Regulations last checked for updates: Jan 18, 2025

Title 25 - Indians last revised: Jan 15, 2025
Table of Contents

§ 1000.801 - What is the purpose of this subpart?

§ 1000.805 - What is a funding agreement for a non-BIA program?

§ 1000.810 - What non-BIA programs are eligible for inclusion in a funding agreement?

§ 1000.815 - Are there non-BIA programs for which the Secretary must negotiate for inclusion in a funding agreement subject to such terms as the parties may negotiate?

§ 1000.820 - What programs are included under section 403(b)(2) (25 U.S.C. 5363(b)(2))?

§ 1000.825 - What programs are included under section 403(c) (25 U.S.C. 5363(c))?

§ 1000.830 - What does “special geographic, historical or cultural” mean?

§ 1000.835 - Under section 403(b)(2) (25 U.S.C. 5363(b)(2)), when must programs be awarded non-competitively?

§ 1000.840 - May a non-BIA bureau include in a funding agreement, on a non-competitive basis, programs of special geographic, historical, or cultural significance?

§ 1000.845 - Are there any non-BIA programs that may not be included in a funding agreement?

§ 1000.850 -

§ 1000.855 - Will Tribes/Consortia participate in the Secretary's determination of what is to be included on the annual list of available programs?

§ 1000.860 - How will the Secretary consult with Tribes/Consortia in developing the list of available programs?

§ 1000.865 - What else is on the list in addition to eligible programs?

§ 1000.870 - May a bureau negotiate with a Tribe/Consortium for programs not specifically included on the annual list pursuant to 25 U.S.C. 5372(c)?

§ 1000.875 - How will a bureau negotiate a funding agreement for a program of special geographic, historical, or cultural significance to more than one Tribe/Consortium?

§ 1000.880 - When will this determination be made?

§ 1000.885 - What funds are included in a non-BIA funding agreement?

§ 1000.890 - How are indirect cost rates determined?

§ 1000.895 - How does the Secretary determine the amount of indirect costs for a non-BIA funding agreement?

§ 1000.900 - May the bureaus negotiate terms to be included in a funding agreement for non-BIA programs?

§ 1000.905 - Can a Tribe/Consortium reallocate, consolidate, and redesign funds for a non-BIA program?

§ 1000.910 - Do Tribes/Consortia need Secretarial approval to reallocate funds between title I eligible programs that the Tribe/Consortium administers under a non-BIA funding agreement?

§ 1000.915 - Can a Tribe/Consortium negotiate a funding agreement with a non-BIA bureau for which the performance period exceeds one year?

§ 1000.920 - Can the terms and conditions in a non-BIA funding agreement be amended during the year it is in effect?

§ 1000.925 - What happens if a funding agreement expires before the effective date of the successor Funding Agreement?

§ 1000.801 - What is the purpose of this subpart?

This subpart describes program eligibility, funding, terms, and conditions of funding agreements for non-BIA programs.

§ 1000.805 - What is a funding agreement for a non-BIA program?

Funding agreements for non-BIA programs are legally binding and mutually enforceable agreements between a bureau and a Tribe/Consortium participating in the self-governance program that contain:

(a) A description of that portion or portions of a bureau program that are to be performed by the Tribe/Consortium; and

(b) Associated funding, terms and conditions under which the Tribe/Consortium will assume a program, or portion of a program.

§ 1000.810 - What non-BIA programs are eligible for inclusion in a funding agreement?

Programs authorized by sections 403(b)(2) and 403(c) (25 U.S.C. 5363(b)(2) and 5363(c)), as amended, are eligible for inclusion in a funding agreement. The Secretary will publish annually a list of these programs in accordance with 25 U.S.C. 5372(c)(3) and (4).

§ 1000.815 - Are there non-BIA programs for which the Secretary must negotiate for inclusion in a funding agreement subject to such terms as the parties may negotiate?

Yes, those programs, or portions thereof, that are eligible for inclusion in funding agreements under section 403(b)(2) (25 U.S.C. 5363(b)(2).

§ 1000.820 - What programs are included under section 403(b)(2) (25 U.S.C. 5363(b)(2))?

Those non-BIA programs, or portions thereof, that are eligible for inclusion in funding agreements under the Act, as amended.

§ 1000.825 - What programs are included under section 403(c) (25 U.S.C. 5363(c))?

Non-BIA programs within the Department of special geographic, historical, or cultural significance to participating Tribes, individually or as members of a Consortium, are eligible for inclusion in funding agreements under section 403(c) (25 U.S.C. 5363(c)).

§ 1000.830 - What does “special geographic, historical or cultural” mean?

(a) Geographic generally refers to all lands presently “on or near” an Indian reservation, and all other lands within “Indian country,” as defined by 18 U.S.C. 1151. In addition, “geographic” includes:

(1) Lands of former reservations;

(2) Lands on or near those conveyed or to be conveyed under the Alaska Native Claims Settlement Act (ANCSA);

(3) Judicially established aboriginal lands of a Tribe or a Consortium member or as verified by the Secretary; and

(4) Lands and waters pertaining to Indian rights in natural resources, hunting, fishing, gathering, and subsistence activities, provided or protected by treaty or other applicable law.

(b) Historical generally refers to programs or lands having a particular history that is relevant to the Tribe. For example, particular trails, forts, significant sites, or educational activities that relate to the history of a particular Tribe.

(c) Cultural refers to programs, sites, or activities as defined by individual Tribal traditions and may include, for example:

(1) Sacred and medicinal sites;

(2) Gathering of medicines or materials such as grasses for basket weaving; or

(3) Other traditional activities, including, but not limited to, subsistence hunting, fishing, and gathering.

(d) In determining whether a Tribe/Consortium has demonstrated a non-BIA program's special geographic, historical or cultural significance to such Tribe/Consortium, the Secretary shall interpret each Federal law and regulation in a manner that will facilitate the inclusion of a program in, and the implementation of, a funding agreement.

§ 1000.835 - Under section 403(b)(2) (25 U.S.C. 5363(b)(2)), when must programs be awarded non-competitively?

Non-BIA programs eligible for inclusion in funding agreements under the Act, as amended, must be awarded non-competitively.

§ 1000.840 - May a non-BIA bureau include in a funding agreement, on a non-competitive basis, programs of special geographic, historical, or cultural significance?

Yes, if there is a special geographic, historical, or cultural significance to the program or activity administered by the bureau, the law affords the non-BIA bureau the discretion to include the programs or activities in a funding agreement on a non-competitive basis.

§ 1000.845 - Are there any non-BIA programs that may not be included in a funding agreement?

(a) Inherently Federal functions in accordance with 25 U.S.C. 5361(6) and 5363(k).

(b) Programs where the statute establishing the existing program does not authorize the type of participation sought by the Tribe/Consortium. In determining whether a statute “does not authorize the type of participation sought by” the Tribe/Consortium within the meaning of 25 U.S.C. 5363(k), the Department shall take the following factors into consideration:

(1) Tribes need not be identified in an authorizing statute in order for a program, or element of a program, to be included in a funding agreement;

(2) The lack of specificity in a statute by itself does not create a blanket exclusion from inclusion of a program, or element of a program, in a funding agreement; and

(3) It is not an adequate ground to refuse to compact specific functions that are not inherently Federal in character, simply because an organic statute vests an agency with generic management authority over a broad category of land.

(c) The Secretary shall interpret each Federal law and regulation in a manner that facilitates:

(1) The inclusion of programs in funding agreements; and

(2) The implementation of funding agreements.

§ 1000.850 -

No, the Act, as amended, favors the inclusion of a wide range of programs.

§ 1000.855 - Will Tribes/Consortia participate in the Secretary's determination of what is to be included on the annual list of available programs?

Yes, the Secretary must consult each year with Tribes/Consortia participating in self-governance programs regarding which bureau programs are eligible for inclusion in funding agreements. If a Tribe/Consortium makes a written request for a program to be included on the annual list for non-BIA reporting found in subpart P of this part (§§ 1000.2010(c) and 1000.2012), the Secretary must provide a written rationale if the Secretary does not include such program.

§ 1000.860 - How will the Secretary consult with Tribes/Consortia in developing the list of available programs?

(a) The Secretary shall consult with Tribes/Consortia in developing the list of available programs in accordance with subpart T of this part.

(b) In addition to the requirements in subpart T of this part:

(1) The Secretary must publish the previous year's list of available programs in accordance with 25 U.S.C. 5372(c)(3) in the Federal Register prior to October 1 of each year. The list must include:

(i) All of the Secretary's proposed additions and revisions for the coming year with an explanation; and

(ii) Programmatic targets detailed in § 1000.2010(e) and an initial point of contact for each bureau.

(2) If the Secretary does not plan to include a Tribal suggestion or revision in the final published list, the Secretary must provide to such Tribe/Consortium a written explanation of reasons consistent with § 1000.855.

§ 1000.865 - What else is on the list in addition to eligible programs?

The list will also include programmatic targets and an initial point of contact for each bureau. Programmatic targets will be established as part of the consultation process described in § 1000.860.

§ 1000.870 - May a bureau negotiate with a Tribe/Consortium for programs not specifically included on the annual list pursuant to 25 U.S.C. 5372(c)?

Yes, the annual list will specify that bureaus will negotiate for other programs eligible under 25 U.S.C. 5363(b)(2) when requested by a Tribe/Consortium. Bureaus may negotiate for 25 U.S.C. 5363(c) programs whether or not they are on the list.

§ 1000.875 - How will a bureau negotiate a funding agreement for a program of special geographic, historical, or cultural significance to more than one Tribe/Consortium?

(a) If a program is of special geographic, historical, or cultural significance to more than one Tribe/Consortium, the bureau may allocate the program among the several Tribes/Consortia through separate funding agreements or select one Tribe/Consortium with whom to negotiate a funding agreement.

(b) In making a determination under paragraph (a) of this section, the bureau will, in consultation with the affected Tribes/Consortia, consider:

(1) The special significance of each Tribe's or Consortium member's interest; and

(2) The statutory objectives being served by the bureau program.

(c) The bureau's decision will be final for the Department.

§ 1000.880 - When will this determination be made?

It will occur during the pre-negotiation process, subject to the timeframes in subpart H of this part (see e.g., §§ 1000.1035 and 1000.1050).

§ 1000.885 - What funds are included in a non-BIA funding agreement?

Non-BIA bureaus determine the amount of funding to be included in the funding agreement using the following principles:

(a) 403(b)(2) Programs (25 U.S.C. 5363(b)(2)). In general, funds are provided in a funding agreement to the Tribe/Consortium in an amount equal to the amount that it is eligible to receive under section 106 of the Act, as amended.

(b) 403(c) Programs (25 U.S.C. 5363(c)). (1) The funding agreement will include:

(i) Amounts equal to the direct program or project costs the bureau would have incurred were it to operate that program at the level of work mutually agreed to in the funding agreement; and:

(ii) Allowable indirect costs; and

(iii) Such amounts as the Tribe/Consortium and the Secretary may negotiate for pre-award, start-up and direct contract support costs.

(2) A bureau is not required to include management and support funds from the regional or central office level in a funding agreement, unless:

(i) The Tribe/Consortium will perform work previously performed at the regional or central office level;

(ii) The work is not compensated in the indirect cost rate; and

(iii) Including management and support costs in the funding agreement does not result in the Tribe/Consortium being paid twice for the same work when negotiated indirect cost rate is applied.

§ 1000.890 - How are indirect cost rates determined?

The Department's Interior Business Center (IBC) or other cognizant Federal agency and the Tribe/Consortium negotiate indirect cost rates. These rates are based on the applicable provisions of subpart E of 2 CFR part 200, or other applicable OMB cost circular and the provisions of title I of the Act, as amended. These rates are used generally by all Federal agencies for contracts and grants with the Tribe/Consortium, including self-governance agreements.

§ 1000.895 - How does the Secretary determine the amount of indirect costs for a non-BIA funding agreement?

The Secretary determines the amount of indirect costs for a non-BIA funding agreement by:

(a) Applying the negotiated indirect cost rate to the appropriate direct cost base; or

(b) At the Tribe's/Consortium's option, negotiating a lump sum amount for indirect costs.

§ 1000.900 - May the bureaus negotiate terms to be included in a funding agreement for non-BIA programs?

Yes, as provided for by 25 U.S.C. 5363(b)(2) and 5363(c) and as necessary to meet program mandates while consistent with this subpart, provided, however, that a bureau may not require in a funding agreement that a Tribe/Consortium retain, hire or assign a Federal employee in a contracted program, nor may a bureau condition its approval of a funding agreement upon a requirement that a Tribe/Consortium retain, hire or assign a Federal employee in a contracted program.

§ 1000.905 - Can a Tribe/Consortium reallocate, consolidate, and redesign funds for a non-BIA program?

Yes, 25 U.S.C. 5365(d)(2) permits such reallocation, consolidation, and redesign upon joint agreement of the Secretary and the Tribe/Consortium.

§ 1000.910 - Do Tribes/Consortia need Secretarial approval to reallocate funds between title I eligible programs that the Tribe/Consortium administers under a non-BIA funding agreement?

No, unless otherwise required by law, the Secretary does not have to approve the reallocation of funds with the exception of construction projects.

§ 1000.915 - Can a Tribe/Consortium negotiate a funding agreement with a non-BIA bureau for which the performance period exceeds one year?

Yes, subject to the terms of the funding agreement, a Tribe/Consortium and a non-BIA bureau may agree to provide for the performance under the funding agreement to extend beyond the fiscal year. However, the Secretary may not obligate funds in excess and advance of available appropriations.

§ 1000.920 - Can the terms and conditions in a non-BIA funding agreement be amended during the year it is in effect?

Yes, terms and conditions in a non-BIA funding agreement may be amended during the year it is in effect as agreed to by both the Tribe/Consortium and the Secretary.

§ 1000.925 - What happens if a funding agreement expires before the effective date of the successor Funding Agreement?

If the effective date of a successor funding agreement is not on or before the expiration of the current funding agreement, subject to terms mutually agreed upon by the Tribe/Consortium and the Secretary at the time the current funding agreement was negotiated or in a subsequent amendment, the Tribe/Consortium may continue to carry out the program authorized under the funding agreement to the extent resources permit. During this extension period, the current funding agreement shall remain in effect, including coverage of the Tribe/Consortium under the Federal Tort Claims Act (FTCA) 28 U.S.C. 2671-2680 (1994); and the Tribe/Consortium may use any funds remaining under the funding agreement, savings from other programs or Tribal funds to carry out the program. Nothing in this section authorizes a funding agreement to be continued beyond the completion of the program authorized under the funding agreement or the amended funding agreement. This section also does not entitle a Tribe/Consortium to receive, nor does it prevent a Tribe/Consortium from receiving, additional funding under any successor funding agreement. The successor funding agreement must provide funding to the Tribe/Consortium at a level necessary for the Tribe/Consortium to perform the PSFA, or portions thereof, for the full period they were or will be performed.

authority: 25 U.S.C. 5373
source: 89 FR 100245, Dec. 11, 2024, unless otherwise noted.
cite as: 25 CFR 1000.835