25 U.S.C. § 5361 — Definitions

Page 759 TITLE 25—INDIANS § 5361 State is in addition and supplemental to assist- ance provided under title VI of the Elementary and Secondary Education Act of 1965 [20 U.S.C. 7401 et seq.]. (Pub. L. 93–638, title II, § 209, Jan. 4, 1975, 88 Stat. 2217; Pub. L. 103–382, title III, § 393(c), Oct. 20, 1994, 108 Stat. 4027; Pub. L. 114–95, title IX, § 9215(rr), Dec. 10, 2015, 129 Stat. 2181.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in text, was in the original ‘‘this Act’’, meaning Pub. L. 93–638, Jan. 4, 1975, 88 Stat. 2203, known as the Indian Self-Determination and Edu- cation Assistance Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 5301 of this title and Tables. The Elementary and Secondary Education Act of 1965, referred to in text, is Pub. L. 89–10, Apr. 11, 1965, 79 Stat. 27. Title VI of the Act is classified generally to subchapter VI (§ 7401 et seq.) of chapter 70 of Title 20, Education. For complete classification of this Act to the Code, see Short Title note set out under section 6301 of Title 20 and Tables. CODIFICATION Section was formerly classified to section 458e of this title prior to editorial reclassification and renumbering as this section. AMENDMENTS 2015—Pub. L. 114–95 substituted ‘‘assistance provided under title VI of the Elementary and Secondary Edu- cation Act of 1965.’’ for ‘‘assistance provided under title IX of the Elementary and Secondary Education Act of 1965.’’ 1994—Pub. L. 103–382 substituted ‘‘title IX of the Ele- mentary and Secondary Education Act of 1965’’ for ‘‘title IV of the Act of June 23, 1972 (86 Stat. 235)’’. SUBCHAPTER IV—TRIBAL SELF-GOVERN- ANCE—DEPARTMENT OF THE INTERIOR § 5361. Definitions In this subchapter: (1) Compact The term ‘‘compact’’ means a self-govern- ance compact entered into under section 5364 of this title. (2) Construction program; construction project The term ‘‘construction program’’ or ‘‘con- struction project’’ means a Tribal undertaking relating to the administration, planning, envi- ronmental determination, design, construc- tion, repair, improvement, or expansion of roads, bridges, buildings, structures, systems, or other facilities for purposes of housing, law enforcement, detention, sanitation, water sup- ply, education, administration, community, health, irrigation, agriculture, conservation, flood control, transportation, or port facili- ties, or for other Tribal purposes. (3) Department The term ‘‘Department’’ means the Depart- ment of the Interior. (4) Funding agreement The term ‘‘funding agreement’’ means a funding agreement entered into under section 5363 of this title. (5) Gross mismanagement The term ‘‘gross mismanagement’’ means a significant violation, shown by a preponder- ance of the evidence, of a compact, funding agreement, or statutory or regulatory require- ment applicable to Federal funds for a pro- gram administered by an Indian Tribe under a compact or funding agreement. (6) Inherent Federal function The term ‘‘inherent Federal function’’ means a Federal function that may not legally be delegated to an Indian Tribe. (7) Non-BIA program The term ‘‘non-BIA program’’ means all or a portion of a program, function, service, or ac- tivity that is administered by any bureau, service, office, or agency of the Department of the Interior other than— (A) the Bureau of Indian Affairs; (B) the Office of the Assistant Secretary for Indian Affairs; or (C) the Office of the Special Trustee for American Indians. (8) Program The term ‘‘program’’ means any program, function, service, or activity (or portion there- of) within the Department that is included in a funding agreement. (9) Secretary The term ‘‘Secretary’’ means the Secretary of the Interior. (10) Self-determination contract The term ‘‘self-determination contract’’ means a self-determination contract entered into under section 5321 of this title. (11) Self-governance The term ‘‘self-governance’’ means the Trib- al Self-Governance Program established under section 5362 of this title. (12) Tribal share The term ‘‘Tribal share’’ means the portion of all funds and resources of an Indian Tribe that— (A) support any program within the Bu- reau of Indian Affairs, the Office of the Spe- cial Trustee for American Indians, or the Of- fice of the Assistant Secretary for Indian Af- fairs; and (B) are not required by the Secretary for the performance of an inherent Federal func- tion. (13) Tribal water rights settlement The term ‘‘Tribal water rights settlement’’ means any settlement, compact, or other agreement expressly ratified or approved by an Act of Congress that— (A) includes an Indian Tribe and the United States as parties; and (B) quantifies or otherwise defines any water right of the Indian Tribe. (Pub. L. 93–638, title IV, § 401, as added Pub. L. 103–413, title II, § 204, Oct. 25, 1994, 108 Stat. 4271; Pub. L. 116–180, title I, § 101(b), Oct. 21, 2020, 134 Stat. 858.) 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-