25 U.S.C. § 5321: Self-determination contracts

provided for in the Act of April 16, 1934 ( 48 Stat. 596 ), as amended [ 25 U.S.C. 5342 et seq.]; which the Secretary is authorized to administer for the benefit of Indians under the Act of November 2, 1921 ( 42 Stat. 208 ) [ 25 U.S.C. 13 ], and any Act subsequent thereto; provided by the Secretary of Health and Human Services under the Act of August 5, 1954 ( 68 Stat. 674 ), as amended [ 42 U.S.C. 2001 et seq.]; administered by the Secretary for the benefit of Indians for which appropriations are made to agencies other than the Department of Health and Human Services or the Department of the Interior; and for the benefit of Indians because of their status as Indians without regard to the agency or office of the Department of Health and Human Services or the Department of the Interior within which it is performed. the service to be rendered to the Indian beneficiaries of the particular program or function to be contracted will not be satisfactory; adequate protection of trust resources is not assured; the proposed project or function to be contracted for cannot be properly completed or maintained by the proposed contract; the amount of funds proposed under the contract is in excess of the applicable funding level for the contract, as determined under section 5325(a) of this title ; or the program, function, service, or activity (or portion thereof) that is the subject of the proposal is beyond the scope of programs, functions, services, or activities covered under paragraph (1) because the proposal includes activities that cannot lawfully be carried out by the contractor. Upon the request of a tribal organization that operates two or more mature self-determination contracts, those contracts may be consolidated into one single contract. proposes in part to plan, conduct, or administer a program, function, service, or activity that is beyond the scope of programs covered under paragraph (1), or proposes a level of funding that is in excess of the applicable level determined under section 5325(a) of this title , state any objections in writing to the tribal organization, provide assistance to the tribal organization to overcome the stated objections, and provide the tribal organization with a hearing on the record with the right to engage in full discovery relevant to any issue raised in the matter and the opportunity for appeal on the objections raised, under such rules and regulations as the Secretary may promulgate, except that the tribe or tribal organization may, in lieu of filing such appeal, exercise the option to initiate an action in a Federal district court and proceed directly to such court pursuant to section 5331(a) of this title . Beginning in 1990, the Secretary shall be responsible for obtaining or providing liability insurance or equivalent coverage, on the most cost-effective basis, for Indian tribes, tribal organizations, and tribal contractors carrying out contracts, grant agreements and cooperative agreements pursuant to this chapter. In obtaining or providing such coverage, the Secretary shall take into consideration the extent to which liability under such contracts or agreements are covered by the Federal Tort Claims Act. In obtaining or providing such coverage, the Secretary shall, to the greatest extent practicable, give a preference to coverage underwritten by Indian-owned economic enterprises (as defined in section 1452 of this title ), except that, for the purposes of this subsection, such enterprises may include non-profit corporations. Any policy of insurance obtained or provided by the Secretary pursuant to this subsection shall contain a provision that the insurance carrier shall waive any right it may have to raise as a defense the sovereign immunity of an Indian tribe from suit, but that such waiver shall extend only to claims the amount and nature of which are within the coverage and limits of the policy and shall not authorize or empower such insurance carrier to waive or otherwise limit the tribe’s sovereign immunity outside or beyond the coverage or limits of the policy of insurance. No waiver of the sovereign immunity of an Indian tribe pursuant to this paragraph shall include a waiver to the extent of any potential liability for interest prior to judgment or for punitive damages or for any other limitation on liability imposed by the law of the State in which the alleged injury occurs. For purposes of section 233 of title 42 , with respect to claims by any person, initially filed on or after December 22, 1987 , whether or not such person is an Indian or Alaska Native or is served on a fee basis or under other circumstances as permitted by Federal law or regulations for personal injury, including death, resulting from the performance prior to, including, or after December 22, 1987 , of medical, surgical, dental, or related functions, including the conduct of clinical studies or investigations, or for purposes of section 2679, title 28, with respect to claims by any such person, on or after November 29, 1990 , for personal injury, including death, resulting from the operation of an emergency motor vehicle, an Indian tribe, a tribal organization or Indian contractor carrying out a contract, grant agreement, or cooperative agreement under sections 2 5321 or 5322 of this title is deemed to be part of the Public Health Service in the Department of Health and Human Services while carrying out any such contract or agreement and its employees (including those acting on behalf of the organization or contractor as provided in 2 So in original. Probably should be “section”. section 2671 of title 28 and including an individual who provides health care services pursuant to a personal services contract with a tribal organization for the provision of services in any facility owned, operated, or constructed under the jurisdiction of the Indian Health Service) are deemed employees of the Service while acting within the scope of their employment in carrying out the contract or agreement: Provided , That such employees shall be deemed to be acting within the scope of their employment in carrying out such contract or agreement when they are required, by reason of such employment, to perform medical, surgical, dental or related functions at a facility other than the facility operated pursuant to such contract or agreement, but only if such employees are not compensated for the performance of such functions by a person or entity other than such Indian tribe, tribal organization or Indian contractor. With respect to any hearing or appeal conducted pursuant to subsection (b)(3) of this section or any civil action conducted pursuant to section 5331(a) of this title , the Secretary shall have the burden of proof to establish by clearly demonstrating the validity of the grounds for declining the contract proposal (or portion thereof). by an official of the Department who holds a position at a higher organizational level within the Department than the level of the departmental agency (such as the Indian Health Service or the Bureau of Indian Affairs) in which the decision that is the subject of the appeal was made; or by an administrative judge. at all times negotiate in good faith to maximize implementation of the self-determination policy; and the purposes specified in section 5302 of this title ; and the PROGRESS for Indian Tribes Act. Subject to section 101(a) of the PROGRESS for Indian Tribes Act, each provision of this chapter and each provision of a contract or funding agreement shall be liberally construed for the benefit of the Indian Tribe participating in self-determination, and any ambiguity shall be resolved in favor of the Indian Tribe. “This title may be cited as the ‘Indian Tribal Tort Claims and Risk Management Act of 1998’.”