this title prior to editorial reclassification and renumbering as this section.

Page 756

§ 5386. General provisions
(a) Applicability
The provisions of this section shall apply to
compacts and funding agreements negotiated
under this subchapter and an Indian tribe may,
at its option, include provisions that reflect
such requirements in a compact or funding
agreement.
(b) Conflicts of interest
Indian tribes participating in self-governance
under this subchapter shall ensure that internal
measures are in place to address conflicts of interest in the administration of self-governance
programs, services, functions, or activities (or
portions thereof).
(c) Audits
(1) Single Agency Audit Act
The provisions of chapter 75 of title 31 requiring a single agency audit report shall
apply to funding agreements under this subchapter.
(2) Cost principles
An Indian tribe shall apply cost principles
under the applicable Office of Management
and Budget circular, except as modified by
section 5325 of this title 1 other provisions of
law, or by any exemptions to applicable Office
of Management and Budget circulars subsequently granted by the Office of Management
and Budget. No other audit or accounting
standards shall be required by the Secretary.
Any claim by the Federal Government against
the Indian tribe relating to funds received
under a funding agreement based on any audit
under this subsection shall be subject to the
provisions of section 5325(f) of this title.
(d) Records
(1) In general
Unless an Indian tribe specifies otherwise in
the compact or funding agreement, records of
the Indian tribe shall not be considered Federal records for purposes of chapter 5 of title 5.
(2) Recordkeeping system
The Indian tribe shall maintain a recordkeeping system, and, after 30 days advance notice, provide the Secretary with reasonable access to such records to enable the Department
of Health and Human Services to meet its
minimum legal recordkeeping system requirements under sections 3101 through 3106 of title
44.
(e) Redesign and consolidation
An Indian tribe may redesign or consolidate
programs, services, functions, and activities (or
portions thereof) included in a funding agreement under section 5385 of this title and reallocate or redirect funds for such programs, services, functions, and activities (or portions thereof) in any manner which the Indian tribe deems
to be in the best interest of the health and welfare of the Indian community being served, only
if the redesign or consolidation does not have
the effect of denying eligibility for services to
1 So

in original.

Page 757

§ 5387

TITLE 25—INDIANS

population groups otherwise eligible
served under applicable Federal law.
(f) Retrocession

to

be

An Indian tribe may retrocede, fully or partially, to the Secretary programs, services, functions, or activities (or portions thereof) included
in the compact or funding agreement. Unless the
Indian tribe rescinds the request for retrocession, such retrocession will become effective
within the timeframe specified by the parties in
the compact or funding agreement. In the absence of such a specification, such retrocession
shall become effective on—
(1) the earlier of—
(A) 1 year after the date of submission of
such request; or
(B) the date on which the funding agreement expires; or
(2) such date as may be mutually agreed
upon by the Secretary and the Indian tribe.
(g) Withdrawal
(1) Process
(A) In general
An Indian tribe may fully or partially
withdraw from a participating inter-tribal
consortium or tribal organization its share
of any program, function, service, or activity (or portions thereof) included in a compact or funding agreement.
(B) Effective date
The withdrawal referred to in subparagraph (A) shall become effective within the
timeframe specified in the resolution which
authorizes transfer to the participating tribal organization or inter-tribal consortium.
In the absence of a specific timeframe set
forth in the resolution, such withdrawal
shall become effective on—
(i) the earlier of—
(I) 1 year after the date of submission
of such request; or
(II) the date on which the funding
agreement expires; or
(ii) such date as may be mutually agreed
upon by the Secretary, the withdrawing
Indian tribe, and the participating tribal
organization or inter-tribal consortium
that has signed the compact or funding
agreement on behalf of the withdrawing
Indian tribe, inter-tribal consortium, or
tribal organization.
(2) Distribution of funds
When an Indian tribe or tribal organization
eligible to enter into a self-determination contract under subchapter I of this chapter or a
compact or funding agreement under this subchapter fully or partially withdraws from a
participating inter-tribal consortium or tribal
organization—
(A) the withdrawing Indian tribe or tribal
organization shall be entitled to its tribal
share of funds supporting those programs,
services, functions, or activities (or portions
thereof) that the Indian tribe will be carrying out under its own self-determination
contract or compact and funding agreement
(calculated on the same basis as the funds

were initially allocated in the funding agreement of the inter-tribal consortium or tribal
organization); and
(B) the funds referred to in subparagraph
(A) shall be transferred from the funding
agreement of the inter-tribal consortium or
tribal organization, on the condition that
the provisions of sections 5321 and 5324(i) of
this title, as appropriate, shall apply to that
withdrawing Indian tribe.
(3) Regaining mature contract status
If an Indian tribe elects to operate all or
some programs, services, functions, or activities (or portions thereof) carried out under a
compact or funding agreement under this subchapter through a self-determination contract
under subchapter I of this chapter, at the option of the Indian tribe, the resulting self-determination contract shall be a mature selfdetermination contract.
(h) Nonduplication
For the period for which, and to the extent to
which, funding is provided under this subchapter
or under the compact or funding agreement, the
Indian tribe shall not be entitled to contract
with the Secretary for such funds under section
5321 of this title, except that such Indian tribe
shall be eligible for new programs on the same
basis as other Indian tribes.
(Pub. L. 93–638, title V, § 506, as added Pub. L.
106–260, § 4, Aug. 18, 2000, 114 Stat. 717.)
Editorial Notes
REFERENCES IN TEXT
Subchapter I of this chapter, referred to in subsec.
(g)(2), (3), was in the original ‘‘title I’’, meaning title I
of Pub. L. 93–638, known as the Indian Self-Determination Act, which is classified principally to subchapter I
(§ 5321 et seq.) of this chapter. For complete classification of title I to the Code, see Short Title note set out
under section 5301 of this title and Tables.
CODIFICATION
Section was formerly classified to section 458aaa–5 of
this title prior to editorial reclassification and renumbering as this section.

§ 5387. Provisions relating to the Secretary
(a) Mandatory provisions
(1) Health status reports
Compacts or funding agreements negotiated
between the Secretary and an Indian tribe
shall include a provision that requires the Indian tribe to report on health status and service delivery—
(A) to the extent such data is not otherwise available to the Secretary and specific
funds for this purpose are provided by the
Secretary under the funding agreement; and
(B) if such reporting shall impose minimal
burdens on the participating Indian tribe
and such requirements are promulgated
under section 5397 of this title.
(2) Reassumption
(A) In general
Compacts or funding agreements negotiated between the Secretary and an Indian

§ 5387

TITLE 25—INDIANS

tribe shall include a provision authorizing
the Secretary to reassume operation of a
program, service, function, or activity (or
portions thereof) and associated funding if
there is a specific finding relative to that
program, service, function, or activity (or
portion thereof) of—
(i) imminent endangerment of the public
health caused by an act or omission of the
Indian
tribe,
and
the
imminent
endangerment arises out of a failure to
carry out the compact or funding agreement; or
(ii) gross mismanagement with respect
to funds transferred to a tribe by a compact or funding agreement, as determined
by the Secretary in consultation with the
Inspector General, as appropriate.
(B) Prohibition
The Secretary shall not reassume operation of a program, service, function, or activity (or portions thereof) unless—
(i) the Secretary has first provided written notice and a hearing on the record to
the Indian tribe; and
(ii) the Indian tribe has not taken corrective action to remedy the imminent
endangerment to public health or gross
mismanagement.
(C) Exception
(i) In general
Notwithstanding subparagraph (B), the
Secretary may, upon written notification
to the Indian tribe, immediately reassume
operation of a program, service, function,
or activity (or portion thereof) if—
(I) the Secretary makes a finding of
imminent substantial and irreparable
endangerment of the public health
caused by an act or omission of the Indian tribe; and
(II) the endangerment arises out of a
failure to carry out the compact or funding agreement.
(ii) Reassumption
If the Secretary reassumes operation of
a program, service, function, or activity
(or portion thereof) under this subparagraph, the Secretary shall provide the Indian tribe with a hearing on the record not
later than 10 days after such reassumption.
(D) Hearings
In any hearing or appeal involving a decision to reassume operation of a program,
service, function, or activity (or portion
thereof), the Secretary shall have the burden
of proof of demonstrating by clear and convincing evidence the validity of the grounds
for the reassumption.
(b) Final offer
In the event the Secretary and a participating
Indian tribe are unable to agree, in whole or in
part, on the terms of a compact or funding
agreement (including funding levels), the Indian
tribe may submit a final offer to the Secretary.
Not more than 45 days after such submission, or
within a longer time agreed upon by the Indian

Page 758

tribe, the Secretary shall review and make a determination with respect to such offer. In the
absence of a timely rejection of the offer, in
whole or in part, made in compliance with subsection (c) of this section, the offer shall be
deemed agreed to by the Secretary.
(c) Rejection of final offers
(1) In general
If the Secretary rejects an offer made under
subsection (b) of this section (or one or more
provisions or funding levels in such offer), the
Secretary shall provide—
(A) a timely written notification to the Indian tribe that contains a specific finding
that clearly demonstrates, or that is supported by a controlling legal authority,
that—
(i) the amount of funds proposed in the
final offer exceeds the applicable funding
level to which the Indian tribe is entitled
under this subchapter;
(ii) the program, function, service, or activity (or portion thereof) that is the subject of the final offer is an inherent Federal function that cannot legally be delegated to an Indian tribe;
(iii) the Indian tribe cannot carry out
the program, function, service, or activity
(or portion thereof) in a manner that
would not result in significant danger or
risk to the public health; or
(iv) the Indian tribe is not eligible to
participate in self-governance under section 5383 of this title;
(B) technical assistance to overcome the
objections stated in the notification required by subparagraph (A);
(C) the Indian tribe with a hearing on the
record with the right to engage in full discovery relevant to any issue raised in the
matter and the opportunity for appeal on
the objections raised, except that the Indian
tribe may, in lieu of filing such appeal, directly proceed to initiate an action in a Federal district court pursuant to section
5331(a) of this title; and
(D) the Indian tribe with the option of entering into the severable portions of a final
proposed compact or funding agreement, or
provision thereof, (including a lesser funding
amount, if any), that the Secretary did not
reject, subject to any additional alterations
necessary to conform the compact or funding agreement to the severed provisions.
(2) Effect of exercising certain option
If an Indian tribe exercises the option specified in paragraph (1)(D), that Indian tribe shall
retain the right to appeal the Secretary’s rejection under this section, and subparagraphs
(A), (B), and (C) of that paragraph shall only
apply to that portion of the proposed final
compact, funding agreement, or provision
thereof that was rejected by the Secretary.
(d) Burden of proof
With respect to any hearing or appeal or civil
action conducted pursuant to this section, the
Secretary shall have the burden of demonstrating by clear and convincing evidence the

Page 759

TITLE 25—INDIANS

validity of the grounds for rejecting the offer (or
a provision thereof) made under subsection (b) of
this section.
(e) Good faith
In the negotiation of compacts and funding
agreements the Secretary shall at all times negotiate in good faith to maximize implementation of the self-governance policy. The Secretary shall carry out this subchapter in a manner that maximizes the policy of tribal self-governance, in a manner consistent with the purposes specified in section 3 of the Tribal SelfGovernance Amendments of 2000.
(f) Savings
To the extent that programs, functions, services, or activities (or portions thereof) carried
out by Indian tribes under this subchapter reduce the administrative or other responsibilities
of the Secretary with respect to the operation of
Indian programs and result in savings that have
not otherwise been included in the amount of
tribal shares and other funds determined under
section 5388(c) of this title, the Secretary shall
make such savings available to the Indian
tribes, inter-tribal consortia, or tribal organizations for the provision of additional services to
program beneficiaries in a manner equitable to
directly served, contracted, and compacted programs.
(g) Trust responsibility
The Secretary is prohibited from waiving,
modifying, or diminishing in any way the trust
responsibility of the United States with respect
to Indian tribes and individual Indians that exists under treaties, Executive orders, other laws,
or court decisions.
(h) Decisionmaker
A decision that constitutes final agency action and relates to an appeal within the Department of Health and Human Services conducted
under subsection (c) of this section shall be
made either—
(1) by an official of the Department who
holds a position at a higher organizational
level within the Department than the level of
the departmental agency in which the decision
that is the subject of the appeal was made; or
(2) by an administrative judge.
(Pub. L. 93–638, title V, § 507, as added Pub. L.
106–260, § 4, Aug. 18, 2000, 114 Stat. 719.)
Editorial Notes
REFERENCES IN TEXT
Section 3 of the Tribal Self-Governance Amendments
of 2000, referred to in subsec. (e), is section 3 of Pub. L.
106–260, which is set out as a note under section 5381 of
this title.
CODIFICATION
Section was formerly classified to section 458aaa–6 of
this title prior to editorial reclassification and renumbering as this section.

§ 5388. Transfer of funds
(a) In general
Pursuant to the terms of any compact or funding agreement entered into under this sub-

§ 5388

chapter, the Secretary shall transfer to the Indian tribe all funds provided for in the funding
agreement, pursuant to subsection (c) of this
section, and provide funding for periods covered
by joint resolution adopted by Congress making
continuing appropriations, to the extent permitted by such resolutions. In any instance
where a funding agreement requires an annual
transfer of funding to be made at the beginning
of a fiscal year, or requires semiannual or other
periodic transfers of funding to be made commencing at the beginning of a fiscal year, the
first such transfer shall be made not later than
10 days after the apportionment of such funds by
the Office of Management and Budget to the Department, unless the funding agreement provides otherwise.
(b) Multiyear funding
The Secretary is authorized to employ, upon
tribal request, multiyear funding agreements.
References in this subchapter to funding agreements shall include such multiyear funding
agreements.
(c) Amount of funding
The Secretary shall provide funds under a
funding agreement under this subchapter in an
amount equal to the amount that the Indian
tribe would have been entitled to receive under
self-determination contracts under this chapter,
including amounts for direct program costs
specified under section 5325(a)(1) of this title and
amounts for contract support costs specified
under section 5325(a)(2), (3), (5), and (6) of this
title, including any funds that are specifically
or functionally related to the provision by the
Secretary of services and benefits to the Indian
tribe or its members, all without regard to the
organizational level within the Department
where such functions are carried out.
(d) Prohibitions
(1) In general
Except as provided in paragraph (2), the Secretary is expressly prohibited from—
(A) failing or refusing to transfer to an Indian tribe its full share of any central, headquarters, regional, area, or service unit office or other funds due under this chapter,
except as required by Federal law;
(B) withholding portions of such funds for
transfer over a period of years; and
(C) reducing the amount of funds required
under this chapter—
(i) to make funding available for selfgovernance monitoring or administration
by the Secretary;
(ii) in subsequent years, except pursuant
to—
(I) a reduction in appropriations from
the previous fiscal year for the program
or function to be included in a compact
or funding agreement;
(II) a congressional directive in legislation or accompanying report;
(III) a tribal authorization;
(IV) a change in the amount of passthrough funds subject to the terms of the
funding agreement; or
(V) completion of a project, activity,
or program for which such funds were
provided;

§ 5389

TITLE 25—INDIANS

(iii) to pay for Federal functions, including Federal pay costs, Federal employee
retirement benefits, automated data processing, technical assistance, and monitoring of activities under this chapter; or
(iv) to pay for costs of Federal personnel
displaced by self-determination contracts
under this chapter or self-governance;
(2) Exception
The funds described in paragraph (1)(C) may
be increased by the Secretary if necessary to
carry out this chapter or as provided in section 5324(c)(2) of this title.
(e) Other resources
In the event an Indian tribe elects to carry out
a compact or funding agreement with the use of
Federal personnel, Federal supplies (including
supplies available from Federal warehouse facilities), Federal supply sources (including lodging, airline transportation, and other means of
transportation including the use of interagency
motor pool vehicles) or other Federal resources
(including supplies, services, and resources
available to the Secretary under any procurement contracts in which the Department is eligible to participate), the Secretary shall acquire
and transfer such personnel, supplies, or resources to the Indian tribe.
(f) Reimbursement to Indian Health Service
With respect to functions transferred by the
Indian Health Service to an Indian tribe, the Indian Health Service shall provide goods and
services to the Indian tribe, on a reimbursable
basis, including payment in advance with subsequent adjustment. The reimbursements received
from those goods and services, along with the
funds received from the Indian tribe pursuant to
this subchapter, may be credited to the same or
subsequent appropriation account which provided the funding, such amounts to remain
available until expended.
(g) Prompt Payment Act
Chapter 39 of title 31 shall apply to the transfer of funds due under a compact or funding
agreement authorized under this subchapter.
(h) Interest or other income on transfers
An Indian tribe is entitled to retain interest
earned on any funds paid under a compact or
funding agreement to carry out governmental or
health purposes and such interest shall not diminish the amount of funds the Indian tribe is
authorized to receive under its funding agreement in the year the interest is earned or in any
subsequent fiscal year. Funds transferred under
this subchapter shall be managed using the prudent investment standard.
(i) Carryover of funds
All funds paid to an Indian tribe in accordance
with a compact or funding agreement shall remain available until expended. In the event that
an Indian tribe elects to carry over funding from
1 year to the next, such carryover shall not diminish the amount of funds the Indian tribe is
authorized to receive under its funding agreement in that or any subsequent fiscal year.
(j) Program income
All Medicare, Medicaid, or other program income earned by an Indian tribe shall be treated

Page 760

as supplemental funding to that negotiated in
the funding agreement. The Indian tribe may retain all such income and expend such funds in
the current year or in future years except to the
extent that the Indian Health Care Improvement Act (25 U.S.C. 1601 et seq.) provides otherwise for Medicare and Medicaid receipts. Such
funds shall not result in any offset or reduction
in the amount of funds the Indian tribe is authorized to receive under its funding agreement
in the year the program income is received or
for any subsequent fiscal year.
(k) Limitation of costs
An Indian tribe shall not be obligated to continue performance that requires an expenditure
of funds in excess of the amount of funds transferred under a compact or funding agreement. If
at any time the Indian tribe has reason to believe that the total amount provided for a specific activity in the compact or funding agreement is insufficient the Indian tribe shall provide reasonable notice of such insufficiency to
the Secretary. If the Secretary does not increase
the amount of funds transferred under the funding agreement, the Indian tribe may suspend
performance of the activity until such time as
additional funds are transferred.
(Pub. L. 93–638, title V, § 508, as added Pub. L.
106–260, § 4, Aug. 18, 2000, 114 Stat. 722.)
Editorial Notes
REFERENCES IN TEXT
This chapter, referred to in subsecs. (c) and (d), was
in the original ‘‘this Act’’, meaning Pub. L. 93–638, Jan.
4, 1975, 88 Stat. 2203, known as the Indian Self-Determination and Education Assistance Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note
set out under section 5301 of this title and Tables.
The Indian Health Care Improvement Act, referred to
in subsec. (j), is Pub. L. 94–437, Sept. 30, 1976, 90 Stat.
1400, which is classified principally to chapter 18 (§ 1601
et seq.) of this title. For complete classification of this
Act to the Code, see Short Title note set out under section 1601 of this title and Tables.
CODIFICATION
Section was formerly classified to section 458aaa–7 of
this title prior to editorial reclassification and renumbering as this section.

§ 5389. Construction projects
(a) In general
Indian tribes participating in tribal self-governance may carry out construction projects
under this subchapter if they elect to assume all
Federal responsibilities under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.), division A of subtitle III of title 54, and related provisions of law that would apply if the
Secretary were to undertake a construction
project, by adopting a resolution—
(1) designating a certifying officer to represent the Indian tribe and to assume the status of a responsible Federal official under such
laws; and
(2) accepting the jurisdiction of the Federal
court for the purpose of enforcement of the responsibilities of the responsible Federal official under such environmental laws.

Page 761

§ 5390

TITLE 25—INDIANS

(b) Negotiations
Construction project proposals shall be negotiated pursuant to the statutory process in section 5324(m) of this title and resulting construction project agreements shall be incorporated
into funding agreements as addenda.
(c) Codes and standards
The Indian tribe and the Secretary shall agree
upon and specify appropriate building codes and
architectural and engineering standards (including health and safety) which shall be in conformity with nationally recognized standards
for comparable projects.
(d) Responsibility for completion
The Indian tribe shall assume responsibility
for the successful completion of the construction project in accordance with the negotiated
construction project agreement.
(e) Funding
Funding for construction projects carried out
under this subchapter shall be included in funding agreements as annual advance payments,
with semiannual payments at the option of the
Indian tribe. Annual advance and semiannual
payment amounts shall be determined based on
mutually agreeable project schedules reflecting
work to be accomplished within the advance
payment period, work accomplished and funds
expended in previous payment periods, and the
total prior payments. The Secretary shall include associated project contingency funds with
each advance payment installment. The Indian
tribe shall be responsible for the management of
the contingency funds included in funding agreements.
(f) Approval
The Secretary shall have at least one opportunity to approve project planning and design
documents prepared by the Indian tribe in advance of construction of the facilities specified
in the scope of work for each negotiated construction project agreement or amendment
thereof which results in a significant change in
the original scope of work. The Indian tribe
shall provide the Secretary with project
progress and financial reports not less than
semiannually. The Secretary may conduct onsite project oversight visits semiannually or on
an alternate schedule agreed to by the Secretary
and the Indian tribe.
(g) Wages
All laborers and mechanics employed by contractors and subcontractors (excluding tribes
and tribal organizations) in the construction, alteration, or repair, including painting or decorating of a building or other facilities in connection with construction projects funded by the
United States under this chapter shall be paid
wages at not less than those prevailing wages on
similar construction in the locality as determined by the Secretary of Labor in accordance
with sections 3141–3144, 3146, and 3147 of title 40.
With respect to construction alteration, or repair work to which sections 3141–3144, 3146, and
3147 of title 40 are applicable under this section,
the Secretary of Labor shall have the authority
and functions set forth in the Reorganization

Plan numbered 14, of 1950, and section 3145 of
title 40.
(h) Application of other laws
Unless otherwise agreed to by the Indian tribe,
no provision of division B (except sections 1123,
2303, 2304, and 2313) of subtitle I of title 41, the
Federal Acquisition Regulations issued pursuant
thereto, or any other law or regulation pertaining to Federal procurement (including Executive orders) shall apply to any construction
project conducted under this subchapter.
(Pub. L. 93–638, title V, § 509, as added Pub. L.
106–260, § 4, Aug. 18, 2000, 114 Stat. 724; amended
Pub. L. 113–287, § 5(g), Dec. 19, 2014, 128 Stat.
3269.)
Editorial Notes
REFERENCES IN TEXT
The National Environmental Policy Act of 1969, referred to in subsec. (a), is Pub. L. 91–190, Jan. 1, 1970, 83
Stat. 852, which is classified generally to chapter 55
(§ 4321 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the
Code, see Short Title note set out under section 4321 of
Title 42 and Tables.
This chapter, referred to in subsec. (g), was in the
original ‘‘this Act’’, meaning Pub. L. 93–638, Jan. 4,
1975, 88 Stat. 2203, known as the Indian Self-Determination and Education Assistance Act, which is classified
principally to this chapter. For complete classification
of this Act to the Code, see Short Title note set out
under section 5301 of this title and Tables.
Reorganization Plan numbered 14, of 1950, referred to
in subsec. (g), is set out in the Appendix to Title 5, Government Organization and Employees.
CODIFICATION
Section was formerly classified to section 458aaa–8 of
this title prior to editorial reclassification and renumbering as this section.
In subsec. (g), ‘‘sections 3141–3144, 3146, and 3147 of
title 40’’ substituted for ‘‘the Davis-Bacon Act of March
3, 1931 (46 Stat. 1494)’’, ‘‘sections 3141–3144, 3146, and 3147
of title 40 are’’ substituted for ‘‘the Act of March 3,
1931, is’’, and ‘‘section 3145 of title 40’’ substituted for
‘‘section 2 of the Act of June 13, 1934 (48 Stat. 948)’’ on
authority of Pub. L. 107–217, § 5(c), Aug. 21, 2002, 116
Stat. 1303, the first section of which enacted Title 40,
Public Buildings, Property, and Works.
In subsec. (h), ‘‘division B (except sections 1123, 2303,
2304, and 2313) of subtitle I of title 41’’ substituted for
‘‘the Office of Federal Procurement Policy Act’’ on authority of Pub. L. 111–350, § 6(c), Jan. 4, 2011, 124 Stat.
3854, which Act enacted Title 41, Public Contracts.
AMENDMENTS
2014—Subsec. (a). Pub. L. 113–287, which directed substitution of ‘‘division A of subtitle III of title 54’’ for
‘‘the National Historic Preservation Act (16 U.S.C.
470et seq.)’’, was executed by making the substitution
for ‘‘the National Historic Preservation Act (16 U.S.C.
470 et seq.)’’ in introductory provisions to reflect the
probable intent of Congress.

§ 5390. Federal procurement laws and regulations
Regarding construction programs or projects,
the Secretary and Indian tribes may negotiate
for the inclusion of specific provisions of division B (except sections 1123, 2303, 2304, and 2313)
of subtitle I of title 41 and Federal acquisition
regulations in any funding agreement entered
into under this subchapter. Absent a negotiated

§ 5391

TITLE 25—INDIANS

agreement, such provisions and regulatory requirements shall not apply.
(Pub. L. 93–638, title V, § 510, as added Pub. L.
106–260, § 4, Aug. 18, 2000, 114 Stat. 726.)
Editorial Notes
CODIFICATION
Section was formerly classified to section 458aaa–9 of
this title prior to editorial reclassification and renumbering as this section.
In text, ‘‘division B (except sections 1123, 2303, 2304,
and 2313) of subtitle I of title 41’’ substituted for ‘‘the
Office of Federal Procurement and Policy Act (41
U.S.C. 401 et seq.)’’ on authority of Pub. L. 111–350,
§ 6(c), Jan. 4, 2011, 124 Stat. 3854, which Act enacted
Title 41, Public Contracts.

§ 5391. Civil actions
(a) Contract defined
For the purposes of section 5331 of this title,
the term ‘‘contract’’ shall include compacts and
funding agreements entered into under this subchapter.
(b) Applicability of certain laws
Section 81 of this title and section 5123 of this
title, shall not apply to attorney and other professional contracts entered into by Indian tribes
participating in self-governance under this subchapter.
(c) References
All references in this chapter to section 5201 of
this title are hereby deemed to include section
82a of this title.
(Pub. L. 93–638, title V, § 511, as added Pub. L.
106–260, § 4, Aug. 18, 2000, 114 Stat. 726.)
Editorial Notes
REFERENCES IN TEXT
This chapter, referred to in subsec. (c), was in the
original ‘‘this Act’’, meaning Pub. L. 93–638, Jan. 4,
1975, 88 Stat. 2203, known as the Indian Self-Determination and Education Assistance Act, which is classified
principally to this chapter. For complete classification
of this Act to the Code, see Short Title note set out
under section 5301 of this title and Tables.
CODIFICATION
Section was formerly classified to section 458aaa–10
of this title prior to editorial reclassification and renumbering as this section.

§ 5392. Facilitation
(a) Secretarial interpretation
Except as otherwise provided by law, the Secretary shall interpret all Federal laws, Executive orders, and regulations in a manner that
will facilitate—
(1) the inclusion of programs, services, functions, and activities (or portions thereof) and
funds associated therewith, in the agreements
entered into under this section;
(2) the implementation of compacts and
funding agreements entered into under this
subchapter; and
(3) the achievement of tribal health goals
and objectives.
(b) Regulation waiver
(1) In general
An Indian tribe may submit a written request to waive application of a regulation pro-

Page 762

mulgated under section 5397 of this title or the
authorities specified in section 5385(b) of this
title for a compact or funding agreement entered into with the Indian Health Service
under this subchapter, to the Secretary identifying the applicable Federal regulation sought
to be waived and the basis for the request.
(2) Approval
Not later than 90 days after receipt by the
Secretary of a written request by an Indian
tribe to waive application of a regulation for a
compact or funding agreement entered into
under this subchapter, the Secretary shall either approve or deny the requested waiver in
writing. A denial may be made only upon a
specific finding by the Secretary that identified language in the regulation may not be
waived because such waiver is prohibited by
Federal law. A failure to approve or deny a
waiver request not later than 90 days after receipt shall be deemed an approval of such request. The Secretary’s decision shall be final
for the Department.
(c) Access to Federal property
In connection with any compact or funding
agreement executed pursuant to this subchapter
or an agreement negotiated under the Tribal
Self-Governance Demonstration Project established under title III,1 as in effect before August
18, 2000, upon the request of an Indian tribe, the
Secretary—
(1) shall permit an Indian tribe to use existing school buildings, hospitals, and other facilities and all equipment therein or appertaining thereto and other personal property
owned by the Government within the Secretary’s jurisdiction under such terms and
conditions as may be agreed upon by the Secretary and the Indian tribe for their use and
maintenance;
(2) may donate to an Indian tribe title to
any personal or real property found to be excess to the needs of any agency of the Department, or the General Services Administration,
except that—
(A) subject to the provisions of subparagraph (B), title to property and equipment
furnished by the Federal Government for use
in the performance of the compact or funding agreement or purchased with funds
under any compact or funding agreement
shall, unless otherwise requested by the Indian tribe, vest in the appropriate Indian
tribe;
(B) if property described in subparagraph
(A) has a value in excess of $5,000 at the time
of retrocession, withdrawal, or reassumption, at the option of the Secretary upon the
retrocession, withdrawal, or reassumption,
title to such property and equipment shall
revert to the Department of Health and
Human Services; and
(C) all property referred to in subparagraph (A) shall remain eligible for replacement, maintenance, and improvement on the
same basis as if title to such property were
vested in the United States; and
(3) shall acquire excess or surplus Government personal or real property for donation to
1 See

References in Text note below.

Page 763

§ 5394

TITLE 25—INDIANS

an Indian tribe if the Secretary determines
the property is appropriate for use by the Indian tribe for any purpose for which a compact
or funding agreement is authorized under this
subchapter.
(d) Matching or cost-participation requirement
All funds provided under compacts, funding
agreements, or grants made pursuant to this
chapter, shall be treated as non-Federal funds
for purposes of meeting matching or cost participation requirements under any other Federal
or non-Federal program.
(e) State facilitation
States are hereby authorized and encouraged
to enact legislation, and to enter into agreements with Indian tribes to facilitate and supplement the initiatives, programs, and policies
authorized by this subchapter and other Federal
laws benefiting Indians and Indian tribes.
(f) Rules of construction
Each provision of this subchapter and each
provision of a compact or funding agreement
shall be liberally construed for the benefit of the
Indian tribe participating in self-governance and
any ambiguity shall be resolved in favor of the
Indian tribe.
(Pub. L. 93–638, title V, § 512, as added Pub. L.
106–260, § 4, Aug. 18, 2000, 114 Stat. 726.)
Editorial Notes
REFERENCES IN TEXT
Title III, referred to in subsec. (c), means title III of
Pub. L. 93–638, as added by Pub. L. 100–472, title II, § 209,
Oct. 5, 1988, 102 Stat. 2296, which was set out as a note
under former section 450f of this title prior to repeal by
Pub. L. 106–260, § 10, Aug. 18, 2000, 114 Stat. 734.
This chapter, referred to in subsec. (d), was in the
original ‘‘this Act’’, meaning Pub. L. 93–638, Jan. 4,
1975, 88 Stat. 2203, known as the Indian Self-Determination and Education Assistance Act, which is classified
principally to this chapter. For complete classification
of this Act to the Code, see Short Title note set out
under section 5301 of this title and Tables.
CODIFICATION
Section was formerly classified to section 458aaa–11
of this title prior to editorial reclassification and renumbering as this section.

§ 5393. Budget request
(a) Requirement of annual budget request
(1) In general
The President shall identify in the annual
budget request submitted to Congress under
section 1105 of title 31 all funds necessary to
fully fund all funding agreements authorized
under this subchapter, including funds specifically identified to fund tribal base budgets. All
funds so appropriated shall be apportioned to
the Indian Health Service. Such funds shall be
provided to the Office of Tribal Self-Governance which shall be responsible for distribution of all funds provided under section 5385 of
this title.
(2) Rule of construction
Nothing in this subsection shall be construed to authorize the Indian Health Service
to reduce the amount of funds that a self-gov-

ernance tribe is otherwise entitled to receive
under its funding agreement or other applicable law, whether or not such funds are apportioned to the Office of Tribal Self-Governance
under this section.
(b) Present funding; shortfalls
In such budget request, the President shall
identify the level of need presently funded and
any shortfall in funding (including direct program and contract support costs) for each Indian
tribe, either directly by the Secretary of Health
and Human Services, under self-determination
contracts, or under compacts and funding agreements authorized under this subchapter.
(Pub. L. 93–638, title V, § 513, as added Pub. L.
106–260, § 4, Aug. 18, 2000, 114 Stat. 727.)
Editorial Notes
CODIFICATION
Section was formerly classified to section 458aaa–12
of this title prior to editorial reclassification and renumbering as this section.

§ 5394. Reports
(a) Annual report
(1) In general
Not later than January 1 of each year after
August 18, 2000, the Secretary shall submit to
the Committee on Indian Affairs of the Senate
and the Committee on Resources of the House
of Representatives a written report regarding
the administration of this subchapter.
(2) Analysis
The report under paragraph (1) shall include
a detailed analysis of the level of need being
presently funded or unfunded for each Indian
tribe, either directly by the Secretary, under
self-determination contracts under subchapter
I of this chapter, or under compacts and funding agreements authorized under this chapter.
In compiling reports pursuant to this section,
the Secretary may not impose any reporting
requirements on participating Indian tribes or
tribal organizations, not otherwise provided in
this chapter.
(b) Contents
The report under subsection (a) of this section
shall—
(1) be compiled from information contained
in funding agreements, annual audit reports,
and data of the Secretary regarding the disposition of Federal funds; and
(2) identify—
(A) the relative costs and benefits of selfgovernance;
(B) with particularity, all funds that are
specifically or functionally related to the
provision by the Secretary of services and
benefits to self-governance Indian tribes and
their members;
(C) the funds transferred to each self-governance Indian tribe and the corresponding
reduction in the Federal bureaucracy;
(D) the funding formula for individual tribal shares of all headquarters funds, together
with the comments of affected Indian tribes
or tribal organizations, developed under subsection (c) of this section; and

§ 5395

TITLE 25—INDIANS

(E) amounts expended in the preceding fiscal year to carry out inherent Federal functions, including an identification of those
functions by type and location;
(3) contain a description of the method or
methods (or any revisions thereof) used to determine the individual tribal share of funds
controlled by all components of the Indian
Health Service (including funds assessed by
any other Federal agency) for inclusion in
self-governance compacts or funding agreements;
(4) before being submitted to Congress, be
distributed to the Indian tribes for comment
(with a comment period of no less than 30
days, beginning on the date of distribution);
and
(5) include the separate views and comments
of the Indian tribes or tribal organizations.
(c) Report on fund distribution method
Not later than 180 days after August 18, 2000,
the Secretary shall, after consultation with Indian tribes, submit a written report to the Committee on Resources of the House of Representatives and the Committee on Indian Affairs of the
Senate that describes the method or methods
used to determine the individual tribal share of
funds controlled by all components of the Indian
Health Service (including funds assessed by any
other Federal agency) for inclusion in self-governance compacts or funding agreements.
(Pub. L. 93–638, title V, § 514, as added Pub. L.
106–260, § 4, Aug. 18, 2000, 114 Stat. 728.)
Editorial Notes
REFERENCES IN TEXT
Subchapter I of this chapter, referred to in subsec.
(a)(2), was in the original ‘‘title I’’, meaning title I of
Pub. L. 93–638, known as the Indian Self-Determination
Act, which is classified principally to subchapter I
(§ 5321 et seq.) of this chapter. For complete classification of title I to the Code, see Short Title note set out
under section 5301 of this title and Tables.
This chapter, referred to in subsec. (a)(2), was in the
original ‘‘this Act’’, meaning Pub. L. 93–638, Jan. 4,
1975, 88 Stat. 2203, known as the Indian Self-Determination and Education Assistance Act, which is classified
principally to this chapter. For complete classification
of this Act to the Code, see Short Title note set out
under section 5301 of this title and Tables.
CODIFICATION
Section was formerly classified to section 458aaa–13
of this title prior to editorial reclassification and renumbering as this section.
Statutory Notes and Related Subsidiaries
CHANGE OF NAME
Committee on Resources of House of Representatives
changed to Committee on Natural Resources of House
of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007.

§ 5395. Disclaimers
(a) No funding reduction
Nothing in this subchapter shall be construed
to limit or reduce in any way the funding for
any program, project, or activity serving an Indian tribe under this or other applicable Federal

Page 764

law. Any Indian tribe that alleges that a compact or funding agreement is in violation of this
section may apply the provisions of section 5331
of this title.
(b) Federal trust and treaty responsibilities
Nothing in this chapter shall be construed to
diminish in any way the trust responsibility of
the United States to Indian tribes and individual Indians that exists under treaties, Executive orders, or other laws and court decisions.
(c) Obligations of the United States
The Indian Health Service under this chapter
shall neither bill nor charge those Indians who
may have the economic means to pay for services, nor require any Indian tribe to do so.
(Pub. L. 93–638, title V, § 515, as added Pub. L.
106–260, § 4, Aug. 18, 2000, 114 Stat. 729.)
Editorial Notes
REFERENCES IN TEXT
This chapter, referred to in subsecs. (b) and (c), was
in the original ‘‘this Act’’, meaning Pub. L. 93–638, Jan.
4, 1975, 88 Stat. 2203, known as the Indian Self-Determination and Education Assistance Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note
set out under section 5301 of this title and Tables.
CODIFICATION
Section was formerly classified to section 458aaa–14
of this title prior to editorial reclassification and renumbering as this section.

§ 5396. Application of other sections of this chapter
(a) Mandatory application
All provisions of sections 5305(b), 5306, 5307,
5321(c) and (d), 5323, 5324(k) and (l), 5325(a)
through (k), and 5332 of this title and section 314
of Public Law 101–512 (coverage under chapter
171 of title 28, commonly known as the ‘‘Federal
Tort Claims Act’’), to the extent not in conflict
with this subchapter, shall apply to compacts
and funding agreements authorized by this subchapter.
(b) Discretionary application
At the request of a participating Indian tribe,
any other provision of subchapter I of this chapter, to the extent such provision is not in conflict with this subchapter, shall be made a part
of a funding agreement or compact entered into
under this subchapter. The Secretary is obligated to include such provision at the option of
the participating Indian tribe or tribes. If such
provision is incorporated it shall have the same
force and effect as if it were set out in full in
this subchapter. In the event an Indian tribe requests such incorporation at the negotiation
stage of a compact or funding agreement, such
incorporation shall be deemed effective immediately and shall control the negotiation and resulting compact and funding agreement.
(Pub. L. 93–638, title V, § 516, as added Pub. L.
106–260, § 4, Aug. 18, 2000, 114 Stat. 729.)
Editorial Notes
REFERENCES IN TEXT
Section 314 of Pub. L. 101–512, referred to in subsec.
(a), is section 314 of Pub. L. 101–512, as amended, which
is set out as a note under section 5321 of this title.

Page 765

§ 5411

TITLE 25—INDIANS

Subchapter I of this chapter, referred to in subsec.
(b), was in the original ‘‘title I’’, meaning title I of Pub.
L. 93–638, known as the Indian Self-Determination Act,
which is classified principally to subchapter I (§ 5321 et
seq.) of this chapter. For complete classification of
title I to the Code, see Short Title note set out under
section 5301 of this title and Tables.
CODIFICATION
Section was formerly classified to section 458aaa–15
of this title prior to editorial reclassification and renumbering as this section.

§ 5397. Regulations
(a) In general
(1) Promulgation
Not later than 90 days after August 18, 2000,
the Secretary shall initiate procedures under
subchapter III of chapter 5 of title 5 to negotiate and promulgate such regulations as are
necessary to carry out this subchapter.
(2) Publication of proposed regulations
Proposed regulations to implement this subchapter shall be published in the Federal Register by the Secretary no later than 1 year
after August 18, 2000.
(3) Expiration of authority
The authority to promulgate regulations
under paragraph (1) shall expire 21 months
after August 18, 2000.
(b) Committee
(1) In general
A negotiated rulemaking committee established pursuant to section 565 of title 5 to
carry out this section shall have as its members only Federal and tribal government representatives, a majority of whom shall be
nominated by and be representatives of Indian
tribes with funding agreements under this
chapter.
(2) Requirements
The committee shall confer with, and accommodate participation by, representatives
of Indian tribes, inter-tribal consortia, tribal
organizations, and individual tribal members.
(c) Adaptation of procedures
The Secretary shall adapt the negotiated rulemaking procedures to the unique context of selfgovernance and the government-to-government
relationship between the United States and Indian tribes.
(d) Effect
The lack of promulgated regulations shall not
limit the effect of this subchapter.
(e) Effect of circulars, policies, manuals, guidances, and rules
Unless expressly agreed to by the participating Indian tribe in the compact or funding
agreement, the participating Indian tribe shall
not be subject to any agency circular, policy,
manual, guidance, or rule adopted by the Indian
Health Service, except for the eligibility provisions of section 5324(g) of this title and regulations promulgated under this section.
(Pub. L. 93–638, title V, § 517, as added Pub. L.
106–260, § 4, Aug. 18, 2000, 114 Stat. 730.)

Editorial Notes
REFERENCES IN TEXT
This chapter, referred to in subsec. (b)(1), was in the
original ‘‘this Act’’, meaning Pub. L. 93–638, Jan. 4,
1975, 88 Stat. 2203, known as the Indian Self-Determination and Education Assistance Act, which is classified
principally to this chapter. For complete classification
of this Act to the Code, see Short Title note set out
under section 5301 of this title and Tables.
CODIFICATION
Section was formerly classified to section 458aaa–16
of this title prior to editorial reclassification and renumbering as this section.

§ 5398. Appeals
In any appeal (including civil actions) involving decisions made by the Secretary under this
subchapter, the Secretary shall have the burden
of proof of demonstrating by clear and convincing evidence—
(1) the validity of the grounds for the decision made; and
(2) that the decision is fully consistent with
provisions and policies of this subchapter.
(Pub. L. 93–638, title V, § 518, as added Pub. L.
106–260, § 4, Aug. 18, 2000, 114 Stat. 730.)
Editorial Notes
CODIFICATION
Section was formerly classified to section 458aaa–17
of this title prior to editorial reclassification and renumbering as this section.

§ 5399. Authorization of appropriations
(a) In general
There are authorized to be appropriated such
sums as may be necessary to carry out this subchapter.
(b) Availability of appropriations
Notwithstanding any other provision of this
chapter, the provision of funds under this chapter shall be subject to the availability of appropriations and the Secretary is not required to
reduce funding for programs, projects, or activities serving a tribe in order to make funds available to another tribe or tribal organization
under this chapter.
(Pub. L. 93–638, title V, § 519, as added Pub. L.
106–260, § 4, Aug. 18, 2000, 114 Stat. 731.)
Editorial Notes
REFERENCES IN TEXT
This chapter, referred to in subsec. (b), was in the
original ‘‘this Act’’, meaning Pub. L. 93–638, Jan. 4,
1975, 88 Stat. 2203, known as the Indian Self-Determination and Education Assistance Act, which is classified
principally to this chapter. For complete classification
of this Act to the Code, see Short Title note set out
under section 5301 of this title and Tables.
CODIFICATION
Section was formerly classified to section 458aaa–18
of this title prior to editorial reclassification and renumbering as this section.

SUBCHAPTER VI—INDIAN LAW
ENFORCEMENT FOUNDATION
§ 5411. Definitions
In this subchapter:

§ 5412

TITLE 25—INDIANS

(1) Board
The term ‘‘Board’’ means the Board of Directors of the Foundation.
(2) Bureau
The term ‘‘Bureau’’ means the Office of Justice Services of the Bureau of Indian Affairs.
(3) Committee
The term ‘‘Committee’’ means the Committee for the Establishment of the Indian
Law Enforcement Foundation established
under section 5412(e)(1) of this title.
(4) Foundation
The term ‘‘Foundation’’ means the Indian
Law Enforcement Foundation established
under section 5412 of this title.
(5) Secretary
The term ‘‘Secretary’’ means the Secretary
of the Interior.
(Pub. L. 93–638, title VII, § 701, as added Pub. L.
111–211, title II, § 231(c), July 29, 2010, 124 Stat.
2274.)
Editorial Notes
CODIFICATION
Section was formerly classified to section 458ccc of
this title prior to editorial reclassification and renumbering as this section.

§ 5412. Indian Law Enforcement Foundation
(a) Establishment
(1) In general
As soon as practicable after July 29, 2010, the
Secretary shall establish, under the laws of
the District of Columbia and in accordance
with this subchapter, a foundation, to be
known as the ‘‘Indian Law Enforcement Foundation’’.
(2) Funding determinations
No funds, gift, property, or other item of
value (including any interest accrued on such
an item) acquired by the Foundation shall—
(A) be taken into consideration for purposes of determining Federal appropriations
relating to the provision of public safety or
justice services to Indians; or
(B) otherwise limit, diminish, or affect the
Federal responsibility for the provision of
public safety or justice services to Indians.
(b) Nature of corporation
The Foundation—
(1) shall be a charitable and nonprofit federally chartered corporation; and
(2) shall not be an agency or instrumentality
of the United States.
(c) Place of incorporation and domicile
The Foundation shall be incorporated and
domiciled in the District of Columbia.
(d) Duties
The Foundation shall—
(1) encourage, accept, and administer, in accordance with the terms of each donation, private gifts of real and personal property, and
any income from or interest in such gifts, for

Page 766

the benefit of, or in support of, public safety
and justice services in American Indian and
Alaska Native communities; and
(2) assist the Office of Justice Services of the
Bureau of Indian Affairs and Indian tribal governments in funding and conducting activities
and providing education to advance and support the provision of public safety and justice
services in American Indian and Alaska Native communities.
(e) Committee for the Establishment of the Indian Law Enforcement Foundation
(1) In general
The Secretary shall establish a committee,
to be known as the ‘‘Committee for the Establishment of the Indian Law Enforcement
Foundation’’, to assist the Secretary in establishing the Foundation.
(2) Duties
Not later than 180 days after July 29, 2010,
the Committee shall—
(A) carry out such activities as are necessary to incorporate the Foundation under
the laws of the District of Columbia, including acting as incorporators of the Foundation;
(B) ensure that the Foundation qualifies
for and maintains the status required to
carry out this section, until the date on
which the Board is established;
(C) establish the constitution and initial
bylaws of the Foundation;
(D) provide for the initial operation of the
Foundation, including providing for temporary or interim quarters, equipment, and
staff; and
(E) appoint the initial members of the
Board in accordance with the constitution
and initial bylaws of the Foundation.
(f) Board of Directors
(1) In general
The Board of Directors shall be the governing body of the Foundation.
(2) Powers
The Board may exercise, or provide for the
exercise of, the powers of the Foundation.
(3) Selection
(A) In general
Subject to subparagraph (B), the number
of members of the Board, the manner of selection of the members (including the filling
of vacancies), and the terms of office of the
members shall be as provided in the constitution and bylaws of the Foundation.
(B) Requirements
(i) Number of members
The Board shall be composed of not less
than 7 members.
(ii) Initial voting members
The initial voting members of the
Board—
(I) shall be appointed by the Committee not later than 180 days after the
date on which the Foundation is established; and

Page 767

§ 5412

TITLE 25—INDIANS

(II) shall serve for staggered terms.
(iii) Qualification
The members of the Board shall be
United States citizens with knowledge or
experience regarding public safety and justice in Indian and Alaska Native communities.
(C) Compensation
A member of the Board shall not receive
compensation for service as a member, but
shall be reimbursed for actual and necessary
travel and subsistence expenses incurred in
the performance of the duties of the Foundation.
(g) Officers
(1) In general
The officers of the Foundation shall be—
(A) a Secretary, elected from among the
members of the Board; and
(B) any other officers provided for in the
constitution and bylaws of the Foundation.
(2) Chief operating officer
(A) Secretary
Subject to subparagraph (B), the Secretary
of the Foundation may serve, at the direction of the Board, as the chief operating officer of the Foundation.
(B) Appointment
The Board may appoint a chief operating
officer in lieu of the Secretary of the Foundation under subparagraph (A), who shall
serve at the direction of the Board.
(3) Election
The manner of election, term of office, and
duties of the officers of the Foundation shall
be as provided in the constitution and bylaws
of the Foundation.
(h) Powers
The Foundation—
(1) shall adopt a constitution and bylaws for
the management of the property of the Foundation and the regulation of the affairs of the
Foundation;
(2) may adopt and alter a corporate seal;
(3) may enter into contracts;
(4) may acquire (through gift or otherwise),
own, lease, encumber, and transfer real or personal property as necessary or convenient to
carry out the purposes of the Foundation;
(5) may sue and be sued; and
(6) may perform any other act necessary and
proper to carry out the purposes of the Foundation.
(i) Principal office
(1) In general
The principal office of the Foundation shall
be located in the District of Columbia.
(2) Activities; offices
The activities of the Foundation may be
conducted, and offices may be maintained,
throughout the United States in accordance
with the constitution and bylaws of the Foundation.
(j) Service of process
The Foundation shall comply with the law on
service of process of each State in which the

Foundation is incorporated and of each State in
which the Foundation carries on activities.
(k) Liability of officers, employees, and agents
(1) In general
The Foundation shall be liable for the acts
of the officers, employees, and agents of the
Foundation acting within the scope of the authority of the officers, employees, and agents.
(2) Personal liability
A member of the Board shall be personally
liable only for gross negligence in the performance of the duties of the member.
(l) Restrictions
(1) Limitation on spending
Beginning with the fiscal year following the
first full fiscal year during which the Foundation is in operation, the administrative costs
of the Foundation shall not exceed the percentage described in paragraph (2) of the sum
of—
(A) the amounts transferred to the Foundation under subsection (n) during the preceding fiscal year; and
(B) donations received from private
sources during the preceding fiscal year.
(2) Percentages
The percentages referred to in paragraph (1)
are—
(A) for the first 2 fiscal years described in
that paragraph, 25 percent;
(B) for the following fiscal year, 20 percent; and
(C) for each fiscal year thereafter, 15 percent.
(3) Appointment and hiring
The appointment of officers and employees
of the Foundation shall be subject to the
availability of funds.
(4) Status
A member of the Board or officer, employee,
or agent of the Foundation shall not by reason
of association with the Foundation be considered to be an officer, employee, or agent of the
United States.
(m) Audits
The Foundation shall comply with section
10101 of title 36 as if the Foundation were a corporation under part B of subtitle II of that title.
(n) Funding
For each of fiscal years 2011 through 2015, out
of any unobligated amounts available to the
Secretary, the Secretary may use to carry out
this section not more than $500,000.
(Pub. L. 93–638, title VII, § 702, as added Pub. L.
111–211, title II, § 231(c), July 29, 2010, 124 Stat.
2274.)
Editorial Notes
CODIFICATION
Section was formerly classified to section 458ccc–1 of
this title prior to editorial reclassification and renumbering as this section.

§ 5413

TITLE 25—INDIANS

§ 5413. Administrative services and support
(a) Provision of support by Secretary
Subject to subsection (b), during the 5-year period beginning on the date on which the Foundation is established, the Secretary—
(1) may provide personnel, facilities, and
other administrative support services to the
Foundation;
(2) may provide funds for initial operating
costs and to reimburse the travel expenses of
the members of the Board; and
(3) shall require and accept reimbursements
from the Foundation for—
(A) services provided under paragraph (1);
and
(B) funds provided under paragraph (2).
(b) Reimbursement
Reimbursements accepted under subsection
(a)(3)—
(1) shall be deposited in the Treasury of the
United States to the credit of the applicable
appropriations account; and
(2) shall be chargeable for the cost of providing services described in subsection (a)(1)
and travel expenses described in subsection
(a)(2).
(c) Continuation of certain services
The Secretary may continue to provide facilities and necessary support services to the Foundation after the termination of the 5-year period
specified in subsection (a) if the facilities and
services are—
(1) available; and
(2) provided on reimbursable cost basis.
(Pub. L. 93–638, title VII, § 703, as added Pub. L.
111–211, title II, § 231(c), July 29, 2010, 124 Stat.
2277.)
Editorial Notes
CODIFICATION
Section was formerly classified to section 458ccc–2 of
this title prior to editorial reclassification and renumbering as this section.

SUBCHAPTER VII—NATIONAL FUND FOR
EXCELLENCE IN AMERICAN INDIAN EDUCATION
Editorial Notes
CODIFICATION
Subchapter is comprised of title VIII, formerly title
V, of Pub. L. 93–638, which was formerly classified to
part F (§ 458bbb et seq.) of subchapter II of chapter 14 of
this title prior to redesignation by Pub. L. 111–211, title
II, § 231(d)(1), July 29, 2010, 124 Stat. 2278, transfer to
former part H (§ 458ddd et seq.) of subchapter II of chapter 14 of this title, and editorial reclassification as this
subchapter.

§ 5421. National Fund for Excellence in American
Indian Education
(a) In general
As soon as practicable after December 27, 2000,
the Secretary of the Interior shall establish,
under the laws of the District of Columbia and
in accordance with this subchapter, a foundation to be known as the ‘‘National Fund for Ex-

Page 768

cellence in American Indian Education’’ (hereinafter referred to as the ‘‘Foundation’’).
(b) Perpetual existence
Except as otherwise provided, the Foundation
shall have perpetual existence.
(c) Nature of corporation
The Foundation shall be a charitable and nonprofit federally chartered corporation and shall
not be an agency or instrumentality of the
United States.
(d) Place of incorporation and domicile
The Foundation shall be incorporated and
domiciled in the District of Columbia.
(e) Purposes
The purposes of the Foundation shall be—
(1) to encourage, accept, and administer private gifts of real and personal property or any
income therefrom or other interest therein for
the benefit of, or in support of, the mission of
the Office of Indian Education Programs of the
Bureau of Indian Affairs (or its successor office);
(2) to undertake and conduct such other activities as will further the educational opportunities of American Indians who attend a Bureau funded school; and
(3) to participate with, and otherwise assist,
Federal, State, and tribal governments, agencies, entities, and individuals in undertaking
and conducting activities that will further the
educational opportunities of American Indians
attending Bureau funded schools.
(f) Board of Directors
(1) In general
The Board of Directors shall be the governing body of the Foundation. The Board may
exercise, or provide for the exercise of, the
powers of the Foundation.
(2) Selection
The number of members of the Board, the
manner of their selection (including the filling
of vacancies), and their terms of office shall be
as provided in the constitution and bylaws of
the Foundation. However, the Board shall
have at least 11 members, two of whom shall
be the Secretary and the Assistant Secretary
of the Interior for Indian Affairs, who shall
serve as ex officio nonvoting members, and the
initial voting members of the Board shall be
appointed by the Secretary not later than 6
months after the date that the Foundation is
established and shall have staggered terms (as
determined by the Secretary).
(3) Qualification
The members of the Board shall be United
States citizens who are knowledgeable or experienced in American Indian education and
shall, to the extent practicable, represent diverse points of view relating to the education
of American Indians.
(4) Compensation
Members of the Board shall not receive compensation for their services as members, but
shall be reimbursed for actual and necessary
travel and subsistence expenses incurred by

Page 769

§ 5422

TITLE 25—INDIANS

them in the performance of the duties of the
Foundation.
(g) Officers
(1) In general
The officers of the Foundation shall be a secretary, elected from among the members of
the Board, and any other officers provided for
in the constitution and bylaws of the Foundation.
(2) Secretary of Foundation
The secretary shall serve, at the direction of
the Board, as its chief operating officer and
shall be knowledgeable and experienced in
matters relating to education in general and
education of American Indians in particular.
(3) Election
The manner of election, term of office, and
duties of the officers shall be as provided in
the constitution and bylaws of the Foundation.
(h) Powers
The Foundation—
(1) shall adopt a constitution and bylaws for
the management of its property and the regulation of its affairs, which may be amended;
(2) may adopt and alter a corporate seal;
(3) may make contracts, subject to the limitations of this chapter;
(4) may acquire (through a gift or otherwise), own, lease, encumber, and transfer real
or personal property as necessary or convenient to carry out the purposes of the Foundation;
(5) may sue and be sued; and
(6) may perform any other act necessary and
proper to carry out the purposes of the Foundation.
(i) Principal office
The principal office of the Foundation shall be
in the District of Columbia. However, the activities of the Foundation may be conducted, and
offices may be maintained, throughout the
United States in accordance with the constitution and bylaws of the Foundation.
(j) Service of process
The Foundation shall comply with the law on
service of process of each State in which it is incorporated and of each State in which the Foundation carries on activities.
(k) Liability of officers and agents
The Foundation shall be liable for the acts of
its officers and agents acting within the scope of
their authority. Members of the Board are personally liable only for gross negligence in the
performance of their duties.
(l) Restrictions
(1) Limitation on spending
Beginning with the fiscal year following the
first full fiscal year during which the Foundation is in operation, the administrative costs
of the Foundation may not exceed 10 percent
of the sum of—
(A) the amounts transferred to the Foundation under subsection (m) of this section
during the preceding fiscal year; and

(B) donations received from private
sources during the preceding fiscal year.
(2) Appointment and hiring
The appointment of officers and employees
of the Foundation shall be subject to the
availability of funds.
(3) Status
Members of the Board, and the officers, employees, and agents of the Foundation are not,
by reason of their association with the Foundation, officers, employees, or agents of the
United States.
(m) Transfer of donated funds
The Secretary may transfer to the Foundation
funds held by the Department of the Interior
under section 5341 of this title, if the transfer or
use of such funds is not prohibited by any term
under which the funds were donated.
(n) Audits
The Foundation shall comply with the audit
requirements set forth in section 10101 of title
36, as if it were a corporation in part B of subtitle II of that title.
(Pub. L. 93–638, title VIII, § 801, formerly title V,
§ 501, as added Pub. L. 106–568, title XIII, § 1302,
Dec. 27, 2000, 114 Stat. 2936; amended Pub. L.
108–267, § 1(a),(b)(2), July 2, 2004, 118 Stat. 797; renumbered title VIII, § 801, Pub. L. 111–211, title
II, § 231(d)(1), (2), July 29, 2010, 124 Stat. 2278.)
Editorial Notes
REFERENCES IN TEXT
This chapter, referred to in subsec. (h)(3), was in the
original ‘‘this Act’’, meaning Pub. L. 93–638, Jan. 4,
1975, 88 Stat. 2203, known as the Indian Self-Determination and Education Assistance Act, which is classified
principally to this chapter. For complete classification
of this Act to the Code, see Short Title note set out
under section 5301 of this title and Tables.
CODIFICATION
Section was formerly classified to section 458ddd of
this title prior to editorial reclassification and renumbering as this section.
AMENDMENTS
2004—Pub. L. 108–267, § 1(b)(2), substituted ‘‘National
Fund for Excellence in American Indian Education’’ for
‘‘American Indian Education Foundation’’ in section
catchline.
Subsec. (a). Pub. L. 108–267, § 1(a), substituted ‘‘a foundation to be known as the ‘National Fund for Excellence in American Indian Education’ (hereinafter referred to as the ‘Foundation’)’’ for ‘‘the American Indian Education Foundation’’.
Statutory Notes and Related Subsidiaries
SHORT TITLE
For short title of this subchapter as the ‘‘American
Indian Education Foundation Act of 2000’’, see section
1301 of Pub. L. 106–568, set out as a Short Title of 2000
Amendment note under section 5301 of this title.

§ 5422. Administrative services and support
(a) Provision of support by Secretary
Subject to subsection (b) of this section, during the 5-year period beginning on the date that
the Foundation is established, the Secretary—

§ 5423

TITLE 25—INDIANS

(1) may provide personnel, facilities, and
other administrative support services to the
Foundation;
(2) may provide funds to reimburse the travel expenses of the members of the Board under
section 5421 of this title; and
(3) shall require and accept reimbursements
from the Foundation for any—
(A) services provided under paragraph (1);
and
(B) funds provided under paragraph (2).
(b) Reimbursements
Reimbursements accepted under subsection
(a)(3) of this section shall be deposited in the
Treasury to the credit of the appropriations
then current and chargeable for the cost of providing services described in subsection (a)(1) of
this section and the travel expenses described in
subsection (a)(2) of this section.
(c) Continuation of certain services
Notwithstanding any other provision of this
section, the Secretary may continue to provide
facilities and necessary support services to the
Foundation after the termination of the 5-year
period specified in subsection (a) of this section,
on a space available, reimbursable cost basis.
(Pub. L. 93–638, title VIII, § 802, formerly title V,
§ 502, as added Pub. L. 106–568, title XIII, § 1302,
Dec. 27, 2000, 114 Stat. 2938; renumbered title
VIII, § 802, and amended Pub. L. 111–211, title II,
§ 231(d), July 29, 2010, 124 Stat. 2278.)
Editorial Notes
CODIFICATION
Section was formerly classified to section 458ddd–1 of
this title prior to editorial reclassification and renumbering as this section.
AMENDMENTS
2010—Subsec. (a)(2). Pub. L. 111–211, § 231(d)(3), substituted reference to section 5421 of this title for reference to former section 458bbb of this title.

§ 5423. Definitions
For the purposes of this subchapter—
(1) the term ‘‘Bureau funded school’’ has the
meaning given that term in title XI of the
Education Amendments of 1978 [25 U.S.C. 2000
et seq.];
(2) the term ‘‘Foundation’’ means the Foundation established by the Secretary pursuant
to section 5421 of this title; and
(3) the term ‘‘Secretary’’ means the Secretary of the Interior.
(Pub. L. 93–638, title VIII, § 803, formerly title V,
§ 503, as added Pub. L. 106–568, title XIII, § 1302,
Dec. 27, 2000, 114 Stat. 2938; renumbered title
VIII, § 803, and amended Pub. L. 111–211, title II,
§ 231(d), July 29, 2010, 124 Stat. 2278.)
Editorial Notes
REFERENCES IN TEXT
The Education Amendments of 1978, referred to in
par. (1), is Pub. L. 95–561, Nov. 1, 1978, 92 Stat. 2143. Title
XI of the Act is classified principally to chapter 22
(§ 2000 et seq.) of this title. For complete classification
of this Act to the Code, see Short Title note set out
under section 6301 of Title 20, Education, and Tables.

Page 770
CODIFICATION

Section was formerly classified to section 458ddd–2 of
this title prior to editorial reclassification and renumbering as this section.
AMENDMENTS
2010—Par. (2). Pub. L. 111–211, § 231(d)(3), substituted
reference to section 5421 of this title for reference to
former section 458bbb of this title.

CHAPTER 47—CONVEYANCE OF
SUBMARGINAL LAND
Sec.

5501.
5502.
5503.

5504.
5505.
5506.

Submarginal lands of United States held
in trust for specified Indian tribes.
Designation of tribes.
Submarginal lands of United States held
in trust for Stockbridge Munsee Indian
Community.
Existing rights of possession, contract,
interest, etc.
Gross receipts from conveyed lands.
Tax exemption for conveyed lands and
gross receipts; distribution of gross receipts to tribal members.

§ 5501. Submarginal lands of United States held
in trust for specified Indian tribes
(a) Declaration; addition to reservations
Except as hereinafter provided, all of the
right, title, and interest of the United States of
America in all of the land, and the improvements now thereon, that was acquired under
title II of the National Industrial Recovery Act
of June 16, 1933 (48 Stat. 200), the Emergency Relief Appropriation Act of April 8, 1935 (49 Stat.
115), and section 55 of the Act of August 24, 1935
(49 Stat. 750, 781), and that are now administered
by the Secretary of the Interior for the use or
benefit of the Indian tribes identified in section
5502(a) of this title, together with all minerals
underlying any such land whether acquired pursuant to such Acts or otherwise owned by the
United States, are hereby declared to be held by
the United States in trust for each of said tribes,
and (except in the case of the Cherokee Nation)
shall be a part of the reservations heretofore established for each of said tribes.
(b) Imposition of conditions on conveyed lands;
lands excepted from conveying authority
The property conveyed by this chapter shall
be subject to the appropriation or disposition of
any of the lands, or interests therein, within the
Pine Ridge Indian Reservation, South Dakota,
as authorized by sections 441j to 441o of title 16,
and subject to a reservation in the United States
of a right to prohibit or restrict improvements
or structures on, and to continuously or intermittently inundate or otherwise use, lands in
sections 25 and 26, township 48 north, range 3
west, at Odanah, Wisconsin, in connection with
the Bad River flood control project as authorized by section 203 of the Act of July 3, 1958 (72
Stat. 297, 311): Provided, That this chapter shall
not convey the title to any part of the lands or
any interest therein that prior to October 17,
1975, have been included in the authorized water
resources development projects in the Missouri
River Basin as authorized by section 203 of the
Act of July 3, 1958 (72 Stat. 297, 311), as amended
and supplemented: Provided further, That such