25 U.S.C. § 5387 — Provisions relating to the Secretary

Page 780 TITLE 25—INDIANS § 5387 to be in the best interest of the health and wel- fare of the Indian community being served, only if the redesign or consolidation does not have the effect of denying eligibility for services to population groups otherwise eligible to be served under applicable Federal law. (f) Retrocession An Indian tribe may retrocede, fully or par- tially, to the Secretary programs, services, func- tions, or activities (or portions thereof) included in the compact or funding agreement. Unless the Indian tribe rescinds the request for retroces- sion, such retrocession will become effective within the timeframe specified by the parties in the compact or funding agreement. In the ab- sence of such a specification, such retrocession shall become effective on— (1) the earlier of— (A) 1 year after the date of submission of such request; or (B) the date on which the funding agree- ment expires; or (2) such date as may be mutually agreed upon by the Secretary and the Indian tribe. (g) Withdrawal (1) Process (A) In general An Indian tribe may fully or partially withdraw from a participating inter-tribal consortium or tribal organization its share of any program, function, service, or activ- ity (or portions thereof) included in a com- pact or funding agreement. (B) Effective date The withdrawal referred to in subpara- graph (A) shall become effective within the timeframe specified in the resolution which authorizes transfer to the participating trib- al organization or inter-tribal consortium. In the absence of a specific timeframe set forth in the resolution, such withdrawal shall become effective on— (i) the earlier of— (I) 1 year after the date of submission of such request; or (II) the date on which the funding agreement expires; or (ii) such date as may be mutually agreed upon by the Secretary, the withdrawing Indian tribe, and the participating tribal organization or inter-tribal consortium that has signed the compact or funding agreement on behalf of the withdrawing Indian tribe, inter-tribal consortium, or tribal organization. (2) Distribution of funds When an Indian tribe or tribal organization eligible to enter into a self-determination con- tract under subchapter I of this chapter or a compact or funding agreement under this sub- chapter fully or partially withdraws from a participating inter-tribal consortium or tribal organization— (A) the withdrawing Indian tribe or tribal organization shall be entitled to its tribal share of funds supporting those programs, services, functions, or activities (or portions thereof) that the Indian tribe will be car- rying out under its own self-determination contract or compact and funding agreement (calculated on the same basis as the funds were initially allocated in the funding agree- ment of the inter-tribal consortium or tribal organization); and (B) the funds referred to in subparagraph (A) shall be transferred from the funding agreement of the inter-tribal consortium or tribal organization, on the condition that the provisions of sections 5321 and 5324(i) of this title, as appropriate, shall apply to that withdrawing Indian tribe. (3) Regaining mature contract status If an Indian tribe elects to operate all or some programs, services, functions, or activi- ties (or portions thereof) carried out under a compact or funding agreement under this sub- chapter through a self-determination contract under subchapter I of this chapter, at the op- tion of the Indian tribe, the resulting self-de- termination contract shall be a mature self- determination contract. (h) Nonduplication For the period for which, and to the extent to which, funding is provided under this subchapter or under the compact or funding agreement, the Indian tribe shall not be entitled to contract with the Secretary for such funds under section 5321 of this title, except that such Indian tribe shall be eligible for new programs on the same basis as other Indian tribes. (Pub. L. 93–638, title V, § 506, as added Pub. L. 106–260, § 4, Aug. 18, 2000, 114 Stat. 717.) Editorial Notes REFERENCES IN TEXT Subchapter I of this chapter, referred to in subsec. (g)(2), (3), was in the original ‘‘title I’’, meaning title I of Pub. L. 93–638, known as the Indian Self-Determina- tion Act, which is classified principally to subchapter I (§ 5321 et seq.) of this chapter. For complete classifica- tion of title I to the Code, see Short Title note set out under section 5301 of this title and Tables. CODIFICATION Section was formerly classified to section 458aaa–5 of this title prior to editorial reclassification and renum- bering as this section. § 5387. Provisions relating to the Secretary (a) Mandatory provisions (1) Health status reports Compacts or funding agreements negotiated between the Secretary and an Indian tribe shall include a provision that requires the In- dian tribe to report on health status and serv- ice delivery— (A) to the extent such data is not other- wise available to the Secretary and specific funds for this purpose are provided by the Secretary under the funding agreement; and (B) if such reporting shall impose minimal burdens on the participating Indian tribe and such requirements are promulgated under section 5397 of this title. Page 781 TITLE 25—INDIANS § 5387 (2) Reassumption (A) In general Compacts or funding agreements nego- tiated between the Secretary and an Indian tribe shall include a provision authorizing the Secretary to reassume operation of a program, service, function, or activity (or portions thereof) and associated funding if there is a specific finding relative to that program, service, function, or activity (or portion thereof) of— (i) imminent endangerment of the public health caused by an act or omission of the Indian tribe, and the imminent endangerment arises out of a failure to carry out the compact or funding agree- ment; or (ii) gross mismanagement with respect to funds transferred to a tribe by a com- pact or funding agreement, as determined by the Secretary in consultation with the Inspector General, as appropriate. (B) Prohibition The Secretary shall not reassume oper- ation of a program, service, function, or ac- tivity (or portions thereof) unless— (i) the Secretary has first provided writ- ten notice and a hearing on the record to the Indian tribe; and (ii) the Indian tribe has not taken cor- rective action to remedy the imminent endangerment to public health or gross mismanagement. (C) Exception (i) In general Notwithstanding subparagraph (B), the Secretary may, upon written notification to the Indian tribe, immediately reassume operation of a program, service, function, or activity (or portion thereof) if— (I) the Secretary makes a finding of imminent substantial and irreparable endangerment of the public health caused by an act or omission of the In- dian tribe; and (II) the endangerment arises out of a failure to carry out the compact or fund- ing agreement. (ii) Reassumption If the Secretary reassumes operation of a program, service, function, or activity (or portion thereof) under this subpara- graph, the Secretary shall provide the In- dian tribe with a hearing on the record not later than 10 days after such reassumption. (D) Hearings In any hearing or appeal involving a deci- sion to reassume operation of a program, service, function, or activity (or portion thereof), the Secretary shall have the burden of proof of demonstrating by clear and con- vincing evidence the validity of the grounds for the reassumption. (b) Final offer In the event the Secretary and a participating Indian tribe are unable to agree, in whole or in part, on the terms of a compact or funding agreement (including funding levels), the Indian tribe may submit a final offer to the Secretary. Not more than 45 days after such submission, or within a longer time agreed upon by the Indian tribe, the Secretary shall review and make a de- termination with respect to such offer. In the absence of a timely rejection of the offer, in whole or in part, made in compliance with sub- section (c) of this section, the offer shall be deemed agreed to by the Secretary. (c) Rejection of final offers (1) In general If the Secretary rejects an offer made under subsection (b) of this section (or one or more provisions or funding levels in such offer), the Secretary shall provide— (A) a timely written notification to the In- dian tribe that contains a specific finding that clearly demonstrates, or that is sup- ported by a controlling legal authority, that— (i) the amount of funds proposed in the final offer exceeds the applicable funding level to which the Indian tribe is entitled under this subchapter; (ii) the program, function, service, or ac- tivity (or portion thereof) that is the sub- ject of the final offer is an inherent Fed- eral function that cannot legally be dele- gated to an Indian tribe; (iii) the Indian tribe cannot carry out the program, function, service, or activity (or portion thereof) in a manner that would not result in significant danger or risk to the public health; or (iv) the Indian tribe is not eligible to participate in self-governance under sec- tion 5383 of this title; (B) technical assistance to overcome the objections stated in the notification re- quired by subparagraph (A); (C) the Indian tribe with a hearing on the record with the right to engage in full dis- covery relevant to any issue raised in the matter and the opportunity for appeal on the objections raised, except that the Indian tribe may, in lieu of filing such appeal, di- rectly proceed to initiate an action in a Fed- eral district court pursuant to section 5331(a) of this title; and (D) the Indian tribe with the option of en- tering into the severable portions of a final proposed compact or funding agreement, or provision thereof, (including a lesser funding amount, if any), that the Secretary did not reject, subject to any additional alterations necessary to conform the compact or fund- ing agreement to the severed provisions. (2) Effect of exercising certain option If an Indian tribe exercises the option speci- fied in paragraph (1)(D), that Indian tribe shall retain the right to appeal the Secretary’s re- jection under this section, and subparagraphs (A), (B), and (C) of that paragraph shall only apply to that portion of the proposed final compact, funding agreement, or provision thereof that was rejected by the Secretary. (d) Burden of proof With respect to any hearing or appeal or civil action conducted pursuant to this section, the Page 782 TITLE 25—INDIANS § 5388 Secretary shall have the burden of dem- onstrating by clear and convincing evidence the validity of the grounds for rejecting the offer (or a provision thereof) made under subsection (b) of this section. (e) Good faith In the negotiation of compacts and funding agreements the Secretary shall at all times ne- gotiate in good faith to maximize implementa- tion of the self-governance policy. The Sec- retary shall carry out this subchapter in a man- ner that maximizes the policy of tribal self-gov- ernance, in a manner consistent with the pur- poses specified in section 3 of the Tribal Self- Governance Amendments of 2000. (f) Savings To the extent that programs, functions, serv- ices, or activities (or portions thereof) carried out by Indian tribes under this subchapter re- duce the administrative or other responsibilities of the Secretary with respect to the operation of Indian programs and result in savings that have not otherwise been included in the amount of tribal shares and other funds determined under section 5388(c) of this title, the Secretary shall make such savings available to the Indian tribes, inter-tribal consortia, or tribal organiza- tions for the provision of additional services to program beneficiaries in a manner equitable to directly served, contracted, and compacted pro- grams. (g) Trust responsibility The Secretary is prohibited from waiving, modifying, or diminishing in any way the trust responsibility of the United States with respect to Indian tribes and individual Indians that ex- ists under treaties, Executive orders, other laws, or court decisions. (h) Decisionmaker A decision that constitutes final agency ac- tion and relates to an appeal within the Depart- ment of Health and Human Services conducted under subsection (c) of this section shall be made either— (1) by an official of the Department who holds a position at a higher organizational level within the Department than the level of the departmental agency in which the decision that is the subject of the appeal was made; or (2) by an administrative judge. (Pub. L. 93–638, title V, § 507, as added Pub. L. 106–260, § 4, Aug. 18, 2000, 114 Stat. 719.) Editorial Notes REFERENCES IN TEXT Section 3 of the Tribal Self-Governance Amendments of 2000, referred to in subsec. (e), is section 3 of Pub. L. 106–260, which is set out as a note under section 5381 of this title. CODIFICATION Section was formerly classified to section 458aaa–6 of this title prior to editorial reclassification and renum- bering as this section. § 5388. Transfer of funds (a) In general Pursuant to the terms of any compact or fund- ing agreement entered into under this sub- chapter, the Secretary shall transfer to the In- dian tribe all funds provided for in the funding agreement, pursuant to subsection (c) of this section, and provide funding for periods covered by joint resolution adopted by Congress making continuing appropriations, to the extent per- mitted by such resolutions. In any instance where a funding agreement requires an annual transfer of funding to be made at the beginning of a fiscal year, or requires semiannual or other periodic transfers of funding to be made com- mencing at the beginning of a fiscal year, the first such transfer shall be made not later than 10 days after the apportionment of such funds by the Office of Management and Budget to the De- partment, unless the funding agreement pro- vides otherwise. (b) Multiyear funding The Secretary is authorized to employ, upon tribal request, multiyear funding agreements. References in this subchapter to funding agree- ments shall include such multiyear funding agreements. (c) Amount of funding The Secretary shall provide funds under a funding agreement under this subchapter in an amount equal to the amount that the Indian tribe would have been entitled to receive under self-determination contracts under this chapter, including amounts for direct program costs specified under section 5325(a)(1) of this title and amounts for contract support costs specified under section 5325(a)(2), (3), (5), and (6) of this title, including any funds that are specifically or functionally related to the provision by the Secretary of services and benefits to the Indian tribe or its members, all without regard to the organizational level within the Department where such functions are carried out. (d) Prohibitions (1) In general Except as provided in paragraph (2), the Sec- retary is expressly prohibited from— (A) failing or refusing to transfer to an In- dian tribe its full share of any central, head- quarters, regional, area, or service unit of- fice or other funds due under this chapter, except as required by Federal law; (B) withholding portions of such funds for transfer over a period of years; and (C) reducing the amount of funds required under this chapter— (i) to make funding available for self- governance monitoring or administration by the Secretary; (ii) in subsequent years, except pursuant to— (I) a reduction in appropriations from the previous fiscal year for the program or function to be included in a compact or funding agreement; (II) a congressional directive in legisla- tion or accompanying report; (III) a tribal authorization; (IV) a change in the amount of pass- through funds subject to the terms of the funding agreement; or (V) completion of a project, activity, or program for which such funds were provided;