25 U.S.C. § 5367 — Construction programs and projects

Page 769 TITLE 25—INDIANS § 5367 United States with respect to Indian Tribes and individual Indians that exists under treaties, Executive orders, other laws, or court decisions. (h) Decision maker A decision that constitutes final agency ac- tion and relates to an appeal within the Depart- ment conducted under subsection (c)(6)(A)(iii) may be made by— (1) an official of the Department who holds a position at a higher organizational level with- in the Department than the level of the de- partmental agency in which the decision that is the subject of the appeal was made; or (2) an administrative law judge. (i) Rules of construction Subject to section 101(a) of the PROGRESS for Indian Tribes Act, each provision of this sub- chapter and each provision of a compact or fund- ing agreement shall be liberally construed for the benefit of the Indian Tribe participating in self-governance, and any ambiguity shall be re- solved in favor of the Indian Tribe. (Pub. L. 93–638, title IV, § 406, as added Pub. L. 116–180, title I, § 101(e), Oct. 21, 2020, 134 Stat. 866.) REFERENCES IN TEXT Section 101(a) of the PROGRESS for Indian Tribes Act, referred to in subsec. (i), is section 101(a) of Pub. L. 116–180, which is set out as a note under section 5361 of this title. Editorial Notes PRIOR PROVISIONS A prior section 5366, Pub. L. 93–638, title IV, § 406, as added Pub. L. 103–413, title II, § 204, Oct. 25, 1994, 108 Stat. 4277; amended Pub. L. 105–277, div. A, § 101(e) [title I, § 133], Oct. 21, 1998, 112 Stat. 2681–231, 2681–264, set out disclaimers regarding construction of provisions of this chapter and subchapter. Such ection was formerly clas- sified to section 458ff of this title prior to editorial re- classification and renumbering as section 5366. § 5367. Construction programs and projects (a) In general Indian Tribes participating in Tribal self-gov- ernance may carry out any construction project included in a compact or funding agreement under this subchapter. (b) Tribal option to carry out certain Federal en- vironmental activities In carrying out a construction project under this subchapter, an Indian Tribe may, subject to the agreement of the Secretary, elect to assume some Federal responsibilities under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), division A of subtitle III of title 54, and related provisions of other law and regulations that would apply if the Secretary were to under- take a construction project, by adopting a reso- lution— (1) designating a certifying Tribal officer to represent the Indian Tribe and to assume the status of a responsible Federal official under those Acts, laws, or regulations; and (2) accepting the jurisdiction of the United States courts for the purpose of enforcing the responsibilities of the certifying Tribal officer assuming the status of a responsible Federal official under those Acts, laws, or regulations. (c) Savings clause Notwithstanding subsection (b), nothing in this section authorizes the Secretary to include in any compact or funding agreement duties of the Secretary under the National Environ- mental Policy Act of 1969 (42 U.S.C. 4321 et seq.), division A of subtitle III of title 54, and other re- lated provisions of law that are inherent Federal functions. (d) Codes and standards In carrying out a construction project under this subchapter, an Indian Tribe shall— (1) adhere to applicable Federal, State, local, and Tribal building codes, architectural and engineering standards, and applicable Federal guidelines regarding design, space, and oper- ational standards, appropriate for the par- ticular project; and (2) use only architects and engineers who— (A) are licensed to practice in the State in which the facility will be built; and (B) certify that— (i) they are qualified to perform the work required by the specific construction involved; and (ii) upon completion of design, the plans and specifications meet or exceed the ap- plicable construction and safety codes. (e) Tribal accountability (1) In general In carrying out a construction project under this subchapter, an Indian Tribe shall assume responsibility for the successful completion of the construction project and of a facility that is usable for the purpose for which the Indian Tribe received funding. (2) Requirements For each construction project carried out by an Indian Tribe under this subchapter, the In- dian Tribe and the Secretary shall negotiate a provision to be included in the funding agree- ment that identifies— (A) the approximate start and completion dates for the project, which may extend over a period of one or more years; (B) a general description of the project, in- cluding the scope of work, references to de- sign criteria, and other terms and condi- tions; (C) the responsibilities of the Indian Tribe and the Secretary for the project; (D) how project-related environmental considerations will be addressed; (E) the amount of funds provided for the project; (F) the obligations of the Indian Tribe to comply with the codes referenced in sub- section (d)(1) and applicable Federal laws and regulations; (G) the agreement of the parties over who will bear any additional costs necessary to meet changes in scope, or errors or omis- sions in design and construction; and (H) the agreement of the Secretary to issue a certificate of occupancy, if requested by the Indian Tribe, based upon the review Page 770 TITLE 25—INDIANS § 5368 and verification by the Secretary, to the sat- isfaction of the Secretary, that the Indian Tribe has secured upon completion the re- view and approval of the plans and specifica- tions, sufficiency of design, life safety, and code compliance by qualified, licensed, and independent architects and engineers. (f) Funding (1) In general Funding appropriated for construction projects carried out under this subchapter shall be included in funding agreements as an- nual or semiannual advance payments at the option of the Indian Tribe. (2) Advance payments The Secretary shall include all associated project contingency funds with each advance payment, and the Indian Tribe shall be respon- sible for the management of such contingency funds. (g) Negotiations At the option of the Indian Tribe, construction project funding proposals shall be negotiated pursuant to the statutory process in section 5324 of this title, and any resulting construction project agreement shall be incorporated into the funding agreement as addenda. (h) Federal review and verification (1) In general On a schedule negotiated by the Secretary and the Indian Tribe— (A) the Secretary shall review and verify, to the satisfaction of the Secretary, that project planning and design documents pre- pared by the Indian Tribe in advance of ini- tial construction are in conformity with the obligations of the Indian Tribe under sub- section (d); and (B) before the project planning and design documents are implemented, the Secretary shall review and verify to the satisfaction of the Secretary that subsequent document amendments which result in a significant change in construction are in conformity with the obligations of the Indian Tribe under subsection (d). (2) Reports The Indian Tribe shall provide the Secretary with project progress and financial reports not less than semiannually. (3) Oversight visits The Secretary may conduct onsite project oversight visits semiannually or on an alter- nate schedule agreed to by the Secretary and the Indian Tribe. (i) Application of other laws Unless otherwise agreed to by the Indian Tribe and except as otherwise provided in this chap- ter, no provision of title 41, the Federal Acquisi- tion Regulation, or any other law or regulation pertaining to Federal procurement (including Executive orders) shall apply to any construc- tion program or project carried out under this subchapter. (j) Future funding Upon completion of a facility constructed under this subchapter, the Secretary shall in- clude the facility among those eligible for an- nual operation and maintenance funding support comparable to that provided for similar facili- ties funded by the Department as annual appro- priations are available and to the extent that the facility size and complexity and other fac- tors do not exceed the funding formula criteria for comparable buildings. (Pub. L. 93–638, title IV, § 407, as added Pub. L. 116–180, title I, § 101(e), Oct. 21, 2020, 134 Stat. 870.) Editorial Notes REFERENCES IN TEXT The National Environmental Policy Act of 1969, re- ferred to in subsecs. (b) and (c), is Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to chapter 55 (§ 4321 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 4321 of Title 42 and Tables. This chapter, referred to in subsec. (i), was in the original ‘‘this Act’’, meaning Pub. L. 93–638, Jan. 4, 1975, 88 Stat. 2203, known as the Indian Self-Determina- tion and Education 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. PRIOR PROVISIONS A prior section 5367, Pub. L. 93–638, title IV, § 407, as added Pub. L. 103–413, title II, § 204, Oct. 25, 1994, 108 Stat. 4277, related to regulations to carry out this sub- chapter, prior to repeal by Pub. L. 116–180, title I, § 101(e), Oct. 21, 2020, 134 Stat. 864. See section 5373 of this title. Such section was formerly classified to sec- tion 458gg of this title prior to editorial reclassification and renumbering as section 5367. § 5368. Payment (a) In general At the request of the governing body of an In- dian Tribe and under the terms of an applicable funding agreement, the Secretary shall provide funding to the Indian Tribe to carry out the funding agreement. (b) Advance annual payment At the option of the Indian Tribe, a funding agreement shall provide for an advance annual payment to an Indian Tribe. (c) Amount (1) In general Subject to subsection (e) and sections 5363 and 5365 of this title, the Secretary shall pro- vide funds to the Indian Tribe under a funding agreement for programs in an amount that is equal to the amount that the Indian Tribe would have been entitled to receive under con- tracts and grants under this chapter (includ- ing amounts for direct program and contract support costs and, in addition, any funds that are specifically or functionally related to the provision by the Secretary of services and ben- efits to the Indian Tribe or its members) with- out regard to the organization level within the Department at which the programs are carried out. (2) Savings clause Nothing in this section reduces programs, services, or funds of, or provided to, another Indian Tribe.