25 U.S.C. § 5362 — Tribal Self-Governance Program

Page 760 TITLE 25—INDIANS § 5362 Editorial Notes CODIFICATION Section was formerly classified to section 458aa of this title prior to editorial reclassification and renum- bering as this section. AMENDMENTS 2020—Pub. L. 116–180 amended section generally. Prior to amendment, section related to establishment of a Tribal Self-Governance program. See section 5362 of this title. Statutory Notes and Related Subsidiaries SHORT TITLE For short title of this subchapter as the ‘‘Tribal Self- Governance Act of 1994’’, see section 201 of Pub. L. 103–413, set out as a Short Title of 1994 Amendment note under section 5301 of this title. CONSTRUCTION OF 2020 AMENDMENT Pub. L. 116–180, title I, § 101(a), Oct. 21, 2020, 134 Stat. 857, provided that: ‘‘Nothing in this Act [see Short Title of 2020 Amendment note set out under section 5301 of this title], or the amendments made by this Act, shall be construed— ‘‘(1) to modify, limit, expand, or otherwise affect— ‘‘(A) the authority of the Secretary of the Inte- rior, as provided for under the Indian Self-Deter- mination and Education Assistance Act [25 U.S.C. 5301 et seq.] (as in effect on the day before the date of enactment of this Act [Oct. 21, 2020]), regarding— ‘‘(i) the inclusion of any non-BIA program (as defined in section 401 of the Indian Self-Deter- mination and Education Assistance Act [25 U.S.C. 5361]) in a self-determination contract or funding agreement under section 403(c) of such Act [25 U.S.C. 5363(c)] (as so in effect); or ‘‘(ii) the implementation of any contract or agreement described in clause (i) that is in effect on the day described in subparagraph (A); ‘‘(B) the meaning, application, or effect of any Tribal water rights settlement, including the per- formance required of a party thereto or any pay- ment or funding obligation thereunder; ‘‘(C) the authority, jurisdiction, or responsibility of a State to manage, control, or regulate fish and wildlife under State law (including regulations) on land or water in the State, including Federal public land; ‘‘(D) except for the authority provided to the Sec- retary as described in subparagraph (A), the appli- cability or effect of any Federal law related to the protection or management of fish or wildlife; or ‘‘(E) any treaty-reserved right or other right of any Indian Tribe as recognized by any other means, including treaties or agreements with the United States, Executive orders, statutes, regulations, or case law; or ‘‘(2) to authorize any provision of a contract or agreement that is not consistent with the terms of a Tribal water rights settlement.’’ APPLICATION OF OTHER PROVISIONS Pub. L. 116–180, title II, § 201(d), Oct. 21, 2020, 134 Stat. 879, provided that: ‘‘Sections 4, 5, 6, 7, 102(c), 104, 105(a)(1), 105(f), 110, and 111 of the Indian Self-Deter- mination and Education Assistance Act (25 U.S.C. 5304, 5305, 5306, 5307, 5321(c), 5323, 5324(a)(1), 5324(f), 5331, and 5332) and section 314 of the Department of the Interior and Related Agencies Appropriations Act, 1991 (Public Law 101–512; 104 Stat. 1959) [25 U.S.C. 5321 note], apply to compacts and funding agreements entered into under title IV of the Indian Self-Determination and Edu- cation Assistance Act (25 U.S.C. 5361 et seq.).’’ CONGRESSIONAL STATEMENT OF FINDINGS Pub. L. 103–413, title II, § 202, Oct. 25, 1994, 108 Stat. 4270, provided that: ‘‘Congress finds that— ‘‘(1) the tribal right of self-government flows from the inherent sovereignty of Indian tribes and nations; ‘‘(2) the United States recognizes a special govern- ment-to-government relationship with Indian tribes, including the right of the tribes to self-governance, as reflected in the Constitution, treaties, Federal statutes, and the course of dealings of the United States with Indian tribes; ‘‘(3) although progress has been made, the Federal bureaucracy, with its centralized rules and regula- tions, has eroded tribal self-governance and domi- nates tribal affairs; ‘‘(4) the Tribal Self-Governance Demonstration Project [see Pub. L. 93–638, title III, as added by Pub. L. 100–472, title II, § 209, Oct. 5, 1988, 102 Stat. 2296, for- merly set out as a note under former 25 U.S.C. 450f] was designed to improve and perpetuate the govern- ment-to-government relationship between Indian tribes and the United States and to strengthen tribal control over Federal funding and program manage- ment; and ‘‘(5) Congress has reviewed the results of the Tribal Self-Governance Demonstration Project and finds that— ‘‘(A) transferring control to tribal governments, upon tribal request, over funding and decision- making for Federal programs, services, functions, and activities, or portions thereof, is an effective way to implement the Federal policy of govern- ment-to-government relations with Indian tribes; and ‘‘(B) transferring control to tribal governments, upon tribal request, over funding and decision- making for Federal programs, services, functions, and activities strengthens the Federal policy of In- dian self-determination.’’ CONGRESSIONAL DECLARATION OF POLICY Pub. L. 103–413, title II, § 203, Oct. 25, 1994, 108 Stat. 4271, provided that: ‘‘It is the policy of this title [enact- ing this subchapter] to permanently establish and im- plement tribal self-governance— ‘‘(1) to enable the United States to maintain and improve its unique and continuing relationship with, and responsibility to, Indian tribes; ‘‘(2) to permit each Indian tribe to choose the ex- tent of the participation of such tribe in self-govern- ance; ‘‘(3) to coexist with the provisions of the Indian Self-Determination Act [title I of Pub. L. 93–638, see Short Title note set out under section 5301 of this title] relating to the provision of Indian services by designated Federal agencies; ‘‘(4) to ensure the continuation of the trust respon- sibility of the United States to Indian tribes and In- dian individuals; ‘‘(5) to permit an orderly transition from Federal domination of programs and services to provide In- dian tribes with meaningful authority to plan, con- duct, redesign, and administer programs, services, functions, and activities that meet the needs of the individual tribal communities; and ‘‘(6) to provide for an orderly transition through a planned and measurable parallel reduction in the Federal bureaucracy.’’ § 5362. Tribal Self-Governance Program (a) Establishment The Secretary shall establish and carry out a program within the Department to be known as the ‘‘Tribal Self-Governance Program’’. (b) Selection of participating Indian Tribes (1) In general (A) Eligibility The Secretary, acting through the Direc- tor of the Office of Self-Governance, may se- Page 761 TITLE 25—INDIANS § 5362 lect not more than 50 new Indian Tribes per year from those tribes eligible under sub- section (c) to participate in self-governance. (B) Joint participation On the request of each participating In- dian Tribe, 2 or more otherwise eligible In- dian Tribes may be treated as a single In- dian Tribe for the purpose of participating in self-governance. (2) Other authorized Indian Tribe or Tribal or- ganization If an Indian Tribe authorizes another Indian Tribe or a Tribal organization to plan for or carry out a program on its behalf under this subchapter, the authorized Indian Tribe or Tribal organization shall have the rights and responsibilities of the authorizing Indian Tribe (except as otherwise provided in the au- thorizing resolution). (3) Joint participation as organization Two or more Indian Tribes that are not oth- erwise eligible under subsection (c) may be treated as a single Indian Tribe for the pur- pose of participating in self-governance as a Tribal organization if— (A) each Indian Tribe so requests; and (B) the Tribal organization itself, or at least one of the Indian Tribes participating in the Tribal organization, is eligible under subsection (c). (4) Tribal withdrawal from a Tribal organiza- tion (A) In general An Indian Tribe that withdraws from par- ticipation in a Tribal organization, in whole or in part, shall be entitled to participate in self-governance if the Indian Tribe is eligible under subsection (c). (B) Effect of withdrawal If an Indian Tribe withdraws from partici- pation in a Tribal organization, the Indian Tribe shall be entitled to its Tribal share of funds and resources supporting the programs that the Indian Tribe is entitled to carry out under the compact and funding agreement of the Indian Tribe. (C) Participation in self-governance The withdrawal of an Indian Tribe from a Tribal organization shall not affect the eligi- bility of the Tribal organization to partici- pate in self-governance on behalf of one or more other Indian Tribes, if the Tribal orga- nization still qualifies under subsection (c). (D) Withdrawal process (i) In general An Indian Tribe may, by Tribal resolu- tion, fully or partially withdraw its Tribal share of any program in a funding agree- ment from a participating Tribal organiza- tion. (ii) Notification The Indian Tribe shall provide a copy of the Tribal resolution described in clause (i) to the Secretary. (iii) Effective date (I) In general A withdrawal under clause (i) shall be- come effective on the date that is speci- fied in the Tribal resolution and mutu- ally agreed upon by the Secretary, the withdrawing Indian Tribe, and the Tribal organization that signed the compact and funding agreement on behalf of the withdrawing Indian Tribe or Tribal orga- nization. (II) No specified date In the absence of a date specified in the resolution, the withdrawal shall be- come effective on— (aa) the earlier of— (AA) 1 year after the date of sub- mission of the request; and (BB) the date on which the funding agreement expires; or (bb) such date as may be mutually agreed upon by the Secretary, the withdrawing Indian Tribe, and the Tribal organization that signed the compact and funding agreement on be- half of the withdrawing Indian Tribe or Tribal organization. (E) Distribution of funds If an Indian Tribe or Tribal organization eligible to enter into a self-determination contract or a compact or funding agreement fully or partially withdraws from a partici- pating Tribal organization, the withdrawing Indian Tribe— (i) may elect to enter into a self-deter- mination contract or compact, in which case— (I) the withdrawing Indian Tribe or Tribal organization shall be entitled to its Tribal share of unexpended funds and resources supporting the programs that the Indian Tribe will be carrying out under its own self-determination con- tract or compact and funding agreement (calculated on the same basis as the funds were initially allocated to the funding agreement of the Tribal organi- zation); and (II) the funds referred to in subclause (I) shall be withdrawn by the Secretary from the funding agreement of the Trib- al organization and transferred to the withdrawing Indian Tribe, on the condi- tion that sections 5321 and 5324(i) of this title, as appropriate, shall apply to the withdrawing Indian Tribe; or (ii) may elect not to enter into a self-de- termination contract or compact, in which case all unexpended funds and resources associated with the withdrawing Indian Tribe’s returned programs (calculated on the same basis as the funds were initially allocated to the funding agreement of the Tribal organization) shall be returned by the Tribal organization to the Secretary for operation of the programs included in the withdrawal. Page 762 TITLE 25—INDIANS § 5363 1 See References in Text note below. (F) Return to mature contract status If an Indian Tribe elects to operate all or some programs carried out under a compact or funding agreement under this subchapter through a self-determination contract under subchapter I, at the option of the Indian Tribe, the resulting self-determination con- tract shall be a mature self-determination contract as long as the Indian Tribe meets the requirements set forth in section 5304(h) of this title. (c) Eligibility To be eligible to participate in self-govern- ance, an Indian Tribe shall— (1) successfully complete the planning phase described in subsection (d); (2) request participation in self-governance by resolution or other official action by the Tribal governing body; and (3) demonstrate, for the 3 fiscal years pre- ceding the date on which the Indian Tribe re- quests participation, financial stability and fi- nancial management capability as evidenced by the Indian Tribe having no uncorrected sig- nificant and material audit exceptions in the required annual audit of its self-determination or self-governance agreements with any Fed- eral agency. (d) Planning phase (1) In general An Indian Tribe seeking to begin participa- tion in self-governance shall complete a plan- ning phase as provided in this subsection. (2) Activities The planning phase shall— (A) be conducted to the satisfaction of the Indian Tribe; and (B) include— (i) legal and budgetary research; and (ii) internal Tribal government planning, training, and organizational preparation. (e) Grants (1) In general Subject to the availability of appropriations, an Indian Tribe or Tribal organization that meets the requirements of paragraphs (2) and (3) of subsection (c) shall be eligible for grants— (A) to plan for participation in self-govern- ance; and (B) to negotiate the terms of participation by the Indian Tribe or Tribal organization in self-governance, as set forth in a compact and a funding agreement. (2) Receipt of grant not required Receipt of a grant under paragraph (1) shall not be a requirement of participation in self- governance. (Pub. L. 93–638, title IV, § 402, as added Pub. L. 103–413, title II, § 204, Oct. 25, 1994, 108 Stat. 4272; amended Pub. L. 104–208, div. A, title I, § 101(d) [title I, § 117], Sept. 30, 1996, 110 Stat. 3009–181, 3009–201; Pub. L. 116–180, title I, § 101(c), Oct. 21, 2020, 134 Stat. 859.) Editorial Notes REFERENCES IN TEXT Subchapter I, referred to in subsec. (b)(4)(F), 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 458bb of this title prior to editorial reclassification and renum- bering as this section. AMENDMENTS 2020—Pub. L. 116–180 amended section generally. Prior to amendment, section related to selection of Indian tribes to participate in Self-Governance. 1996—Subsec. (b)(1). Pub. L. 104–208 amended par. (1) generally. Prior to amendment, par. (1) read as follows: ‘‘In addition to those Indian tribes participating in Self-Governance under subsection (a) of this section, the Secretary, acting through the Director of the Office of Self-Governance, may select up to 20 new tribes per year from the applicant pool described in subsection (c) of this section to participate in Self-Governance.’’ § 5363. Funding agreements (a) Authorization The Secretary shall, on the request of any In- dian Tribe or Tribal organization, negotiate and enter into a written funding agreement with the governing body of the Indian Tribe or the Tribal organization in a manner consistent with— (1) the trust responsibility of the Federal Government, treaty obligations, and the gov- ernment-to-government relationship between Indian Tribes and the United States; and (2) subsection (b). (b) Contents Each funding agreement shall— (1) authorize the tribe to plan, conduct, con- solidate, and administer programs, services, functions, and activities, or portions thereof, administered by the Department of the Inte- rior through the Bureau of Indian Affairs, the Office of the Assistant Secretary for Indian Affairs, and the Office of the Special Trustee for American Indians, without regard to the agency or office of that Bureau or those Of- fices within which the program, service, func- tion, and activity, or portion thereof, is per- formed, including funding for agency, area, and central office functions in accordance with subsection (g)(3) of this section, and in- cluding— (A) any program, service, function, and ac- tivity, or portion thereof, administered under the authority of— (i) the Act of April 16, 1934 (25 U.S.C. 452 et seq.); 1 and (ii) section 13 of this title; (B) programs, services, functions, and ac- tivities or portions thereof administered by the Secretary of the Interior that are other- wise available to Indian tribes or Indians for which appropriations are made to agencies other than the Department of the Interior; and (C) any other program, service, function, or activity (or portion thereof) that is pro- vided through the Bureau of Indian Affairs,