25 U.S.C. § 5382 — Establishment

Page 776 TITLE 25—INDIANS § 5382 (b) Indian tribe In any case in which an Indian tribe has au- thorized another Indian tribe, an inter-tribal consortium, or a tribal organization to plan for or carry out programs, services, functions, or ac- tivities (or portions thereof) on its behalf under this subchapter, the authorized Indian tribe, inter-tribal consortium, or tribal organization shall have the rights and responsibilities of the authorizing Indian tribe (except as otherwise provided in the authorizing resolution or in this subchapter). In such event, the term ‘‘Indian tribe’’ as used in this subchapter shall include such other authorized Indian tribe, inter-tribal consortium, or tribal organization. (Pub. L. 93–638, title V, § 501, as added Pub. L. 106–260, § 4, Aug. 18, 2000, 114 Stat. 712.) Editorial Notes CODIFICATION Section was formerly classified to section 458aaa of this title prior to editorial reclassification and renum- bering as this section. Another section 501 of Pub. L. 93–638 was renumbered section 801 and is classified to section 5421 of this title. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 106–260, § 13, Aug. 18, 2000, 114 Stat. 734, pro- vided that: ‘‘Except as otherwise provided, the provi- sions of this Act [enacting this subchapter, amending sections 5321, 5324, and 5325 of this title, enacting provi- sions set out as notes under this section and sections 5301 and 5321 of this title, and repealing provisions set out as a note under former section 450f of this title] shall take effect on the date of the enactment of this Act [Aug. 18, 2000].’’ FINDINGS Pub. L. 106–260, § 2, Aug. 18, 2000, 114 Stat. 711, pro- vided 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 Indian tribes to self-govern- ance, as reflected in the Constitution, treaties, Fed- eral 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, established under title III of the Indian Self- Determination and Education Assistance Act ([Pub. L. 93–638, former] 25 U.S.C. 450f note) was designed to improve and perpetuate the government-to-govern- ment relationship between Indian tribes and the United States and to strengthen tribal control over Federal funding and program management; ‘‘(5) although the Federal Government has made considerable strides in improving Indian health care, it has failed to fully meet its trust responsibilities and to satisfy its obligations to the Indian tribes under treaties and other laws; and ‘‘(6) Congress has reviewed the results of the Tribal Self-Governance Demonstration Project and finds that transferring full control and funding to tribal governments, upon tribal request, over decision mak- ing for Federal programs, services, functions, and ac- tivities (or portions thereof)— ‘‘(A) is an appropriate and effective means of im- plementing the Federal policy of government-to- government relations with Indian tribes; and ‘‘(B) strengthens the Federal policy of Indian self- determination.’’ DECLARATION OF POLICY Pub. L. 106–260, § 3, Aug. 18, 2000, 114 Stat. 712, pro- vided that: ‘‘It is the policy of Congress— ‘‘(1) to permanently establish and implement tribal self-governance within the Department of Health and Human Services; ‘‘(2) to call for full cooperation from the Depart- ment of Health and Human Services and its con- stituent agencies in the implementation of tribal self-governance— ‘‘(A) to enable the United States to maintain and improve its unique and continuing relationship with, and responsibility to, Indian tribes; ‘‘(B) to permit each Indian tribe to choose the ex- tent of its participation in self-governance in ac- cordance with the provisions of the Indian Self-De- termination and Education Assistance Act [25 U.S.C. 5301 et seq.] relating to the provision of Fed- eral services to Indian tribes; ‘‘(C) to ensure the continuation of the trust re- sponsibility of the United States to Indian tribes and Indian individuals; ‘‘(D) to affirm and enable the United States to fulfill its obligations to the Indian tribes under treaties and other laws; ‘‘(E) to strengthen the government-to-govern- ment relationship between the United States and Indian tribes through direct and meaningful con- sultation with all tribes; ‘‘(F) to permit an orderly transition from Federal domination of programs and services to provide In- dian tribes with meaningful authority, control, funding, and discretion to plan, conduct, redesign, and administer programs, services, functions, and activities (or portions thereof) that meet the needs of the individual tribal communities; ‘‘(G) to provide for a measurable parallel reduc- tion in the Federal bureaucracy as programs, serv- ices, functions, and activities (or portion thereof) are assumed by Indian tribes; ‘‘(H) to encourage the Secretary to identify all programs, services, functions, and activities (or portions thereof) of the Department of Health and Human Services that may be managed by an Indian tribe under this Act [see Short Title of 2000 Amend- ments note set out under section 5301 of this title] and to assist Indian tribes in assuming responsi- bility for such programs, services, functions, and activities (or portions thereof); and ‘‘(I) to provide Indian tribes with the earliest op- portunity to administer programs, services, func- tions, and activities (or portions thereof) from throughout the Department of Health and Human Services.’’ § 5382. Establishment The Secretary shall establish and carry out a program within the Indian Health Service of the Department of Health and Human Services to be known as the ‘‘Tribal Self-Governance Pro- gram’’ in accordance with this subchapter. (Pub. L. 93–638, title V, § 502, as added Pub. L. 106–260, § 4, Aug. 18, 2000, 114 Stat. 714.) Editorial Notes CODIFICATION Section was formerly classified to section 458aaa–1 of this title prior to editorial reclassification and renum- bering as this section. Another section 502 of Pub. L. 93–638 was renumbered section 802 and is classified to section 5422 of this title. 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