1. U.S. Code
  2. title 25
  3. chapter 46
  4. subchapter IV
  5. § 5363

Collapse to view only § 5363. Funding agreements

§ 5361. Definitions
In this subchapter:
(1) Compact
(2) Construction program; construction project
(3) Department
(4) Funding agreement
(5) Gross mismanagement
(6) Inherent Federal function
(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
(9) Secretary
(10) Self-determination contract
(11) Self-governance
(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; Pub. L. 116–180, title I, § 101(b), Oct. 21, 2020, 134 Stat. 858.)

CITE AS: 25 USC 5361

§ 5362. Tribal Self-Governance Program
(a) Establishment
(b) Selection of participating Indian Tribes
(1) In general
(A) Eligibility
(B) Joint participation
(2) Other authorized Indian Tribe or Tribal organization
(3) Joint participation as organizationTwo 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
(B) Effect of withdrawal
(C) Participation in self-governance
(D) Withdrawal process
(i) In general
(ii) Notification
(iii) Effective date(I) In general(II) No specified dateIn 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 fundsIf 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.
(F) Return to mature contract status
(c) EligibilityTo 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
(2) ActivitiesThe 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 generalSubject 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
(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.)

CITE AS: 25 USC 5362

§ 5363. Funding agreements
(a) AuthorizationThe 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) ContentsEach 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
1 See References in Text note below.
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, 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
(d) Provisions relating to SecretaryFunding 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
(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 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
(k) Disclaimer
(l) Incorporate self-determination provisions
(m) Other provisions
(1) Excluded fundingA 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 responsibilitiesA 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
(B) Limitations
(4) No waiver of trust responsibility
(n) Amendment
(o) Effective date
(p) Existing and subsequent funding agreements
(1) Subsequent funding agreementsAbsent 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
(3) Existing funding agreementsAn 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
(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.)

CITE AS: 25 USC 5363

§ 5364. Compacts
(a) In general
(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
(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.
(Pub. L. 93–638, title IV, § 404, as added Pub. L. 116–180, title I, § 101(e), Oct. 21, 2020, 134 Stat. 864.)

CITE AS: 25 USC 5364

§ 5365. General provisions
(a) Applicability
(b) Conflicts of interest
(c) Audits
(1) Single Agency Audit Act
(2) Cost principlesAn 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
(d) Redesign and consolidationExcept 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
(2) Effective date
(A) Agreement
(B) No agreementIn 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(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) NonduplicationA 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
(2) Recordkeeping systemAn 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.)

CITE AS: 25 USC 5365

§ 5366. Provisions relating to the Secretary
(a) Trust evaluations
(b) Reassumption
(1) In generalA 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
(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) ProhibitionThe 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 generalNotwithstanding 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
(c) Inability to agree on compact or funding agreement
(1) Final offer
(2) Determination
(3) Extensions
(4) Designated officials
(A) In general
(B) No designation
(5) No timely determination
(6) Rejection of final offer
(A) In generalIf 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 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 optionIf 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 proofIn 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
(2) Policy
(f) Savings
(1) In general
(2) Discretionary programs of special significance
(g) Trust responsibility
(h) Decision makerA 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
(Pub. L. 93–638, title IV, § 406, as added Pub. L. 116–180, title I, § 101(e), Oct. 21, 2020, 134 Stat. 866.)

CITE AS: 25 USC 5366

§ 5367. Construction programs and projects
(a) In general
(b) Tribal option to carry out certain Federal environmental activitiesIn 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 assuming the status of a responsible Federal official under those Acts, laws, or regulations.
(c) Savings clause
(d) Codes and standardsIn 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
(2) Requirements
(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 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
(2) Advance payments
(g) Negotiations
(h) Federal review and verification
(1) In generalOn 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
(3) Oversight visits
(i) Application of other laws
(j) Future funding
(Pub. L. 93–638, title IV, § 407, as added Pub. L. 116–180, title I, § 101(e), Oct. 21, 2020, 134 Stat. 870.)

CITE AS: 25 USC 5367

§ 5368. Payment
(a) In general
(b) Advance annual payment
(c) Amount
(1) In general
(2) Savings clause
(d) Timing
(1) In general
(2) Transfers
(e) Availability
(f) Multiyear funding
(g) Limitations on authority of the SecretaryThe 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 pass-through 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;
(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
(i) Prompt Payment Act
(j) Interest or other income
(1) In general
(2) No effect on other amounts
(3) Investment standard
(k) Carryover of funds
(1) In general
(2) Effect of carryover
(l) Limitation of costs
(1) In general
(2) Notice of insufficiency
(3) Suspension of performance
(4) Savings clause
(m) Distribution of funds
(n) Applicability
(Pub. L. 93–638, title IV, § 408, as added Pub. L. 116–180, title I, § 101(e), Oct. 21, 2020, 134 Stat. 872.)

CITE AS: 25 USC 5368

§ 5369. Facilitation
(a) In general
Except as otherwise provided by law (including section 101(a) of the PROGRESS for Indian 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
(3) Extensions
(4) Designated officials
(5) Grounds for denial
(6) Failure to make determination
(7) Finality
(Pub. L. 93–638, title IV, § 409, as added Pub. L. 116–180, title I, § 101(e), Oct. 21, 2020, 134 Stat. 874.)

CITE AS: 25 USC 5369

§ 5370. Discretionary application of other sections
(a) In general
(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.)

CITE AS: 25 USC 5370

§ 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.)

CITE AS: 25 USC 5371

§ 5372. Reports
(a) In general
(1) Requirement
(2) Analysis
(b) ContentsThe 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 self-governance;
(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
(2) Programmatic targets
(3) Publication
(4) Annual review
(A) In general
(B) Contents
(d) Report on Central Office funds
(Pub. L. 93–638, title IV, § 412, as added Pub. L. 116–180, title I, § 101(e), Oct. 21, 2020, 134 Stat. 876.)

CITE AS: 25 USC 5372

§ 5373. Regulations
(a) In general
(1) Promulgation
(2) Publication of proposed regulations
(3) Expiration of authority
(b) Committee
(1) Membership
(2) Lead agency
(c) Adaptation of procedures
(d) Effect
(1) Repeal
(2) Conflicting provisions
(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; amended Pub. L. 118–15, div. B, title I, § 2102, Sept. 30, 2023, 137 Stat. 82.)

CITE AS: 25 USC 5373

§ 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.)

CITE AS: 25 USC 5374

§ 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—
(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.)

CITE AS: 25 USC 5375

§ 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.)

CITE AS: 25 USC 5376

§ 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.)

CITE AS: 25 USC 5377