
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 25USC458cc]

 
                            TITLE 25--INDIANS
 
                        CHAPTER 14--MISCELLANEOUS
 
    SUBCHAPTER II--INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE
 
       Part D--Tribal Self-Governance--Department of the Interior
 
Sec. 458cc. Funding agreements


(a) Authorization

    The Secretary shall negotiate and enter into an annual written 
funding agreement with the governing body of each participating tribal 
government in a manner consistent with the Federal Government's laws and 
trust relationship to and responsibility for the Indian people.

(b) Contents

    Each funding agreement shall--
        (1) authorize the tribe to plan, conduct, consolidate, and 
    administer programs, services, functions, and activities, or 
    portions thereof, administered by the Department of the Interior 
    through the Bureau of Indian Affairs, without regard to the agency 
    or office of the Bureau of Indian Affairs within which the program, 
    service, function, and activity, or portion thereof, is performed, 
    including funding for agency, area, and central office functions in 
    accordance with subsection (g)(3) of this section, and including any 
    program, service, function, and activity, or portion thereof, 
    administered under the authority of--
            (A) the Act of April 16, 1934 (25 U.S.C. 452 et seq.);
            (B) section 13 of this title; and
            (C) programs, services, functions, and activities or 
        portions thereof administered by the Secretary of the Interior 
        that are otherwise available to Indian tribes or Indians for 
        which appropriations are made to agencies other than the 
        Department of the Interior;

        (2) subject to such terms as may be negotiated, authorize the 
    tribe to plan, conduct, consolidate, and administer programs, 
    services, functions, and activities, or portions thereof, 
    administered by the Department of the Interior, other than through 
    the Bureau of Indian Affairs, that are otherwise available to Indian 
    tribes or Indians, as identified in section 458ee(c) of this title, 
    except that nothing in this subsection may be construed to provide 
    any tribe with a preference with respect to the opportunity of the 
    tribe to administer programs, services, functions, and activities, 
    or portions thereof, unless such preference is otherwise provided 
    for by law;
        (3) subject to the terms of the agreement, authorize the tribe 
    to redesign or consolidate programs, services, functions, and 
    activities, or portions thereof, and reallocate funds for such 
    programs, services, functions, and activities, or portions thereof, 
    except that, with respect to the reallocation, consolidation, and 
    redesign of programs described in paragraph (2), a joint agreement 
    between the Secretary and the tribe shall be required;
        (4) prohibit the inclusion of funds provided--
            (A) pursuant to the Tribally Controlled College or 
        University Assistance Act of 1978 (25 U.S.C. 1801 et seq.);
            (B) for elementary and secondary schools under the formula 
        developed pursuant to section 2008 of this title; and
            (C) the Flathead Agency Irrigation Division or the Flathead 
        Agency Power Division, except that nothing in this section shall 
        affect the contract authority of such divisions under section 
        450f of this title;

        (5) specify the services to be provided, the functions to be 
    performed, and the responsibilities of the tribe and the Secretary 
    pursuant to the agreement;
        (6) authorize the tribe and the Secretary to reallocate funds or 
    modify budget allocations within any year, and specify the 
    procedures to be used;
        (7) allow for retrocession of programs or portions of programs 
    pursuant to section 450j(e) of this title;
        (8) provide that, for the year for which, and to the extent to 
    which, funding is provided to a tribe under this section, the 
    tribe--
            (A) shall not be entitled to contract with the Secretary for 
        such funds under section 450f of this title, except that such 
        tribe shall be eligible for new programs on the same basis as 
        other tribes; and
            (B) shall be responsible for the administration of programs, 
        services, functions, and activities pursuant to agreements 
        entered into under this section; and

        (9) prohibit the Secretary from waiving, modifying, or 
    diminishing in any way the trust responsibility of the United States 
    with respect to Indian tribes and individual Indians that exists 
    under treaties, Executive orders, and other laws.

(c) Additional activities

    Each funding agreement negotiated pursuant to subsections (a) and 
(b) of this section may, in accordance to such additional terms as the 
parties deem appropriate, also include other programs, services, 
functions, and activities, or portions thereof, administered by the 
Secretary of the Interior which are of special geographic, historical, 
or cultural significance to the participating Indian tribe requesting a 
compact.

(d) Provisions relating to Secretary

    Funding agreements negotiated between the Secretary and an Indian 
tribe shall include provisions--
        (1) to monitor the performance of trust functions by the tribe 
    through the annual trust evaluation, and
        (2) for the Secretary to reassume a program, service, function, 
    or activity, or portions thereof, if there is a finding of imminent 
    jeopardy to a physical trust asset, natural resources, or public 
    health and safety.

(e) Construction projects

    (1) Regarding construction programs or projects, the Secretary and 
Indian tribes may negotiate for the inclusion of specific provisions of 
the Office of Federal Procurement and Policy Act [41 U.S.C. 401 et seq.] 
and Federal acquisition regulations in any funding agreement entered 
into under this subchapter. Absent a negotiated agreement, such 
provisions and regulatory requirements shall not apply.
    (2) In all construction projects performed pursuant to this part, 
the Secretary shall ensure that proper health and safety standards are 
provided for in the funding agreements.

(f) Submission for review

    Not later than 90 days before the proposed effective date of an 
agreement entered into under this section, the Secretary shall submit a 
copy of such agreement to--
        (1) each Indian tribe that is served by the Agency that is 
    serving the tribe that is a party to the funding agreement;
        (2) the Committee on Indian Affairs of the Senate; and
        (3) the Subcommittee on Native American Affairs of the Committee 
    on Natural Resources of the House of Representatives.

(g) Payment

    (1) At the request of the governing body of the tribe and under the 
terms of an agreement 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 part and title III of 
this Act shall provide for advance payments to the tribes in the form of 
annual or semi-annual installments at the discretion of the tribes.
    (3) Subject to paragraph (4) of this subsection and paragraphs (1) 
through (3) of subsection (b) of this section, the Secretary shall 
provide funds to the tribe under an agreement under this part for 
programs, services, functions, and activities, or portions thereof, in 
an amount equal to the amount that the tribe would have been eligible to 
receive under contracts and grants under this subchapter, including 
amounts for direct program and contract support costs and, in addition, 
any funds that are specifically or functionally related to the provision 
by the Secretary of services and benefits to the tribe or its members, 
without regard to the organization level within the Department where 
such functions are carried out.
    (4) Funds for trust services to individual Indians shall be 
available under an agreement entered into under this section only to the 
extent that the same services that would have been provided by the 
Secretary are provided to individual Indians by the tribe.

(h) Civil actions

    (1) Except as provided in paragraph (2), for the purposes of section 
450m-1 of this title, the term ``contract'' shall include agreements 
entered into under this part.
    (2) For the period that an agreement entered into under this part is 
in effect, the provisions of section 81 of this title, section 476 of 
this title, and the Act of July 3, 1952 (25 U.S.C. 82a), shall not apply 
to attorney and other professional contracts by Indian tribal 
governments participating in Self-Governance under this part.

(i) Facilitation

    (1) Except as otherwise provided by law, the Secretary shall 
interpret each Federal law and regulation in a manner that will 
facilitate--
        (A) the inclusion of programs, services, functions, and 
    activities in the agreements entered into under this section; and
        (B) the implementation of agreements entered into under this 
    section.

    (2)(A) A tribe may submit a written request for a waiver to the 
Secretary identifying the regulation sought to be waived and the basis 
for the request.
    (B) Not later than 60 days after receipt by the Secretary of a 
written request by a tribe to waive application of a Federal regulation 
for an agreement entered into under this section, the Secretary shall 
either approve or deny the requested waiver in writing to the tribe. A 
denial may be made only upon a specific finding by the Secretary that 
identified language in the regulation may not be waived because such 
waiver is prohibited by Federal law. The Secretary's decision shall be 
final for the Department.

(j) Funds

    All funds provided under funding agreements entered into pursuant to 
this subchapter, and all funds provided under contracts or grants made 
pursuant to this subchapter, shall be treated as non-Federal funds for 
purposes of meeting matching requirements under any other Federal law.

(k) Disclaimer

    Nothing in this section is intended or shall be construed to expand 
or alter existing statutory authorities in the Secretary so as to 
authorize the Secretary to enter into any agreement under subsection 
(b)(2) of this section and section 458ee(c)(1) of this title with 
respect to functions that are inherently Federal or where the statute 
establishing the existing program does not authorize the type of 
participation sought by the tribe: Provided, however an Indian tribe or 
tribes need not be identified in the authorizing statute in order for a 
program or element of a program to be included in a compact under 
subsection (b)(2) of this section.

(l) Incorporate self-determination provisions

    At the option of a participating tribe or tribes, any or all 
provisions of part A of this subchapter shall be made part of an 
agreement entered into under title III of this Act or this part. The 
Secretary is obligated to include such provisions at the option of the 
participating tribe or tribes. If such provision is incorporated it 
shall have the same force and effect as if set out in full in title III 
or this part.

(Pub. L. 93-638, title IV, Sec. 403, as added Pub. L. 103-413, title II, 
Sec. 204, Oct. 25, 1994, 108 Stat. 4272; amended Pub. L. 104-109, 
Sec. 19, Feb. 12, 1996, 110 Stat. 766; Pub. L. 105-244, title IX, 
Sec. 901(d), Oct. 7, 1998, 112 Stat. 1828; Pub. L. 106-568, title VIII, 
Sec. 812(b), Dec. 27, 2000, 114 Stat. 2917.)

                       References in Text

    Act of April 16, 1934, referred to in subsec. (b)(1)(A), is act Apr. 
16, 1934, ch. 147, 48 Stat. 596, as amended, popularly known as the 
Johnson-O'Malley Act, which is classified generally to section 452 et 
seq. of this title. For complete classification of this Act to the Code, 
see Short Title note set out under section 452 of this title and Tables.
    The Tribally Controlled College or University Assistance Act of 
1978, referred to in subsec. (b)(4)(A), is Pub. L. 95-471, Oct. 17, 
1978, 92 Stat. 1325, as amended, which is classified principally to 
chapter 20 (Sec. 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.
    The Office of Federal Procurement Policy Act, referred to in subsec. 
(e)(1), is Pub. L. 93-400, Aug. 30, 1974, 88 Stat. 796, as amended, 
which is classified principally to chapter 7 (Sec. 401 et seq.) of Title 
41, Public Contracts. For complete classification of this Act to the 
Code, see Short Title note set out under section 401 of Title 41 and 
Tables.
    This subchapter, referred to in subsecs. (e)(1), (g)(3), and (j), 
was in the original ``this Act'', meaning Pub. L. 93-638, Jan. 4, 1975, 
88 Stat. 2203, as amended, known as the Indian Self-Determination and 
Education Assistance Act, which is classified principally to this 
subchapter (Sec. 450 et seq.). For complete classification of this Act 
to the Code, see Short Title note set out under section 450 of this 
title and Tables.
    Title III of this Act, referred to in subsecs. (g)(2) and (l), is 
title III of Pub. L. 93-638, as added by Pub. L. 100-472, title II, 
Sec. 209, Oct. 5, 1988, 102 Stat. 2296, and amended, which was set out 
as a note under section 450f of this title prior to repeal by Pub. L. 
106-260, Sec. 10, Aug. 18, 2000, 114 Stat. 734.
    The Act of July 3, 1952, referred to in subsec. (h)(2), is act July 
3, 1952, ch. 549, 66 Stat. 323, which enacted section 82a of this title 
and provisions set out as a note under section 82a of this title.
    Part A of this subchapter, referred to in subsec. (l), was in the 
original ``title I of this Act'', meaning title I of Pub. L. 93-638, 
known as the Indian Self-Determination Act, which is classified 
principally to part A (Sec. 450f et seq.) of this subchapter. For 
complete classification of title I to the Code, see Short Title note set 
out under section 450 of this title and Tables.


                               Amendments

    2000--Subsec. (h)(2). Pub. L. 106-568 struck out ``and'' before 
``section 476 of this title'' and substituted ``and the Act of July 3, 
1952 (25 U.S.C. 82a), shall not apply'' for ``shall not apply''.
    1998--Subsec. (b)(4)(A). Pub. L. 105-244 substituted ``Tribally 
Controlled College or University Assistance Act of 1978'' for ``Tribally 
Controlled Community College Assistance Act of 1978''.
    1996--Subsec. (l). Pub. L. 104-109 added subsec. (l).

                         Change of Name

    Committee on Natural Resources of House of Representatives treated 
as referring to Committee on Resources of House of Representatives by 
section 1(a) of Pub. L. 104-14, set out as a note preceding section 21 
of Title 2, The Congress.


                    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.

                  Section Referred to in Other Sections

    This section is referred to in section 458ee of this title.
