25 U.S.C. § 3407 — Plan approval; Secretarial authority; review of decision
submitted 34 years ago by Pub. L. 102-477 to r/title-25-INDIANS · 752 words · no verdicts yet
The Secretary alone decides whether to approve a tribal plan, generally within 90 days, with automatic approval if no decision is made. A tribe may seek an agency hearing or go directly to federal court after a denial.
(a) The Secretary* alone may approve or reject a tribe’s plan submitted under section 3405. (b)(1) Within 90 days after receiving it, and after coordinating with each agency providing plan funds, the Secretary must approve or deny it. (2) On approval, the Secretary must authorize transfer of the identified program* funds under section 3412. (3) On denial, the Secretary must give the tribe* written notice with a specific finding clearly showing, or supported by controlling legal authority, that the plan fails section 3405. (4)(A) If denial is based only on an unapproved or disputed waiver request, the Secretary must, at the tribe’s request, approve the unaffected parts. (B) After the waiver is resolved, the Secretary must approve the plan or amended plan within 90 days after the tribe requests it. (5) If the Secretary does not decide within 90 days, the plan is approved. (c) The Secretary may extend or change the 90-day period by up to 90 more days only after obtaining the tribe’s express written consent before the period ends. (d)(1) After denial, the Secretary must state objections in writing, help the tribe overcome them, and, unless the tribe files a civil action, provide a record hearing, full relevant discovery, and an appeal opportunity under Secretary-issued rules. (2)(A) Federal district courts have original jurisdiction over a civil action against the appropriate Secretary. (B) The tribe may sue without first having a hearing or appeal. (C) The court may grant appropriate relief, including an injunction reversing denial or compelling a federal officer, employee, or agency to perform a duty under this chapter or its regulations. (3) A final Department of the Interior or Health and Human Services decision on an internal appeal must be made by an official above the responsible departmental agency or by an administrative law judge.
The Secretary* shall have exclusive authority to approve or disapprove a plan submitted by an Indian tribe* in accordance with section 3405 of this title.
Not later than 90 days after the date on which the Secretary receives a plan, the Secretary shall, after coordinating with the Secretary of each Federal agency providing funds to be used to implement the plan, approve or deny the plan.
If the Secretary approves a plan under paragraph (1), the Secretary shall authorize the transfer of program* funds identified in the plan in accordance with section 3412 of this title.
If the Secretary denies the plan under paragraph (1), the Secretary shall provide to the Indian tribe* a written notification of disapproval of the plan that contains a specific finding that clearly demonstrates, or that is supported by a controlling legal authority, that the plan does not meet the requirements described in section 3405 of this title.
If a plan is denied under paragraph (3) solely on the basis that a request for a waiver that is part of the plan has not been approved (or is subject to dispute resolution) under section 3406 of this title, the Secretary shall, upon a request from the tribe, grant partial approval for those portions of the plan not affected by the request for a waiver.
With respect to a plan described in subparagraph (A), on resolution of the request for a waiver under section 3406 of this title, the Secretary shall, on a request from the tribe, approve the plan or amended plan not later than 90 days after the date on which the Secretary receives the request.
If the Secretary does not make a decision under paragraph (1) within 90 days of the date on which the Secretary receives the plan, the plan shall be considered to be approved.
Notwithstanding any other provision of law, the Secretary may extend or otherwise alter the 90-day period identified in subsection (b)(1) for not more than 90 additional days, if, before the expiration of the period, the Secretary obtains the express written consent of the Indian tribe.
If the Secretary denies a plan under subsection (b)(3), the Secretary shall—
state any objections in writing to the Indian tribe;
provide assistance to the Indian tribe to overcome the stated objections; and
unless the Indian tribe brings a civil action under paragraph (2), 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, under such rules and regulations as the Secretary may promulgate.
The district courts of the United States shall have original jurisdiction of a civil action against the appropriate Secretary arising under this section.
An Indian tribe may bring a civil action under this paragraph without regard to whether the Indian tribe had a hearing or filed an appeal under paragraph (1).
In an action brought under this paragraph, the court may order appropriate relief (including injunctive relief to reverse a denial of a plan under this section or to compel an officer or employee of the United States, or any agency thereof, to perform a duty provided under this chapter or regulations promulgated thereunder) against any action by an officer or employee of the United States or any agency thereof contrary to this chapter or regulations promulgated thereunder.
Notwithstanding any other provision of law, a decision by an official of the Department of the Interior or the Department of Health and Human Services, as appropriate (collectively referred to in this paragraph as the “Department”) that constitutes final agency action and that relates to an appeal within the Department that is conducted under paragraph (1)(C) shall be made—
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 law judge.
Source credit: (Pub. L. 102–477, § 8, Oct. 23, 1992, 106 Stat. 2303; Pub. L. 106–568, title XI, § 1103(d), Dec. 27, 2000, 114 Stat. 2932; Pub. L. 115–93, § 9, Dec. 18, 2017, 131 Stat. 2030.)
- 1992Enacted · Pub. L. 102-477 · 106 Stat. 2303
- 2000Amended · Pub. L. 106-568 · 114 Stat. 2932
- 2017Amended · Pub. L. 115-93 · 131 Stat. 2030
A history note hasn’t been published yet. The record shows enactment by Pub. L. 102-477 on 1992-10-23.
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