1000.100—May a Tribe/Consortium obtain discretionary or competitive funding that is distributed on a discretionary or competitive basis?
This part is prepared and issued by the Secretary of the Interior under the negotiated rulemaking procedures in 5 U.S.C. 565.
This subpart describes the selection process and eligibility criteria that the Secretary uses to decide that Indian Tribes may participate in Tribal self-governance as authorized by section 402 of the Tribal Self-Governance Act of 1994.
The applicant pool is the pool of Tribes/Consortia that the Director of the Office of Self-Governance has determined are eligible to participate in self-governance.
A signatory is a Tribe or Consortium that meets the eligibility criteria in § 1000.16 and directly signs the agreements. A signatory may exercise all of the rights and responsibilities outlined in the compact and annual funding agreement and is legally responsible for all financial and administrative decisions made by the signatory.
(1)
Does not meet the eligibility criteria in § 1000.16 and, by resolution of its governing body, authorizes a Consortium to participate in self-governance on its behalf.
(2)
Meets the eligibility criteria in § 1000.16 but chooses to be a member of a Consortium and have a representative of the Consortium sign the compact and AFA on its behalf.
(1)
May not sign the compact and AFA. A representative of the Consortium must sign both documents on behalf of the Tribe.
(2)
May only become a “signatory Tribe” if it independently meets the eligibility criteria in § 1000.16.
Two types of entities are eligible to participate in Tribal self-governance:
(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.
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.
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
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.
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.
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.
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).
Yes, those programs, or portions thereof, that are eligible for contracting under Pub. L. 93-638.
Those programs, or portions thereof, that are eligible for contracting under Pub. L. 93-638.
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).
(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:
(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:
(3)
Other traditional activities, including, but not limited to, subsistence hunting, fishing, and gathering.
Programs eligible for contracts under Pub. L. 93-638 must be awarded non-competitively.
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.
Yes, section 403(k) of the Act excludes from the program:
(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.
No, the Act favors the inclusion of a wide range of 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.
(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
(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.
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.
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.
(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:
It will occur during the pre-negotiation process, subject to the timeframes in § 1000.171 and § 1000.172.
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.
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”.
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.
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.
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.
(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:
(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.
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.
No, if a Tribe/Consortium negotiated amounts before January 16, 2001, it does not need to renegotiate new Tribal shares and residual amounts.
(b)
If a Tribe/Consortium desires to renegotiate the amounts referred to in paragraph (a) of this section, the Tribe/Consortium must:
(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.
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.
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.
This subpart describes program eligibility, funding, terms, and conditions of AFAs for non-BIA programs.
Annual funding agreements for non-BIA programs are legally binding and mutually enforceable agreements between a bureau and a Tribe/Consortium participating in the self-governance program that contain:
(a)
A description of that portion or portions of a bureau program that are to be performed by the Tribe/Consortium; and
(b)
Associated funding, terms and conditions under which the Tribe/Consortium will assume a program, or portion of a program.
This subpart provides the process and timelines for negotiating a self-governance compact with the Department and an AFA with any bureau.
(a)
For a newly selected or currently participating Tribe/Consortium negotiating an initial AFA with any bureau, see §§ 1000.173 through 1000.179.
(b)
For a participating Tribe/Consortium negotiating a successor AFA with any bureau, see §§ 1000.180 through 1000.182.
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.
(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
(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;
(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.
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.
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
(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.
The Secretary determines the amount of indirect contract support costs by:
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.
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.
Yes, as provided for by section 403(b)(2) and 403(c) and as necessary to meet program mandates.
Yes, section 403(b) permits such reallocation upon joint agreement of the Secretary and the Tribe/Consortium.
No, unless otherwise required by law, the Secretary does not have to approve the reallocation of funds with the exception of construction projects.
Yes, subject to the terms of the AFA, a Tribe/Consortium and a non-BIA bureau may agree to provide for the performance under the AFA to extend beyond the fiscal year. However, the Department may not obligate funds in excess and advance of available appropriations.
Yes, terms and conditions in a non-BIA AFA may be amended during the year it is in effect as agreed to by both the Tribe/Consortium and the Secretary.
If the effective date of a 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 resources permit. 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. 2671-268 0 (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 (PFSA) or portions thereof for the full period they were or will be performed.
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.
A model format for self-governance compacts appears in appendix A. A self-governance compact should generally include the following:
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.
Yes, at the Tribe's/Consortium's option.
(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:
(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.
There are two phases of the negotiation process:
Any Tribe/Consortium that has been admitted to the program or to the applicant pool may initiate the information phase.
No, a Tribe/Consortium may go directly to the negotiation 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:
(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.
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;
(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;
(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.
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.
(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
(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
(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
(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.
(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 therequest 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*. |
| * The request may be submitted later than this date where the bureau and the Tribe/Consortium agree that administration for a partial year funding agreement is feasible. | ||
(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.
(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.
(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.
(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.
The negotiation meetings referred to in § 1000.175 must address at a minimum the following: