25 U.S.C. § 5361 | Definitions

In this subchapter:

(1)

Compact

section 5364 of this titleThe term “compact” means a self-governance compact entered into under .

(2)

Construction program; construction project

The term “construction program” or “construction project” means a Tribal undertaking relating to the administration, planning, environmental determination, design, construction, repair, improvement, or expansion of roads, bridges, buildings, structures, systems, or other facilities for purposes of housing, law enforcement, detention, sanitation, water supply, education, administration, community, health, irrigation, agriculture, conservation, flood control, transportation, or port facilities, or for other Tribal purposes.

(3)

Department

The term “Department” means the Department of the Interior.

(4)

Funding agreement

section 5363 of this titleThe term “funding agreement” means a funding agreement entered into under .

(5)

Gross mismanagement

The term “gross mismanagement” means a significant violation, shown by a preponderance of the evidence, of a compact, funding agreement, or statutory or regulatory requirement applicable to Federal funds for a program administered by an Indian Tribe under a compact or funding agreement.

(6)

Inherent Federal function

The term “inherent Federal function” means a Federal function that may not legally be delegated to an Indian Tribe.

(7)

Non-BIA program

The term “non-BIA program” means all or a portion of a program, function, service, or activity that is administered by any bureau, service, office, or agency of the Department of the Interior other than—

(A)

the Bureau of Indian Affairs;

(B)

the Office of the Assistant Secretary for Indian Affairs; or

(C)

the Office of the Special Trustee for American Indians.

(8)

Program

The term “program” means any program, function, service, or activity (or portion thereof) within the Department that is included in a funding agreement.

(9)

Secretary

The term “Secretary” means the Secretary of the Interior.

(10)

Self-determination contract

section 5321 of this titleThe term “self-determination contract” means a self-determination contract entered into under .

(11)

Self-governance

section 5362 of this titleThe term “self-governance” means the Tribal Self-Governance Program established under .

(12)

Tribal share

The term “Tribal share” means the portion of all funds and resources of an Indian Tribe that—

(A)

support any program within the Bureau of Indian Affairs, the Office of the Special Trustee for American Indians, or the Office of the Assistant Secretary for Indian Affairs; and

(B)

are not required by the Secretary for the performance of an inherent Federal function.

(13)

Tribal water rights settlement

The term “Tribal water rights settlement” means any settlement, compact, or other agreement expressly ratified or approved by an Act of Congress that—

(A)

includes an Indian Tribe and the United States as parties; and

(B)

quantifies or otherwise defines any water right of the Indian Tribe.

Pub. L. 93–638, title IV, § 401 Pub. L. 103–413, title II, § 204Oct. 25, 1994108 Stat. 4271 Pub. L. 116–180, title I, § 101(b)Oct. 21, 2020134 Stat. 858(, as added , , ; , , .)

Editorial Notes

Codification

section 458aa of this titleSection was formerly classified to prior to editorial reclassification and renumbering as this section.

Amendments

Pub. L. 116–180 section 5362 of this title2020— amended section generally. Prior to amendment, section related to establishment of a Tribal Self-Governance program. See .

Statutory Notes and Related Subsidiaries

Short Title

section 201 of Pub. L. 103–413 section 5301 of this titleFor short title of this subchapter as the “Tribal Self-Governance Act of 1994”, see , set out as a Short Title of 1994 Amendment note under .

Construction of 2020 Amendment

Pub. L. 116–180, title I, § 101(a)Oct. 21, 2020134 Stat. 857

section 5301 of this title“Nothing in this Act [see Short Title of 2020 Amendment note set out under ], or the amendments made by this Act, shall be construed—

“(1)

to modify, limit, expand, or otherwise affect—

“(A)

25 U.S.C. 5301Oct. 21, 2020 the authority of the Secretary of the Interior, as provided for under the Indian Self-Determination and Education Assistance Act [ et seq.] (as in effect on the day before the date of enactment of this Act []), regarding—

“(i)

25 U.S.C. 5361 25 U.S.C. 5363(c) the inclusion of any non-BIA program (as defined in section 401 of the Indian Self-Determination and Education Assistance Act []) in a self-determination contract or funding agreement under section 403(c) of such Act [] (as so in effect); or

“(ii)

the implementation of any contract or agreement described in clause (i) that is in effect on the day described in subparagraph (A);

“(B)

the meaning, application, or effect of any Tribal water rights settlement, including the performance required of a party thereto or any payment or funding obligation thereunder;

“(C)

the authority, jurisdiction, or responsibility of a State to manage, control, or regulate fish and wildlife under State law (including regulations) on land or water in the State, including Federal public land;

“(D)

except for the authority provided to the Secretary as described in subparagraph (A), the applicability or effect of any Federal law related to the protection or management of fish or wildlife; or

“(E)

any treaty-reserved right or other right of any Indian Tribe as recognized by any other means, including treaties or agreements with the United States, Executive orders, statutes, regulations, or case law; or

“(2)

to authorize any provision of a contract or agreement that is not consistent with the terms of a Tribal water rights settlement.”

, , , provided that:

Application of Other Provisions

Pub. L. 116–180, title II, § 201(d)Oct. 21, 2020134 Stat. 879

25 U.S.C. 5304 Public Law 101–512 104 Stat. 1959 25 U.S.C. 5321 25 U.S.C. 5361“Sections 4, 5, 6, 7, 102(c), 104, 105(a)(1), 105(f), 110, and 111 of the Indian Self-Determination and Education Assistance Act (, 5305, 5306, 5307, 5321(c), 5323, 5324(a)(1), 5324(f), 5331, and 5332) and section 314 of the Department of the Interior and Related Agencies Appropriations Act, 1991 (; ) [ note], apply to compacts and funding agreements entered into under title IV of the Indian Self-Determination and Education Assistance Act ( et seq.).”

, , , provided that:

Congressional Statement of Findings

Pub. L. 103–413, title II, § 202Oct. 25, 1994108 Stat. 4270

“Congress finds that—

“(1)

the tribal right of self-government flows from the inherent sovereignty of Indian tribes and nations;

“(2)

the United States recognizes a special government-to-government relationship with Indian tribes, including the right of the tribes to self-governance, as reflected in the Constitution, treaties, Federal statutes, and the course of dealings of the United States with Indian tribes;

“(3)

although progress has been made, the Federal bureaucracy, with its centralized rules and regulations, has eroded tribal self-governance and dominates tribal affairs;

“(4)

Pub. L. 93–638, title III Pub. L. 100–472, title II, § 209Oct. 5, 1988102 Stat. 2296 25 U.S.C. 450f the Tribal Self-Governance Demonstration Project [see , as added by , , , formerly set out as a note under former ] was designed to improve and perpetuate the government-to-government relationship between Indian tribes and the United States and to strengthen tribal control over Federal funding and program management; and

“(5)

Congress has reviewed the results of the Tribal Self-Governance Demonstration Project and finds that—

“(A)

transferring control to tribal governments, upon tribal request, over funding and decisionmaking for Federal programs, services, functions, and activities, or portions thereof, is an effective way to implement the Federal policy of government-to-government relations with Indian tribes; and

“(B)

transferring control to tribal governments, upon tribal request, over funding and decisionmaking for Federal programs, services, functions, and activities strengthens the Federal policy of Indian self-determination.”

, , , provided that:

Congressional Declaration of Policy

Pub. L. 103–413, title II, § 203Oct. 25, 1994108 Stat. 4271

“It is the policy of this title [enacting this subchapter] to permanently establish and implement tribal self-governance—

“(1)

to enable the United States to maintain and improve its unique and continuing relationship with, and responsibility to, Indian tribes;

“(2)

to permit each Indian tribe to choose the extent of the participation of such tribe in self-governance;

“(3)

Pub. L. 93–638 section 5301 of this title to coexist with the provisions of the Indian Self-Determination Act [title I of , see Short Title note set out under ] relating to the provision of Indian services by designated Federal agencies;

“(4)

to ensure the continuation of the trust responsibility of the United States to Indian tribes and Indian individuals;

“(5)

to permit an orderly transition from Federal domination of programs and services to provide Indian tribes with meaningful authority to plan, conduct, redesign, and administer programs, services, functions, and activities that meet the needs of the individual tribal communities; and

“(6)

to provide for an orderly transition through a planned and measurable parallel reduction in the Federal bureaucracy.”

, , , provided that: