25 U.S.C. § 450f : US Code - Section 450F: Self-determination contracts

Search 25 U.S.C. § 450f : US Code - Section 450F: Self-determination contracts

(a) Request by tribe; authorized programs
(1) The Secretary is directed, upon the request of any Indian
tribe by tribal resolution, to enter into a self-determination
contract or contracts with a tribal organization to plan, conduct,
and administer programs or portions thereof, including construction
programs -
(A) provided for in the Act of April 16, 1934 (48 Stat. 596),
as amended [25 U.S.C. 452 et seq.];
(B) which the Secretary is authorized to administer for the
benefit of Indians under the Act of November 2, 1921 (42 Stat.
208) [25 U.S.C. 13], and any Act subsequent thereto;
(C) provided by the Secretary of Health and Human Services
under the Act of August 5, 1954 (68 Stat. 674), as amended [42
U.S.C. 2001 et seq.];
(D) administered by the Secretary for the benefit of Indians
for which appropriations are made to agencies other than the
Department of Health and Human Services or the Department of the
Interior; and
(E) for the benefit of Indians because of their status as
Indians without regard to the agency or office of the Department
of Health and Human Services or the Department of the Interior
within which it is performed.
The programs, functions, services, or activities that are
contracted under this paragraph shall include administrative
functions of the Department of the Interior and the Department of
Health and Human Services (whichever is applicable) that support
the delivery of services to Indians, including those administrative
activities supportive of, but not included as part of, the service
delivery programs described in this paragraph that are otherwise
contractable. The administrative functions referred to in the
preceding sentence shall be contractable without regard to the
organizational level within the Department that carries out such
functions.
(2) If so authorized by an Indian tribe under paragraph (1) of
this subsection, a tribal organization may submit a proposal for a
self-determination contract, or a proposal to amend or renew a self-
determination contract, to the Secretary for review. Subject to
the provisions of paragraph (4), the Secretary shall, within ninety
days after receipt of the proposal, approve the proposal and award
the contract unless the Secretary provides written notification to
the applicant that contains a specific finding that clearly
demonstrates that, or that is supported by a controlling legal
authority that -
(A) the service to be rendered to the Indian beneficiaries of
the particular program or function to be contracted will not be
satisfactory;
(B) adequate protection of trust resources is not assured;
(C) the proposed project or function to be contracted for
cannot be properly completed or maintained by the proposed
contract;
(D) the amount of funds proposed under the contract is in
excess of the applicable funding level for the contract, as
determined under section 450j-1(a) of this title; or
(E) the program, function, service, or activity (or portion
thereof) that is the subject of the proposal is beyond the scope
of programs, functions, services, or activities covered under
paragraph (1) because the proposal includes activities that
cannot lawfully be carried out by the contractor.
Notwithstanding any other provision of law, the Secretary may
extend or otherwise alter the 90-day period specified in the second
sentence of this subsection,(!1) if before the expiration of such
period, the Secretary obtains the voluntary and express written
consent of the tribe or tribal organization to extend or otherwise
alter such period. The contractor shall include in the proposal of
the contractor the standards under which the tribal organization
will operate the contracted program, service, function, or
activity, including in the area of construction, provisions
regarding the use of licensed and qualified architects, applicable
health and safety standards, adherence to applicable Federal,
State, local, or tribal building codes and engineering standards.
The standards referred to in the preceding sentence shall ensure
structural integrity, accountability of funds, adequate competition
for subcontracting under tribal or other applicable law, the
commencement, performance, and completion of the contract,
adherence to project plans and specifications (including any
applicable Federal construction guidelines and manuals), the use of
proper materials and workmanship, necessary inspection and testing,
and changes, modifications, stop work, and termination of the work
when warranted.
(3) Upon the request of a tribal organization that operates two
or more mature self-determination contracts, those contracts may be
consolidated into one single contract.
(4) The Secretary shall approve any severable portion of a
contract proposal that does not support a declination finding
described in paragraph (2). If the Secretary determines under such
paragraph that a contract proposal -
(A) proposes in part to plan, conduct, or administer a program,
function, service, or activity that is beyond the scope of
programs covered under paragraph (1), or
(B) proposes a level of funding that is in excess of the
applicable level determined under section 450j-1(a) of this
title,
subject to any alteration in the scope of the proposal that the
Secretary and the tribal organization agree to, the Secretary
shall, as appropriate, approve such portion of the program,
function, service, or activity as is authorized under paragraph (1)
or approve a level of funding authorized under section 450j-1(a) of
this title. If a tribal organization elects to carry out a
severable portion of a contract proposal pursuant to this
paragraph, subsection (b) of this section shall only apply to the
portion of the contract that is declined by the Secretary pursuant
to this subsection.
(b) Procedure upon refusal of request to contract
Whenever the Secretary declines to enter into a self-
determination contract or contracts pursuant to subsection (a) of
this section, the Secretary shall -
(1) state any objections in writing to the tribal organization,
(2) provide assistance to the tribal organization to overcome
the stated objections, and
(3) provide the tribal organization 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, under such rules and regulations as the
Secretary may promulgate, except that the tribe or tribal
organization may, in lieu of filing such appeal, exercise the
option to initiate an action in a Federal district court and
proceed directly to such court pursuant to section 450m-1(a) of
this title.
(c) Liability insurance; waiver of defense
(1) Beginning in 1990, the Secretary shall be responsible for
obtaining or providing liability insurance or equivalent coverage,
on the most cost-effective basis, for Indian tribes, tribal
organizations, and tribal contractors carrying out contracts, grant
agreements and cooperative agreements pursuant to this subchapter.
In obtaining or providing such coverage, the Secretary shall take
into consideration the extent to which liability under such
contracts or agreements are covered by the Federal Tort Claims Act.
(2) In obtaining or providing such coverage, the Secretary shall,
to the greatest extent practicable, give a preference to coverage
underwritten by Indian-owned economic enterprises as defined in
section 1452 of this title, except that, for the purposes of this
subsection, such enterprises may include non-profit corporations.
(3)(A) Any policy of insurance obtained or provided by the
Secretary pursuant to this subsection shall contain a provision
that the insurance carrier shall waive any right it may have to
raise as a defense the sovereign immunity of an Indian tribe from
suit, but that such waiver shall extend only to claims the amount
and nature of which are within the coverage and limits of the
policy and shall not authorize or empower such insurance carrier to
waive or otherwise limit the tribe's sovereign immunity outside or
beyond the coverage or limits of the policy of insurance.
(B) No waiver of the sovereign immunity of an Indian tribe
pursuant to this paragraph shall include a waiver to the extent of
any potential liability for interest prior to judgment or for
punitive damages or for any other limitation on liability imposed
by the law of the State in which the alleged injury occurs.
(d) Tribal organizations and Indian contractors deemed part of
Public Health Service
For purposes of section 233 of title 42, with respect to claims
by any person, initially filed on or after December 22, 1987,
whether or not such person is an Indian or Alaska Native or is
served on a fee basis or under other circumstances as permitted by
Federal law or regulations for personal injury, including death,
resulting from the performance prior to, including, or after
December 22, 1987, of medical, surgical, dental, or related
functions, including the conduct of clinical studies or
investigations, or for purposes of section 2679, title 28, with
respect to claims by any such person, on or after November 29,
1990, for personal injury, including death, resulting from the
operation of an emergency motor vehicle, an Indian tribe, a tribal
organization or Indian contractor carrying out a contract, grant
agreement, or cooperative agreement under sections (!2) 450f or
450h of this title is deemed to be part of the Public Health
Service in the Department of Health and Human Services while
carrying out any such contract or agreement and its employees
(including those acting on behalf of the organization or contractor
as provided in section 2671 of title 28 and including an individual
who provides health care services pursuant to a personal services
contract with a tribal organization for the provision of services
in any facility owned, operated, or constructed under the
jurisdiction of the Indian Health Service) are deemed employees of
the Service while acting within the scope of their employment in
carrying out the contract or agreement: Provided, That such
employees shall be deemed to be acting within the scope of their
employment in carrying out such contract or agreement when they are
required, by reason of such employment, to perform medical,
surgical, dental or related functions at a facility other than the
facility operated pursuant to such contract or agreement, but only
if such employees are not compensated for the performance of such
functions by a person or entity other than such Indian tribe,
tribal organization or Indian contractor.
(e) Burden of proof at hearing or appeal declining contract; final
agency action
(1) With respect to any hearing or appeal conducted pursuant to
subsection (b)(3) of this section or any civil action conducted
pursuant to section 450m-1(a) of this title, the Secretary shall
have the burden of proof to establish by clearly demonstrating the
validity of the grounds for declining the contract proposal (or
portion thereof).
(2) Notwithstanding any other provision of law, a decision by an
official of the Department of the Interior or the Department of
Health and Human Services, as appropriate (referred to in this
paragraph as the "Department") that constitutes final agency action
and that relates to an appeal within the Department that is
conducted under subsection (b)(3) of this section shall be made
either -
(A) 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 (such as the Indian Health Service or
the Bureau of Indian Affairs) in which the decision that is the
subject of the appeal was made; or
(B) by an administrative judge.