25 U.S.C. § 5384 — Compacts

Page 777 TITLE 25—INDIANS § 5384 1 See References in Text note below. § 5383. Selection of participating Indian tribes (a) Continuing participation Each Indian tribe that is participating in the Tribal Self-Governance Demonstration Project under title III 1 on August 18, 2000, may elect to participate in self-governance under this sub- chapter under existing authority as reflected in tribal resolution. (b) Additional participants (1) In general In addition to those Indian tribes partici- pating in self-governance under subsection (a) of this section, each year an additional 50 In- dian tribes that meet the eligibility criteria specified in subsection (c) of this section shall be entitled to participate in self-governance. (2) Treatment of certain Indian tribes (A) In general An Indian tribe that has withdrawn from participation in an inter-tribal consortium or tribal organization, in whole or in part, shall be entitled to participate in self-gov- ernance provided the Indian tribe meets the eligibility criteria specified in subsection (c) of this section. (B) Effect of withdrawal If an Indian tribe has withdrawn from par- ticipation in an inter-tribal consortium or tribal organization, that Indian tribe shall be entitled to its tribal share of funds sup- porting those programs, services, functions, and activities (or portions thereof) that the Indian tribe will be carrying out under the compact and funding agreement of the In- dian tribe. (C) Participation in self-governance In no event shall the withdrawal of an In- dian tribe from an inter-tribal consortium or tribal organization affect the eligibility of the inter-tribal consortium or tribal organi- zation to participate in self-governance. (c) Applicant pool (1) In general The qualified applicant pool for self-govern- ance shall consist of each Indian tribe that— (A) successfully completes the planning phase described in subsection (d) of this sec- tion; (B) has requested participation in self-gov- ernance by resolution or other official ac- tion by the governing body of each Indian tribe to be served; and (C) has demonstrated, for 3 fiscal years, fi- nancial stability and financial management capability. (2) Criteria for determining financial stability and financial management capacity For purposes of this subsection, evidence that, during the 3-year period referred to in paragraph (1)(C), an Indian tribe had no uncor- rected significant and material audit excep- tions in the required annual audit of the In- dian tribe’s self-determination contracts or self-governance funding agreements with any Federal agency shall be conclusive evidence of the required stability and capability. (d) Planning phase Each Indian tribe seeking participation in self-governance shall complete a planning phase. The planning phase shall be conducted to the satisfaction of the Indian tribe and shall in- clude— (1) legal and budgetary research; and (2) internal tribal government planning and organizational preparation relating to the ad- ministration of health care programs. (e) Grants Subject to the availability of appropriations, any Indian tribe meeting the requirements of paragraph (1)(B) and (C) of subsection (c) of this section shall be eligible for grants— (1) to plan for participation in self-govern- ance; and (2) 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. (f) Receipt of grant not required Receipt of a grant under subsection (e) of this section shall not be a requirement of participa- tion in self-governance. (Pub. L. 93–638, title V, § 503, as added Pub. L. 106–260, § 4, Aug. 18, 2000, 114 Stat. 714.) Editorial Notes REFERENCES IN TEXT Title III, referred to in subsec. (a), 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–2 of this title prior to editorial reclassification and renum- bering as this section. Another section 503 of Pub. L. 93–638 was renumbered section 803 and is classified to section 5423 of this title. § 5384. Compacts (a) Compact required The Secretary shall negotiate and enter into a written compact with each Indian tribe partici- pating in self-governance in a manner consistent with the Federal Government’s trust responsi- bility, treaty obligations, and the government- to-government relationship between Indian tribes and the United States. (b) Contents Each compact required under subsection (a) of this section shall set forth the general terms of the government-to-government relationship be- tween the Indian tribe and the Secretary, in- cluding such terms as the parties intend shall control year after year. Such compacts may only be amended by mutual agreement of the parties. (c) Existing compacts An Indian tribe participating in the Tribal Self-Governance Demonstration Project under 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