§ 5321.
(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. 5342 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 5325(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
So in original. Probably should be “paragraph,”.
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
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 5325(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 5331(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 chapter. 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.
(f)
Good faith requirement
In the negotiation of contracts and funding agreements, the Secretary shall—
(1)
at all times negotiate in good faith to maximize implementation of the self-determination policy; and
(2)
carry out this chapter in a manner that maximizes the policy of Tribal self-determination, in a manner consistent with—
(B)
the PROGRESS for Indian Tribes Act.
([Pub. L. 93–638, title I, § 102], formerly §§ 102 and 103(c), Jan. 4, 1975, [88 Stat. 2206]; [Pub. L. 100–202, § 101(g) [title II, § 201]], Dec. 22, 1987, [101 Stat. 1329–213], 1329–246; [Pub. L. 100–446, title II, § 201], Sept. 27, 1988, [102 Stat. 1817]; renumbered § 102 and amended [Pub. L. 100–472, title II, § 201(a)], (b)(1), Oct. 5, 1988, [102 Stat. 2288], 2289; [Pub. L. 100–581, title II, § 210], Nov. 1, 1988, [102 Stat. 2941]; [Pub. L. 101–644, title II, § 203(b)], Nov. 29, 1990, [104 Stat. 4666]; [Pub. L. 103–413, title I, § 102(5)]–(9), Oct. 25, 1994, [108 Stat. 4251–4253]; [Pub. L. 106–260, § 6], Aug. 18, 2000, [114 Stat. 732]; [Pub. L. 116–180, title II, § 202], Oct. 21, 2020, [134 Stat. 879].)