25 U.S.C. § 5392: Facilitation

Summary

Require the Secretary to read federal laws, orders, and rules in a way that helps tribes put programs and money into self-governance agreements, carry out compacts and funding deals, and meet tribal health goals. A tribe can ask in writing to waive certain federal rules for a compact or funding agreement, saying which rule and why. The Secretary must say yes or no in writing within 90 days. A denial is allowed only if federal law forbids the waiver. If the Secretary does not reply in 90 days, the waiver is treated as approved. The Secretary’s decision is final for the Department. When asked, the Secretary must let a tribe use government schools, hospitals, and other buildings, plus their equipment, under terms the tribe and Secretary agree to. The Secretary may give excess federal property to a tribe. Property bought with compact funds or given for compact use will usually go to the tribe unless the tribe asks otherwise. If that property is worth more than $5,000 when control is returned, withdrawn, or taken back, the Secretary may take title back. Such property can still be replaced or maintained as if the United States owned it. The Secretary may also get surplus government property to donate to tribes. Money given under compacts counts as non‑Federal money for matching or cost‑share rules. States are urged to pass laws and make deals with tribes to support these programs. Any unclear language must be read broadly to help the tribe, and doubts are resolved in the tribe’s favor.

Title 25, §5392

Indians, Source: USLM XML via OLRC

(a)Secretarial interpretation

Except as otherwise provided by law, the Secretary shall interpret all Federal laws, Executive orders, and regulations in a manner that will facilitate—

(1)the inclusion of programs, services, functions, and activities (or portions thereof) and funds associated therewith, in the agreements entered into under this section;

(2)the implementation of compacts and funding agreements entered into under this subchapter; and

(3)the achievement of tribal health goals and objectives.

(b)Regulation waiver

(1)In general

An Indian tribe may submit a written request to waive application of a regulation promulgated under section 5397 of this title or the authorities specified in section 5385(b) of this title for a compact or funding agreement entered into with the Indian Health Service under this subchapter, to the Secretary identifying the applicable Federal regulation sought to be waived and the basis for the request.

(2)Approval

Not later than 90 days after receipt by the Secretary of a written request by an Indian tribe to waive application of a regulation for a compact or funding agreement entered into under this subchapter, the Secretary shall either approve or deny the requested waiver in writing. A denial may be made only upon a specific finding by the Secretary that identified language in the regulation may not be waived because such waiver is prohibited by Federal law. A failure to approve or deny a waiver request not later than 90 days after receipt shall be deemed an approval of such request. The Secretary’s decision shall be final for the Department.

(c)Access to Federal property

In connection with any compact or funding agreement executed pursuant to this subchapter or an agreement negotiated under the Tribal Self-Governance Demonstration Project established under title III, as in effect before August 18, 2000, upon the request of an Indian tribe, the Secretary—

(1)shall permit an Indian tribe to use existing school buildings, hospitals, and other facilities and all equipment therein or appertaining thereto and other personal property owned by the Government within the Secretary’s jurisdiction under such terms and conditions as may be agreed upon by the Secretary and the Indian tribe for their use and maintenance;

(2)may donate to an Indian tribe title to any personal or real property found to be excess to the needs of any agency of the Department, or the General Services Administration, except that—

(A)subject to the provisions of subparagraph (B), title to property and equipment furnished by the Federal Government for use in the performance of the compact or funding agreement or purchased with funds under any compact or funding agreement shall, unless otherwise requested by the Indian tribe, vest in the appropriate Indian tribe;

(B)if property described in subparagraph (A) has a value in excess of $5,000 at the time of retrocession, withdrawal, or reassumption, at the option of the Secretary upon the retrocession, withdrawal, or reassumption, title to such property and equipment shall revert to the Department of Health and Human Services; and

(C)all property referred to in subparagraph (A) shall remain eligible for replacement, maintenance, and improvement on the same basis as if title to such property were vested in the United States; and

(3)shall acquire excess or surplus Government personal or real property for donation to an Indian tribe if the Secretary determines the property is appropriate for use by the Indian tribe for any purpose for which a compact or funding agreement is authorized under this subchapter.

(d)Matching or cost-participation requirement

All funds provided under compacts, funding agreements, or grants made pursuant to this chapter, shall be treated as non-Federal funds for purposes of meeting matching or cost participation requirements under any other Federal or non-Federal program.

(e)State facilitation

States are hereby authorized and encouraged to enact legislation, and to enter into agreements with Indian tribes to facilitate and supplement the initiatives, programs, and policies authorized by this subchapter and other Federal laws benefiting Indians and Indian tribes.

(f)Rules of construction

Each provision of this subchapter and each provision of a compact or funding agreement shall be liberally construed for the benefit of the Indian tribe participating in self-governance and any ambiguity shall be resolved in favor of the Indian tribe.

Notes & Related Subsidiaries

Editorial Notes

References in Text

Title III, referred to in subsec. (c), means title III of Pub. L. 93–638, as added by Pub. L. 100–472, title II, § 209, Oct. 5, 1988, 102 Stat. 2296, which was set out as a note under former section 450f of this title prior to repeal by Pub. L. 106–260, § 10, Aug. 18, 2000, 114 Stat. 734. This chapter, referred to in subsec. (d), was in the original “this Act”, meaning Pub. L. 93–638, Jan. 4, 1975, 88 Stat. 2203, known as the Indian Self-Determination 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. Codification Section was formerly classified to section 458aaa–11 of this title prior to editorial reclassification and renumbering as this section.

§5392 Facilitation