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25 U.S.C. § 5397 — Provisions relating to the Secretary
Federal law — U.S. Code and appendices · legal_authorities
**(a) Mandatory provisions**
(1) **Health status reports** — Compacts or funding agreements negotiated between the Secretary and an Indian tribe shall include a provision that requires the Indian tribe to report on health status and service delivery—
(A) to the extent such data is not otherwise available to the Secretary and specific funds for this purpose are provided by the Secretary under the funding agreement; and
(B) if such reporting shall impose minimal burdens on the participating Indian tribe and such requirements are promulgated under [section 5397 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title25-section5397&num=0&edition=prelim).
(2) **Reassumption**
(A) *In general* — Compacts or funding agreements negotiated between the Secretary and an Indian tribe shall include a provision authorizing the Secretary to reassume operation of a program, service, function, or activity (or portions thereof) and associated funding if there is a specific finding relative to that program, service, function, or activity (or portion thereof) of—
(i) imminent endangerment of the public health caused by an act or omission of the Indian tribe, and the imminent endangerment arises out of a failure to carry out the compact or funding agreement; or
(ii) gross mismanagement with respect to funds transferred to a tribe by a compact or funding agreement, as determined by the Secretary in consultation with the Inspector General, as appropriate.
(B) *Prohibition* — The Secretary shall not reassume operation of a program, service, function, or activity (or portions thereof) unless—
(i) the Secretary has first provided written notice and a hearing on the record to the Indian tribe; and
(ii) the Indian tribe has not taken corre
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Source file: Laws/federal/codes/united-states-code/title-25/section-5397-provisions-relating-to-the-secretary--096d6c6cd4.md
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Source location: Title 25, Chapter 46, § 5397; chapter-046-indian-self-determination-and-education-assistance.md
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**(a) Mandatory provisions**
(1) **Health status reports** — Compacts or funding agreements negotiated between the Secretary and an Indian tribe shall include a provision that requires the Indian tribe to report on health status and service delivery—
(A) to the extent such data is not otherwise available to the Secretary and specific funds for this purpose are provided by the Secretary under the funding agreement; and
(B) if such reporting shall impose minimal burdens on the participating Indian tribe and such requirements are promulgated under [section 5397 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title25-section5397&num=0&edition=prelim).
(2) **Reassumption**
(A) *In general* — Compacts or funding agreements negotiated between the Secretary and an Indian tribe shall include a provision authorizing the Secretary to reassume operation of a program, service, function, or activity (or portions thereof) and associated funding if there is a specific finding relative to that program, service, function, or activity (or portion thereof) of—
(i) imminent endangerment of the public health caused by an act or omission of the Indian tribe, and the imminent endangerment arises out of a failure to carry out the compact or funding agreement; or
(ii) gross mismanagement with respect to funds transferred to a tribe by a compact or funding agreement, as determined by the Secretary in consultation with the Inspector General, as appropriate.
(B) *Prohibition* — The Secretary shall not reassume operation of a program, service, function, or activity (or portions thereof) unless—
(i) the Secretary has first provided written notice and a hearing on the record to the Indian tribe; and
(ii) the Indian tribe has not taken corrective action to remedy the imminent endangerment to public health or gross mismanagement.
(C) *Exception*
(i) *In general* — Notwithstanding subparagraph (B), the Secretary may, upon written notification to the Indian tribe, immediately reassume operation of a program, service, function, or activity (or portion thereof) if—
(I) the Secretary makes a finding of imminent substantial and irreparable endangerment of the public health caused by an act or omission of the Indian tribe; and
(II) the endangerment arises out of a failure to carry out the compact or funding agreement.
(ii) *Reassumption* — If the Secretary reassumes operation of a program, service, function, or activity (or portion thereof) under this subparagraph, the Secretary shall provide the Indian tribe with a hearing on the record not later than 10 days after such reassumption.
(D) *Hearings* — In any hearing or appeal involving a decision to reassume operation of a program, service, function, or activity (or portion thereof), the Secretary shall have the burden of proof of demonstrating by clear and convincing evidence the validity of the grounds for the reassumption.
**(b) Final offer** In the event the Secretary and a participating Indian tribe are unable to agree, in whole or in part, on the terms of a compact or funding agreement (including funding levels), the Indian tribe may submit a final offer to the Secretary. Not more than 45 days after such submission, or within a longer time agreed upon by the Indian tribe, the Secretary shall review and make a determination with respect to such offer. In the absence of a timely rejection of the offer, in whole or in part, made in compliance with subsection (c) of this section, the offer shall be deemed agreed to by the Secretary.
**(c) Rejection of final offers**
(1) **In general** — If the Secretary rejects an offer made under subsection (b) of this section (or one or more provisions or funding levels in such offer), the Secretary shall provide—
(A) a timely written notification to the Indian tribe that contains a specific finding that clearly demonstrates, or that is supported by a controlling legal authority, that—
(i) the amount of funds proposed in the final offer exceeds the applicable funding level to which the Indian tribe is entitled under this subchapter;
(ii) the program, function, service, or activity (or portion thereof) that is the subject of the final offer is an inherent Federal function that cannot legally be delegated to an Indian tribe;
(iii) the Indian tribe cannot carry out the program, function, service, or activity (or portion thereof) in a manner that would not result in significant danger or risk to the public health; or
(iv) the Indian tribe is not eligible to participate in self-governance under [section 5383 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title25-section5383&num=0&edition=prelim);
(B) technical assistance to overcome the objections stated in the notification required by subparagraph (A);
(C) the Indian tribe with a hearing on the record with the right to engage in full discovery relevant to any issue raised in the matter and the opportunity for appeal on the objections raised, except that the Indian tribe may, in lieu of filing such appeal, directly proceed to initiate an action in a Federal district court pursuant to [section 5331(a) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title25-section5331/a&num=0&edition=prelim); and
(D) the Indian tribe with the option of entering into the severable portions of a final proposed compact or funding agreement, or provision thereof, (including a lesser funding amount, if any), that the Secretary did not reject, subject to any additional alterations necessary to conform the compact or funding agreement to the severed provisions.
(2) **Effect of exercising certain option** — If an Indian tribe exercises the option specified in paragraph (1)(D), that Indian tribe shall retain the right to appeal the Secretary’s rejection under this section, and subparagraphs (A), (B), and (C) of that paragraph shall only apply to that portion of the proposed final compact, funding agreement, or provision thereof that was rejected by the Secretary.
**(d) Burden of proof** With respect to any hearing or appeal or civil action conducted pursuant to this section, the Secretary shall have the burden of demonstrating by clear and convincing evidence the validity of the grounds for rejecting the offer (or a provision thereof) made under subsection (b) of this section.
**(e) Good faith** In the negotiation of compacts and funding agreements the Secretary shall at all times negotiate in good faith to maximize implementation of the self-governance policy. The Secretary shall carry out this subchapter in a manner that maximizes the policy of tribal self-governance, in a manner consistent with the purposes specified in section 3 of the Tribal Self-Governance Amendments of 2000.
**(f) Savings** To the extent that programs, functions, services, or activities (or portions thereof) carried out by Indian tribes under this subchapter reduce the administrative or other responsibilities of the Secretary with respect to the operation of Indian programs and result in savings that have not otherwise been included in the amount of tribal shares and other funds determined under [section 5388(c) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title25-section5388/c&num=0&edition=prelim), the Secretary shall make such savings available to the Indian tribes, inter-tribal consortia, or tribal organizations for the provision of additional services to program beneficiaries in a manner equitable to directly served, contracted, and compacted programs.
**(g) Trust responsibility** The Secretary is prohibited from waiving, modifying, or diminishing in any way the trust responsibility of the United States with respect to Indian tribes and individual Indians that exists under treaties, Executive orders, other laws, or court decisions.
**(h) Decisionmaker** A decision that constitutes final agency action and relates to an appeal within the Department of Health and Human Services conducted under subsection (c) of this section shall be made either—
(1) by an official of the Department who holds a position at a higher organizational level within the Department than the level of the departmental agency in which the decision that is the subject of the appeal was made; or
(2) by an administrative judge.
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Federal law — U.S. Code and appendices · legal_authorities
**(a) In general** At the request of the governing body of an Indian Tribe and under the terms of an applicable funding agreement, the Secretary shall provide funding to the Indian Tribe to carry out the funding agreement.
**(b) Advance annual payment** At the option of the Indian Tribe, a funding agreement shall provide for an advance annual payment to an Indian Tribe.
**(c) Amount**
(1) **In general** — Subject to subsection (e) and sections 5363 and 5365 of this title, the Secretary shall provide funds to the Indian Tribe under a funding agreement for programs in an amount that is equal to the amount that the Indian Tribe would have been entitled to receive under contracts and grants under this chapter (including amounts for direct program and contract support costs and, in addition, any funds that are specifically or functionally related to the provision by the Secretary of services and benefits to the Indian Tribe or its members) without regard to the organization level within the Department at which the programs are carried out.
(2) **Savings clause** — Nothing in this section reduces programs, services, or funds of, or provided to, another Indian Tribe.
**(d) Timing**
(1) **In general** — Pursuant to the terms of any compact or funding agreement entered into under this subchapter, the Secretary shall transfer to the Indian Tribe all funds provided for in the funding agreement, pursuant to subsection (c), and provide funding for periods covered by joint resolution adopted by Congress making continuing appropriations, to the extent permitted by such resolution.
(2) **Transfers** — Not later than 1 year after October 21, 2020, in any instance in which a funding agreement requires an annual transfer of funding to be made at the beginning of a fiscal year or re
Source: Supplied U.S. Code snapshot — release unconfirmed · 25 U.S.C. § 5381
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Federal law — U.S. Code and appendices · legal_authorities
**(a) In general** Except as otherwise provided in section 201(d) of the PROGRESS for Indian Tribes Act, at the option of a participating Indian Tribe or Indian Tribes, any of the provisions of subchapter I may be incorporated in any compact or funding agreement under this subchapter. The inclusion of any such provision shall be subject to, and shall not conflict with, section 101(a) of such Act.
**(b) Effect** Each incorporated provision under subsection (a) shall—
(1) have the same force and effect as if set out in full in this subchapter;
(2) supplement or replace any related provision in this subchapter; and
(3) apply to any agency otherwise governed by this subchapter.
**(c) Effective date** If an Indian Tribe requests incorporation at the negotiation stage of a compact or funding agreement, the incorporation shall—
(1) be effective immediately; and
(2) control the negotiation and resulting compact and funding agreement.
Source: Supplied U.S. Code snapshot — release unconfirmed · 25 U.S.C. § 5383
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Federal law — U.S. Code and appendices · legal_authorities
### Statutory Notes
#### Codification
Section 458aaa–16 was editorially reclassified as [section 5397 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title25-section5397&num=0&edition=prelim).
Source: Supplied U.S. Code snapshot — release unconfirmed · 25 U.S.C. § 458ddd–1
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Federal law — U.S. Code and appendices · legal_authorities
**(a) Secretarial interpretation** Except as otherwise provided by law, the Secretary shall interpret all Federal laws, Executive orders, and regulations in a manner that will facilitate—
(1) the inclusion of programs, services, functions, and activities (or portions thereof) and funds associated therewith, in the agreements entered into under this section;
(2) the implementation of compacts and funding agreements entered into under this subchapter; and
(3) the achievement of tribal health goals and objectives.
**(b) Regulation waiver**
(1) **In general** — An Indian tribe may submit a written request to waive application of a regulation promulgated under [section 5397 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title25-section5397&num=0&edition=prelim) or the authorities specified in [section 5385(b) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title25-section5385/b&num=0&edition=prelim) for a compact or funding agreement entered into with the Indian Health Service under this subchapter, to the Secretary identifying the applicable Federal regulation sought to be waived and the basis for the request.
(2) **Approval** — Not later than 90 days after receipt by the Secretary of a written request by an Indian tribe to waive application of a regulation for a compact or funding agreement entered into under this subchapter, the Secretary shall either approve or deny the requested waiver in writing. A denial may be made only upon a specific finding by the Secretary that identified language in the regulation may not be waived because such waiver is prohibited by Federal law. A failure to approve or deny a waiver request not later than 90 days after receipt shall be deemed an approval of such request. The Secret
Source: Supplied U.S. Code snapshot — release unconfirmed · 25 U.S.C. § 5413
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Federal law — U.S. Code and appendices · legal_authorities
Page 788
TITLE 25—INDIANS
§ 5397
Subchapter I of this chapter, referred to in subsec.
(b), was in the original ‘‘title I’’, meaning title I of Pub.
L. 93–638, known as the Indian Self-Determination Act,
which is classified principally to subchapter I (§ 5321 et
seq.) of this chapter. For complete classification of
title I to the Code, see Short Title note set out under
section 5301 of this title and Tables.
CODIFICATION
Section was formerly classified to section 458aaa–15
of this title prior to editorial reclassification and re-
numbering as this section.
§ 5397. Regulations
(a) In general
(1) Promulgation
Not later than 90 days after August 18, 2000,
the Secretary shall initiate procedures under
subchapter III of chapter 5 of title 5 to nego-
tiate and promulgate such regulations as are
necessary to carry out this subchapter.
(2) Publication of proposed regulations
Proposed regulations to implement this sub-
chapter shall be published in the Federal Reg-
ister by the Secretary no later than 1 year
after August 18, 2000.
(3) Expiration of authority
The authority to promulgate regulations
under paragraph (1) shall expire 21 months
after August 18, 2000.
(b) Committee
(1) In general
A negotiated rulemaking committee estab-
lished pursuant to section 565 of title 5 to
carry out this section shall have as its mem-
bers only Federal and tribal government rep-
resentatives, a majority of whom shall be
nominated by and be representatives of Indian
tribes with funding agreements under this
chapter.
(2) Requirements
The committee shall confer with, and ac-
commodate participation by, representatives
of Indian tribes, inter-tribal consortia, tribal
organizations, and individual tribal members.
(c) Adaptation of procedures
The Secretary shall ad
Source: Supplied 2024 U.S. Code historical extraction · 25 U.S.C. § 5397
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