25 U.S.C. § 5375 — Appeals

Page 774 TITLE 25—INDIANS § 5373 Federal Register and made available to any Indian Tribe participating in self-governance. (4) Annual review (A) In general The Secretary shall annually review and publish in the Federal Register, after con- sultation with Indian Tribes participating in self-governance, revised lists and pro- grammatic targets. (B) Contents In preparing the revised lists and pro- grammatic targets, the Secretary shall con- sider all programs that were eligible for con- tracting in the original list published in the Federal Register in 1995, except for programs specifically determined not to be contractible as a matter of law. (d) Report on Central Office funds Not later than January 1, 2020, the Secretary shall, in consultation with Indian Tribes, de- velop a funding formula to determine the indi- vidual Tribal share of funds controlled by the Central Office of the Bureau of Indian Affairs and the Office of the Special Trustee for inclu- sion in the compacts. (Pub. L. 93–638, title IV, § 412, as added Pub. L. 116–180, title I, § 101(e), Oct. 21, 2020, 134 Stat. 876.) Editorial Notes PRIOR PROVISIONS Provisions similar to those in this section were con- tained in section 5365 of this title prior to repeal by Pub. L. 116–180. § 5373. Regulations (a) In general (1) Promulgation Not later than 90 days after October 21, 2020, the Secretary shall initiate procedures under subchapter III of chapter 5 of title 5 to nego- tiate and promulgate such regulations as are necessary to carry out this subchapter. (2) Publication of proposed regulations Proposed regulations to implement this sub- chapter shall be published in the Federal Reg- ister not later than 38 months after October 21, 2020. (3) Expiration of authority The authority to promulgate regulations under paragraph (1) shall expire on the date that is 50 months after October 21, 2020. (b) Committee (1) Membership A negotiated rulemaking committee estab- lished pursuant to section 565 of title 5 to carry out this section shall have as its mem- bers only representatives of the Federal Gov- ernment and Tribal government. (2) Lead agency Among the Federal representatives de- scribed in paragraph (1), the Office of Self-Gov- ernance shall be the lead agency for the De- partment. (c) Adaptation of procedures The Secretary shall adapt the negotiated rule- making procedures to the unique context of self- governance and the government-to-government relationship between the United States and In- dian Tribes. (d) Effect (1) Repeal The Secretary may repeal any regulation that is inconsistent with this chapter. (2) Conflicting provisions Subject to section 101(a) of the PROGRESS for Indian Tribes Act and except with respect to programs described under section 5363(c) of this title, this subchapter shall supersede any conflicting provision of law (including any conflicting regulations). (3) Effectiveness without regard to regulations The lack of promulgated regulations on an issue shall not limit the effect or implementa- tion of this subchapter. (Pub. L. 93–638, title IV, § 413, as added Pub. L. 116–180, title I, § 101(e), Oct. 21, 2020, 134 Stat. 877; amended Pub. L. 118–15, div. B, title I, § 2102, Sept. 30, 2023, 137 Stat. 82.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (d)(1), 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. Section 101(a) of the PROGRESS for Indian Tribes Act, referred to in subsec. (d)(2), is section 101(a) of Pub. L. 116–180, which is set out as a note under section 5361 of this title. PRIOR PROVISIONS Provisions similar to those in this section were con- tained in section 5367 of this title prior to repeal by Pub. L. 116–180. AMENDMENTS 2023—Subsec. (a)(2). Pub. L. 118–15, § 2102(1), sub- stituted ‘‘38 months’’ for ‘‘21 months’’. Subsec. (a)(3). Pub. L. 118–15, § 2102(2), substituted ‘‘50 months’’ for ‘‘30 months’’. § 5374. Effect of circulars, policies, manuals, guidance, and rules Unless expressly agreed to by a participating Indian Tribe in a compact or funding agreement, the participating Indian Tribe shall not be sub- ject to any agency circular, policy, manual, guidance, or rule adopted by the Department, except for— (1) the eligibility provisions of section 5324(g) of this title; and (2) regulations promulgated pursuant to sec- tion 5373 of this title. (Pub. L. 93–638, title IV, § 414, as added Pub. L. 116–180, title I, § 101(e), Oct. 21, 2020, 134 Stat. 878.) § 5375. Appeals Except as provided in section 5366(d) of this title, in any administrative action, appeal, or Page 775 TITLE 25—INDIANS § 5381 1 So in original. Probably should be followed by ‘‘or’’. civil action for judicial review of any decision made by the Secretary under this subchapter, the Secretary shall have the burden of proof of demonstrating by a preponderance of the evi- dence— (1) the validity of the grounds for the deci- sion; and (2) the consistency of the decision with the requirements and policies of this subchapter. (Pub. L. 93–638, title IV, § 415, as added Pub. L. 116–180, title I, § 101(e), Oct. 21, 2020, 134 Stat. 878.) § 5376. Application of other provisions Section 314 of the Department of the Interior and Related Agencies Appropriations Act, 1991 (Public Law 101–512; 104 Stat. 1959), shall apply to compacts and funding agreements entered into under this subchapter. (Pub. L. 93–638, title IV, § 416, as added Pub. L. 116–180, title I, § 101(e), Oct. 21, 2020, 134 Stat. 878.) Editorial Notes REFERENCES IN TEXT Section 314 of the Department of the Interior and Re- lated Agencies Appropriations Act, 1991, referred to in text, is section 314 of Pub. L. 101–512, which is set out as a note under section 5321 of this title. § 5377. Authorization of appropriations There are authorized to be appropriated such sums as may be necessary to carry out this sub- chapter. (Pub. L. 93–638, title IV, § 417, as added Pub. L. 116–180, title I, § 101(e), Oct. 21, 2020, 134 Stat. 878.) Editorial Notes PRIOR PROVISIONS Provisions similar to those in this section were con- tained in section 5368 of this title prior to repeal by Pub. L. 116–180. SUBCHAPTER V—TRIBAL SELF- GOVERNANCE—INDIAN HEALTH SERVICE Editorial Notes CODIFICATION Subchapter is comprised of title V of Pub. L. 93–638, as added by Pub. L. 106–260, § 4, Aug. 18, 2000, 114 Stat. 712. Another title V of Pub. L. 93–638, as added by Pub. L. 106–568, title XIII, § 1302, Dec. 27, 2000, 114 Stat. 2936, was redesignated title VIII, and is classified to sub- chapter VII (§ 5421 et seq.) of this chapter. § 5381. Definitions (a) In general In this subchapter: (1) Construction project The term ‘‘construction project’’— (A) means an organized noncontinuous un- dertaking to complete a specific set of pre- determined objectives for the planning, envi- ronmental determination, design, construc- tion, repair, improvement, or expansion of buildings or facilities, as described in a con- struction project agreement; and (B) does not include construction program administration and activities described in paragraphs (1) through (3) of section 5304(m) of this title, that may otherwise be included in a funding agreement under this sub- chapter. (2) Construction project agreement The term ‘‘construction project agreement’’ means a negotiated agreement between the Secretary and an Indian tribe, that at a min- imum— (A) establishes project phase start and completion dates; (B) defines a specific scope of work and standards by which it will be accomplished; (C) identifies the responsibilities of the In- dian tribe and the Secretary; (D) addresses environmental consider- ations; (E) identifies the owner and operations and maintenance entity of the proposed work; (F) provides a budget; (G) provides a payment process; and (H) establishes the duration of the agree- ment based on the time necessary to com- plete the specified scope of work, which may be 1 or more years. (3) Gross mismanagement The term ‘‘gross mismanagement’’ means a significant, clear, and convincing violation of a compact, funding agreement, or regulatory, or statutory requirements applicable to Fed- eral funds transferred to an Indian tribe by a compact or funding agreement that results in a significant reduction of funds available for the programs, services, functions, or activities (or portions thereof) assumed by an Indian tribe. (4) Inherent Federal functions The term ‘‘inherent Federal functions’’ means those Federal functions which cannot legally be delegated to Indian tribes. (5) Inter-tribal consortium The term ‘‘inter-tribal consortium’’ means a coalition of two 1 more separate Indian tribes that join together for the purpose of partici- pating in self-governance, including tribal or- ganizations. (6) Secretary The term ‘‘Secretary’’ means the Secretary of Health and Human Services. (7) Self-governance The term ‘‘self-governance’’ means the pro- gram of self-governance established under sec- tion 5382 of this title. (8) Tribal share The term ‘‘tribal share’’ means an Indian tribe’s portion of all funds and resources that support secretarial programs, services, func- tions, and activities (or portions thereof) that are not required by the Secretary for perform- ance of inherent Federal functions.