§5386 — Title 25 Indians | U.S. Code

Summary

These rules apply to compacts and funding agreements under this subchapter, and an Indian tribe may choose to put these rules into its compact or funding agreement. Tribal governments must have internal rules to prevent conflicts of interest when they run programs. Single-agency audits required by chapter 75 of title 31 must be used for funding agreements. Tribes must follow the cost rules in the applicable Office of Management and Budget circular, except as changed by section 5325 of this title, other laws, or any later OMB exemptions. The Secretary cannot demand other audit or accounting standards. Any federal claim from an audit is handled under section 5325(f) of this title. Unless a tribe says otherwise in its agreement, tribal records are not Federal records under chapter 5 of title 5. Tribes must keep records and, after 30 days’ notice, give the Secretary reasonable access so HHS can meet the recordkeeping rules in sections 3101–3106 of title 44. Tribes may redesign or combine programs and move funds among them if doing so does not deny services to groups who are otherwise eligible. A tribe may give back (retrocede) all or part of programs to the Secretary. Retrocession takes effect when the parties set a date, or if not set, on the earlier of 1 year after the request or the date the funding agreement ends, unless otherwise agreed. A tribe may withdraw its share from a tribal consortium or organization; that withdrawal follows the timeframe in the authorizing resolution or, if none, the earlier of 1 year after the request or the date the funding agreement ends, or another agreed date. A withdrawing tribe gets its fair share of funds, transferred from the consortium’s agreement, subject to sections 5321 and 5324(i). If a tribe chooses, programs can be run under a self-determination contract that is a mature self-determination contract. While a tribe is funded under this subchapter or its compact or funding agreement, it cannot contract with the Secretary for those same funds under section 5321, but it can compete for new programs like other tribes.

Title 25, §5386

Indians — Source: USLM XML via OLRC

(a)The provisions of this section shall apply to compacts and funding agreements negotiated under this subchapter and an Indian tribe may, at its option, include provisions that reflect such requirements in a compact or funding agreement.

(b)Indian tribes participating in self-governance under this subchapter shall ensure that internal measures are in place to address conflicts of interest in the administration of self-governance programs, services, functions, or activities (or portions thereof).

(c)(1)The provisions of chapter 75 of title 31 requiring a single agency audit report shall apply to funding agreements under this subchapter.

(2)An Indian tribe shall apply cost principles under the applicable Office of Management and Budget circular, except as modified by section 5325 of this title 11 So in original. other provisions of law, or by any exemptions to applicable Office of Management and Budget circulars subsequently granted by the Office of Management and Budget. No other audit or accounting standards shall be required by the Secretary. Any claim by the Federal Government against the Indian tribe relating to funds received under a funding agreement based on any audit under this subsection shall be subject to the provisions of section 5325(f) of this title.

(d)(1)Unless an Indian tribe specifies otherwise in the compact or funding agreement, records of the Indian tribe shall not be considered Federal records for purposes of chapter 5 of title 5.

(2)The Indian tribe shall maintain a recordkeeping system, and, after 30 days advance notice, provide the Secretary with reasonable access to such records to enable the Department of Health and Human Services to meet its minimum legal recordkeeping system requirements under sections 3101 through 3106 of title 44.

(e)An Indian tribe may redesign or consolidate programs, services, functions, and activities (or portions thereof) included in a funding agreement under section 5385 of this title and reallocate or redirect funds for such programs, services, functions, and activities (or portions thereof) in any manner which the Indian tribe deems to be in the best interest of the health and welfare 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)An Indian tribe may retrocede, fully or partially, to the Secretary programs, services, functions, or activities (or portions thereof) included in the compact or funding agreement. Unless the Indian tribe rescinds the request for retrocession, such retrocession will become effective within the timeframe specified by the parties in the compact or funding agreement. In the absence 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 agreement expires; or

(2)such date as may be mutually agreed upon by the Secretary and the Indian tribe.

(g)(1)(A)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 activity (or portions thereof) included in a compact or funding agreement.

(B)The withdrawal referred to in subparagraph (A) shall become effective within the timeframe specified in the resolution which authorizes transfer to the participating tribal 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)When an Indian tribe or tribal organization eligible to enter into a self-determination contract under subchapter I of this chapter or a compact or funding agreement under this subchapter 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 carrying 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 agreement 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 section 5321 and 5324(i) of this title, as appropriate, shall apply to that withdrawing Indian tribe.

(3)If an Indian tribe elects to operate all or some programs, services, functions, or activities (or portions thereof) carried out under a compact or funding agreement under this subchapter through a self-determination contract under subchapter I of this chapter, at the option of the Indian tribe, the resulting self-determination contract shall be a mature self-determination contract.

(h)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.

Notes & Related Subsidiaries

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-Determination Act, which is classified principally to subchapter I (§ 5321 et seq.) of this chapter. For complete classification 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 renumbering as this section.

§5386 General provisions