Tribal Self-Governance Health Care and Social Services Delivery Effectiveness Evaluation Feasibility Study: Legislative History and Development of Tribal Self-Governance and Contracting - Revised Report. 4.7 Indian Self-Determination Act - Title I Regulations


In 1996, the Departments of Interior and Health and Human Services promulgated joint regulations implementing Title I of the Indian Self Determination Act. Generally, the Indian Self Determination Contract Regulations provide that contracts are governmental contracts that are not procurement-type contracts. The regulations distinguish between ISD contracts and ISD construction contracts providing for limited application of Federal procurement laws and regulations. (102) Tribes may elect to use a grant instead of an ISD construction contract. Grants are not subject to Federal grant and cooperative agreement requirements.

Modified arrangements between Federal agencies and Tribes allow payments to Tribes in advance, or, alternatively, Tribal expenditures can be reimbursed after tribal outlays. Funds are transferred according to work schedule requirements. Accrued interest on government funds held by a Tribe belongs to the Tribe. Mature contracts can have an indefinite term. Funding to other Tribes cannot be reduced because of a contract with a given Tribe. Non-construction contracts can be redesigned. Funds for a contract cannot be less than what was otherwise provided. Funding includes start-up costs, reasonable and allowable direct, and indirect costs. Funds may not be held back for by the government for monitoring or administration of contracts, or for related Federal functions or personnel costs.

Additionally, indirect cost recovery shortfalls are to have no impact on the calculation of overhead rates or rate adjustment, although under-recovery does affect Tribes indirect cost rate. The government's right of recovery for disallowed costs is subject to its giving prior notice, within one year after the required Single Agency Audit Report. Tribes must comply with the Single Agency Audit Act. (103) The effects of pass-through direct costs are not considered in calculating construction contract indirect costs.

Further, executive agencies must conduct annual consultation on with Tribes regarding tribal budgets that are included in annual submission to Congress. (104) Tribes have significant reprogram authority to funds without need of Secretarial approval. Actions that can be taken to stop payment or suspend payment to Tribes invoke significant administrative due process. The Federal government may not promulgate regulations to change the Final regulations negotiated under the Administrative Procedures Act. (105) The Federal Tort Claims Act and Contract Disputes Act apply to contracts. The Secretaries have authority to waive published regulations in the best interests of Indians served.

Self-Determination contracts incorporate Model Agreements which include: Authority, purpose, terms, effective date, program standards, funding amount, limitation on costs, payment, records and monitoring, property terms, availability of funds, transportation, Federal program guidelines, disputes, administrative procedures, terms for successor annual funding agreements, and contract requirements. Contract records are not Federal records. The regulations also provide that Annual funding agreements contain terms to identify the programs, services, functions, or activities to be performed; the general budget category assigned; the funds to be provided; the time and method of payment. Annual funding agreements are incorporated into the contract. The regulations provide extensively for rescission of contracts and grants, assumption of control, and the due process procedures for hearings and appeals. The burden of proof is on the Secretary who seeks to rescind a contract or grant. If an appeal isn't taken to the Federal district court, a Tribe may file an appeal to the Interior Board of Contract Appeals.