Collapse to view only § 5321. Self-determination contracts
- § 5321. Self-determination contracts
- § 5322. Grants to tribal organizations or tribes
- § 5323. Retention of Federal employee coverage, rights and benefits by employees of tribal organizations
- § 5324. Contract or grant provisions and administration
- § 5325. Contract funding and indirect costs
- § 5326. 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
§ 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 preceding 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 90-day period specified in the second sentence of this subsection,1
1 So in original. Probably should be “paragraph,”.
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.
(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 contractWhenever 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 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
(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 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 requirementIn 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
(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.)
§ 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
1 So in original. Probably should be followed by “the”.
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
2 See References in Text note below.
(c) Use as matching shares for other similar Federal grant programs
(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.)
§ 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)
(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.
(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
(g) Election for retention by employee and tribal organization before date of employment by tribal organization; transfer of employee to another tribal organization
(h) “Employee” defined
(i) Promulgation of implementation regulations by President
(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 inter-tribal 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 inter-tribal 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
(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.)
§ 5324. Contract or grant provisions and administration
(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
1 So in original. Probably should be “provisions”.
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
2 See References in Text note below.
of the Act of Aug. 2, 1946 (60 Stat. 809, chapter 744).(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
(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 contractIf an Indian tribe, or a tribal organization authorized by a tribe, requests retrocession of the appropriate Secretary for any contract or portion of a contract entered into pursuant to this 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 propertyIn 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
(h) Fair and uniform provision by tribal organization of services and assistance to covered Indians
(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
(k) Access to Federal sources of supply
(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, 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 consideration the relevant risks and local market conditions.
(v) If the Secretary and the tribe or tribal organization are unable to develop a mutually agreeable construction contract proposal pursuant to the procedures set forth in this subsection, the tribe or tribal organization may submit a final contract proposal to the Secretary. Not later than 30 days after receiving such final contract proposal, the Secretary shall approve the contract proposal and award the contract, unless, during such period the Secretary declines the proposal pursuant to 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 AlaskaNotwithstanding 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
(2) Treatment of records
(p) Interpretation by SecretaryExcept 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
(3) the achievement of Tribal health objectives.
(q) Technical assistance for internal controls
(1)Technical Assistance for Internal Controls.—3
3 So in original. The span of par. (1) was probably meant for subsec. (q), the span of which was editorially supplied.
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,
§ 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.
(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 self-determination contract by a tribe or tribal organization (including a cost reimbursement construction contract) shall—
(A) be used to provide additional services or benefits under the contract; or
(B) be expended by the tribe or tribal organization in the succeeding fiscal year, as provided in section 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 providedThe 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 pass-through funds needed under a contract; or
(E) completion of a contracted project, activity, or program;
(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 reportsNot 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 than the full amount of need for indirect costs associated with a self-determination contract.
(e) Liability for indebtedness incurred before fiscal year 1992
(f) Limitation on remedies relating to cost disallowances
(g) Addition to contract of full amount contractor entitled; adjustment
(h) Indirect costs for contracts for construction programs
(i) Indian Health Service and Bureau of Indian Affairs budget consultations
(j) Use of funds for matching or cost participation requirements
(k) Allowable uses of funds without approval of SecretaryWithout intending any limitation, a tribal organization may, without the approval of the Secretary, expend funds provided under a self-determination contract for the following purposes, to the extent that the expenditure of the funds is supportive of a contracted program:
(1) Depreciation and use allowances not otherwise specifically prohibited by law, including the depreciation of facilities owned by the tribe or tribal organization.
(2) Publication and printing costs.
(3) Building, realty, and facilities costs, including rental costs or mortgage expenses.
(4) Automated data processing and similar equipment or services.
(5) Costs for capital assets and repairs.
(6) Management studies.
(7) Professional services, other than services provided in connection with judicial proceedings by or against the United States.
(8) Insurance and indemnification, including insurance covering the risk of loss of or damage to property used in connection with the contract without regard to the ownership of such property.
(9) Costs incurred to raise funds or contributions from non-Federal sources for the purpose of furthering the goals and objectives of the self-determination contract.
(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 earnedThe 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
(o) Rebudgeting by tribal organization
(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.)
§ 5326. Indian Health Service: availability of funds for Indian self-determination or self-governance 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.)
§ 5327. Department of the Interior: availability of funds for Indian self-determination or self-governance contract or grant support costs
Notwithstanding any other provision of law, including but not limited to the Indian Self-Determination 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
1 See References in Text note below.
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.)
§ 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, declination 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
(c) Revisions and amendments; procedures applicable
(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—
(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
(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.)
§ 5329. Contract or grant specifications
(a) TermsEach 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
(c) Model agreement
“SECTION 1. AGREEMENT BETWEEN THE SECRETARY AND THE ______ 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
1 See References in Text note below.
and by the authority of the ______ tribal government or tribal organization (referred to in this agreement as the ‘Contractor’). The provisions of title I of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.) 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 __ 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 agreement incorporated by reference in subsection (f)(2). Such amount shall not be less than the applicable amount determined pursuant to section 106(a) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450j–1).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.
“(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 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 ‘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 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 ______ Indian tribe(s) to protect and conserve the trust resources of the Indian tribe(s) and the trust resources of individual Indians.
“(B)Construction of contract.—Nothing in this Contract may be construed to terminate, waive, modify, 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.—
“(1)Approval of contract.—Unless previously furnished to the Secretary, the resolution of the ______ Indian tribe(s) authorizing the contracting of the programs, services, functions, and activities identified in this Contract is attached to this Contract as attachment 1.
“(2)Annual funding agreement.—
“(A)In general.—The annual funding agreement under this Contract shall only contain—
“(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.)
§ 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
1 See Codification note below.
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.)
§ 5331. Contract disputes and claims
(a) Civil actions; concurrent jurisdiction; relief
(b) Revision of contracts
(c) Application of laws to administrative appeals
(d) Application of chapter 71 of title 41
(e) Application of subsection (d)
(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.)
§ 5332. Sovereign immunity and trusteeship rights unaffected
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.
(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.)