25 U.S.C. § 5386: General provisions

Summary

Apply these rules to compacts and funding agreements made under this part. An Indian tribe can choose to include them in its compact or funding agreement. Tribes must have internal rules to deal with conflicts of interest when they run programs, services, functions, or activities under self-governance. Tribes must follow the Single Audit Act (chapter 75 of title 31) for audits. They must use cost rules from the applicable Office of Management and Budget circular, unless changed by section 5325, other law, or an OMB exemption. The Secretary cannot require other audit standards. Any federal claim from those audits follows section 5325(f). Tribal records are not federal records unless the tribe says so in its agreement. Tribes must keep records and, after 30 days’ written notice, give the Secretary reasonable access so the Department of Health and Human Services can meet federal recordkeeping laws (title 44, sections 3101–3106). A tribe may redesign or combine programs and move money as it thinks best for the community, as long as it does not deny services to groups who are eligible under federal law. A tribe may give back (retrocede) some or all programs to the Secretary. Retrocession takes effect on the date the parties set. If they do not set a date, it becomes effective on the earlier of 1 year after the tribe’s request or the date the funding agreement ends, or on a date both agree. A tribe may withdraw from an inter-tribal consortium or organization. The withdrawal date follows the consortium’s resolution; if none, it is the earlier of 1 year after request or the funding agreement’s end, or a date agreed on by the parties. A withdrawing tribe gets its fair share of funds based on how money was first divided, and those funds are moved from the consortium’s agreement subject to sections 5321 and 5324(i). If a tribe chooses to run programs under a self-determination contract instead, that contract can be treated as a mature self-determination contract. While a tribe is funded under this subchapter or its compact, it cannot also contract with the Secretary for the 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)Applicability

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)Conflicts of interest

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)Audits

(1)Single Agency Audit Act

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

(2)Cost principles

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 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)Records

(1)In general

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)Recordkeeping system

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)Redesign and consolidation

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)Retrocession

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

(B)Effective date

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)Distribution of funds

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)Regaining mature contract status

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)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.

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