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U.S. Code as of:
01/19/04
Section 458cc. Funding agreements
(a) Authorization
The Secretary shall negotiate and enter into an annual written
funding agreement with the governing body of each participating
tribal government in a manner consistent with the Federal
Government's laws and trust relationship to and responsibility for
the Indian people.
(b) Contents
Each funding agreement shall -
(1) authorize the tribe to plan, conduct, consolidate, and
administer programs, services, functions, and activities, or
portions thereof, administered by the Department of the Interior
through the Bureau of Indian Affairs, without regard to the
agency or office of the Bureau of Indian Affairs within which the
program, service, function, and activity, or portion thereof, is
performed, including funding for agency, area, and central office
functions in accordance with subsection (g)(3) of this section,
and including any program, service, function, and activity, or
portion thereof, administered under the authority of -
(A) the Act of April 16, 1934 (25 U.S.C. 452 et seq.);
(B) section 13 of this title; and
(C) programs, services, functions, and activities or portions
thereof administered by the Secretary of the Interior that are
otherwise available to Indian tribes or Indians for which
appropriations are made to agencies other than the Department
of the Interior;
(2) subject to such terms as may be negotiated, authorize the
tribe to plan, conduct, consolidate, and administer programs,
services, functions, and activities, or portions thereof,
administered by the Department of the Interior, other than
through the Bureau of Indian Affairs, that are otherwise
available to Indian tribes or Indians, as identified in section
458ee(c) of this title, except that nothing in this subsection
may be construed to provide any tribe with a preference with
respect to the opportunity of the tribe to administer programs,
services, functions, and activities, or portions thereof, unless
such preference is otherwise provided for by law;
(3) subject to the terms of the agreement, authorize the tribe
to redesign or consolidate programs, services, functions, and
activities, or portions thereof, and reallocate funds for such
programs, services, functions, and activities, or portions
thereof, except that, with respect to the reallocation,
consolidation, and redesign of programs described in paragraph
(2), a joint agreement between the Secretary and the tribe shall
be required;
(4) prohibit the inclusion of funds provided -
(A) pursuant to the Tribally Controlled College or University
Assistance Act of 1978 (25 U.S.C. 1801 et seq.);
(B) for elementary and secondary schools under the formula
developed pursuant to section 2008 of this title; and
(C) the Flathead Agency Irrigation Division or the Flathead
Agency Power Division, except that nothing in this section
shall affect the contract authority of such divisions under
section 450f of this title;
(5) specify the services to be provided, the functions to be
performed, and the responsibilities of the tribe and the
Secretary pursuant to the agreement;
(6) authorize the tribe and the Secretary to reallocate funds
or modify budget allocations within any year, and specify the
procedures to be used;
(7) allow for retrocession of programs or portions of programs
pursuant to section 450j(e) of this title;
(8) provide that, for the year for which, and to the extent to
which, funding is provided to a tribe under this section, the
tribe -
(A) shall not be entitled to contract with the Secretary for
such funds under section 450f of this title, except that such
tribe shall be eligible for new programs on the same basis as
other tribes; and
(B) shall be responsible for the administration of programs,
services, functions, and activities pursuant to agreements
entered into under this section; and
(9) prohibit the Secretary from waiving, modifying, or
diminishing in any way the trust responsibility of the United
States with respect to Indian tribes and individual Indians that
exists under treaties, Executive orders, and other laws.
(c) Additional activities
Each funding agreement negotiated pursuant to subsections (a) and
(b) of this section may, in accordance to such additional terms as
the parties deem appropriate, also include other programs,
services, functions, and activities, or portions thereof,
administered by the Secretary of the Interior which are of special
geographic, historical, or cultural significance to the
participating Indian tribe requesting a compact.
(d) Provisions relating to Secretary
Funding agreements negotiated between the Secretary and an Indian
tribe shall include provisions -
(1) to monitor the performance of trust functions by the tribe
through the annual trust evaluation, and
(2) for the Secretary to reassume a program, service, function,
or activity, or portions thereof, if there is a finding of
imminent jeopardy to a physical trust asset, natural resources,
or public health and safety.
(e) Construction projects
(1) Regarding construction programs or projects, the Secretary
and Indian tribes may negotiate for the inclusion of specific
provisions of the Office of Federal Procurement and Policy Act [41
U.S.C. 401 et seq.] and Federal acquisition regulations in any
funding agreement entered into under this subchapter. Absent a
negotiated agreement, such provisions and regulatory requirements
shall not apply.
(2) In all construction projects performed pursuant to this part,
the Secretary shall ensure that proper health and safety standards
are provided for in the funding agreements.
(f) Submission for review
Not later than 90 days before the proposed effective date of an
agreement entered into under this section, the Secretary shall
submit a copy of such agreement to -
(1) each Indian tribe that is served by the Agency that is
serving the tribe that is a party to the funding agreement;
(2) the Committee on Indian Affairs of the Senate; and
(3) the Subcommittee on Native American Affairs of the
Committee on Natural Resources of the House of Representatives.
(g) Payment
(1) At the request of the governing body of the tribe and under
the terms of an agreement entered into under this section, the
Secretary shall provide funding to the tribe to carry out the
agreement.
(2) The funding agreements authorized by this part and title III
of this Act shall provide for advance payments to the tribes in the
form of annual or semi-annual installments at the discretion of the
tribes.
(3) Subject to paragraph (4) of this subsection and paragraphs
(1) through (3) of subsection (b) of this section, the Secretary
shall provide funds to the tribe under an agreement under this part
for programs, services, functions, and activities, or portions
thereof, in an amount equal to the amount that the tribe would have
been eligible to receive under contracts and grants under this
subchapter, including amounts for direct program and contract
support costs and, in addition, any funds that are specifically or
functionally related to the provision by the Secretary of services
and benefits to the tribe or its members, without regard to the
organization level within the Department where such functions are
carried out.
(4) Funds for trust services to individual Indians shall be
available under an agreement entered into under this section only
to the extent that the same services that would have been provided
by the Secretary are provided to individual Indians by the tribe.
(h) Civil actions
(1) Except as provided in paragraph (2), for the purposes of
section 450m-1 of this title, the term "contract" shall include
agreements entered into under this part.
(2) For the period that an agreement entered into under this part
is in effect, the provisions of section 81 of this title, section
476 of this title, and the Act of July 3, 1952 (25 U.S.C. 82a),
shall not apply to attorney and other professional contracts by
Indian tribal governments participating in Self-Governance under
this part.
(i) Facilitation
(1) Except as otherwise provided by law, the Secretary shall
interpret each Federal law and regulation in a manner that will
facilitate -
(A) the inclusion of programs, services, functions, and
activities in the agreements entered into under this section; and
(B) the implementation of agreements entered into under this
section.
(2)(A) A tribe may submit a written request for a waiver to the
Secretary identifying the regulation sought to be waived and the
basis for the request.
(B) Not later than 60 days after receipt by the Secretary of a
written request by a tribe to waive application of a Federal
regulation for an agreement entered into under this section, the
Secretary shall either approve or deny the requested waiver in
writing to the tribe. A denial may be made only upon a specific
finding by the Secretary that identified language in the regulation
may not be waived because such waiver is prohibited by Federal law.
The Secretary's decision shall be final for the Department.
(j) Funds
All funds provided under funding agreements entered into pursuant
to this subchapter, and all funds provided under contracts or
grants made pursuant to this subchapter, shall be treated as
non-Federal funds for purposes of meeting matching requirements
under any other Federal law.
(k) Disclaimer
Nothing in this section is intended or shall be construed to
expand or alter existing statutory authorities in the Secretary so
as to authorize the Secretary to enter into any agreement under
subsection (b)(2) of this section and section 458ee(c)(1) of this
title with respect to functions that are inherently Federal or
where the statute establishing the existing program does not
authorize the type of participation sought by the tribe: Provided,
however an Indian tribe or tribes need not be identified in the
authorizing statute in order for a program or element of a program
to be included in a compact under subsection (b)(2) of this
section.
(l) Incorporate self-determination provisions
At the option of a participating tribe or tribes, any or all
provisions of part A of this subchapter shall be made part of an
agreement entered into under title III of this Act or this part.
The Secretary is obligated to include such provisions at the option
of the participating tribe or tribes. If such provision is
incorporated it shall have the same force and effect as if set out
in full in title III or this part.
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