25 USC 5366 - Provisions relating to the Secretary

U.S Code last checked for updates: Apr 29, 2024

§ 5366.

Provisions relating to the Secretary

(a)

Trust evaluations

(b)

Reassumption

(1)

In general

A compact or funding agreement shall include provisions for the Secretary to reassume a program and associated funding if there is a specific finding relating to that program of—

(A)

imminent jeopardy to a trust asset, a natural resource, or public health and safety that—

(i)

is caused by an act or omission of the Indian Tribe; and

(ii)

arises out of a failure to carry out the compact or funding agreement; or

(B)

gross mismanagement with respect to funds transferred to an Indian Tribe under a compact or funding agreement, as determined by the Secretary in consultation with the Inspector General, as appropriate.

(2)

Prohibition

The Secretary shall not reassume operation of a program, in whole or part, unless—

(A)

the Secretary first provides written notice and a hearing on the record to the Indian Tribe; and

(B)

the Indian Tribe does not take corrective action to remedy the mismanagement of the funds or programs, or the imminent jeopardy to a trust asset, natural resource, or public health and safety.

(3)

Exception

(A)

In general

Notwithstanding paragraph (2), the Secretary may, on written notice to the Indian Tribe, immediately reassume operation of a program if—

(i)

the Secretary makes a finding of imminent and substantial jeopardy and irreparable harm to a trust asset, a natural resource, or the public health and safety caused by an act or omission of the Indian Tribe; and

(ii)

the imminent and substantial jeopardy and irreparable harm to the trust asset, natural resource, or public health and safety arises out of a failure by the Indian Tribe to carry out the terms of an applicable compact or funding agreement.

(B)

Reassumption

(c)

Inability to agree on compact or funding agreement

(1)

Final offer

(2)

Determination

(3)

Extensions

(4)

Designated officials

(A)

In general

(B)

No designation

(5)

No timely determination

(6)

Rejection of final offer

(A)

In general

If the Secretary rejects a final offer (or one or more provisions or funding levels in a final offer), the Secretary shall—

(i)

provide timely written notification to the Indian Tribe that contains a specific finding that clearly demonstrates, or that is supported by a controlling legal authority, that—

(I)

the amount of funds proposed in the final offer exceeds the applicable funding level as determined under section 5325(a)(1) of this title;

(II)

the program that is the subject of the final offer is an inherent Federal function or is subject to the discretion of the Secretary under section 5363(c) of this title;

(III)

the Indian Tribe cannot carry out the program in a manner that would not result in significant danger or risk to the public health or safety, to natural resources, or to trust resources;

(IV)

the Indian Tribe is not eligible to participate in self-governance under section 5362(c) of this title;

(V)

the funding agreement would violate a Federal statute or regulation; or

(VI)

with respect to a program or portion of a program included in a final offer pursuant to section 5363(b)(2) of this title, the program or the portion of the program is not otherwise available to Indian Tribes or Indians under section 5321(a)(1)(E) of this title;

(ii)

provide technical assistance to overcome the objections stated in the notification required by clause (i);

(iii)

provide the Indian Tribe with a hearing on the record with the right to engage in full discovery relevant to any issue raised in the matter, and the opportunity for appeal on the objections raised, except that the Indian Tribe may, in lieu of filing such appeal, directly proceed to initiate an action in a United States district court under section 5331(a) of this title; and

(iv)

provide the Indian Tribe the option of entering into the severable portions of a final proposed compact or funding agreement (including a lesser funding amount, if any), that the Secretary did not reject, subject to any additional alterations necessary to conform the compact or funding agreement to the severed provisions.

(B)

Effect of exercising certain option

If an Indian Tribe exercises the option specified in subparagraph (A)(iv)—

(i)

the Indian Tribe shall retain the right to appeal the rejection by the Secretary under this section; and

(ii)

clauses (i), (ii), and (iii) of subparagraph (A) shall apply only to the portion of the proposed final compact or funding agreement that was rejected by the Secretary.

(d)

Burden of proof

In any administrative action, hearing, appeal, or civil action brought under this section, the Secretary shall have the burden of proof—

(1)

of demonstrating, by a preponderance of the evidence, the validity of the grounds for a reassumption under subsection (b); and

(2)

of clearly demonstrating the validity of the grounds for rejecting a final offer made under subsection (c).

(e)

Good faith

(1)

In general

(2)

Policy

(f)

Savings

(1)

In general

(2)

Discretionary programs of special significance

(g)

Trust responsibility

(h)

Decision maker

A decision that constitutes final agency action and relates to an appeal within the Department conducted under subsection (c)(6)(A)(iii) may be made by—

(1)

an official of the Department who holds a position at a higher organizational level within the Department than the level of the departmental agency in which the decision that is the subject of the appeal was made; or

(2)

an administrative law judge.

(i)

Rules of construction

(Pub. L. 93–638, title IV, § 406, as added Pub. L. 116–180, title I, § 101(e), Oct. 21, 2020, 134 Stat. 866.)

cite as: 25 USC 5366