§5387 — Title 25 Indians | U.S. Code

Summary

Require that compacts and funding agreements let the tribe report health status and how services are delivered when that data isn’t already available and the Secretary provides specific money for it. The reporting must not be a big burden on the tribe and must follow rules made under section 5397. Agreements must also let the Secretary take back a program, service, or funding if the Secretary finds either (1) an imminent danger to public health caused by the tribe’s failure to follow the agreement, or (2) gross mismanagement of funds (after consulting the Inspector General). Before taking back operations the Secretary must give written notice and a hearing and allow the tribe to fix the problem, except the Secretary may act immediately if there is an imminent, substantial, and irreparable danger to public health; if immediate action is taken, the Secretary must hold a hearing within 10 days. In any hearing or appeal, the Secretary must prove the reasons for reassuming control by clear and convincing evidence. If the tribe and the Secretary cannot agree on a compact or funding levels, the tribe may send a final offer. The Secretary must decide within 45 days (or a longer time the tribe agrees to), and if the Secretary does not timely reject the offer under the rules below, the offer is treated as accepted. If the Secretary rejects all or part of the offer, the Secretary must send a timely written notice with specific findings showing why (for example, the money requested is more than the tribe is entitled to, the activity is an inherent federal duty, the tribe cannot safely run it, or the tribe is not eligible under section 5383). The Secretary must also provide technical help, a hearing with full discovery and the right to appeal (or the tribe may go straight to Federal district court under section 5331(a)), and the option to accept any parts of the compact the Secretary did not reject while still appealing the rejected parts. The Secretary has the burden of proof by clear and convincing evidence in any hearing, appeal, or civil action about a rejection. The Secretary must negotiate in good faith to maximize tribal self-governance, make any unreleased savings from tribal operations available to tribes for services in an equitable way (per section 5388(c)), cannot reduce the federal trust responsibility to tribes, and final agency decisions on appeals within HHS must be made by a higher-level Department official or an administrative judge.

Title 25, §5387

Indians — Source: USLM XML via OLRC

(a)(1)Compacts or funding agreements negotiated between the Secretary and an Indian tribe shall include a provision that requires the Indian tribe to report on health status and service delivery—

(A)to the extent such data is not otherwise 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.

(2)(A)Compacts or funding agreements negotiated 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 agreement; or

(ii)gross mismanagement with respect to funds transferred to a tribe by a compact or funding agreement, as determined by the Secretary in consultation with the Inspector General, as appropriate.

(B)The Secretary shall not reassume operation of a program, service, function, or activity (or portions thereof) unless—

(i)the Secretary has first provided written notice and a hearing on the record to the Indian tribe; and

(ii)the Indian tribe has not taken corrective action to remedy the imminent endangerment to public health or gross mismanagement.

(C)(i)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 Indian tribe; and

(II)the endangerment arises out of a failure to carry out the compact or funding agreement.

(ii)If the Secretary reassumes operation of a program, service, function, or activity (or portion thereof) under this subparagraph, the Secretary shall provide the Indian tribe with a hearing on the record not later than 10 days after such reassumption.

(D)In any hearing or appeal involving a decision 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 convincing evidence the validity of the grounds for the reassumption.

(b)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 determination with respect to such offer. In the absence of a timely rejection of the offer, in whole or in part, made in compliance with subsection (c) of this section, the offer shall be deemed agreed to by the Secretary.

(c)(1)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 Indian tribe that contains a specific finding that clearly demonstrates, or that is supported 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 activity (or portion thereof) that is the subject of the final offer is an inherent Federal function that cannot legally be delegated 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 section 5383 of this title;

(B)technical assistance to overcome the objections stated in the notification required by subparagraph (A);

(C)the Indian tribe with a hearing on the record with the right to engage in full discovery 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, directly proceed to initiate an action in a Federal district court pursuant to section 5331(a) of this title; and

(D)the Indian tribe with the option of entering 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 funding agreement to the severed provisions.

(2)If an Indian tribe exercises the option specified in paragraph (1)(D), that Indian tribe shall retain the right to appeal the Secretary’s rejection 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)With respect to any hearing or appeal or civil action conducted pursuant to this section, the Secretary shall have the burden of demonstrating 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)In the negotiation of compacts and funding agreements the Secretary shall at all times negotiate in good faith to maximize implementation of the self-governance policy. The Secretary shall carry out this subchapter in a manner that maximizes the policy of tribal self-governance, in a manner consistent with the purposes specified in section 3 of the Tribal Self-Governance Amendments of 2000.

(f)To the extent that programs, functions, services, or activities (or portions thereof) carried out by Indian tribes under this subchapter reduce 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 organizations for the provision of additional services to program beneficiaries in a manner equitable to directly served, contracted, and compacted programs.

(g)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 exists under treaties, Executive orders, other laws, or court decisions.

(h)A decision that constitutes final agency action and relates to an appeal within the Department 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.

Notes & Related Subsidiaries

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 renumbering as this section.

§5387 Provisions Relating to the Secretary