25 U.S.C. § 5387 — Provisions relating to the Secretary

(a) Mandatory provisions. (1) Health reports. An agreement must require the tribe to report health status and service delivery: (A) when the data is not otherwise available to the Secretary^* and the Secretary provides specific funds for reporting; and (B) when reporting creates only a minimal burden and the requirements were issued under section 5397. (2) Reassumption. (A) An agreement must let the Secretary take back operation and related funding for a program, service, function, or activity when there is a specific finding of: (i) imminent danger to public health caused by the tribe’s act or failure to act, arising from failure to carry out the agreement; or (ii) gross mismanagement^* of funds transferred under the agreement, as the Secretary determines with the Inspector General when appropriate. (B) The Secretary may not reassume operation unless the Secretary first gives written notice and a hearing on the record, and the tribe has not corrected the danger or mismanagement. (C) Exception. The Secretary may immediately reassume operation after written notice if the Secretary finds an imminent, substantial, and irreparable public-health danger caused by the tribe’s act or failure to act and arising from failure to carry out the agreement. The Secretary must give the tribe a hearing on the record within 10 days after reassumption. (D) In any hearing or appeal about reassumption, the Secretary must prove by clear and convincing evidence that the reassumption grounds are valid.

(b) Final offer. If the Secretary and tribe cannot agree on all or part of a compact or agreement, including funding levels, the tribe may submit a final offer. Within 45 days, or a longer period the tribe agrees to, the Secretary must review and decide on it. If the Secretary does not timely reject all or part of it under subsection (c), the offer is treated as accepted.

(c) Rejection. (1) If the Secretary rejects an offer, provision, or funding level, the Secretary must give the tribe: (A) timely written notice with a specific finding clearly showing, or supported by controlling legal authority, that (i) the proposed funds exceed the tribe’s entitlement, (ii) the subject program is an inherent Federal function that cannot legally be delegated, (iii) the tribe cannot perform it without significant danger or risk to public health, or (iv) the tribe is not eligible for self-governance^* under section 5383; (B) technical help to overcome the objections; (C) a hearing on the record, full relevant discovery, and an appeal opportunity, while allowing the tribe instead to go directly to Federal district court under section 5331(a); and (D) the option to enter the severable parts not rejected, including a lower funding amount, with changes needed to fit those parts with the rejected provisions. (2) If the tribe uses that option, it keeps the right to appeal. The requirements in subparagraphs (A), (B), and (C) apply only to the rejected portion.

(d) Burden of proof. In a hearing, appeal, or civil action under this section, the Secretary must prove by clear and convincing evidence that the grounds for rejecting the offer or provision are valid.

(e) Good faith. The Secretary must always negotiate in good faith to maximize self-governance. The Secretary must administer this subchapter to maximize tribal self-governance consistently with the purposes stated in section 3 of the Tribal Self-Governance Amendments of 2000.

(f) Savings. If tribal operation reduces the Secretary’s administrative or other responsibilities and creates savings not already included in tribal shares and other funds under section 5388(c), the Secretary must make those savings available to tribes, inter-tribal consortia, or tribal organizations for additional services. The distribution must be equitable among directly served, contracted, and compacted programs.

(g) Trust responsibility. The Secretary may not waive, change, or reduce the United States’ trust responsibility to tribes or individual Indians that exists under treaties, executive orders, other laws, or court decisions.

(h) Decisionmaker. A final agency decision on a Department of Health and Human Services appeal under subsection (c) must be made either by a Department official at a higher organizational level than the agency whose decision is appealed, or by an administrative judge.