(b) Authorize, require or permit the termination of any existing trust responsibility of the United States with respect to the Indian people;

(c) Permit significant reduction in services to Indian people as a result of this subpart.

§36.119 Penalties.

Section 6 of Pub. L. 93-638, 25 U.S.C. 450(d) provides:

Whoever, being an officer, director, agent, or employee of, or connected in any capacity with, any recipient of a contract, subcontract, grant, or subgrant pursuant to this Act or the Act of April 16, 1934 (48 Stat. 596), as amended, embezzles, willfully misapplies, steals, or obtains by fraud any of the money. funds, assets, or property which are the subject of such a grant, subgrant, contract, or subcontract, shall be fined not more than $10,000 or imprisoned for not more than two years, or both, but if the amount so embezzled, misapplied, stolen, or obtained by fraud does not exceed $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both.

§ 36.120 Use of Indian business con

cerns.

Grants awarded pursuant to this subpart will incorporate the following:

Use of Indian business concerns.

(a) As used in this clause, the term "Indian organizations of an Indianowned economic enterprise" as defined in section 102(g) of this subpart.

(b) The grantee agrees to give preference to qualified Indian business concerns in the awarding of any contracts, subcontracts or subgrants entered into under the grant consistent with the efficient performance of the grant. The grantee shall comply with any preference requirements regarding Indian business concerns established by the tribe(s) receiving services under the grant to the extent that such requirements are consistent with the purpose and intent of this paragraph.

NOTE: This section is an exception to 45 CFR part 74, required by section 7(b) of Pub. L. 93-638.

[40 FR 53143, Nov. 14, 1975, as amended at 50 FR 1855, Jan. 14, 1985]

$36.121 Indian preference in training and employment.

(a) Any grant made under this subpart, or a contract or subgrant made

under such a grant shall require the to the greatest extent feasible pre erences and opportunities for trainz and employment in connection w the administration of such grant, contract or subgrant made under suci grant, shall be given to Indians.

(b) The grantee shall include the quirements of paragraph (a) of this se tion in all contracts and subgrant made under a grant awarded under the subpart.

Subpart I-Contracts Under the Indian Self-Determination Act AUTHORITY: Secs. 103, 107, 25 U.S.C. 45 450k; sec. 3, Pub. L. 83-568, 42 U.S.C. 2003. SOURCE: 40 FR 53147, Nov. 14, 1975, unles otherwise noted.

§ 36.201 Policy and applicability.

(a) Policy. (1) The Congress has recor nized the obligation of the United States to respond to the strong expres sion of the Indian people for self-deter mination by assuring maximum Indian participation in the direction of educational as well as other Federal serv ices to Indian communities so as to render such services more responsive to the needs and desires of those communities.

(2) The Congress has declared its commitment to the maintenance of the Federal Government's unique and continuing relationship with the respon sibilities to the Indian people through the establishment of a meaningful Indian self-determination policy which will permit an orderly transition from Federal domination of programs for and services to Indians to effective and · meaningful participation by the Indian people in the planning, conduct, and administration of those programs and services.

(3) It is the policy of the Secretary of the Department of Health and Human Services to facilitate the efforts of Indian tribes to plan, conduct, and administer programs, or portions thereof, which the Indian Health Service is authorized to administer for the benefit of Indians.

(4) It is the policy of the Secretary to continually encourage Indian tribes to become increasingly knowledgeable about Indian Health Service programs

the opportunities Indian tribes 'e regarding them; however, it is the icy of the Indian Health Service to ve to Indian tribes the initiative in king requests for contracts and to sard self-determination as including decision of an Indian tribe not to 1uest contracts.

5) It is the policy of the Indian alth Service not to impose sanctions

Indian tribes with regard to concting or not contracting; however, e special resources made available to cilitate the efforts of those Indian ibes which do wish to contract should made known to all tribes, as should e current realities of funding and ederal personnel limitations.

(6) Contracting is one of several echanisms by which Indian tribes can cercise their right to plan, conduct, ad administer programs or portions hereof which the Secretary is authored to administer for the benefit of InCians. Another mechanism afforded InFian tribes is the use of a grant, as proided in subpart H of this part, or other esources, to plan the manner in which t wishes the Indian Health Service to perate a program or portion thereof.

(7) The regulations in this subpart re not meant to and do not change the eligibility criteria which individuals must meet to be eligible for any pro*gram currently operated by the Indian Health Service.

(b) The regulations of this subpart are applicable to contracts awarded #pursuant to section 103 of Pub. L. 93638, 25 U.S.C. 450g to carry out any or all of the functions, authorities, and responsibilities of 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.

§ 36.202 Effect on existing rights.

The regulations in this subpart are not meant to and do not:

(a) Affect, modify, diminish, or otherwise impair the sovereign immunity from suit enjoyed by an Indian tribe.

(b) Authorize, require or permit the termination of any existing trust responsibility of the United States with respect to the Indian people.

(c) Permit significant reduction in services to Indian people as a result of this subpart.

(d) Nothing in these regulations shall be construed to require a tribe to apply for a contract or contracts with the Secretary to carry out under the Indian Self-Determination Act any of the Secretary's functions, authorities and responsibilities under the Act of August 5, 1954, as amended, 42 U.S.C. 2001, et seq. Such applications under these regulations are voluntary.

(e) Nothing in these regulations shall be construed to preclude the making of contracts under any other authority of law nor to restrict contracts with Indian tribes or tribal organizations to contracts entered into under section 103 of the Act.

§36.203 Amendment of regulations.

Before revising or amending the regulations in this subpart, the Secretary will take the following actions:

(a) Consult with Indian tribes and national and regional Indian organizations to the extent practicable about the need for revision or amendment and consider their views in preparing the proposed revision or amendment.

(b) Present the proposed revision or amendment to the Committees on Interior and Insular Affairs of the United States Senate and House of Representatives.

(c) Publish the proposed revisions or amendments in the FEDERAL REGISTER as proposed rulemaking to provide adequate notice to receive comments from all interested parties.

(d) After consideration of all comments received, publish the regulations in the FEDERAL REGISTER in final form not less than 60 days before the date they are made effective.

§36.204 Definitions.

(a) Act means Title I of the Indian Self-Determination and Education Assistance Act, Pub. L. 93-638 (25 U.S.C. 450f et seq.).

(b) Secretary means the Secretary of Health and Human Services and any other officer or employee of the Department of Health and Human Services to whom the authority involved has been delegated.

(c) Director means the Director, Indian Health Service, Health Services Administration, Public Health Service, Department of Health and Human

Services (IHS who is the official to whom the Secretary has delegated full responsibility and authority to implement and administer those aspects of the Act related to the health and wellbeing of the Indian people.

(d) Area Director means the official in charge of an Indian Health Service Area, or Program Office.

(0) Contracting Officer means the person executing the contract on behalf of the Government and any other officer or employee who is properly designated Contracting Officer: and the term includes, except as otherwise provided in the contract, the authorized representative of the Contracting Officer acting within the limits of his authority.

(1) Indian means a person who is a member of an Indian tribe.

(g) Indian Tribe means any Indian tribe, band, nation, rancheria. Pueblo, colony or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688) which is recognized as eligible by the United States Government for the special programs and services provided by the United States to Indians because of their status as Indians.

(h) Tribal organization means: (1) The recognized governing body of any Indian tribe; or

(2) Any legally established organization of Indians which is:

(1) Controlled, sanctioned or chartered by such governing body or bodies;

or

(ii) Democratically elected by the

adult members of the Indian community to be served by such organization and which includes the maximum participation of Indians in all phases of its activities.

(i) An Indian Owned Economic Enterprise means any commercial industrial, or business activity established or organized for the purpose of profit which is not less than 51 percent Indian owned.

(j) An Indian Self-Determination Contract Proposal is the name of the document to be utilized by Indian Tribal organizations to forward to the Indian Health Service, their requests to enter into contracts for health programs or services.

(k) Trust Resources means natun. sources, land, water, minerals, or property, asset, or claim, iniz any intangible right or interest in of the foregoing, which is held by United States in trust for any lit tribe or any Indian individual of vi is held by any Indian tribe or Inde. dividual subject to a restrictio alienation imposed by the [ States.

(1) Trust Responsibility means the sponsibility assumed by the Gove ment, by virtue of treaties, sta and other means, legally associa with the role of trustee, to recogit protect and preserve tribal soverei and to protect, manage, develop approve authorized transfers of ine ests in trust resources held by Ins tribes and Indian individuals t standard of the highest degree of fis ciary responsibility.

(m) Retrocession is the voluntary> turn of a contracted program, or x tion thereof, to the Indian Health S ice pursuant to section 106(d) of # Act.

(n) The Contract Proposal Declinati Appeals Board (CPDAB) is a body esta lished to review Indian Self-Determiss tion Contract Proposals which ha been disapproved.

CONTRACT PROPOSALS, REVIEW, AND APPEAL

§ 36.205 Eligibility and application. (a) Any tribal organization upon request of the Indian tribe to be served is eligible to apply for a contract wit the Secretary to carry out any or all the functions, authorities and respo sibilities of the Secretary under the Act of August 5, 1954.

(b) All such contracts shall be base upon Indian Self-Determination Cor tract proposals which will be specifi and, as a minimum, include the follow ing:

(1) Date submitted.

(2) Full name and address of the Ir dian tribal organization submitting the proposal.

(3) Full name and tribe(s) which the tribal organization is affiliated with. (4) Narrative description of the func tions, IHS programs, or portions there

ich the tribal organization wants ntract for.

Type of contract proposed (cost -oursement, fixed price, etc.).

Proposed contract starting and letion dates.

Equipment and facilities needed rry out the contract and how the l organization intends to obtain

Narrative indicating the tribal orzation's knowledge of the program unction or portion thereof to be racted for and the relation of such che mission of the Indian Health rice. Where tribal organizations e already been involved in a conet for such programs, this narrative

be in the form of an updated verof the scope of work under that tract. In any case, the following ns should be described in the nar

ive:

1) Experience and training of personperforming under the contract; ii) Familiarity with Federal Regulans and procedures involved;

iii) Experience in operating a simior related tribal program;

iv) Extent of subcontracting conmplated and, where such information available, identification of proposed bcontractors;

em

(v) Identification of Federal oyee transfers contemplated; (vi) Personnel system and key per>nnel;

(vii) The work plan for carrying out he contract including the timetable or delivery of optimum services.

(9) Evidence of community support For or lack of opposition to the con*ract.

(10) Information concerning training o be given to personnel who will perorm under the contract.

(11) Estimate of the number of Indians to be served.

(12) A budget, including separate cost estimates for salaries and wages, equipment, supplies, services, travel, subcontracts, other direct costs and overhead.

(13) Justification and request for advance payments.

(14) Names and telephone numbers of the tribal organization's business and technical personnel who may be con

tacted during the evaluation and negotiation process.

(15) A description of the tribal organization including:

(i) The legal and organizational relationship of the tribal organization to the Indians in the area to be served or effected by the contract.

(ii) A description of the participation of Indians in all phases of the tribal organization.

(iii) Whether the tribal organization is controlled, sanctioned or chartered by the governing body of Indians to be served, and, if so, evidence of such fact.

(iv) And, if elected, a description of the election process, voting criteria, and extent of voter participation.

(16) Evidence of adequate liability insurance coverage or an explanation of why such insurance cannot or should not be obtained. Such insurance shall provide that prior to cancellation the Secretary must be notified and must further provide that each such policy of insurance shall contain a provision that the insurance carrier shall waive any right it may have to raise as a defense the tribe's sovereign immunity from suit but 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 and limits of the policy of insurance.

(17) The intended financial participation, if any, of the tribal organization or the tribes to be served specifying the type of contributions such as cash or services, loans of full or part-time staff, equipment, space, materials, or facilities, or other contributions.

(18) Specifically include any requests for waivers to 41 CFR chapter 1 and 3 in accordance with 36.216.

(c) The Indian Self-Determination Contract Proposal shall be executed by a person or persons authorized to act on behalf of the tribal organization and shall be accompanied by evidence that such person or persons are authorized to bind the tribal organization.

(d) The Indian Self-Determination Contract Proposal should be addressed to the Area Director of the appropriate Indian Health Service Area. Such pro

posals should be submitted, in 5 copies, well in advance of the desired beginning of support.

(e) Tribal organizations may obtain assistance in preparing Indian Self-Determination contract proposals from the IHS Area Offices. The Area Directors shall make any information available to the tribal organization which is needed in the preparation of its proposal except as may be exempt from disclosure by the Freedom of Information Act, 5 U.S.C. 552(b) and the Department of Health and Human Services regulations thereunder, 45 CFR, part 5.

$36.206 Tribal clearances-initial contracts.

(a) Before the IHS may enter into a contract with a tribal organization, it must be requested to do so by the tribe. The tribe's request shall be in the form of a resolution by the tribal governing body. If the tribal organization is applying for a contract to perform services benefiting more than one tribe, an authorizing resolution from each tribal governing body must be obtained before submitting the application to IHS for approval. A tribal governing body may pass a single resolution authorizing a tribal organization to apply for, negotiate, and execute more than one contract if the resolution specifies for each contract the same information required in paragraphs (b) and (c) of this section.

(b) The resolution of the tribal governing body shall authorize the applicant tribal organization to apply for, negotiate and contract with the IHS subject to the specific terms, conditions and limitations of the resolution and applicable tribal laws, codes, and regulations and custom. The resolution shall include the date the resolution was approved, and signature of the person authorized to certify the accuracy of the information contained in the resolution.

(c) The tribal governing body's request (resolution) should include the following:

(1) When the tribal organization is the tribal governing body:

(1) A brief statement of the contract scope.

(ii) The tribal official authoriz negotiate the contract and any an ments thereto.

(iii) The tribal official authoriz execute the contract and any ane. ments thereof.

(iv) The expiration date of the thorities granted by the resolution. (v) The extent and procedure, if for review of the contract and amendments thereto by the tribal erning body before execution.

(vi) The proposed date for contre commencement.

(vii) The proposed term of the co tract.

(2) When the tribal organization : other than the tribal governing body (i) The name of the tribal organ tion.

(ii) A brief statement of the contra scope.

(iii) The extent and procedure, if for review by the tribal governing bot of the contract and any amendme thereto prior to execution by the tri organization.

(iv) The tribal office or official which the IHS should send copies contract documents and correspone ence.

(v) The proposed term of the co tract.

(vi) The proposed date for contrac commencement.

(vii) Any limitations on authoritie granted the tribal organization.

(d) Any procedures specified in thi section concerning the manner which a tribal governing body passes! tribal resolution shall apply excep where inconsistent with tribal com stitution, law, code, ordinance, or cus tom. In such cases, the tribal law procedures shall be cited in the resol tion and shall take precedence.