25 U.S.C. § 5385 — Funding agreements

Page 778 TITLE 25—INDIANS § 5385 1 See References in Text note below. 1 See References in Text note below. title III 1 on August 18, 2000, shall have the op- tion at any time after August 18, 2000, to— (1) retain the Tribal Self-Governance Dem- onstration Project compact of that Indian tribe (in whole or in part) to the extent that the provisions of that funding agreement are not directly contrary to any express provision of this subchapter; or (2) instead of retaining a compact or portion thereof under paragraph (1), negotiate a new compact in a manner consistent with the re- quirements of this subchapter. (d) Term and effective date The effective date of a compact shall be the date of the approval and execution by the Indian tribe or another date agreed upon by the parties, and shall remain in effect for so long as per- mitted by Federal law or until terminated by mutual written agreement, retrocession, or re- assumption. (Pub. L. 93–638, title V, § 504, as added Pub. L. 106–260, § 4, Aug. 18, 2000, 114 Stat. 715.) Editorial Notes REFERENCES IN TEXT Title III, referred to in subsec. (c), means title III of Pub. L. 93–638, as added by Pub. L. 100–472, title II, § 209, Oct. 5, 1988, 102 Stat. 2296, and amended, which was set out as a note under former section 450f of this title prior to repeal by Pub. L. 106–260, § 10, Aug. 18, 2000, 114 Stat. 734. CODIFICATION Section was formerly classified to section 458aaa–3 of this title prior to editorial reclassification and renum- bering as this section. § 5385. Funding agreements (a) Funding agreement required The Secretary shall negotiate and enter into a written funding agreement with each Indian tribe participating in self-governance in a man- ner consistent with the Federal Government’s trust responsibility, treaty obligations, and the government-to-government relationship be- tween Indian tribes and the United States. (b) Contents (1) In general Each funding agreement required under sub- section (a) of this section shall, as determined by the Indian tribe, authorize the Indian tribe to plan, conduct, consolidate, administer, and receive full tribal share funding, including tribal shares of discretionary Indian Health Service competitive grants (excluding con- gressionally earmarked competitive grants), for all programs, services, functions, and ac- tivities (or portions thereof), that are carried out for the benefit of Indians because of their status as Indians without regard to the agency or office of the Indian Health Service within which the program, service, function, or activ- ity (or portion thereof) is performed. (2) Inclusion of certain programs, services, functions, and activities Such programs, services, functions, or ac- tivities (or portions thereof) include all pro- grams, services, functions, activities (or por- tions thereof), including grants (which may be added to a funding agreement after an award of such grants), with respect to which Indian tribes or Indians are primary or significant beneficiaries, administered by the Department of Health and Human Services through the In- dian Health Service and all local, field, service unit, area, regional, and central headquarters or national office functions so administered under the authority of— (A) section 13 of this title; (B) the Act of April 16, 1934 (48 Stat. 596; chapter 147; 25 U.S.C. 452 et seq.); 1 (C) the Act of August 5, 1954 (68 Stat. 674; chapter 658) [42 U.S.C. 2001 et seq.]; (D) the Indian Health Care Improvement Act (25 U.S.C. 1601 et seq.); (E) the Indian Alcohol and Substance Abuse Prevention and Treatment Act of 1986 (25 U.S.C. 2401 et seq.); (F) any other Act of Congress authorizing any agency of the Department of Health and Human Services to administer, carry out, or provide financial assistance to such a pro- gram, service, function or activity (or por- tions thereof) described in this section that is carried out for the benefit of Indians be- cause of their status as Indians; or (G) any other Act of Congress authorizing such a program, service, function, or activ- ity (or portions thereof) carried out for the benefit of Indians under which appropria- tions are made available to any agency other than an agency within the Department of Health and Human Services, in any case in which the Secretary administers that pro- gram, service, function, or activity (or por- tion thereof). (c) Inclusion in compact or funding agreement It shall not be a requirement that an Indian tribe or Indians be identified in the authorizing statute for a program or element of a program to be eligible for inclusion in a compact or fund- ing agreement under this subchapter. (d) Funding agreement terms Each funding agreement under this subchapter shall set forth— (1) terms that generally identify the pro- grams, services, functions, and activities (or portions thereof) to be performed or adminis- tered; and (2) for the items identified in paragraph (1)— (A) the general budget category assigned; (B) the funds to be provided, including those funds to be provided on a recurring basis; (C) the time and method of transfer of the funds; (D) the responsibilities of the Secretary; and (E) any other provision with respect to which the Indian tribe and the Secretary agree. (e) Subsequent funding agreements Absent notification from an Indian tribe that is withdrawing or retroceding the operation of Page 779 TITLE 25—INDIANS § 5386 1 So in original. one or more programs, services, functions, or ac- tivities (or portions thereof) identified in a fund- ing agreement, or unless otherwise agreed to by the parties, each funding agreement shall re- main in full force and effect until a subsequent funding agreement is executed, and the terms of the subsequent funding agreement shall be ret- roactive to the end of the term of the preceding funding agreement. (f) Existing funding agreements Each Indian tribe participating in the Tribal Self-Governance Demonstration Project estab- lished under title III 1 on August 18, 2000, shall have the option at any time thereafter to— (1) retain the Tribal Self-Governance Dem- onstration Project funding agreement of that Indian tribe (in whole or in part) to the extent that the provisions of that funding agreement are not directly contrary to any express provi- sion of this subchapter; or (2) instead of retaining a funding agreement or portion thereof under paragraph (1), nego- tiate a new funding agreement in a manner consistent with the requirements of this sub- chapter. (g) Stable base funding At the option of an Indian tribe, a funding agreement may provide for a stable base budget specifying the recurring funds (including, for purposes of this provision, funds available under section 5325(a) of this title) to be transferred to such Indian tribe, for such period as may be specified in the funding agreement, subject to annual adjustment only to reflect changes in congressional appropriations by sub-sub activity excluding earmarks. (Pub. L. 93–638, title V, § 505, as added Pub. L. 106–260, § 4, Aug. 18, 2000, 114 Stat. 716.) Editorial Notes REFERENCES IN TEXT Act of April 16, 1934, referred to in subsec. (b)(2)(B), is act Apr. 16, 1934, ch. 147, 48 Stat. 596, popularly known as the Johnson-O’Malley Act, which was classified gen- erally to section 452 et seq. of this title prior to edi- torial reclassification as section 5342 et seq. of this title. For complete classification of this Act to the Code, see Short Title note set out under section 5301 of this title and Tables. Act of August 5, 1954, referred to in subsec. (b)(2)(C), is act Aug. 5, 1954, ch. 658, 68 Stat. 674, which is classi- fied generally to subchapter I (§ 2001 et seq.) of chapter 22 of Title 42, The Public Health and Welfare. For com- plete classification of this Act to the Code, see Tables. The Indian Health Care Improvement Act, referred to in subsec. (b)(2)(D), is Pub. L. 94–437, Sept. 30, 1976, 90 Stat. 1400, which is classified principally to chapter 18 (§ 1601 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 1601 of this title and Tables. The Indian Alcohol and Substance Abuse Prevention and Treatment Act of 1986, referred to in subsec. (b)(2)(E), is subtitle C of title IV of Pub. L. 99–570, Oct. 27, 1986, 100 Stat. 3207–137, which is classified generally to chapter 26 (§ 2401 et seq.) of this title. For complete classification of subtitle C to the Code, see Short Title note set out under section 2401 of this title and Tables. Title III, referred to in subsec. (f), means title III of Pub. L. 93–638, as added by Pub. L. 100–472, title II, § 209, Oct. 5, 1988, 102 Stat. 2296, which was set out as a note under former section 450f of this title prior to repeal by Pub. L. 106–260, § 10, Aug. 18, 2000, 114 Stat. 734. CODIFICATION Section was formerly classified to section 458aaa–4 of this title prior to editorial reclassification and renum- bering as this section. § 5386. General provisions (a) Applicability The provisions of this section shall apply to compacts and funding agreements negotiated under this subchapter and an Indian tribe may, at its option, include provisions that reflect such requirements in a compact or funding agreement. (b) Conflicts of interest Indian tribes participating in self-governance under this subchapter shall ensure that internal measures are in place to address conflicts of in- terest in the administration of self-governance programs, services, functions, or activities (or portions thereof). (c) Audits (1) Single Agency Audit Act The provisions of chapter 75 of title 31 re- quiring a single agency audit report shall apply to funding agreements under this sub- chapter. (2) Cost principles An Indian tribe shall apply cost principles under the applicable Office of Management and Budget circular, except as modified by section 5325 of this title 1 other provisions of law, or by any exemptions to applicable Office of Management and Budget circulars subse- quently granted by the Office of Management and Budget. No other audit or accounting standards shall be required by the Secretary. Any claim by the Federal Government against the Indian tribe relating to funds received under a funding agreement based on any audit under this subsection shall be subject to the provisions of section 5325(f) of this title. (d) Records (1) In general Unless an Indian tribe specifies otherwise in the compact or funding agreement, records of the Indian tribe shall not be considered Fed- eral records for purposes of chapter 5 of title 5. (2) Recordkeeping system The Indian tribe shall maintain a record- keeping system, and, after 30 days advance no- tice, provide the Secretary with reasonable ac- cess to such records to enable the Department of Health and Human Services to meet its minimum legal recordkeeping system require- ments under sections 3101 through 3106 of title 44. (e) Redesign and consolidation An Indian tribe may redesign or consolidate programs, services, functions, and activities (or portions thereof) included in a funding agree- ment under section 5385 of this title and reallo- cate or redirect funds for such programs, serv- ices, functions, and activities (or portions there- of) in any manner which the Indian tribe deems