This part is prepared and issued by the Secretary of the Interior under the negotiated rulemaking procedures in 5 U.S.C. 565.
403(c) Program means a non-BIA program eligible under section 403(c) of the Indian Self-Determination and Education Assistance Act of 1975, as amended, 25 U.S.C. 450 et seq. and, specifically, a program, function, service, or activity that is of special geographic, historical or cultural significance to a self-governance Tribe/Consortium. These programs may be referred to, also, as “nexus” programs.
Act means the Tribal Self-Governance Act, Title IV of the Indian Self-Determination and Education Assistance Act of 1975, Pub. L. 93–638, as added by Pub. L. 103–413, amended by Pub. L. 104–109, as amended.
Applicant pool means Tribes/Consortia that the Director of the Office of Self-Governance has determined are eligible to participate in self-governance in accordance with §1000.16 of these regulations.
BIA means the Bureau of Indian Affairs of the Department of the Interior.
BIA Program means any program, service, function, or activity, or portion thereof, that is performed or administered by the Department through the Bureau of Indian Affairs.
Bureau means a bureau or office of the Department of the Interior.
Compact means an executed document that affirms the government-to-government relationship between a self-governance Tribe and the United States. The compact differs from an annual funding agreement (AFA) in that parts of the compact apply to all bureaus within the Department of the Interior rather than a single bureau.
Consortium means an organization of Indian Tribes that is authorized by those Tribes to participate in self-governance under this part and is responsible for negotiating, executing, and implementing annual funding agreements and compacts.
Construction management services (CMS) means activities limited to administrative support services, coordination, oversight of engineers and construction activities. CMS services include services that precede project design: all project design and actual construction activities are subject to Subpart K of these regulations whether performed by a Tribe subcontractor, or consultant.
Days means calendar days, except where the last day of any time period specified in this part falls on a Saturday, Sunday, or a Federal holiday, the period must carry over to the next business day unless otherwise prohibited by law.
Director means the Director of the Office of Self-Governance (OSG).
DOI or Department means the Department of the Interior.
Funding year means either fiscal or calendar year.
Indian means a person who is a member of an Indian Tribe.
Indian Tribe or Tribe means any Indian Tribe, band, nation or other organized group or community, including pueblos, rancherias, colonies and any Alaska Native village, or regional or village corporations as defined in or established pursuant to the Alaska Native Claims Settlement Act, that is recognized as eligible for special programs and services provided by the United States to Indians because of their status as Indians.
Indirect cost rates means the rate(s) arrived at through negotiation between an Indian Tribe/Consortium and the appropriate Federal agency.
Indirect costs means costs incurred for a common or joint purpose benefitting more than one program and that are not readily assignable to individual programs.
Nexus Program means a 403(c) Program as defined in this section.
Non-BIA Bureau means any bureau or office within the Department of the Interior other than the Bureau of Indian Affairs.
Non-BIA programs means those programs administered by bureaus or offices other than the Bureau of Indian Affairs within the Department of the Interior.
Office of Self-Governance (OSG) means the office within the Office of the Assistant Secretary-Indian Affairs responsible for the implementation and development of the Tribal Self-Governance Program.
Program means any program, service, function, or activity, or portions of programs administered by a bureau within the Department of the Interior.
Pub. L. 93–638 means sections 1–9 and Title I of the Indian Self-Determination and Education Assistance Act of 1975, as amended.
Reassumption means that the Secretary reassumes control or operation of a program under §1000.300 et seq.
Retained Tribal shares means those funds that were available as a Tribal share but under the AFA were left with BIA to administer.
Retrocession means the voluntary return by a Tribe/Consortium to a bureau of a program operated under an AFA before the agreement expires.
Secretary means the Secretary of the Interior (DOI) or his or her designee authorized to act on the behalf of the Secretary as to the matter at hand.
Self-governance Tribe/Consortium means a Tribe or Consortium that participates in permanent self-governance through application and selection from the applicant pool or has participated in the Tribal self-governance demonstration project. May also be referred to as “participating Tribe/Consortium.”
Successor AFA means a funding agreement negotiated after a Tribe's/Consortium's initial agreement with a bureau for continuing to perform a particular program. The parties to the AFA should generally use the terms of the existing AFA to expedite and simplify the exchange of information and the negotiation process.
Tribal share means the amount determined for that Tribe/Consortium for a particular program at BIA region, agency, and central office levels under sec. 403(g)(3) and 405(d) of the Act.
§ 1000.3 Purpose and scope.
(a) General. This part codifies uniform and consistent rules for the Department of the Interior (DOI) in implementing Title IV of the Indian Self-Determination and Education Assistance Act (ISDEA) Public Law 93–638, 25 U.S.C. 450 et seq., as amended by Title II of Pub. L. 103–413, the Tribal Self-Governance Act of 1994 (108 Stat. 4250, October 25, 1994).
(b) Information Collection. The information provided by the Tribes will be used by the Department for a variety of purposes. The first purpose will be to ensure that qualified applicants are admitted into the applicant pool consistent with the requirements of the Act. In addition, Tribes seeking grant assistance to meet the planning requirements for admission into the applicant pool, will provide information so that grants can be awarded to Tribes meeting basic eligibility ( i.e. Tribal resolution indicating that the Tribe wants to plan for Self-Governance and has no material audit exceptions for the last three years of audits). There is no confidential information being solicited and confidentiality is not extended under the law. Other documentation is required to meet the reporting requirements as called for in section 405 of the Act. The information being provided by the Tribes is required to obtain a benefit, however, no person is required to respond to an information collection request unless the form or regulation requesting the information has a currently valid OMB control (clearance) number. Comments were solicited from the Tribes and the general public with respect to this collection. No adverse comments were received. The information collection has been cleared by OMB. The number is OMB control #1076–0143. The approval expires on April 30, 2003.
§ 1000.4 Policy statement.
(a) Congressional findings. In the Tribal Self-Governance Act of 1994, the Congress found that:
(1) The Tribal right of self-governance 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 had been made, the Federal bureaucracy, with its centralized rules and regulations, had eroded Tribal self-governance and dominated Tribal affairs;
(4) The Tribal Self-Governance Demonstration Project 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:
(i) Transferring control over funding and decision making to Tribal governments, upon Tribal request, for Federal programs is an effective way to implement the Federal policy of government-to-government relations with Indian Tribes; and
(ii) Transferring control over funding and decision making to Tribal governments, upon request, for Federal programs strengthens the Federal policy of Indian self-determination.
(b) Congressional declaration of policy. It is the policy of the Tribal Self-Governance Act to permanently establish and implement 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 Tribe to choose the extent of its participation in self-governance;
(3) To coexist with the provisions of the Indian Self-Determination and Education Assistance Act 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.
(c) Secretarial self-governance policies. (1) It is the policy of the Secretary to fully support and implement the foregoing policies to the full extent of the Secretary's authority.
(2) It is the policy of the Secretary to recognize and respect the unique government-to-government relationship between Tribes, as sovereign governments, and the United States.
(3) It is the policy of the Secretary to have all bureaus of the Department work cooperatively and pro-actively with Tribes and Tribal Consortia on a government-to-government basis within the framework of the Act and any other applicable provision of law, so as to make the ideals of self-determination and self-governance a reality.
(4) It is the policy of the Secretary to have all bureaus of the Department actively share information with Tribes and Tribal Consortia to encourage Tribes and Tribal Consortia to become knowledgeable about the Department's programs and the opportunities to include them in an annual funding agreement.
(5) It is the policy of the Secretary that all bureaus of the Department will negotiate in good faith, interpret each applicable Federal law and regulation in a manner that will facilitate the inclusion of programs in each annual funding agreement authorized, and enter into such annual funding agreements under Title IV, whenever possible.
(6) It is the policy of the Secretary to afford Tribes and Tribal Consortia the maximum flexibility and discretion necessary to meet the needs of their communities consistent with their diverse demographic, geographic, economic, cultural, health, social, religious, and institutional needs. These policies are designed to facilitate and encourage Tribes and Tribal Consortia to participate in the planning, conduct, and administration of those Federal programs, included, or eligible for inclusion in an annual funding agreement.
(7) It is the policy of the Secretary, to the extent of the Secretary's authority, to maintain active communication with Tribal governments regarding budgetary matters applicable to programs subject to the Act, and that are included in an individual self-governance annual funding agreement.
(8) It is the policy of the Secretary to implement policies, procedures, and practices at the Department to ensure that the letter, spirit, and goals of the Tribal Self-Governance Act are fully and successfully implemented.
(9) Executive Order 13084 on Consultation and Coordination with Indian Tribal Governments and any subsequent Executive Orders regarding consultation will apply to the implementation of these regulations.
Subpart B—Selection of Additional Tribes for Participation in Tribal Self-Governance
§ 1000.14 Who is eligible to participate in Tribal self-governance?
Two types of entities are eligible to participate in Tribal self-governance:
(a) Indian Tribes; and
(b) Consortia of Indian Tribes.
§ 1000.15 How many additional Tribes/Consortia may participate in self-governance per year?
(a) Sections 402(b) and (c) of the Act authorize the Director to select up to 50 additional Indian Tribes per year from an “applicant pool”. A Consortium of Indian Tribes counts as one Tribe for purposes of calculating the 50 additional Tribes per year.
(b) Any signatory Tribe that signed a compact and AFA under the Tribal Self-Governance Demonstration project may negotiate its own compact and AFA in accordance with this subpart without being counted against the 50-Tribe limitation in any given year.
§ 1000.16 What criteria must a Tribe/Consortium satisfy to be eligible for admission to the “applicant pool”?
To be admitted into the applicant pool, a Tribe/Consortium must either be an Indian Tribe or a Consortium of Indian Tribes and comply with §1000.17.
§ 1000.17 What documents must a Tribe/Consortium submit to OSG to apply for admission to the applicant pool?
In addition to the application required by §1000.23, the Tribe/Consortium must submit to OSG documentation that shows all of the following:
(a) Successful completion of a planning phase and a planning report. The requirements for both of these are described in §1000.19 and §1000.20. A Consortium's planning activities satisfy this requirement for all its member Tribes for the purpose of the Consortium meeting this requirement;
(b) A request for participation in self-governance by a Tribal resolution and/or a final official action by the Tribal governing body. For a Consortium, the governing body of each Tribe must authorize its participation by a Tribal resolution and/or a final official action by the Tribal governing body that specifies the scope of the Consortium's authority to act on behalf of the Tribe.
(c) A demonstration of financial stability and financial management capability for the previous 3 fiscal years. This will be done by providing, as part of the application, an audit report prepared in accordance with procedures promulgated under the Single Audit Act Amendments of 1996, 31 U.S.C. 7501, et seq., for the previous 3 years of the self-determination contracts. These audits must not contain material audit exceptions as defined in §1000.21.
§ 1000.18 May a Consortium member Tribe withdraw from the Consortium and become a member of the applicant pool?
In accordance with the expressed terms of the compact or written agreement of the Consortium, a Consortium member Tribe (either a signatory or nonsignatory Tribe) may withdraw from the Consortium to directly negotiate a compact and AFA. The withdrawing Tribe must do the following.
(a) Independently meet all of the eligibility criteria in §§1000.14 through 1000.20. If a Consortium's planning activities and report specifically consider self-governance activities for a member Tribe, that planning activity and report may be used to satisfy the planning requirements for the member Tribe if it applies for self-governance status on its own.
(b) Submit a notice of withdrawal to OSG and the Consortium as evidenced by a resolution of the Tribal governing body.
§ 1000.19 What is done during the “planning phase”?
The Act requires that all Tribes/Consortia seeking to participate in Tribal self-governance complete a planning phase. During the planning phase, the Tribe/Consortium must conduct legal and budgetary research and internal Tribal government and organizational planning. The availability of BIA grant funds for planning activities will be in accordance with subpart C. The planning phase may be completed without a planning grant.
§ 1000.20 What is required in a planning report?
As evidence that the Tribe/Consortium has completed the planning phase, the Tribe/Consortium must prepare and submit to the Secretary a final planning report.
(a) The planning report must:
(1) Identify BIA and non-BIA programs that the Tribe/Consortium may wish to subsequently negotiate for inclusion in a compact and AFA;
(2) Describe the Tribe's/Consortium's planning activities for both BIA and non-BIA programs that may be negotiated;
(3) Identify the major benefits derived from the planning activities;
(4) Identify the process that the Tribe/Consortium will use to resolve any complaints by service recipients;
(5) Identify any organizational planning that the Tribe/Consortium has completed in anticipation of implementing Tribal self-governance; and
(6) Indicate if the Tribe's/Consortium's planning efforts have revealed that its current organization is adequate to assume programs under Tribal self-governance.
(b) In supplying the information required by paragraph (a)(5) of this section:
(1) For BIA programs, a Tribe/Consortium should describe the process that it will use to debate and decide the setting of priorities for the funds it will receive from its AFA.
(2) For non-BIA programs that the Tribe/Consortium may wish to negotiate, the report should describe how the Tribe/Consortium proposes to perform the programs.
§ 1000.21 When does a Tribe/Consortium have a “material audit exception”?
A Tribe/Consortium has a material audit exception if any of the audits that it submitted under §1000.17(c) identifies:
(a) A material weakness, that is a condition in which the design or operation of one or more of the internal control components does reduce to a relatively low level the risk that misstatements in amounts that would be material in relation to the financial statements being audited may occur and not be detected within a timely period by employees in the normal course of performing their assigned functions;
(b) a single finding of known questioned costs subsequently disallowed by a contracting officer or awarding official that exceeds $10,000. If the audits submitted under §1000.17(c) identify any of the conditions described in this section, the Tribe/Consortium must also submit copies of the contracting officer's findings and determinations.
§ 1000.22 What are the consequences of having a material audit exception?
If a Tribe/Consortium has a material audit exception, the Tribe/Consortium is ineligible to participate in self-governance until the Tribe/Consortium meets the eligibility criteria in §1000.16.
ADMISSION INTO THE APPLICANT POOL
§ 1000.23 How is a Tribe/Consortium admitted to the applicant pool?
To be considered for admission in the applicant pool, a Tribe/Consortium must submit an application to the Director, Office of Self-Governance, 1849 C Street NW; MS 2542–MIB; Department of the Interior; Washington, DC 20240. The application must contain the documentation required in §1000.17.
§ 1000.24 When does OSG accept applications to become a member of the applicant pool?
OSG accepts applications to become a member of the applicant pool at any time.
§ 1000.25 What are the deadlines for a Tribe/Consortium in the applicant pool to negotiate a compact and annual funding agreement (AFA)?
(a) To be considered for negotiations in any year, a Tribe/Consortium must be a member of the applicant pool on March 1 of the year in which the negotiations are to take place.
(b) An applicant may be admitted into the applicant pool during one year and selected to negotiate a compact and AFA in a subsequent year. In this case, the applicant must, before March 1 of the negotiation year, submit to OSG updated documentation that permits OSG to evaluate whether the Tribe/Consortium still satisfies the application criteria in 1000.17.
§ 1000.26 Under what circumstances will a Tribe/Consortium be removed from the applicant pool?
Once admitted into the applicant pool, a Tribe/Consortium will only be removed if it:
(a) Fails to satisfy the audit criteria in §1000.17(c); or
(b) Submits to OSG a Tribal resolution and/or official action by the Tribal governing body requesting removal.
§ 1000.27 How does the Director select which Tribes in the applicant pool become self-governance Tribes?
The Director selects up to the first 50 Tribes from the applicant pool in any given year ranked according to the earliest postmark date of complete applications. If multiple complete applications have the same postmark date and there are insufficient slots available for that year, the Director will determine priority through random selection. A representative of each Tribe/Consortium that has submitted an application subject to random selection may, at the option of the Tribe/Consortium, be present when the selection is made.
§ 1000.28 What happens if an application is not complete?
(a) If OSG determines that a Tribe's/Consortium's application is deficient, OSG will immediately notify the Tribe/Consortium of the deficiency by letter, certified mail, return receipt requested. The letter will explain what the Tribe/Consortium must do to correct the deficiency.
(b) The Tribe/Consortium will have 20 working days from the date of receiving the letter to mail or telefax the corrected material and retain the applicant's original postmark.
(c) If the corrected material is deficient, the date of entry into the applicant pool will be the date the complete application is postmarked.
(d) If the postmark or date on the applicant's response letter or telefax is more than 20 working days after the date the applicant received the notice-of-deficiency letter, the date of entry into the applicant pool will be the date of full receipt of a completed application.
§ 1000.29 What happens if a Tribe/Consortium is selected from the applicant pool but does not execute a compact and an AFA during the calendar year?
(a) The Tribe/Consortium remains eligible to negotiate a compact and annual funding agreement at any time unless:
(1) It notifies the Director in writing that it no longer wishes to be eligible to participate in the Tribal Self-Governance Program;
(2) Fails to satisfy the audit requirements of §1000.17(c); or
(3) Submits documentation evidencing a Tribal resolution requesting removal from the application pool.
(b) The failure of the Tribe/Consortium to execute an agreement has no effect on the selection of up to 50 additional Tribes/Consortia in a subsequent year.
§ 1000.30 May a Tribe/Consortium be selected to negotiate an AFA under section 403(b)(2) without having or negotiating an AFA under section 403(b)(1)?
Yes, a Tribe/Consortium may be selected to negotiate an AFA under section 403(b)(2) without having or negotiating an AFA under section 403(b)(1).
§ 1000.31 May a Tribe/Consortium be selected to negotiate an AFA under section 403(c) without negotiating an AFA under section 403(b)(1) and/or section 403(b)(2)?
No, section 403(c) of the Act states that any programs of special geographic, cultural, or historical significance to the Tribe/Consortium must be included in AFAs negotiated under section 403(a) and/or section 403(b). A Tribe may be selected to negotiate an AFA under section 403(c) at the same time that it negotiates an AFA under section 403(b)(1) and/or section 403(b)(2).
WITHDRAWAL FROM A CONSORTIUM ANNUAL FUNDING AGREEMENT
§ 1000.32 What happens when a Tribe wishes to withdraw from a Consortium annual funding agreement?
(a) A Tribe wishing to withdraw from a Consortium's AFA must notify the Consortium, bureau, and OSG of the intent to withdraw. The notice must be:
(1) In the form of a Tribal resolution or other official action by the Tribal governing body; and
(2) Received no later than 180 days before the effective date of the next AFA.
(b) The resolution referred to in paragraph (a)(1) of this section must indicate whether the Tribe wishes the withdrawn programs to be administered under a Title IV AFA, Title I contract, or directly by the bureau.
(c) The effective date of the withdrawal will be the date on which the current agreement expires, unless the Consortium, the Tribe, OSG, and the appropriate bureau agree otherwise.
§ 1000.33 What amount of funding is to be removed from the Consortium's AFA for the withdrawing Tribe?
When a Tribe withdraws from a Consortium, the Consortium's AFA must be reduced by the portion of funds attributable to the withdrawing Tribe. The Consortium must reduce the AFA on the same basis or methodology upon which the funds were included in the Consortium's AFA.
(a) If there is not a clear identifiable methodology upon which to base the reduction for a particular program, the Consortium, Tribe, OSG, and the bureau must negotiate an appropriate amount on a case-by-case basis.
(b) If a Tribe withdraws in the middle of a funding year, the Consortium agreement must be amended to reflect:
(1) A reduction based on the amount of funds passed directly to the Tribe, or already spent or obligated by the Consortium on behalf of the Tribe; and
(2) That the Consortium is no longer providing those programs associated with the withdrawn funds.
(c) Carryover funds from a previous fiscal year may be factored into the amount by which the Consortium agreement is reduced if:
(1) The Consortium, Tribe, OSG, and bureau agree it is appropriate; and
(2) The funds are clearly identifiable.
§ 1000.34 What happens if there is a dispute between the Consortium and the withdrawing Tribe?
(a) At least 15 days before the 90-day Congressional review period of the next AFA, the Consortium, OSG, bureau, and the withdrawing Tribe must reach an agreement on the amount of funding and other issues associated with the program or programs involved.
(b) If agreement is not reached:
(1) For BIA and OIEP programs, at least 5 days before the 90-day Congressional review, the Director must make a decision on the funding or other issues involved.
(2) For non-BIA programs, the bureau head will make a decision on the funding or other issues involved.
(c) A copy of the decision made under paragraph (b) of this section must be distributed in accordance with the following table.
|If the program is . . .||then a copy of the decision must be sent to . . .|
|(1) A BIA program||BIA regional director, the Deputy Commissioner of Indian Affairs, the withdrawing Tribe, and the Consortium.|
|(2) An OIEP program||the OIEP line officer, the Director of OIEP, the withdrawing Tribe, and the Consortium.|
(d) Any decision made under paragraph (b) of this section is appealable under subpart R of this part.
§ 1000.35 When a Tribe withdraws from a Consortium, is the Secretary required to award to the withdrawing Tribe a portion of funds associated with a construction project if the withdrawing Tribe so requests?
Under §1000.32 of this part, a Tribe may withdraw from a Consortium and request that the Secretary award the Tribe its portion of a construction project's funds. The Secretary may decide not to award these funds if the Secretary determines that the award of the withdrawing Tribe's portion of funds would affect the ability of the remaining members of the Consortium to complete a severable or non-severable phase of the project within available funding.
(a) An example of a non-severable phase of a project would be the construction of a single building to serve all members of a Consortium.
(b) An example of a severable phase of a project would be the funding of a road in one village where the Consortium would be able to complete the roads in other villages that were part of the project approved initially in the AFA.
(c) The Secretary's decision under this section may be appealed under §1000.428 of these regulations.
Subpart C—Section 402(d) Planning and Negotiation Grants
§ 1000.49 Who can apply for an advance planning grant?
Any Tribe/Consortium that is not a self-governance Tribe and needs advance funding to complete the planning phase requirement may apply. Tribes/Consortia that have received a planning grant within 3 years preceding the date of the latest   Federal Register announcement are not eligible.
§ 1000.50 What must a Tribe/Consortium seeking a planning grant submit in order to meet the planning phase requirements?
A Tribe/Consortium must submit the following material:
(a) A Tribal resolution or other final action of the Tribal governing body indicating a desire to plan for Tribal self-governance.
(b) Audits from the last 3 years that document that the Tribe/Consortium is free from material audit exceptions. In order to meet this requirement, a Tribe/Consortium may use the audit currently being conducted on its operations if this audit is submitted before the Tribe/Consortium completes the planning activity.
(c) A proposal that includes:
(1) The Tribe's/Consortium's plans for conducting legal and budgetary research;
(2) The Tribe's/Consortium's plans for conducting internal Tribal government and organizational planning;
(3) A timeline indicating when planning will start and end, and;
(4) Evidence that the Tribe/Consortium can perform the tasks associated with its proposal (i.e., resumes and position descriptions of key staff or consultants to be used).
§ 1000.51 How will Tribes/Consortia know when and how to apply for planning grants?
The number and size of grants awarded each year will depend on Congressional appropriations. By no later than January 1 of each year, the Director will publish in the   Federal Register a notice concerning the availability of planning grants for additional Tribes. This notice must identify the specific details for applying.
§ 1000.52 What criteria will the Director use to award advance planning grants?
Advance planning grants are discretionary and based on need. The Director will use the following criteria to determine whether or not to award a planning grant to a Tribe/Consortium before the Tribe/Consortium is selected into the applicant pool.
(a) Completeness of application as described in §1000.50.
(b) Financial need. The Director will rank applications according to the percent of Tribal resources that comprise total resources covered by the latest A–133 audit. Priority will be given to applications that have a lower level of Tribal resources as a percent of total resources.
(c) Other factors that the Tribe may identify as documenting its previous efforts to participate in self-governance and demonstrating its readiness to enter into a self-governance agreement.
§ 1000.53 Can Tribes/Consortia that receive advance planning grants also apply for a negotiation grant?
Yes, Tribes/Consortia that successfully complete the planning activity and are selected may apply to be included in the applicant pool. Once approved for inclusion in the applicant pool, the Tribe/Consortium may apply for a negotiation grant according to the process in §§1000.46–1000.48.
§ 1000.54 How will a Tribe/Consortium know whether or not it has been selected to receive an advance planning grant?
No later than June 1, the Director will notify the Tribe/Consortium by letter whether it has been selected to receive an advance planning grant.
§ 1000.55 Can a Tribe/Consortium appeal within DOI the Director's decision not to award a grant under this subpart?
No, the Director's decision to award or not to award a grant under this subpart is final for the Department.
Subpart D—Other Financial Assistance for Planning and Negotiation Grants for Non-BIA Programs
§ 1000.62 Who can apply to OSG for grants to plan and negotiate non-BIA programs?
Any Tribe/Consortium that is in the applicant pool, or has been selected from the applicant pool or that has an existing AFA.
§ 1000.63 Under what circumstances may planning and negotiation grants be awarded to Tribes/Consortia?
At the discretion of the Director, grants may be awarded when requested by the Tribe. Tribes/Consortia may submit only one application per year for a grant under this section.
§ 1000.64 How does the Tribe/Consortium know when and how to apply to OSG for a planning and negotiation grant?
When funds are available, the Director will publish a notice in the   Federal Register announcing their availability and a deadline for submitting an application.
§ 1000.65 What kinds of activities do planning and negotiation grants support?
The planning and negotiation grants support activities such as, but not limited to, the following:
(a) Information gathering and analysis;
(b) Planning activities, that may include notification and consultation with the appropriate non-BIA bureau and identification and/or analysis of activities, resources, and capabilities that may be needed for the Tribe/Consortium to assume non-BIA programs; and
(c) Negotiation activities.
§ 1000.66 What must be included in the application?
The application for a planning and negotiation grant must include:
(a) Written notification by the governing body or its authorized representative of the Tribe's/Consortium's intent to engage in planning/negotiation activities like those described in §1000.65;
(b) Written description of the planning and/or negotiation activities that the Tribe/Consortium intends to undertake, including, if appropriate, documentation of the relationship between the proposed activities and the Tribe/Consortium;
(c) The proposed timeline for completion of the planning and/or negotiation activities to be undertaken; and
(d) The amount requested from OSG.
§ 1000.67 How will the Director award planning and negotiation grants?
The Director must review all grant applications received by the date specified in the announcement to determine whether or not the applications include the required elements outlined in the announcement. OSG must rank the complete applications submitted by the deadline using the criteria in §1000.70.
§ 1000.68 May non-BIA bureaus provide technical assistance to a Tribe/Consortium in drafting its planning grant application?
Yes, upon request from the Tribe/Consortium, a non-BIA bureau may provide technical assistance to the Tribe/Consortium in the drafting of its planning grant application.
§ 1000.69 How can a Tribe/Consortium obtain comments or selection documents received or utilized after OSG has made a decision on a planning grant application?
A Tribe/Consortium may request comments or selection documents under the Freedom of Information Act.
§ 1000.70 What criteria will the Director use to rank the applications and how many maximum points can be awarded for each criterion?
The Director will use the following criteria and point system to rank the applications:
(a) The application contains a clear statement of objectives and timelines to complete the proposed planning or negotiation activity and demonstrates that the objectives are legally authorized and achievable. (20 points)
(b) The proposed budget expenses are reasonable. (10 points)
(c) The proposed project demonstrates a new or unique approach to Tribal self-governance or broadens self-governance to include new activities within the Department. (5 points)
§ 1000.71 Can an applicant appeal a decision not to award a grant?
No, all decisions made by the Director to award or not to award a grant under this subpart are final for the Department.
§ 1000.72 Will OSG notify Tribes/Consortia and affected non-BIA bureaus of the results of the selection process?
Yes, OSG will notify all applicant Tribes/Consortia and affected non-BIA bureaus in writing as soon as possible after completing the selection process.
§ 1000.73 Once a Tribe/Consortium has been awarded a grant, may the Tribe/Consortium obtain information from a non-BIA bureau?
Yes, see §1000.169.
Subpart E—Annual Funding Agreements for Bureau of Indian Affairs Programs
§ 1000.86 What types of programs may be included in an AFA?
A Tribe/Consortium may include in its AFA programs administered by BIA, without regard to the BIA agency or office that administers the program, including any program identified in section 403(b)(1) of the Act.
§ 1000.87 How does the AFA specify the services provided, functions performed, and responsibilities assumed by the Tribe/Consortium and those retained by the Secretary?
(a) The AFA must specify in writing the services, functions, and responsibilities to be assumed by the Tribe/Consortium and the functions, services, and responsibilities to be retained by the Secretary.
(b) Any division of responsibilities between the Tribe/Consortium and BIA should be clearly stated in writing as part of the AFA. Similarly, when there is a relationship between the program and BIA's residual responsibility, the relationship should be in writing.
§ 1000.88 Do Tribes/Consortia need Secretarial approval to redesign BIA programs that the Tribe/Consortium administers under an AFA?
No, the Secretary does not have to approve a redesign of a program under the AFA, except when the redesign involves a waiver of a regulation.
(a) The Secretary must approve any waiver, in accordance with subpart J of this part, before redesign takes place.
(b) This section does not authorize redesign of programs where other prohibitions exist.
(c) Redesign shall not result in the Tribe/Consortium being entitled to receive more or less funding for the program from BIA.
(d) Redesign of construction project(s) included in an AFA must be done in accordance with subpart K of this part.
§ 1000.89 Can the terms and conditions in an AFA be amended during the year it is in effect?
Yes, terms and conditions in an AFA may be amended during the year it is in effect as agreed to by both the Tribe/Consortium and the Secretary.
§ 1000.90 What happens if an AFA expires before the effective date of the successor AFA?
If the effective date of the successor AFA is not on or before the expiration of the current AFA, subject to terms mutually agreed upon by the Tribe/Consortium and the Department at the time the current AFA was negotiated or in a subsequent amendment, the Tribe/Consortium may continue to carry out the program authorized under the AFA to the extent adequate resources are available. During this extension period, the current AFA 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 AFA, savings from other programs or Tribal funds to carry out the program. Nothing in this section authorizes an AFA to be continued beyond the completion of the program authorized under the AFA or the amended AFA. This section also does not entitle a Tribe/Consortium to receive, nor does it prevent a Tribe from receiving, additional funding under any successor AFA. The successor AFA must provide funding to the Tribe/Consortium at a level necessary for the Tribe/Consortium to perform the programs, functions, services, and activities or portions thereof (PFSAs) for the full period it was or will be performed.
§ 1000.91 What funds must be transferred to a Tribe/Consortium under an AFA?
(a) At the option of the Tribe/Consortium, the Secretary must provide the following program funds to the Tribe/Consortium through an AFA:
(1) An amount equal to the amount that the Tribe/Consortium would have been eligible to receive under contracts and grants for direct programs and contract support under Title I of Pub. L. 93–638, as amended;
(2) Any funds that are specifically or functionally related to providing services and benefits to the Tribe/Consortium or its members by the Secretary without regard to the organizational level within BIA where such functions are carried out; and
(3) Any funds otherwise available to Indian Tribes or Indians for which appropriations are made to agencies other than the Department of the Interior;
(b) Examples of the funds referred to in paragraphs (a)(1) and (a)(2) of this section are:
(1) A Tribe's/Consortium's Pub. L. 93–638 contract amounts;
(2) Negotiated amounts of agency, regional and central office funds, including previously undistributed funds or new programs on the same basis as they are made available to other Tribes;
(3) Other recurring funding;
(4) Non-recurring funding;
(5) Special projects, if applicable;
(7) Wildland firefighting accounts;
(8) Competitive grants; and
(9) Congressional earmarked funding.
(c) An example of the funds referred to in paragraph (a)(3) of this section is Federal Highway Administration funds.
§ 1000.92 What funds may not be included in an AFA?
Funds associated with programs prohibited from inclusion under section 403(b)(4) of the Act may not be included in an AFA.
§ 1000.93 May the Secretary place any requirements on programs and funds that are otherwise available to Tribes/Consortia or Indians for which appropriations are made to agencies other than DOI?
No, unless the Secretary is required to develop terms and conditions that are required by law or that are required by the agency to which the appropriation is made.
§ 1000.94 What are BIA residual funds?
BIA residual funds are the funds necessary to carry out BIA residual functions. BIA residual functions are those functions that only BIA employees could perform if all Tribes were to assume responsibilities for all BIA programs that the Act permits.
§ 1000.95 How is BIA's residual determined?
(a) Generally, residual information will be determined through a process that is consistent with the overall process used by the BIA. Residual information will consist of residual functions performed by the BIA, brief justification why the function is not compactible, and the estimated funding level for each residual function. Each regional office and the central office will compile a single document for distribution each year that contains all the residual information of that respective office. The development of the residual information will be based on the following principles. The BIA will:
(1) Develop uniform residual information to be used to negotiate residuals;
(2) Ensure functional consistency throughout BIA in the determination of residuals;
(3) Make the determination of residuals based upon the functions actually being performed by BIA at the respective office;
(4) Annually consult with Tribes on a region-by-region basis as requested by Tribes/Consortia; and
(5) Notify Tribal leaders each year by March 1 of the availability of residual information.
(b) BIA shall use the residual information determined under subparagraph (a) as the basis for negotiating with individual Tribes.
(c) In accordance with the appeals procedures in subpart R of this part, if BIA and a participating Tribe/Consortium disagree over the content of residual functions or amounts, Tribe/Consortium can appeal as shown in the following table.
|If a Tribe/Consortium . . .||the Tribe/Consortium may . . .||and . . .|
|(1) Disagrees with BIA's determination||appeal to the Deputy Commissioner||the Deputy Commissioner must make a written determination within 30 days of receiving the request.|
|(2) Disagrees with the Deputy Commissioner's determination||appeal to the Assistant Secretary—Indian Affairs||the Assistant Secretary's determination is final for the Department.|
(d) Information on residual functions may be amended if programs are added or deleted, if statutory or final judicial determinations mandate or if the Deputy Commissioner makes a determination that would alter the residual information or funding amounts. The decision may be appealed to the Assistant Secretary in accordance with subpart R of this part. The Assistant Secretary shall make a written determination within 30 days.
§ 1000.96 May a Tribe/Consortium continue to negotiate an AFA pending an appeal of residual functions or amounts?
Yes, pending appeal of a residual function or amount, any Tribe/Consortium may continue to negotiate an AFA using the residual information that is being appealed. The residual information will be subject to later adjustment based on the final determination of a Tribe's/Consortium's appeal.
§ 1000.97 What is a Tribal share?
A Tribal share is the amount determined for a particular Tribe/Consortium for a particular program at BIA regional, agency and central office levels under section 403(g)(3) and 405(d) of the Act.
§ 1000.98 How does BIA determine a Tribe's/Consortium's share of funds to be included in an AFA?
There are typically two methods for determining the amount of funds to be included in the AFA:
(a) Formula-driven. For formula-driven programs, a Tribe's/Consortium's amount is determined by first identifying the residual funds to be retained by BIA and second, by applying the distribution formula to the remaining eligible funding for each program involved.
(1) Distribution formulas must be reasonably related to the function or service performed by an office, and must be consistently applied to all Tribes within each regional and agency office.
(2) The process in paragraph (a) of this section for calculating a Tribe's funding under self-governance must be consistent with the process used for calculating funds available to non-self-governance Tribes.
(b) Tribal-specific. For programs whose funds are not distributed on a formula basis as described in paragraph (a) of this section, a Tribe's funding amount will be determined on a Tribe-by-Tribe basis and may differ between Tribes. Examples of these funds may include special project funding, awarded competitive grants, earmarked funding, and construction or other one-time or non-recurring funding for which a Tribe is eligible.
§ 1000.99 Can a Tribe/Consortium negotiate a Tribal share for programs outside its region/agency?
Yes, where BIA services for a particular Tribe/Consortium are provided from a location outside its immediate agency or region, the Tribe may negotiate its share from BIA location where the service is actually provided.
§ 1000.100 May a Tribe/Consortium obtain discretionary or competitive funding that is distributed on a discretionary or competitive basis?
Funds provided for Indian services/programs that have not been mandated by Congress to be distributed on a competitive/discretionary basis may be distributed to a Tribe/Consortium under a formula-driven method. In order to receive such funds, a Tribe/Consortium must be eligible and qualified to receive such funds. A Tribe/Consortium that receives such funds under a formula-driven methodology would no longer be eligible to compete for these funds.
§ 1000.101 Are all funds identified as Tribal shares always paid to the Tribe/Consortium under an AFA?
No, at the discretion of the Tribe/Consortium, Tribal shares may be left, in whole or in part, with BIA for certain programs. This is referred to as a “retained Tribal share”.
§ 1000.102 How are savings that result from downsizing allocated?
Funds that are saved as a result of downsizing in BIA are allocated to Tribes/Consortia in the same manner as Tribal shares as provided for in §1000.98.
§ 1000.103 Do Tribes/Consortia need Secretarial approval to reallocate funds between programs that the Tribe/Consortium administers under the AFA?
No, unless otherwise required by law, the Secretary does not have to approve the reallocation of funds between programs that a Tribe/Consortium administers under an AFA.
§ 1000.104 Can funding amounts negotiated in an AFA be adjusted during the year it is in effect?
Yes, funding amounts negotiated in an AFA may be adjusted under the following circumstances:
(a) Congressional action. (1) Increases/decreases as a result of Congressional appropriations and/or a directive in the statement of managers accompanying a conference report on an appropriations bill or continuing resolution.
(2) General decreases due to Congressional action must be applied consistently to BIA, self-governance Tribes/Consortia, and Tribes/Consortia not participating in self-governance.
(3) General increases due to Congressional appropriations must be applied consistently, except where used to achieve equitable distribution among regions and Tribes.
(4) A Tribe/Consortium will be notified of any decrease and be provided an opportunity to reconcile.
(b) Mistakes. If the Tribe/Consortium or the Secretary can identify and document substantive errors in calculations, the parties will renegotiate the amounts and make every effort to correct such errors.
(c) Mutual Agreement. Both the Tribe/Consortium and the Secretary may agree to renegotiate amounts at any time.
ESTABLISHING SELF-GOVERNANCE BASE BUDGETS
§ 1000.105 What are self-governance base budgets?
(a) A Tribe/Consortium self-governance base budget is the amount of recurring funding identified in the President's annual budget request to Congress. This amount must be adjusted to reflect subsequent Congressional action. It includes amounts that are eligible to be base transferred or have been base transferred from BIA budget accounts to self-governance budget accounts. As allowed by Congress, self-governance base budgets are derived from:
(1) A Tribe's/Consortium's Pub. L. 93–638 contract amounts;
(2) Negotiated agency, regional, and central office amounts;
(3) Other recurring funding;
(4) Special projects, if applicable;
(5) Programmatic shortfall;
(6) Tribal priority allocation increases and decreases;
(7) Pay costs and retirement cost adjustments; and
(8) Any other inflationary cost adjustments.
(b) Self-governance base budgets must not include any non-recurring program funds, construction and wildland firefighting accounts, Congressional earmarks, or other funds specifically excluded by Congress. These funds are negotiated annually and may be included in the AFA but must not be included in the self-governance base budget.
(c) Self-governance base budgets may not include other recurring type programs that are currently in Tribal priority allocations (TPA) such as general assistance, housing improvement program (HIP), road maintenance and contract support. Should these later four programs ever become base transferred to Tribes, then they may be included in a self-governance Tribe's base budget.
§ 1000.106 Once a Tribe/Consortium establishes a base budget, are funding amounts renegotiated each year?
No, unless otherwise requested by the Tribe/Consortium, these amounts are not renegotiated each year. If a Tribe/Consortium renegotiates funding levels:
(a) It must negotiate all funding levels in the AFA using the process for determining residuals and funding amounts on the same basis as other Tribes; and
(b) It is eligible for funding amounts of new programs or available programs not previously included in the AFA on the same basis as other Tribes.
§ 1000.107 Must a Tribe/Consortium with a base budget or base budget-eligible program amounts negotiated before January 16, 2001 negotiate new Tribal shares and residual amounts?
No, if a Tribe/Consortium negotiated amounts before January 16, 2001, it does not need to renegotiate new Tribal shares and residual amounts.
(a) At Tribal option, a Tribe/Consortium may retain funding amounts that:
(1) Were either base eligible or in the Tribe's base; and
(2) Were negotiated before this part is promulgated.
(b) If a Tribe/Consortium desires to renegotiate the amounts referred to in paragraph (a) of this section, the Tribe/Consortium must:
(1) Negotiate all funding included in the AFA; and
(2) Use the process for determining residuals and funding amounts on the same basis as other Tribes.
(c) Self-governance Tribes/Consortia are eligible for funding amounts for new or available programs not previously included in the AFA on the same basis as other Tribes/Consortia.
§ 1000.108 How are self-governance base budgets established?
At the request of the Tribe/Consortium, a self-governance base budget identifying each Tribe's funding amount is included in BIA's budget justification for the following year, subject to Congressional appropriation.
§ 1000.109 How are self-governance base budgets adjusted?
Self-governance base budgets must be adjusted as follows:
(a) Congressional action. (1) Increases/decreases as a result of Congressional appropriations and/or a directive in the statement of managers accompanying a conference report on an appropriations bill or continuing resolution.
(2) General decreases due to Congressional action must be applied consistently to BIA, self-governance Tribes/Consortia, and Tribes/Consortia not participating in self-governance.
(3) General increases due to Congressional appropriations must be applied consistently, except where used to achieve equitable distribution among regions and Tribes.
(4) A Tribe/Consortium will be notified of any decrease and be provided an opportunity to reconcile.
(b) Mistakes. If the Tribe/Consortium or the Secretary can identify and document substantive errors in calculations, the parties will renegotiate such amounts and make every effort to correct the errors.
(c) Mutual agreement. Both the Tribe/Consortium and the Secretary may agree to renegotiate amounts at any time.
Subpart F—Non-BIA Annual Self-Governance Compacts and Funding Agreements
§ 1000.122 What non-BIA programs are eligible for inclusion in an annual funding agreement?
Programs authorized by sections 403(b)(2) and 403(c) of the Act are eligible for inclusion in AFAs. The Secretary will publish annually a list of these programs in accordance with section 405(c)(4).
§ 1000.123 Are there non-BIA programs for which the Secretary must negotiate for inclusion in an AFA subject to such terms as the parties may negotiate?
Yes, those programs, or portions thereof, that are eligible for contracting under Pub. L. 93–638.
§ 1000.124 What programs are included under Section 403(b)(2) of the Act?
Those programs, or portions thereof, that are eligible for contracting under Pub. L. 93–638.
§ 1000.125 What programs are included under Section 403(c)?
Department of the Interior programs of special geographic, historical, or cultural significance to participating Tribes, individually or as members of a Consortium, are eligible for inclusion in AFAs under section 403(c).
§ 1000.126 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.
§ 1000.127 Under Section 403(b)(2), when must programs be awarded non-competitively?
Programs eligible for contracts under Pub. L. 93–638 must be awarded non-competitively.
§ 1000.128 Is there a contracting preference for 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 bureau the discretion to include the programs or activities in an AFA on a non-competitive basis.
§ 1000.129 Are there any programs that may not be included in an AFA?
Yes, section 403(k) of the Act excludes from the program:
(a) Inherently Federal functions; and
(b) Programs where the statute establishing the existing program does not authorize the type of participation sought by the Tribe/Consortium, except as provided in §1000.134.
§ 1000.130 Does a Tribe/Consortium need to be identified in an authorizing statute in order for a program or element of a program to be included in a non-BIA AFA?
No, the Act favors the inclusion of a wide range of programs.
§ 1000.131 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 AFAs.
§ 1000.132 How will the Secretary consult with Tribes/Consortia in developing the list of available programs?
(a) On, or as near as possible to, October 1 of each year, the Secretary must distribute to each participating self-governance Tribe/Consortium the previous year's list of available programs in accordance with section 405(c)(4) of the Act. The list must include:
(1) All of the Secretary's proposed additions and revisions for the coming year with an explanation; and
(2) Programmatic targets and an initial point of contact for each bureau.
(b) The Tribes/Consortia receiving the proposed list will have 30 days from receipt to comment in writing on the Secretary's proposed revisions and to provide additions and revisions of their own for the Secretary to consider.
(c) The Secretary will carefully consider these comments before publishing the list as required by section 405(c)(4) of the Act.
(d) If the Secretary does not plan to include a Tribal suggestion or revision in the final published list, he/she must provide an explanation of his/her reasons if requested by a Tribe.
§ 1000.133 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 §1000.132.
§ 1000.134 May a bureau negotiate with a Tribe/Consortium for programs not specifically included on the annual section 405(c) list?
Yes, the annual list will specify that bureaus will negotiate for other programs eligible under section 403(b)(2) when requested by a Tribe/Consortium. Bureaus may negotiate for section 403(c) programs whether or not they are on the list.
§ 1000.135 How will a bureau negotiate an annual funding agreement for a program of special geographic, historical, or cultural significance to more than one Tribe?
(a) If a program is of special geographic, historical, or cultural significance to more than one Tribe, the bureau may allocate the program among the several Tribes/Consortia or select one Tribe/Consortium with whom to negotiate an AFA.
(b) In making a determination under paragraph (a) of this section, the bureau will, in consultation with the affected Tribes, 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.
§ 1000.136 When will this determination be made?
It will occur during the pre-negotiation process, subject to the timeframes in §1000.171 and §1000.172.
§ 1000.137 What funds are included in an AFA?
Bureaus determine the amount of funding to be included in the AFA using the following principles:
(a) 403(b)(2) programs. In general, funds are provided in an AFA to the Tribe/Consortium in an amount equal to the amount that it is eligible to receive under section 106 of Pub. L. 93–638.
(b) 403(c) programs. (1) The AFA will include:
(i) Amounts equal to the direct costs the bureau would have incurred were it to operate that program at the level of work mutually agreed to in the AFA; and
(ii) Allowable indirect costs.
(2) A bureau is not required to include management and support funds from the regional or central office level in an AFA, 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 AFA does not result in the Tribe/Consortium being paid twice for the same work when negotiated indirect cost rate is applied.
(c) Funding Limitations. The amount of funding must be subject to the availability and level of Congressional appropriations to the bureau for that program or activity. As the various bureaus use somewhat differing budgeting practices, determining the amount of funds available for inclusion in the AFA for a particular program or activity is likely to vary among bureaus or programs.
(1) The AFA may not exceed the amount of funding the bureau would have spent for direct operations and indirect support and management of that program in that year.
(2) The AFA must not include funding for programs still performed by the bureau.
§ 1000.138 How are indirect cost rates determined?
The Department's Office of the Inspector General (OIG) or other cognizant Federal agency and the Tribe/Consortium negotiate indirect cost rates. These rates are based on the provisions of the Office of Management and Budget (OMB) Circular A–87 or other applicable OMB cost circular and the provisions of Title I of Pub. L. 93–638 (See §1000.142). These rates are used generally by all Federal agencies for contracts and grants with the Tribe/Consortium, including self-governance agreements.
§ 1000.139 Will the established indirect cost rates always apply to new AFAs?
No, the established indirect cost rates will not always apply to new AFAs.
(a) A Tribe's/Consortium's existing indirect cost rate should be reviewed and renegotiated with the inspector general or other cognizant agency if:
(1) Using the previously negotiated rate would include the recovery of indirect costs that are not reasonable, allocable, or allowable to the relevant program; or
(2) The previously negotiated rate would result in an under-recovery by the Tribe/Consortium.
(b) If a Tribe/Consortium has a fixed amount indirect cost agreement under OMB Circular A–87, then:
(1) Renegotiation is not required and the duration of the fixed amount agreement will be that provided for in the fixed amount agreement; or
(2) The Tribe/Consortium and bureau may negotiate an indirect cost amount or rate for use only in that AFA without the involvement of the inspector general or other cognizant agency.
§ 1000.140 How does the Secretary determine the amount of indirect contract support costs?
The Secretary determines the amount of indirect contract support costs by:
(a) Applying the negotiated indirect cost rate to the appropriate direct cost base;
(b) Using the provisional rate; or
(c) Negotiating the amount of indirect contract support.
§ 1000.141 Is there a predetermined cap or limit on indirect cost rates or a fixed formula for calculating indirect cost rates?
No, indirect cost rates vary from Tribe to Tribe. The Secretary should refer to the appropriate negotiated indirect cost rates for individual Tribes, that apply government-wide. Although this cost rate is not capped, the amount of funds available for inclusion is capped at the level available under the relevant appropriation.
§ 1000.142 Instead of the negotiated indirect cost rate, is it possible to establish a fixed amount or another negotiated rate for indirect costs where funds are limited?
Yes, OMB Circular A–87 encourages agencies to test fee-for-service alternatives. If the parties agree to a fixed price, fee-for-service agreement, then they must use OMB Circular A–87 as a guide in determining the appropriate price (OMB circulars are available at http://www.whitehouse.gov/omb/ or see 5 CFR 1310.3). Where limited appropriated funds are available, negotiating the fixed cost option or another rate may facilitate reaching an agreement with that Tribe/Consortium.
OTHER TERMS AND CONDITIONS
§ 1000.161 What is a self-governance compact?
A self-governance compact is an executed document that affirms the government-to-government relationship between a self-governance Tribe and the United States. The compact differs from an AFA in that parts of the compact apply to all bureaus within the Department of the Interior rather than a single bureau.
§ 1000.162 What is included in a self-governance compact?
A model format for self-governance compacts appears in appendix A. A self-governance compact should generally include the following:
(a) The authority and purpose;
(b) Terms, provisions, and conditions of the compact;
(c) Obligations of the Tribe and the United States; and
(d) Other provisions.
§ 1000.163 Can a Tribe/Consortium negotiate other terms and conditions not contained in the model compact?
Yes, the Secretary and a self-governance Tribe/Consortium may negotiate into the model compact contained in appendix A additional terms relating to the government-to-government relationship between the Tribe(s) and the United States. For BIA programs, a Tribe/Consortium and the Secretary may agree to include any term in a contract and funding agreement under Title I in the model compact contained in appendix A to this part.
§ 1000.164 Can a Tribe/Consortium have an AFA without entering into a compact?
Yes, at the Tribe's/Consortium's option.
§ 1000.165 Are provisions in compacts negotiated before January 16, 2001, effective after implementation?
(a) Yes, all provisions in compacts that were negotiated with BIA before January 16, 2001, shall remain in effect for BIA programs only after January 16, 2001, provided that each compact contains provisions:
(1) That are authorized by the Tribal Self-Governance Act of 1994;
(2) Are in compliance with other applicable Federal laws; and,
(3) Are consistent with this part.
(b) BIA will notify the Tribe/Consortium in writing when BIA asserts that a provision or provisions of that Tribe's/Consortium's previously negotiated compact is not in compliance with the terms and conditions of this part. BIA and the Tribe/Consortium will renegotiate the provision within 60 days of the Tribe's/Consortium's receipt of the notification.
(c) If renegotiation is not successful within 60 days of the notice being provided, BIA's determination is final for the bureau and enforceability of the provisions shall be subject to the appeals process described in subpart R of this part. Pending a final appeal through the appeals process, BIA's determination shall be stayed.
NEGOTIATION OF INITIAL ANNUAL FUNDING AGREEMENTS
§ 1000.166 What are the phases of the negotiation process?
There are two phases of the negotiation process:
(a) The information phase; and
(b) The negotiation phase.
§ 1000.167 Who may initiate the information phase?
Any Tribe/Consortium that has been admitted to the program or to the applicant pool may initiate the information phase.
§ 1000.168 Is it mandatory to go through the information phase before initiating the negotiation phase?
No, a Tribe/Consortium may go directly to the negotiation phase.
§ 1000.169 How does a Tribe/Consortium initiate the information phase?
A Tribe/Consortium initiates the information phase by submitting a letter of interest to the bureau administering a program that the Tribe/Consortium may want to include in its AFA. A letter of interest may be mailed, telefaxed, or hand-delivered to:
(a) The Director, OSG, if the request is for information about BIA programs;
(b) The non-BIA bureau's self-governance representative identified in the Secretary's annual section 405(c) listing in the Federal Register, if the request is for information concerning programs of non-BIA bureaus.
§ 1000.170 What is the letter of interest?
A letter of interest is the initial indication of interest submitted by the Tribe/Consortium informing the bureau of the Tribe's/Consortium's interest in seeking information for the possible negotiation of one or more bureau programs. For non-BIA bureaus, the program and budget information request should relate to the program and activities identified in the Secretary's section 405(c) list in the   Federal Register or a section 403(c) request. A letter of interest should identify the following:
(a) As specifically as possible, the program a Tribe/Consortium is interested in negotiating under an AFA;
(b) A preliminary brief explanation of the cultural, historical, or geographic significance to the Tribe/Consortium of the program, if applicable;
(c) The scope of activity that a Tribe/Consortium is interested in including in an AFA;
(d) Other information that may assist the bureau in identifying the programs that are included or related to the Tribe's/Consortium's request;
(e) A request for information that indicates the type and/or description of information that will assist the Tribe/Consortium in pursuing the negotiation process;
(f) A designated Tribal contact;
(g) A request for information on any funds that may be available within the bureau or other known possible sources of funding for planning and negotiating an AFA;
(h) A request for information on any funds available within the bureau or from other sources of funding that the Tribe/Consortium may include in the AFA for planning or performing programs or activities; and
(i) Any requests for technical assistance to be provided by the bureau in preparing documents of materials that may be required for the Tribe/Consortium in the negotiation process.
§ 1000.171 When should a Tribe/Consortium submit a letter of interest?
A letter of interest may be submitted at any time. To meet the negotiation deadlines below, letters should be submitted to the appropriate non-BIA bureaus by March 1; letters should be submitted to BIA by April 1 for fiscal year Tribes/Consortia or May 1 for calendar year Tribes/Consortia.
§ 1000.172 What steps does the bureau take after a letter of interest is submitted by a Tribe/Consortium?
(a) Within 15 calendar days of receipt of a Tribe's/Consortium's letter of interest, the bureau will notify the Tribe/Consortium about who will be designated as the bureau's representative to be responsible for responding to the Tribal requests for information. The bureau representative shall act in good faith in fulfilling the following responsibilities:
(1) Providing all budget and program information identified in paragraph (b) of this section, from each organizational level of the bureau(s); and
(2) Notifying any other bureau requiring notification and participation under this part.
(b) Within 30 calendar days of receipt of the Tribe's/Consortium's letter of interest:
(1) To the extent that such reasonably related information is available, the bureau representative is to provide the information listed in paragraph (c) of this section, if available and consistent with the bureau's budgetary process;
(2) A written explanation of why the information is not available or not being provided to the Tribe's/Consortium's contact and the date by which other available information will be provided; or
(3) If applicable, a written explanation of why the program is unavailable for negotiation.
(c) Information to be made available to the Tribe's/Consortium's contact, subject to the conditions of paragraph (b) of this section, includes:
(1) Information regarding program, budget, staffing, and locations of the offices administering the program and related administrative support program identified by the Tribe/Consortium,
(2) Information contained in the previous year, present year, and next year's budget proposed by the President at the national program level and the regional/local level.
(3) When appropriate, the bureau will be available to meet the Tribal representatives to explain the budget information provided.
(4) Information used to support budget allocations for the programs identified (e.g., full time equivalents and other relevant factors).
(5) Information used to operate and/or evaluate a program, such as statutory and regulatory requirements and program standards.
(6) If applicable, information regarding how a program is administered by more than one bureau, including a point of contact for information for the other bureau(s); and
(7) Other information requested by the Tribe/Consortium in its letter of interest.
(d) If a bureau fails to provide reasonably related information requested by a Tribe/Consortium, the Tribe/Consortium may appeal the failure in accordance with subpart R of this part. These requests shall be considered for a fee waiver under the Freedom of Information Act.
§ 1000.173 How does a newly selected Tribe/Consortium initiate the negotiation phase?
(a) To initiate the negotiation phase, an authorized official of the newly selected Tribe/Consortium submits a written request to negotiate an AFA as indicated in the following table:
|For a . . .||the Tribe/Consortium should submit the|
request to . . .
|and the request should identify . . .|
|(1) BIA program||the Director, OSG.||the lead negotiator(s) for the Tribe/Consortium.|
|(2) Non-BIA program||the bureau representative designated to respond to the Tribe's/Consortium's request for information||the lead negotiator(s) for the Tribe/Consortium and the specific program(s) that the Tribe/Consortium seeks to negotiate.|
(b) The Tribal/Consortium official must submit the information required by paragraph (a) of this section by the deadline shown in the following table:
|Type of program||Type of tribe/consortium||Submission deadline|
|(1) BIA||Fiscal year||April 1.|
|(2) BIA||Calendar year||May 1.|
|(3) Non-BIA||Fiscal year or calendar year||May 1*.|
§ 1000.174 How and when does the bureau respond to a request to negotiate?
(a) Within 15 days of receiving a Tribe's/Consortium's request to negotiate, the bureau will take the steps in this section. If more than one bureau is involved, a lead bureau must be designated to conduct negotiations.
(b) If the program is contained on the section 405(c) list, the bureau will identify the lead negotiator(s) and awarding official(s) for executing the AFA.
(c) If the program is potentially of a special geographic, cultural, or historic significance to a Tribe/Consortium, the bureau will schedule a pre-negotiation meeting with the Tribe/Consortium as soon as possible. The purpose of the meeting is to assist the bureau in determining if the program is available for negotiation.
(d) Within 10 days after convening a meeting under paragraph (c) of this section:
(1) If the program is available for negotiation, the bureau will identify the lead negotiator(s) and awarding official(s); or
(2) If the program is unavailable for negotiation, the bureau will give to the Tribe/Consortium a written explanation of why the program is unavailable for negotiation.
§ 1000.175 What is the process for conducting the negotiation phase?
(a) Within 30 days of receiving a written request to negotiate, the bureau and the Tribe/Consortium will agree to a date to conduct an initial negotiation meeting. Subsequent meetings will be held with reasonable frequency at reasonable times.
(b) Tribe/Consortium and bureau lead negotiators must:
(1) Be authorized to negotiate on behalf of their government; and
(2) Involve all necessary persons in the negotiation process.
(c) Once negotiations have been successfully completed, the bureau and Tribe/Consortium will prepare and either execute or disapprove an AFA within 30 days or by a mutually agreed upon date.
§ 1000.176 What issues must the bureau and the Tribe/Consortium address at negotiation meetings?
The negotiation meetings referred to in §1000.175 must address at a minimum the following:
(a) The specific Tribe/Consortium proposal(s) and intentions;
(b) Legal or program issues that the bureau or the Tribe/Consortium identify as concerns;
(c) Options for negotiating programs and related budget amounts, including mutually agreeable options for developing alternative formats for presenting budget information to the Tribe/Consortium;
(d) Dates for conducting and concluding negotiations;
(e) Protocols for conducting negotiations;
(f) Responsibility for preparation of a written summary of the discussions; and
(g) Who will prepare an initial draft of the AFA.
§ 1000.177 What happens when the AFA is signed?
(a) After all parties have signed the AFA, a copy is sent to the Tribe/Consortium.
(b) The Secretary forwards copies of the AFA to:
(1) The House Subcommittee on Native Americans and Insular Affairs; and
(2) The Senate Committee on Indian Affairs;
(c) For BIA programs, the AFA is also forwarded to each Indian Tribe/Consortium served by the BIA Agency that serves any Tribe/Consortium that is a party to the AFA.
§ 1000.178 When does the AFA become effective?
The effective date is not earlier than 90 days after the AFA is submitted to the Congressional committees under §1000.177(b).
§ 1000.179 What happens if the Tribe/Consortium and bureau negotiators fail to reach an agreement?
(a) If the Tribe/Consortium and bureau representatives do not reach agreement during the negotiation phase by the mutually agreed to date for completing negotiations, the Tribe/Consortium and the bureau may each make a last and best offer to the other party.
(b) If a last and best offer is not accepted within 15 days, the bureau will provide a written explanation to the Tribe/Consortium explaining its reasons for not entering into an AFA for the requested program, together with the applicable statement prescribed in subpart R of this part, concerning appeal or review rights.
(c) The Tribe/Consortium has 30 days from receipt of the bureau's written explanation to file an appeal. Appeals are handled in accordance with subpart R of this part.
NEGOTIATION PROCESS FOR SUCCESSOR ANNUAL FUNDING AGREEMENTS
§ 1000.190 What is the purpose of this subpart?
This subpart prescribes the process that the Secretary uses to determine whether a BIA self-governance funding agreement causes a limitation or reduction in the services, contracts, or funds that any other Tribe/Consortium or Tribal organization is eligible to receive under self-determination contracts, other self-governance compacts, or direct services from BIA. This type of limitation is prohibited by section 406(a) of Pub. L. 93–638. For the purposes of this subpart, Tribal organization means an organization eligible to receive services, contracts, or funds under section 102 of Pub. L. 93–638.
§ 1000.191 To whom does this subpart apply?
Participating and non-participating Tribes/Consortia and Tribal organizations are subject to this subpart. It does not apply to the general public and non-Indians.
§ 1000.192 What services, contracts, or funds are protected under section 406(a)?
Section 406(a) protects against the actual reduction or limitations of services, contracts, or funds.
§ 1000.193 Who may raise the issue of limitation or reduction of services, contracts, or funding?
BIA or any affected Tribe/Consortium or Tribal organization may raise the issue that a BIA self-governance AFA limits or reduces particular services, contracts, or funding for which it is eligible.
§ 1000.194 When must BIA raise the issue of limitation or reduction of services, contracts, or funding?
(a) From the beginning of the negotiation period until the end of the first year of implementation of an AFA, BIA may raise the issue of limitation or reduction of services, contracts, or funding. If BIA and a participating Tribe/Consortium disagree over the residual information, a participating Tribe/Consortium may ask the Deputy Commissioner—Indian Affairs to reconsider residual levels for particular programs. [See §1000.95(d)]
(b) After the AFA is signed, BIA must raise the issue of any undetermined funding amounts within 30 days after the final funding level is determined. BIA may not raise this issue after this period has elapsed.
§ 1000.195 When must an affected Tribe/Consortium or Tribal organization raise the issue of a limitation or reduction of services, contracts, or funding for which it is eligible?
(a) A Tribe/Consortium or Tribal organization may raise the issue of limitation or reduction of services, contracts, or funding for which it is eligible during:
(1) Region-wide Tribal shares meetings occurring before the first year of implementation of an AFA;
(2) Within the 90-day review period before the effective date of the AFA; and
(3) The first year of implementation of an AFA.
(b) Any Tribe/Consortium or Tribal organization claiming a limitation or reduction of contracts, services, or funding for which it is eligible must notify, in writing, both the Department and negotiating Tribe/Consortium. Claims may only be filed within the periods specified in paragraph (a) of this section.
§ 1000.196 What must be included in a finding by BIA or in a claim by an affected Tribe/Consortium or Tribal organization regarding the issue of a limitation or reduction of services?
An affected Tribe/Consortium must include in its claim a written explanation identifying the alleged limitation or reduction of services, contracts, or funding for which it is eligible. A finding by BIA must likewise identify the limitation or reduction.
§ 1000.197 How will BIA resolve a claim?
All findings and claims timely made in accordance with §§1000.194 through 1000.195 will be resolved in accordance with 25 CFR part 2.
§ 1000.198 How must a limitation or reduction in services, contracts, or funds be remedied?
(a) If funding a participating Tribe/Consortium will limit or reduce services, contracts, or funds for which another Tribe/Consortium or Tribal organization is eligible, BIA must remedy the reduction as follows:
(1) In the current AFA year BIA must use shortfall funding, supplemental funding, or other available BIA resources; and
(2) In a subsequent AFA year, BIA may adjust the AFA funding in an AFA to correct a finding of actual reduction in services, contracts, or funds for that subsequent year.
(b) All adjustments under this section must be mutually agreed between BIA and the participating Tribe/Consortium.
Subpart I—Public Consultation Process
§ 1000.210 When does a non-BIA bureau use a public consultation process related to the negotiation of an AFA?
When required by law or when appropriate under bureau discretion, a bureau may use a public consultation process in negotiating an AFA.
§ 1000.211 Will the bureau contact the Tribe/Consortium before initiating public consultation process for a non-BIA AFA under negotiation?
Yes, the bureau and the Tribe/Consortium will discuss the consultation process to be used in negotiating a non-BIA AFA.
(a) When public consultation is required by law, the bureau will follow the required process and will involve the Tribe/Consortium in that process to the maximum extent possible.
(b) When public consultation is a matter of bureau discretion, at Tribal request the Tribe/Consortium and the bureau, unless prohibited by law, will jointly develop guidelines for that process, including the conduct of any future public meetings. The bureau and the Tribe/Consortium will jointly identify a list of potential project beneficiaries, third-party stakeholders, or third-party users (affected parties) for use in the public consultation process.
§ 1000.212 What is the role of the Tribe/Consortium when a bureau initiates a public meeting?
When a bureau initiates a public meeting with affected parties it will take the following actions:
(a) The bureau will notify the Tribe/Consortium of the meeting time, place, and invited parties:
(1) Ten days in advance, if possible; or
(2) If less than 10 days in advance, at the earliest practical time.
(b) When the bureau notifies the Tribe/Consortium, the bureau will invite the Tribe/Consortium to participate in and, unless prohibited by law, to co-sponsor or co-facilitate the meeting.
(c) When possible, the bureau and the Tribe/Consortium should meet to plan and discuss the conduct of the meeting, meeting protocols, and general participation in the proposed consultation meeting.
(d) The bureau and the Tribe/Consortium will conduct the meeting in a manner that facilitates and does not undermine the government-to-government relationship and self-governance;
(e) The Tribe/Consortium may provide technical support to the bureau to enhance the consultation process, as mutually agreed.
§ 1000.213 What should the bureau do if it is invited to attend a meeting with respect to the Tribe's/Consortium's proposed AFA?
If the bureau is invited to participate in meetings, hearings, etc., held or conducted by other parties, where the subject matter of the AFA under negotiation is expected to be raised, the bureau:
(a) Shall notify the Tribe/Consortium at the earliest practical time; and
(b) Should encourage the meeting sponsor to invite the Tribe/Consortium to participate.
§ 1000.214 Will the bureau and the Tribe/Consortium share information concerning inquiries about the Tribes/Consortia and the AFA?
Yes, the bureau and the Tribe/Consortium will exchange information about inquiries from affected or interested parties relating to the AFA under negotiation.
Subpart J—Waiver of Regulations
§ 1000.220 What regulations apply to self-governance Tribes?
All regulations that govern the operation of programs included in an AFA apply unless waived under this subpart. To the maximum extent practical, the parties should identify these regulations in the AFA.
§ 1000.221 Can the Secretary grant a waiver of regulations to a Tribe/Consortium?
Yes, a Tribe/Consortium may ask the Secretary to grant a waiver of some or all Department of the Interior regulation(s) applicable to a program, in whole or in part, operated by a Tribe/Consortium under an AFA.
§ 1000.222 How does a Tribe/Consortium obtain a waiver?
To obtain a waiver, the Tribe/Consortium must:
(a) Submit a written request from the designated Tribal official to the Director for BIA programs or the appropriate bureau/office director for non-BIA programs;
(b) Identify the regulation to be waived and the reasons for the request;
(c) Identify the programs to which the waiver would apply;
(d) Identify what provisions, if any, would be substituted in the AFA for the regulation to be waived; and
(e) When applicable, identify the effect of the waiver on any trust programs or resources.
§ 1000.223 When can a Tribe/Consortium request a waiver of a regulation?
A Tribe/Consortium may request a waiver of a regulation:
(a) As part of the negotiation process; or
(b) After an AFA has been executed.
§ 1000.224 How can a Tribe/Consortium expedite the review of a regulation waiver request?
A Tribe/Consortium may request a meeting or other informal discussion with the appropriate bureau officials before submitting a waiver request.
(a) To set up a meeting, the Tribe/Consortium should contact:
(1) For BIA programs, the Director, OSG; or
(2) For non-BIA programs, the designated representative of the bureau.
(b) The meeting or discussion is intended to provide:
(1) A clear understanding of the nature of the request;
(2) Necessary background and information; and
(3) An opportunity for the bureau to offer appropriate technical assistance.
§ 1000.225 Are meetings or discussions mandatory?
No, a meeting with the bureau officials is not necessary to submit a waiver request.
§ 1000.226 On what basis may the Secretary deny a waiver request?
The Secretary may deny a waiver request if:
(a) For a Title-I-eligible program, the requested waiver is prohibited by Federal law; or
(b) For a non-Title-I-eligible program, the requested waiver is:
(1) Prohibited by Federal law; or
(2) Inconsistent with the express provisions of the AFA.
§ 1000.227 What happens if the Secretary denies the waiver request?
If the Secretary denies a waiver request, the Secretary issues a written decision stating:
(a) The basis for the decision;
(b) The decision is final for the Department; and
(c) The Tribe/Consortium may request reconsideration of the denial.
§ 1000.228 What are examples of waivers prohibited by law?
Examples of when a waiver is prohibited by Federal law include:
(a) When the effect would be to waive or eliminate express statutory requirements;
(b) When a statute authorizes civil and criminal penalties;
(c) When it would result in a failure to ensure that proper health and safety standards are included in an AFA (section 403(e)(2));
(d) When it would result in a reduction of the level of trust services that would have been provided by the Secretary to individual Indians (section 403(g)(4));
(e) When it would limit or reduce the services, contracts, or funds to any other Indian Tribe or Tribal organization (section 406(a));
(f) When it would diminish the Federal trust responsibility to Tribes, individual Indians or Indians with trust allotments (Section 406(b)); or
(g) When it would violate Federal case law.
§ 1000.229 May a Tribe/Consortium propose a substitute for a regulation it wishes to be waived?
Yes, where a Tribe/Consortium wishes to replace the waived regulation with a substitute that otherwise maintains the requirements of the applicable Federal law, the Secretary may be able to approve the waiver request. The Tribe/Consortium and bureau officials must negotiate to develop a suggested substitution.
§ 1000.230 How is a waiver approval documented for the record?
The waiver decision is made part of the AFA by attaching a copy of it to the AFA and by mutually executing any necessary conforming amendments to the AFA. The decisions announcing the waiver also will be posted on the Office of Self-Governance web site and all such decisions shall be made available on request.
§ 1000.231 How does a Tribe/Consortium request reconsideration of the Secretary's denial of a waiver?
(a) The Tribe/Consortium may request reconsideration of a waiver denial. To do so, the Tribe/Consortium must submit a request to:
(1) The Director, OSG, for BIA programs; or
(2) The appropriate bureau head, for non-BIA programs.
(b) The request must be filed within 30 days of the day the decision is received by certified mail (return receipt requested) or by hand delivery. A request submitted by mail will be considered filed on the postmark date.
(c) The request must identify the issues to be addressed, including a statement of reasons supporting the request.
§ 1000.232 When must DOI respond to a request for reconsideration?
The Secretary must issue a written decision within 30 days of the Department's receipt of a request for reconsideration. This decision is final for the Department and no administrative appeal may be made.
§ 1000.240 What construction programs included in an AFA are subject to this subpart?
(a) All BIA and non-BIA construction programs included in an AFA are subject to this subpart. This includes design, construction, repair, improvement, expansion, replacement or demolition of buildings or facilities, and other related work for Federal, or Federally funded Tribal, facilities and projects.
(b) The following programs and activities are not construction programs and activities:
(1) Activities limited to providing planning services, administrative support services, coordination, responsibility for the construction project, day-to-day on-site management on site-management and administration of the project, which may include cost management, project budgeting, project scheduling and procurement except that all project design and actual construction activities are subject to all the requirements of subpart K, whether performed by a Tribe/Consortium, subcontractor, or consultant.
(2) Housing Improvement Program or road maintenance program activities of BIA;
(3) Operation and maintenance programs; and
(4) Non-403(c) programs that are less than $100,000, subject to section 403(e)(2) of the Act, other applicable Federal law, and §1000.256 of this subpart.
§ 1000.241 Does this subpart create an agency relationship?
No, a BIA or non-BIA construction program does not automatically create an agency relationship. However, Federal law, provisions of an AFA, or Federal actions may create an agency relationship.
§ 1000.242 What provisions relating to a construction program may be included in an AFA?
The Secretary and the Tribe/Consortium may negotiate to apply specific provisions of the Office of Federal Procurement and Policy Act and Federal Acquisition Regulations to a construction part of an AFA. Absent a negotiated agreement, such provisions and regulatory requirements do not apply.
§ 1000.243 What special provisions must be included in an AFA that contains a construction program?
An AFA that contains a construction program must address the requirements listed in this section.
(a) The AFA must specify how the Secretary and the Tribe/Consortium must ensure that proper health and safety standards are provided for in the implementation of the AFA, including but not limited to:
(1) The use of architects and engineers licensed to perform the type of construction involved in the AFA;
(2) Applicable Federal, state, local or Tribal building codes and applicable engineering standards, appropriate for the particular project; and
(3) Necessary inspections and testing by the Tribe.
(b) The AFA must comply with applicable Federal laws, program statutes and regulations.
(c) The AFA must specify the services to be provided, the work to be performed, and the responsibilities of the Tribe/Consortium and the Secretary under the AFA.
(d) The Secretary may require the Tribe/Consortium to provide brief progress reports and financial status reports. The parties may negotiate in the AFA the frequency, format and content of the reporting requirement. As negotiated, these reports may include:
(1) A narrative of the work accomplished;
(2) The percentage of the work completed;
(3) A report of funds expended during the reporting period; and
(4) The total funds expended for the project.
§ 1000.244 May the Secretary suspend construction activities under an AFA?
(a) The Secretary may require a Tribe/Consortium to suspend certain work under a construction portion of an AFA for up to 30 days only if:
(1) Site conditions adversely affect health and safety; or
(2) Work in progress or completed fails to substantially carry out the terms of the AFA without good cause.
(b) The Secretary may suspend only work directly related to the criteria specified in paragraph (a) of this section unless other reasons for suspension are specifically negotiated in the AFA.
(c) Unless the Secretary determines that a health and safety emergency requiring immediate action exists, before suspending work the Secretary must provide:
(1) A 5 working days written notice; and
(2) An opportunity for the Tribe/Consortium to correct the problem.
(d) The Tribe/Consortium must be compensated for reasonable costs due to any suspension of work that occurred through no fault of the Tribe/Consortium. Project funds will not be used for this purpose. However, if suspension occurs due to the action or inaction of the Tribe/Consortium, then project funds will be used to cover suspension related activities.
§ 1000.245 May a Tribe/Consortium continue work with construction funds remaining in an AFA at the end of the funding year?
Yes, any funds remaining in an AFA at the end of the funding year may be spent for construction under the terms of the AFA.
§ 1000.246 Must an AFA that contains a construction project or activity incorporate provisions of Federal construction standards?
No, the Secretary may provide information about Federal standards as early as possible in the construction process. If Tribal construction standards are consistent with or exceed applicable Federal standards, then the Secretary must accept the Indian Tribe/Consortium's proposed standards. The Secretary may accept commonly accepted industry construction standards.
§ 1000.247 May the Secretary require design provisions and other terms and conditions for construction programs or activities included in an AFA under section 403(c) of the Act?
Yes, the relevant bureau may provide to the Tribe/Consortium project design criteria and other terms and conditions that are required for such a project. The project must be completed in accordance with the terms and conditions set forth in the AFA.
§ 1000.248 What is the Tribe's/Consortium's role in a construction program included in an AFA?
The Tribe/Consortium has the following role regarding a construction portion of an AFA:
(a) Under the Act, the Indian Tribe/Consortium must successfully complete the project in accordance with the terms and conditions in the AFA.
(b) The Tribe/Consortium must give the Secretary timely notice of any proposed changes to the project that require an increase to the negotiated funding amount or an increase in the negotiated performance period or any other significant departure from the scope or objective of the project. The Tribe/Consortium and Secretary may negotiate to include timely notice requirements in the AFA.
§ 1000.249 What is the Secretary's role in a construction program in an AFA?
The Secretary has the following role regarding a construction program contained in an AFA:
(a) Except as provided in §1000.256, the Secretary may review and approve planning and design documents in accordance with terms negotiated in the AFA to ensure health and safety standards and compliance with Federal law and other program mandates;
(b) Unless otherwise agreed to in an AFA, the Secretary reserves a royalty-free, nonexclusive, and irrevocable license to reproduce, publish, or otherwise use for Federal Government purposes, designs produced in the construction program that are funded by AFA monies, including:
(1) The copyright to any work developed under a contract or subcontract; and
(2) Any rights of copyright that an Indian Tribe/Consortium or a Tribal contractor purchases through the AFA;
(c) The Secretary may conduct on-site monitoring visits as negotiated in the AFA;
(d) The Secretary must approve any proposed changes in the construction program or activity that require an increase in the negotiated AFA funding amount or an increase in the negotiated performance period or are a significant departure from the scope or objective of the construction program as agreed to in the AFA;
(e) The Secretary may conduct final project inspection jointly with the Indian Tribe/Consortium and may accept the construction project or activity as negotiated in the AFA;
(f) Where the Secretary and the Tribe/Consortium share construction program activities, the AFA may provide for the exchange of information;
(g) The Secretary may reassume the construction portion of an AFA if there is a finding of:
(1) A significant failure to substantially carry out the terms of the AFA without good cause; or
(2) Imminent jeopardy to a physical trust asset, to a natural resource, or that adversely affects public health and safety as provided in subpart M of this part.
§ 1000.250 How are property and funding returned if there is a reassumption for substantial failure to carry out an AFA?
If there is a reassumption for substantial failure to carry out an AFA, property and funding will be returned as provided in subparts M and N of this part.
§ 1000.251 What happens when a Tribe/Consortium is suspended for substantial failure to carry out the terms of an AFA without good cause and does not correct the failure during the suspension?
(a) Except when the Secretary makes a finding of imminent jeopardy to a physical trust asset, a natural resource, or public health and safety as provided in subpart M of these regulations a finding of substantial failure to carry out the terms of the AFA without good cause must be processed under the suspension of work provision of §1000.244.
(b) If the substantial failure to carry out the terms of the AFA without good cause is not corrected or resolved during the suspension of work, the Secretary may initiate a reassumption at the end of the 30-day suspension of work if an extension has not been negotiated. Any unresolved dispute will be processed in accordance with the Contract Disputes Act of 1978, 41 U.S.C. 601, et seq.
§ 1000.252 Do all provisions of other subparts apply to construction portions of AFAs?
Yes, all provisions of other subparts apply to construction portions of AFAs unless those provisions are inconsistent with this subpart.
§ 1000.253 When a Tribe withdraws from a Consortium, is the Secretary required to award to the withdrawing Tribe a portion of funds associated with a construction project if the withdrawing Tribe so requests?
Under §1000.35 of this part, a Tribe may withdraw from a Consortium and request its portion of a construction project's funds. The Secretary may decide not to award these funds if the award will affect the Consortium's ability to complete a non-severable phase of the project within available funding. An example of a non-severable phase of a project would be the construction of a single building serving all members of the Consortium. An example of a severable phase of a project would be the funding for a road in one village where the Consortium would be able to complete the roads in the other villages that were part of the project approved initially in the AFA. The Secretary's decision under this section may be appealed under subpart R of this part.
§ 1000.254 May a Tribe/Consortium reallocate funds from a construction program to a non-construction program?
No, a Tribe/Consortium may not reallocate funds from a construction program to a non-construction program unless otherwise provided under the relevant appropriation acts.
§ 1000.255 May a Tribe/Consortium reallocate funds among construction programs?
Yes, a Tribe/Consortium may reallocate funds among construction programs if permitted by appropriation law or if approved in advance by the Secretary.
§ 1000.256 Must the Secretary retain project funds to ensure proper health and safety standards in construction projects?
Yes, the Secretary must retain project funds to ensure proper health and safety standards in construction projects. Examples of purposes for which bureaus may retain funds include:
(a) Determining or approving appropriate construction standards to be used in AFAs;
(b) Verifying that there is an adequate Tribal inspection system utilizing licensed professionals;
(c) Providing for sufficient monitoring of design and construction by the Secretary; and
(d) Requiring corrective action during performance when appropriate.
Subpart L—Federal Tort Claims
§ 1000.270 What does this subpart cover?
This subpart explains the applicability of the Federal Tort Claims Act (FTCA). This section covers:
(a) Coverage of claims arising out of the performance of functions under Self-Governance AFA's; and
(b) Procedures for filing claims under FTCA.
§ 1000.271 What other statutes and regulations apply to FTCA coverage?
A number of other statutes and regulations apply to FTCA coverage, including the Federal Tort Claims Act (28 U.S.C. 1346(b), 2401, 2671–2680) and related Department of Justice regulations in 28 CFR part 14.
§ 1000.272 Do Tribes/Consortia need to be aware of areas which FTCA does not cover?
Yes, there are claims against Self-Governance Tribes/Consortia which are not covered by FTCA, claims which may not be pursued under FTCA, and remedies that are excluded by FTCA. The following general guidance is not intended as a definitive description of coverage, which is subject to review by the Department of Justice and the courts on a case-by-case basis.
(a) What claims are expressly barred by FTCA and therefore may not be made against the United States, a Tribe or Consortium? Any claim under 28 U.S.C. 2680, including claims arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights, unless otherwise authorized by 28 U.S.C. 2680(h).
(b) What claims may not be pursued under FTCA?
(1) Claims against subcontractors arising out of the performance of subcontracts with a Self-Governance Tribe/Consortium;
(2) Claims for on-the-job injuries which are covered by workmen's compensation;
(3) Claims for breach of contract rather than tort claims; or
(4) Claims resulting from activities performed by an employee which are outside the scope of employment.
(c) What remedies are expressly excluded by FTCA and therefore are barred?
(1) Punitive damages, unless otherwise authorized by 28 U.S.C. 2674; and
(2) Other remedies not permitted under applicable state law.
§ 1000.273 Is there a deadline for filing FTCA claims?
Yes, claims shall be filed within 2 years of the date of accrual. (28 U.S.C. 2401).
§ 1000.274 How long does the Federal government have to process a FTCA claim after the claim is received by the Federal agency, before a lawsuit may be filed?
The Federal government has 6 months to process a FTCA claim after the claim is received by the Federal agency, before a lawsuit may be filed.
§ 1000.275 Is it necessary for a self-governance AFA to include any clauses about FTCA coverage?
No, clauses about FTCA coverage are optional. At the request of Tribes/Consortia, self-governance AFA's shall include the following clause to clarify the scope of FTCA coverage:
For purposes of Federal Tort Claims Act coverage, the Tribe/Consortium and its employees (including individuals performing personal services contracts with the tribe/consortium) are deemed to be employees of the Federal government while performing work under this AFA. This status is not changed by the source of the funds used by the Tribe/Consortium to pay the employee's salary and benefits unless the employee receives additional compensation for performing covered services from anyone other than the Tribe/Consortium.
§ 1000.276 Does FTCA apply to a self-governance AFA if FTCA is not referenced in the AFA?
Yes, FTCA applies even if the AFA does not mention it.
§ 1000.277 To what extent shall the Tribe/Consortium cooperate with the Federal government in connection with tort claims arising out of the Tribe's/Consortium's performance?
(a) The Tribe/Consortium shall designate an individual to serve as tort claims liaison with the Federal government.
(b) As part of the notification required by 28 U.S.C. 2679(c), the Tribe/Consortium shall notify the Secretary immediately in writing of any tort claim (including any proceeding before an administrative agency or court) filed against the Tribe/Consortium or any of its employees that relates to performance of a self-governance AFA or subcontract.
(c) The Tribe/Consortium, through its designated tort claims liaison, shall assist the appropriate Federal agency in preparing a comprehensive, accurate, and unbiased report of the incident so that the claim may be properly evaluated. This report should be completed within 60 days of notification of the filing of the tort claim. The report should be complete in every significant detail and include as appropriate:
(1) The date, time and exact place of the accident or incident;
(2) A concise and complete statement of the circumstances of the accident or incident;
(3) The names and addresses of Tribal and/or Federal employees involved as participants or witnesses;
(4) The names and addresses of all other eyewitnesses;
(5) An accurate description of all government and other privately-owned property involved and the nature and amount of damage, if any;
(6) A statement as to whether any person involved was cited for violating a Federal, State or tribal law, ordinance, or regulation;
(7) The Tribe's/Consortium's determination as to whether any of its employees (including Federal employees assigned to the Tribe/Consortium) involved in the incident giving rise to the tort claim were acting within the scope of their employment in carrying out the contract at the time the incident occurred;
(8) Copies of all relevant documentation, including available police reports, statements of witnesses, newspaper accounts, weather reports, plats and photographs of the site or damaged property, such as may be necessary or useful for purposes of claim determination by the Federal agency; and
(9) Insurance coverage information, copies of medical bills, and relevant employment records.
(d) The Tribe/Consortium shall cooperate with and provide assistance to the U.S. Department of Justice attorneys assigned to defend the tort claim, including, but not limited to, case preparation, discovery, and trial.
(e) If requested by the Secretary, the Tribe/Consortium shall make an assignment and subrogation of all the Tribe's/Consortium's rights and claims (except those against the Federal government) arising out of a tort claim against the Tribe/Consortium.
(f) If requested by the Secretary, the Tribe/Consortium shall authorize representatives of the Secretary to settle or defend any claim and to represent the Tribe/Consortium in or take charge of any action.
(g) If the Federal government undertakes the settlement or defense of any claim or action, the Tribe/Consortium shall provide all reasonable additional assistance in reaching a settlement or asserting a defense.
§ 1000.278 Does this coverage extend to subcontractors of self-governance AFAs?
No, subcontractors or subgrantees providing services to a Pub. L. 93–638 Tribe/Consortium are generally not covered.
§ 1000.279 Is FTCA the exclusive remedy for a tort claim, including a claim concerning personal injury or death, resulting from the performance of a self-governance AFA?
Yes, except as explained in §1000.272(b). No claim may be filed against a self-governance Tribe/Consortium or employee based upon performance of functions under a self-governance AFA. All claims shall be filed against the United States and are subject to the limitations and restrictions of FTCA.
§ 1000.280 What employees are covered by FTCA for medical-related claims?
The following employees are covered by FTCA for medical-related claims:
(a) Permanent employees;
(b) Temporary employees;
(c) Persons providing services without compensation in carrying out a contract;
(d) Persons required because of their employment by a self-governance Tribe/Consortium to serve non-IHS beneficiaries (even if the services are provided in facilities not owned by the Tribe/Consortium; and,
(e) Federal employees assigned to the AFA.
§ 1000.281 Does FTCA cover employees of the Tribe/Consortium who are paid by the Tribe/Consortium from funds other than those provided through the self-governance AFA?
Yes, FTCA covers employees of the Tribe/Consortium who are not paid from AFA funds as long as the services out of which the claim arose were performed in carrying out the self-governance AFA.
§ 1000.282 May persons who are not Indians or Alaska Natives assert claims under FTCA?
Yes, non-Indian individuals served under the self-governance AFA, may assert claims under this Subpart.
§ 1000.283 If the Tribe/Consortium or Tribe's/Consortium's employee receives a summons and/or a complaint alleging a tort covered by FTCA, what should the Tribe/Consortium do?
As part of the notification required by 28 U.S.C. 2679(c), if the Tribe/Consortium or Tribe's/Consortium's employee receives a summons and/or complaint alleging a tort covered by FTCA, the Tribe/Consortium should immediately:
(a) Inform the Assistant Solicitor, Procurement and Patents, Office of the Solicitor, Department of the Interior, Room 6511, 1849 C Street NW., Washington, DC 20240,
(b) Inform the Tribe's/Consortium's tort claims liaison, and
(c) Forward all of the materials identified in §1000.277(c) to the contacts given in §1000.283 (a) and (b).
§ 1000.300 What is the purpose of this subpart?
This subpart explains when the Secretary can reassume a program without the consent of a Tribe/Consortium.
§ 1000.301 When may the Secretary reassume a Federal program operated by a Tribe/Consortium under an AFA?
The Secretary may reassume any Federal program operated by a Tribe/Consortium upon a finding of imminent jeopardy to:
(a) A physical trust asset;
(b) A natural resource; or
(c) Public health and safety.
§ 1000.302 “What is imminent jeopardy” to a trust asset?
Imminent jeopardy means an immediate threat and likelihood of significant devaluation, degradation, damage, or loss of a trust asset, or the intended benefit from the asset caused by the actions or inactions of a Tribe/Consortium in performing trust functions. This includes disregarding Federal trust standards and/or Federal law while performing trust functions if the disregard creates such an immediate threat.
§ 1000.303 What is imminent jeopardy to natural resources?
The standard for natural resources is the same as for a physical trust asset, except that a review for compliance with the specific mandatory statutory provisions related to the program as reflected in the funding agreement must also be considered.
§ 1000.304 What is imminent jeopardy to public health and safety?
Imminent jeopardy to public health and safety means an immediate and significant threat of serious harm to human well-being, including conditions that may result in serious injury, or death, caused by Tribal action or inaction or as otherwise provided in an AFA.
§ 1000.305 In an imminent jeopardy situation, what must the Secretary do?
In an imminent jeopardy situation, the Secretary must:
(a) The Secretary must immediately notify the Tribe/Consortium in writing following discovery of imminent jeopardy; or
(b) If there is an immediate threat to human health, safety, or welfare, the Secretary may immediately reassume operation of the program regardless of the timeframes specified in this subpart.
§ 1000.306 Must the Secretary always reassume a program, upon a finding of imminent jeopardy?
Yes, the Secretary must reassume a program within 60 days of a finding of imminent jeopardy, unless the Secretary's designated representative determines that the Tribe/Consortium is able to mitigate the conditions.
§ 1000.307 What happens if the Secretary's designated representative determines that the Tribe/Consortium cannot mitigate the conditions within 60 days?
The Secretary will proceed with the reassumption in accordance with this subpart by sending the Tribe/Consortium a written notice of the Secretary's intent to reassume.
§ 1000.308 What will the notice of reassumption include?
The notice of reassumption under §1000.307 will include all of the following items. In addition, if resources are available, the Secretary may offer technical assistance to mitigate the imminent jeopardy.
(a) A statement of the reasons supporting the Secretary's finding.
(b) To the extent practical, a description of specific measures that must be taken by the Tribe/Consortium to eliminate imminent jeopardy.
(c) A notice that funds for the management of the trust asset, natural resource, or public health and safety found to be in imminent jeopardy may not be reallocated or otherwise transferred without the Secretary's written consent.
(d) A notice of intent to invoke the return of property provision of the AFA.
(e) The effective date of the reassumption if the Tribe/Consortium does not eliminate the imminent jeopardy. If the deadline is less than 60 days after the date of receipt, the Secretary must include a justification.
(f) The amount of funds, if any, that the Secretary believes the Tribe/Consortium should refund to the Department for operation of the reassumed program. This amount cannot exceed the amount provided for that program under the AFA and must be based on such factors as the time or functions remaining in the funding cycle.
§ 1000.309 How much time will a Tribe/Consortium have to respond to a notice of imminent jeopardy?
The Tribe/Consortium will have 5 days to respond to a notice of imminent jeopardy. The response must be written and may be mailed, telefaxed, or sent by electronic mail. If sent by mail, it must be sent by certified mail, return receipt requested; the postmark date will be considered the date of response.
§ 1000.310 What information must the Tribe's/Consortium's response contain?
(a) The Tribe's/Consortium's response must indicate the specific measures that the Tribe/Consortium will take to eliminate the finding of imminent jeopardy.
(b) If the Tribe/Consortium proposes mitigating actions different from those prescribed in the Secretary's notice of imminent jeopardy, the response must explain the reasons for deviating from the Secretary's recommendations and how the proposed actions will eliminate imminent jeopardy.
§ 1000.311 How will the Secretary reply to the Tribe's/Consortium's response?
The Secretary will make a written determination within 10 days of the Tribe's/Consortium's written response as to whether the proposed measures will eliminate the finding of imminent jeopardy.
§ 1000.312 What happens if the Secretary accepts the Tribe's/Consortium's proposed measures?
The Secretary must notify the Tribe/Consortium in writing of the acceptance and suspend the reassumption process.
§ 1000.313 What happens if the Secretary does not accept the Tribe's/Consortium's proposed measures?
(a) If the Secretary finds that the Tribes/Consortia proposed measures will not mitigate imminent jeopardy, he/she will notify the Tribe/Consortium in writing of this determination and of the Tribe's/Consortium's right to appeal
(b) After the reassumption, the Secretary is responsible for the reassumed program, and will take appropriate corrective action to eliminate the imminent jeopardy which may include sending Department employees to the site.
§ 1000.314 What must a Tribe/Consortium do when a program is reassumed?
On the effective date of reassumption, the Tribe/Consortium must, at the request of the Secretary, deliver all property and equipment, and title thereto:
(a) That the Tribe/Consortium received for the program under the AFA; and
(b) That has a per item value in excess of $5,000, or as otherwise provided in the AFA.
§ 1000.315 When must the Tribe/Consortium return funds to the Department?
The Tribe/Consortium must repay funds to the Department as soon as practical after the effective date of the reassumption.
§ 1000.316 May the Tribe/Consortium be reimbursed for actual and reasonable “wind up costs” incurred after the effective date of retrocession?
Yes, the Tribe/Consortium may be reimbursed for actual and reasonable “wind up costs” to the extent that funds are available.
§ 1000.317 Is a Tribe's/Consortium's general right to negotiate an AFA adversely affected by a reassumption action?
A reassumption action taken by the Secretary does not affect the Tribe's/Consortium's ability to negotiate an AFA for programs not affected by the reassumption.
§ 1000.318 When will the Secretary return management of a reassumed program?
A reassumed program may be included in future AFAs, but the Secretary may include conditions in the terms of the AFA to ensure that the circumstances that caused jeopardy to attach do not reoccur.
§ 1000.330 What is the purpose of this subpart?
This subpart explains what happens when a Tribe/Consortium voluntarily returns a program to a bureau.
§ 1000.331 Is a decision by a Tribe/Consortium not to include a program in a successor agreement considered a retrocession?
No, a decision by a Tribe/Consortium not to include a program in a successor agreement is not a retrocession because the Tribe/Consortium is under no obligation beyond an existing AFA.
§ 1000.332 Who may retrocede a program in an AFA?
A Tribe/Consortium may retrocede a program. However, the right of a Consortium member to retrocede may be subject to the terms of the agreement among the members of the Consortium.
§ 1000.333 How does a Tribe/Consortium retrocede a program?
The Tribe/Consortium must submit:
(a) A written notice to:
(1) The Office of Self-Governance for BIA programs; or
(2) The appropriate bureau for non-BIA programs; and
(b) A Tribal resolution or other official action of its governing body.
§ 1000.334 When will the retrocession become effective?
Unless subsequently rescinded by the Tribe/Consortium, a retrocession is only effective on a date mutually agreed upon by the Tribe/Consortium and the Secretary, or as provided in the AFA.
§ 1000.335 How will retrocession affect the Tribe's/Consortium's existing and future AFAs?
Retrocession does not affect other parts of the AFA or funding agreements with other bureaus. A Tribe/Consortium may request to negotiate for and include retroceded programs in future AFAs or through a self-determination contract.
§ 1000.336 Does the Tribe/Consortium have to return funds used in the operation of a retroceded program?
The Tribe/Consortium and the Secretary must negotiate the amount of funding to be returned to the Secretary for the operation of the retroceded program. This amount must be based on such factors as the time remaining or functions remaining in the funding cycle or as provided in the AFA.
§ 1000.337 Does the Tribe/Consortium have to return property used in the operation of a retroceded program?
On the effective date of any retrocession, the Tribe/Consortium must return all property and equipment, and title thereto:
(a) That was acquired under the AFA for the program being retroceded; and
(b) That has a per item value in excess of $5,000 at the time of the retrocession, or as otherwise provided in the AFA.
§ 1000.338 What happens to a Tribe's/Consortium's mature contract status if it has retroceded a program that is also available for self-determination contracting?
Retrocession has no effect on mature contract status, provided that the 3 most recent audits covering activities administered by the Tribe have no unresolved material audit exceptions.
§ 1000.339 How does retrocession affect a bureau's operation of the retroceded program?
The level of operation of the program will depend upon the amount of funding that is returned with the retrocession.
Subpart O—Trust Evaluation Review
§ 1000.354 What is a trust evaluation?
A trust evaluation is an annual review and evaluation of trust functions performed by a Tribe/Consortium to ensure that the functions are performed in accordance with trust standards as defined by Federal law. Trust evaluations address trust functions performed by the Tribe/Consortium on its own behalf as well as trust functions performed by the Tribe/Consortium for the benefit of individual Indians or Alaska Natives.
§ 1000.355 How are trust evaluations conducted?
(a) Each year the Secretary's designated representative(s) will conduct trust evaluations for each self-governance AFA. The Secretary's designated representative(s) will coordinate with the designated Tribe's/Consortium's representative(s) throughout the review process, including the written report required by §1000.365.
(b) This section describes the general framework for trust reviews. However, each Tribe/Consortium may develop, with the appropriate bureau, an individualized trust evaluation process to allow for the Tribe's/Consortium's unique history and circumstances and the terms and conditions of its AFA. An individualized trust evaluation process must, at a minimum, contain the measures in paragraph (d) of this section.
(c) To facilitate the review process so as to mitigate costs and maximize efficiency, each Tribe/Consortium must provide access to all records, plans, and other pertinent documents relevant to the program(s) under review not otherwise available to the Department.
(d) The Secretary's designated representative(s) will:
(1) Review trust transactions;
(2) Conduct on-site inspections of trust resources, as appropriate;
(3) Review compliance with applicable statutory and regulatory requirements;
(4) Review compliance with the trust provisions of the AFA;
(5) Ensure that the same level of trust services is provided to individual Indians as would have been provided by the Secretary;
(6) Document deficiencies in the performance of trust functions discovered during the review process; and
(7) Ensure the fulfillment of the Secretary's trust responsibility to Tribes and individual Indians by documenting the existence of:
(i) Systems of internal controls;
(ii) Trust standards; and
(iii) Safeguards against conflicts of interest in the performance of trust functions.
(e) At the request of a Tribe/Consortium, at the time the AFA is negotiated, the standards will be negotiated, except where standards are otherwise provided for by law.
§ 1000.356 May the trust evaluation process be used for additional reviews?
Yes, if the parties agree.
§ 1000.357 May the parties negotiate standards of review for purposes of the trust evaluation?
Yes, unless standards are otherwise provided by Federal treaties, statutes, case law or regulations not waived, the Secretary's designated representative will negotiate standards of review at the request of the Tribe/Consortium.
§ 1000.358 Can an initial review of the status of the trust asset be conducted?
If the parties agree and it is practical, the Secretary may determine the status of the trust resource at the time of the transfer of the function or at a later time.
§ 1000.359 What are the responsibilities of the Secretary's designated representative(s) after the annual trust evaluation?
The Secretary's representative(s) must prepare a written report documenting the results of the trust evaluation.
(a) Upon Tribal/Consortium request, the representative(s) will provide the Tribal/Consortium representative(s) with a copy of the report for review and comment before finalization.
(b) The representative(s) will attach to the report any Tribal/Consortium comments that the representative does not accept.
§ 1000.360 Is the trust evaluation standard or process different when the trust asset is held in trust for an individual Indian or Indian allottee?
No, Tribes/Consortia are under the same obligation as the Secretary to perform trust functions and related activities in accordance with trust protection standards and principles whether managing Tribally or individually owned trust assets. The process for conducting annual trust evaluations of Tribal performance of trust functions on behalf of individual Indians is the same as that used in evaluating performance of Tribal trust functions.
§ 1000.361 Will the annual review include a review of the Secretary's residual trust functions?
Yes, if the annual evaluation reveals that deficient performance of a trust function is due to the action or inaction of a bureau, the evaluation report will note the deficiency and the appropriate Department official will be notified of the need for corrective action. The review of the Secretary's trust functions shall be based on the standards in this subpart, other applicable law, and other Federal law.
§ 1000.362 What are the consequences of a finding of imminent jeopardy in the annual trust evaluation?
(a) A finding of imminent jeopardy triggers the Federal reassumption process (see subpart M of this part), unless the conditions in paragraph (b) of this section are met.
(b) The reassumption process will not be triggered if the Secretary's designated representative determines that the Tribe/Consortium:
(1) Can cure the conditions causing jeopardy within 60 days; and
(2) Will not cause significant loss, harm, or devaluation of a trust asset, natural resources, or the public health and safety.
§ 1000.363 What if the trust evaluation reveals problems that do not rise to the level of imminent jeopardy?
Where problems not rising to the level of imminent jeopardy are caused by Tribal action or inaction, the conditions must be:
(a) Documented in the annual trust evaluation report;
(b) Reported to the Secretary; and
(c) Reported in writing to:
(1) The governing body of the Tribe; and
(2) In the case of a Consortium, to the governing body of each Tribe on whose behalf the Consortium is performing the trust functions.
§ 1000.364 Who is responsible for corrective action?
The Tribe/Consortium is primarily responsible for identifying and implementing corrective actions for matters contained in the AFA, but the Department may also suggest possible corrective measures for Tribal consideration.
§ 1000.365 What are the requirements of the review team report?
A report summarizing the results of the trust evaluation will be prepared and copies provided to the Tribe/Consortium. The report must:
(a) Be written objectively, concisely, and clearly; and
(b) Present information accurately and fairly, including only relevant and adequately supported information, findings, and conclusions.
§ 1000.366 Can the Department conduct more than one trust evaluation per Tribe per year?
Trust evaluations are normally conducted annually. When the Department receives information of a threat of imminent jeopardy to a trust asset, natural resource, or the public health and safety, the Secretary, as trustee, may conduct a preliminary investigation. If the preliminary investigation shows that appropriate, sufficient data are present to indicate there may be imminent jeopardy, the Secretary's designated representative:
(a) Will notify the Tribe/Consortium in writing; and
(b) May conduct an on-site inspection upon 2 days' advance written notice to the Tribe/Consortium.
§ 1000.367 Will the Department evaluate a Tribe's/Consortium's performance of non-trust related programs?
This depends on the terms contained in the AFA.
§ 1000.390 How can a Tribe/Consortium hire a Federal employee to help implement an AFA?
If a Tribe/Consortium chooses to hire a Federal employee, it can use one of the arrangements listed in this section:
(a) The Tribe can use its own Tribal personnel hiring procedures. Federal employees hired by the Tribe/Consortium are separated from Federal service.
(b) The Tribe can “direct hire” a Federal employee as a Tribal employee. The employee will be separated from Federal service and work for the Tribe/Consortium, but maintain a negotiated Federal benefit package that is paid for by the Tribe/Consortium out of AFA program funds; or
(c) The Tribe can negotiate an agreement under the Intergovernmental Personnel Act, 25 U.S.C. 48, or other applicable Federal law. The employee will remain a Federal employee during the term of the agreement.
§ 1000.391 Can a Tribe/Consortium employee be detailed to a Federal service position?
Yes, under the Intergovernmental Personnel Act, 25 U.S.C. 48, or other applicable law, when permitted by the Secretary.
§ 1000.392 How does the Freedom of Information Act apply?
(a) Access to records maintained by the Secretary is governed by the Freedom of Information Act (5 U.S.C. 552) and other applicable Federal law.
(b) At the option of the Tribe/Consortium under section 108 of the Pub. L. 93–638, except for previously provided copies of Tribe/Consortium records that the Secretary demonstrates are clearly required to be maintained as part of the record keeping system of the Department of the Interior, records of the Tribe/Consortium shall not be considered Federal records for the purpose of the Freedom of Information Act.
(c) The Freedom of Information Act does not apply to records maintained solely by Tribes/Consortia.
§ 1000.393 How does the Privacy Act apply?
At the option of the Tribe/Consortium, section 108(b) of Pub. L. 93–638, as amended, provides that records of the Tribe/Consortium must not be considered Federal records for the purposes of the Privacy Act.
§ 1000.394 What audit requirements must a self-governance Tribe/Consortium follow?
The Tribe/Consortium must provide to the designated official an annual single organization-wide audit as prescribed by the Single Audit Act of 1984, 31 U.S.C. 7501, et seq.
§ 1000.395 Do OMB circulars and revisions apply to self-governance funding agreements?
Yes, OMB circulars and revisions apply, except for:
(a) Listed exceptions for Tribes and Tribal Consortia;
(b) Exceptions in 25 U.S.C. 450j–1(k); and
(c) Additional exceptions that OMB may grant.
§ 1000.396 Does a Tribe/Consortium have additional ongoing requirements to maintain minimum standards for Tribe/Consortium management systems?
Yes, the Tribe/Consortium must maintain management systems that are determined to be adequate by an independent audit through the annual single agency audit report that is required by the Act and OMB Circular A–133.
§ 1000.397 Are there any restrictions on how AFA funds may be spent?
Yes, funds may be spent only for costs associated with programs, services, functions, and activities contained in self-governance AFAs.
§ 1000.398 May a Tribe/Consortium invest funds received under a self-governance agreement?
Yes, self-governance funds may be invested if such investment is in:
(a) Obligations of the United States;
(b) Obligations or securities that are within the limits guaranteed or insured by the United States or mutual (or other) funds registered with the Securities and Exchange Commission and that only invest in obligations of the United States or securities that are guaranteed or insured by the United States; or
(c) Deposits insured by an agency or instrumentality of the United States or are fully collateralized to ensure protection of the funds even in the event of a bank failure.
§ 1000.399 How may interest or investment income that accrues on AFAs be used?
Unless restricted by the AFA, interest or income earned on investments or deposits of self-governance awards may be:
(a) Placed in the Tribe's general fund and used for any purpose approved by the Tribe; or
(b) Used to provide expanded services under the self-governance AFA and to support some or all of the costs of investment services.
§ 1000.400 Can a Tribe/Consortium retain savings from programs?
Yes, for BIA programs, the Tribe/Consortium may retain savings for each fiscal year during which an AFA is in effect. A Tribe/Consortium must use any savings that it realizes under an AFA, including a construction contract:
(a) To provide additional services or benefits under the AFA; or
(b) As carryover; and
(c) For purposes of this subpart only, programs administered by BIA using appropriations made to other Federal agencies, such as the Department of Transportation, will be treated in accordance with paragraph (b) of this section.
§ 1000.401 Can a Tribe/Consortium carry over funds not spent during the term of the AFA?
This section applies to BIA programs, services, functions, or activities, notwithstanding any other provision of law. Any funds appropriated under the Snyder Act of 1921 (42 Stat. 208), for any fiscal year that are not obligated or spent by the end of the fiscal year for which they were appropriated shall remain available for obligation or expenditure during the following fiscal year. In the case of amounts made available to a Tribe/Consortium under an AFA, if the funds are to be expended in the succeeding fiscal year for the purpose for which they were originally appropriated, contracted or granted, or for which they are authorized to be used under the provisions of §106(a)(3) of the Act, no additional justification or documentation of such purposes need be provided by the Tribe/Consortium to the Secretary as a condition of receiving or expending such funds.
§ 1000.402 After a non-BIA AFA has been executed and the funds transferred to a Tribe/Consortium, can a bureau request the return of funds?
The bureau may request the return of funds already transferred to a Tribe/Consortium only under the following circumstances:
(c) Construction, when there are special legal requirements; or
(d) As otherwise provided for in the AFA.
§ 1000.403 How can a person or group appeal a decision or contest an action related to a program operated by a Tribe/Consortium under an AFA?
(a) BIA programs. A person or group who is aggrieved by an action of a Tribe/Consortium with respect to programs that are provided by the Tribe/Consortium under an AFA must follow Tribal administrative procedures.
(b) Non-BIA programs. Procedures will vary depending on the program. Aggrieved parties should initially contact the local program administrator (the Indian program contact). Thereafter, appeals will follow the relevant bureau's appeal procedures.
§ 1000.404 Must self-governance Tribes/Consortia comply with the Secretarial approval requirements of 25 U.S.C. 81; 82a; and 476 regarding professional and attorney contracts?
No, for the period that an agreement entered into under this part is in effect, the provisions of 25 U.S.C. 81, 82a, and 476, do not apply to attorney and other professional contracts by participating Tribes/Consortia.
§ 1000.405 Are AFA funds non-Federal funds for the purpose of meeting matching requirements?
Yes, self-governance AFA funds can be treated as non-Federal funding for the purpose of meeting matching requirements under Federal law.
§ 1000.406 Does Indian preference apply to services, activities, programs, and functions performed under a self-governance AFA?
Tribal law must govern Indian preference in employment, where permissible, in contracting and subcontracting in performance of an AFA.
§ 1000.407 Do the wage and labor standards in the Davis-Bacon Act apply to Tribes and Tribal Consortia?
No, wage and labor standards of the Davis-Bacon Act do not apply to employees of Tribes and Tribal Consortia. They do apply to all other laborers and mechanics employed by contractors and subcontractors in the construction, alteration, and repair (including painting or redecorating of buildings or other facilities) in connection with an AFA.
§ 1000.420 What does “Title-I eligible programs” mean in this subpart?
Throughout this subpart, the phrase “Title I-eligible programs” is used to refer to all programs, functions, services, and activities that the Secretary provides for the benefit of Indians because of their status as Indians without regard to the agency or office of the Department within which the programs, functions, services, and activities have been performed.
§ 1000.421 What is the purpose of this subpart?
This subpart prescribes the process Tribes/Consortia may use to resolve disputes with the Department arising before or after execution of an AFA or compact and certain other disputes related to self-governance. It also describes the administrative process for reviewing disputes related to compact provisions. This subpart describes the process for administrative appeals to:
(a) The Interior Board of Indian Appeals (IBIA) for certain pre-AFA disputes;
(b) The Civilian Board of Contract Appeals (CBCA) for certain post-AFA disputes;
(c) The Assistant Secretary for the bureau responsible for certain disputed decisions;
(d) The Secretary for reconsideration of decisions involving self-governance compacts; and
(e) The agency head for certain pre-award AFA disputes.
[65 FR 78703, Dec. 15, 2000, as amended at 75 FR 31701, June 4, 2010]
§ 1000.422 How must disputes be handled?
(a) The Department encourages its Bureaus to seek all means of dispute resolution before the Tribe/Consortium files a formal appeal(s).
(b) Disputes shall be addressed through government-to-government discourse. This discourse must be respectful of government-to-government relationships and relevant Federal-Tribal agreements, treaties, judicial decisions, and policies pertaining to Indian Tribes.
(c) Title I-eligible program disputes may use an informal conference as set forth in 25 CFR 900.153–157.
(d) All disputes arising under this rule, including but not limited to Title I-eligible program disputes may use non-binding informal alternative dispute resolution at the option of the Tribe/Consortium, as prescribed in §402 of this subpart. The Tribe/Consortium may ask for this alternative dispute resolution any time before the issuance of an initial decision of a formal appeal(s). The appeals timetable will be suspended while alternative dispute resolution is pending.
§ 1000.423 Are there any decisions that are not administratively appealable under this subpart?
Yes, the following types of decisions are not administratively appealable under this subpart but may be appealable under other substantive provisions of the Code of Federal Regulations:
(a) Decisions relating to planning and negotiation grants (subparts C and D of this part) and certain discretionary grants not awarded under Title IV (25 CFR part 2);
(b) Decisions involving a limitation and/or reduction of services for BIA programs (subpart H of this part)(25 CFR part 2);
(c) Decisions regarding requests for waivers of regulations (subpart J of this part);
(d) Decisions regarding construction (subpart K of this part) addressed in §1000.251(b); and
(e) Decisions under any other statute, such as the Freedom of Information Act and the Privacy Act (see 43 CFR part 2).
§ 1000.424 Does a Tribe/Consortium have a right to an informal conference to resolve any disputes?
Yes, the Tribe/Consortium may request an informal conference (a non-binding alternative dispute resolution process). An informal conference is a way to resolve both Title I-eligible program and other disputes as quickly as possible, without the need for a formal appeal.
§ 1000.425 How does a Tribe/Consortium request an informal conference?
The Tribe/Consortium shall file its request for an informal conference with the office of the person whose decision it is appealing, within 30 days of the day it receives the decision.
(a) The Tribe/Consortium may either hand-deliver the request for an informal conference to that person's office, fax the request with confirmation or mail it by certified mail, return receipt requested.
(b) If the Tribe/Consortium mails the request, it will be considered filed on the date the Tribe/Consortium mailed it by certified mail.
§ 1000.426 How is an informal conference held?
For all purposes relating to these informal conference procedures, the parties are the designated representatives of the Tribe/Consortium and the bureau.
(a) The informal conference shall be held within 30 days of the date the request was received, unless the parties agree on another date.
(b) Where practicable, at the option of the Tribe/Consortium, the informal conference will be held at the Tribe's/Consortium's office. If the meeting cannot be held at the Tribe's/Consortium's office, the parties must agree on an alternative meeting place.
(c) The informal conference shall be conducted by a designated representative of the Secretary.
(d) Only the parties may make presentations at the informal conference.
(e) The informal conference is not a hearing on the record. Nothing said during an informal conference may be used by either party in litigation.
§ 1000.427 What happens after the informal conference?
(a) Within 10 business days of the informal conference, the person who conducted the informal conference shall mail to the Tribe/Consortium a brief summary of the informal conference. The summary must include any agreements reached or changes from the initial position of the bureau or the Tribe/Consortium.
(b) If in its judgment no agreement was reached, the Tribe/Consortium may choose to appeal the initial decision, as modified by any changes made as a result of the informal conference, under §1000.421 of this subpart to the IBIA, bureau head/Assistant Secretary, or IBCA.
§ 1000.428 How may a Tribe/Consortium appeal a decision made after the AFA or compact or amendment to an AFA or compact has been signed?
With the exception of certain decisions concerning reassumption for imminent jeopardy (see §1000.408 of this subpart), the Tribe/Consortium may appeal post-award administrative decisions to the CBCA.
[65 FR 78703, Dec. 15, 2000, as amended at 75 FR 31701, June 4, 2010]
§ 1000.429 What statutes and regulations govern resolution of disputes concerning signed AFAs or compacts that are appealed to the CBCA?
Section 110 of Public Law 93–638 (25 U.S.C. 450m-l) and the regulations at 25 CFR 900.216 through 900.230 apply to disputes concerning signed AFAs and compacts that are appealed to the CBCA, except that any references to the Department of Health and Human Services are inapplicable. For purposes of such appeals:
(a) The terms “contract” and “self-determination contract” mean compacts and AFAs under the Tribal Self-Governance Act; and
(b) The term “Tribe” means “Tribe/Consortium'.
[65 FR 78703, Dec. 15, 2000, as amended at 75 FR 31701, June 4, 2010]
§ 1000.430 Who handles appeals regarding reassumption for imminent jeopardy?
Appeals regarding reassumption of Title I-eligible PFSAs are handled by the IBIA under the procedures in 25 CFR 900.171 through 900.176. Appeals regarding reassumption of PFSAs that are not Title I-eligible are handled by the CBCA under the procedures in 48 CFR part 6101.
[75 FR 31702, June 4, 2010]
§ 1000.431 Does the Equal Access to Justice Act (EAJA) apply to appeals under this subpart?
Yes. EAJA claims against the DOI will be heard under 48 CFR 6101.30, 6101.31 (CBCA) and 43 CFR 4.602, 4.604 through 4.628 (DOI) and under the Equal Access to Justice Act, 5 U.S.C. 504 and 28 U.S.C. 2412.
[75 FR 31702, June 4, 2010]
§ 1000.432 To whom may a Tribe appeal a decision made before the AFA or an amendment to the AFA or compact is signed?
(a) Title I-eligible PFSA pre-award disputes. For Title I—eligible PFSA disputes, appeal may only be filed with IBIA under the provisions set forth in 25 CFR 900.150(a) through (h), 900.152 through 900.169.
(b) Other pre-award disputes. For all other pre-award disputes, including those involving PFSAs that are not Title I-eligible, appeals may be filed with the bureau head/Assistant Secretary or IBIA as noted below. However, the Tribe/Consortium may not avail itself of both paths for the same dispute.
(1) Bureau head/Assistant Secretary appeal. Unless the initial decision being appealed is one that was made by the bureau head (those appeals are forwarded to the appropriate Assistant Secretary—see §1000.433(c) of this subpart), the bureau head will decide appeals relating to these pre-award matters, that include but are not limited to disputes regarding:
(i) PFSAs that are not Title 1-eligible;
(ii) Eligibility for the applicant pool of self-governance Tribes;
(iii) BIA residual functions;
(iv) Decisions declining to provide requested information as addressed in §1000.172 of this part;
(v) Allocations of program funds when a dispute arises between a Consortium and a withdrawing Tribe; and
(vi) Inherently Federal functions.
(2) IBIA appeal. The Tribe/Consortium may choose to forego the administrative appeal through the bureau or the Assistant Secretary, as described in the paragraph (b)(1) of this section, and instead appeal directly to IBIA. The standard of review for such IBIA appeals will be an “abuse of discretion” standard.
§ 1000.433 When and how must a Tribe/Consortium appeal an adverse pre-award decision?
(a) If a Tribe/Consortium wishes to exercise its appeal rights under §1000.432(b)(1), it must make a written request for review to the appropriate bureau head within 30 days of receiving the initial adverse decision. In addition, the Tribe/Consortium may request the opportunity to have a meeting with appropriate bureau personnel in an effort to clarify the matter under dispute before a formal decision by the bureau head.
(b) The written request for review should include a statement describing its reasons for a review, with any supporting documentation, or indicate that such a statement or documentation will be submitted within 30 days. A copy of the request must also be sent to the Director of the Office of Self-Governance.
(c) If the initial decision was made by the bureau head, any appeal shall be directed to the appropriate Assistant Secretary. If a Tribe does not request a review within 30 days of receipt of the decision, the initial decision will be final for the Department.
§ 1000.434 When must the bureau head (or appropriate Assistant Secretary) issue a final decision in the pre-award appeal?
Within 30 days of receiving the request for review and the statement of reasons described in §1000.433, the bureau head or, where applicable, the appropriate Assistant Secretary must:
(a) Issue a written final decision stating the reasons for the decision; and
(b) Send the decision to the Tribe/Consortium.
§ 1000.435 When and how will the Assistant Secretary respond to an appeal by a Tribe/Consortium?
The appropriate Assistant Secretary will decide an appeal of any initial decision made by a bureau head (see §1000.433). If the Tribe/Consortium has appealed the bureau's initial adverse decision of the bureau to the bureau head and the bureau head's decision on initial appeal is contrary to the Tribe's/Consortium's request for relief, or the bureau head fails to make a decision within 30 days of receipt by the bureau of the Tribe's/Consortium's initial request for review and any accompanying statement and documentation, the Tribe's/Consortium's appeal will be sent automatically to the appropriate Assistant Secretary for decision. The Assistant Secretary must either concur with the bureau head's decision or issue a separate decision within 60 days of receipt by the bureau of the Tribe's/Consortium's initial request for review and any accompanying statement and documentation. The decision of the Assistant Secretary is final for the Department.
§ 1000.436 How may a Tribe/Consortium seek reconsideration of the Secretary's decision involving a self-governance compact?
A Tribe/Consortium may request reconsideration of the Secretary's decision involving a self-governance compact by sending a written request for reconsideration to the Secretary within 30 days of receipt of the decision. A copy of this request must also be sent to the Director of the Office of Self-Governance.
§ 1000.437 When will the Secretary respond to a request for reconsideration of a decision involving a self-governance compact?
The Secretary must respond in writing to the Tribe/Consortium within 30 days of receipt of the Tribe's/Consortium's request for reconsideration.
§ 1000.438 May Tribes/Consortia appeal Department decisions to a Federal court?
Yes, Tribes/Consortia may appeal decisions of Department officials relating to the self-governance program to an appropriate Federal court, as authorized by section 110 of Pub. L. 93–638 (25 U.S.C. 405m-1), or any other applicable law.
Subpart S—Conflicts of Interest
§ 1000.460 What is an organizational conflict of interest?
(a) An organizational conflict of interest arises when there is a direct conflict between the financial interests of the self-governance Tribe/Consortium and:
(1) The financial interests of beneficial owners of Indian trust resources;
(2) The financial interests of the United States relating to trust resources, trust acquisitions, or lands conveyed or to be conveyed under the Alaska Native Claims Settlement Act 43 U.S. C. 1601 et seq. ; or
(3) An express statutory obligation of the United States to third parties. This section only applies if the conflict was not addressed when the AFA was first negotiated.
(b) This section only applies where the financial interests of the Tribe/Consortium are significant enough to impair the Tribe's/Consortium's objectivity in carrying out the AFA, or a portion of the AFA.
§ 1000.461 What must a Tribe/Consortium do if an organizational conflict of interest arises under an AFA?
This section only applies if the conflict was not addressed when the AFA was first negotiated. When a Tribe/Consortium becomes aware of an organizational conflict of interest, the Tribe/Consortium must immediately disclose the conflict to the Secretary.
§ 1000.462 When must a Tribe/Consortium regulate its employees or subcontractors to avoid a personal conflict of interest?
A Tribe/Consortium must maintain written standards of conduct to govern officers, employees, and agents (including subcontractors) engaged in functions related to the management of trust assets.
§ 1000.463 What types of personal conflicts of interest involving tribal officers, employees or subcontractors would have to be regulated by a Tribe/Consortium?
The Tribe/Consortium would need a tribally-approved mechanism to ensure that no officer, employee, or agent (including a subcontractor) of the Tribe/Consortium reviews a trust transaction in which that person has a financial or employment interest that conflicts with that of the trust beneficiary, whether the tribe/consortium or an allottee. Interests arising from membership in, or employment by, a Tribe/Consortium or rights to share in a tribal claim need not be regulated.
§ 1000.464 What personal conflicts of interest must the standards of conduct regulate?
The personal conflicts of interest standards must:
(a) Prohibit an officer, employee, or agent (including a subcontractor) from participating in the review, analysis, or inspection of trust transactions involving an entity in which such persons have a direct financial interest or an employment relationship;
(b) Prohibit such officers, employees, or agents from accepting any gratuity, favor, or anything of more than nominal value, from a party (other than the Tribe/Consortium) with an in the trust transactions under review; and
(c) Provide for sanctions or remedies for violation of the standards.
§ 1000.465 May a Tribe/Consortium negotiate AFA provisions on conflicts of interest to take the place of this subpart?
(a) A Tribe/Consortium and the Secretary may agree to AFA provisions, concerning either personal or organizational conflicts, that:
(1) Address the issues specific to the program and activities contracted; and
(2) Provide equivalent protection against conflicts of interest to these regulations.
(b) Agreed-upon AFA provisions shall be followed, rather than the related provisions of this subpart. For example, the Tribe/Consortium and the Secretary may agree that using the Tribe's/Consortium's own written code of ethics satisfies the objectives of the personal conflicts provisions of subpart, in whole or in part.
Appendix A to Part 1000—Model Compact of Self-Governance Between the Tribe and the Department of the Interior
Article I—Authority and Purpose
This agreement, denoted a compact of Self-Governance (hereinafter referred to as the “compact”), is entered into by the Secretary of the Interior (hereinafter referred to as the “Secretary”), for and on behalf of the United States of America under the authority granted by Title IV of the Indian Self Determination and Education Assistance Act, Pub. L. 93–638, as amended, and by the Tribe, under the authority of the Constitution and By-Laws of the Tribe (hereinafter referred to as the “Tribe”).
This compact shall be liberally construed to achieve its purposes:
(a) This compact is to carry out Self-Governance as authorized by Title IV of Pub. L. 93–638, as amended, that built upon the Self Governance Demonstration Project, and transfer control to Tribal governments, upon Tribal request and through negotiation with the United States government, over funding and decision-making of certain Federal programs as an effective way to implement the Federal policy of government-to-government relations with Indian Tribes.
(b) This compact is to enable the United States to maintain and improve its unique and continuing relationship with and responsibility to the Tribe through Tribal self-governance, so that the Tribe may take its rightful place in the family of governments; remove Federal obstacles to effective self-governance; reorganize Tribal government programs and services; achieve efficiencies in service delivery; and provide a documented example for the development of future Federal Indian policy. This policy of Tribal self-governance shall permit an orderly transition from Federal domination of Indian programs and services to allow Indian Tribes meaningful authority to plan, conduct, and administer those programs and services to meet the needs of their people. In implementing Self-Governance, the Bureau of Indian Affairs is expected to provide the same level of service to other Tribal governments and to demonstrate new policies and methods to improve service delivery and address Tribal needs. In fulfilling its responsibilities under the compact, the Secretary hereby pledges that the Department will conduct all relations with the Tribe on a government-to-government basis.
Article II—Terms, Provisions and Conditions
This compact shall be effective when signed by the Secretary or an authorized representative and the authorized representative of the Tribe. The term of this compact shall commence [negotiated effective date] and must remain in effect as provided by Federal law or agreement of the parties.
Section 2—Funding Amount
In accordance with Section 403(g) of Title IV of Pub. L. 93–638, as amended, and subject to the availability of appropriations, the Secretary shall provide to the Tribe the total amount specified in each annual funding agreement.
Section 3—Reports to Congress
To implement Section 405 of Pub. L. 93–638, as amended, on each January 1 throughout the period of the compact, the Secretary shall make a written report to the Congress that shall include the views of the Tribe concerning the matters encompassed by Section 405(b) and (d).
Section 4—Regulatory Authority
The Tribe shall abide by all Federal regulations as published in the   Federal Register unless waived in accordance with Section 403(i)(2) of Pub. L. 93–638, as amended.
Section 5—Tribal Administrative Procedure
The Tribe shall provide administrative due process right under the Indian Civil Rights Act of 1968, 25 U.S.C. 1301, et seq., to protect all rights and interests that Indians, or groups of Indians, may have with respect to services, activities, programs, and functions that are provided under the compact.
Article III—Obligations of the Tribe
Section 1—AFA Programs
The Tribe will perform the programs as provided in the specific AFA negotiated under the Act. The Tribe pledges to practice utmost good faith in upholding its responsibility to provide such programs, under the Act.
Section 2—Trust Services for Individual Indians
To the extent that the AFAs have provisions for trust services to individual Indians that were formerly provided by the Secretary, the Tribe will maintain at least the same level of service as was previously provided by the Secretary. The Tribe pledges to practice utmost good faith in upholding their responsibility to provide such service.
Article IV—Obligations of the United States
Section 1—Trust Responsibility
The United States reaffirms the trust responsibility of the United States to the ______ Tribe(s) to protect and conserve the trust resources of the Tribe(s) and the trust resources of individual Indians associated with this compact and any annual funding agreement negotiated under the Tribal Self-Governance Act.
Section 2—Trust Evaluations
Under Section 403(d) of Pub. L. 93–638, as amended, annual funding agreements negotiated between the Secretary and an Indian Tribe shall include provisions to monitor the performance of trust functions by the Tribe through the annual trust evaluation.
Article V—Other Provisions
Nothing in this compact may be construed to terminate, waive, modify, or reduce the trust responsibility of the United States to the Tribe(s) or individual Indians. The Secretary shall act in good faith in upholding such trust responsibility.
Section 2—Officials Not To Benefit
No Member of Congress, or resident commissioner, shall be admitted to any share or part of any annual funding agreement or contract thereunder executed under this compact, or to any benefit that may arise from such compact. This paragraph may not be construed to apply to any contract with a third party entered into under an annual funding agreement under this compact if such contract is made with a corporation for the general benefit of the corporation.
Section 3—Covenant Against Contingent Fees
The parties warrant that no person or selling agency has been employed or retained to solicit or secure any contract executed under this compact upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the contractor for the purpose of securing business.
Section 4—Sovereign Immunity
Nothing in this compact or any AFA shall be construed as—
(1) affecting, modifying, diminishing, or otherwise impairing the sovereign immunity from suit enjoyed by the Tribe; or
(2) authorizing or requiring the termination of any existing trust responsibility of the United States with respect to the Indian people.
In witness whereof, the parties have executed, delivered and formed this compact, effective the ____ day of ______, 20__.
THE ________ Tribe
The Department of the Interior.By:____________________