United States Code

(a) "construction programs" means programs for the planning, design, construction, repair, improvement, and expansion of buildings or facilities, including, but not limited to, housing, law enforcement and detention facilities, sanitation and water systems, roads, schools, administration and health facilities, irrigation and agricultural work, and water conservation, flood control, or port facilities;

(b) "contract funding base" means the base level from which contract funding needs are determined, including all contract costs;

(d) "Indian" means a person who is a member of an Indian tribe;

(e) "Indian tribe" means any Indian tribe, band, nation, or other organized group 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) [43 U.S.C. 1601 et seq.], which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians;

(f) "indirect costs" means costs incurred for a common or joint purpose benefiting more than one contract objective, or which are not readily assignable to the contract objectives specifically benefited without effort disproportionate to the results achieved;

(g) "indirect cost rate" means the rate arrived at through negotiation between an Indian tribe or tribal organization and the appropriate Federal agency;

(h) "mature contract" means a self-determination contract that has been continuously operated by a tribal organization for three or more years, and for which there are no significant and material audit exceptions in the annual financial audit of the tribal organization: Provided, That upon the request of a tribal organization or the tribal organization's Indian tribe for purposes of section 450f(a) of this title, a contract of the tribal organization which meets this definition shall be considered to be a mature contract;

(i) "Secretary”, unless otherwise designated, means either the Secretary of Health and Human Services or the Secretary of the Interior or both;

(j) "self-determination contract" means a contract (or grant or cooperative agreement utilized under section 450e-1 of this title) entered into under part A of this subchapter between a tribal organization and the appropriate Secretary for the planning, conduct and administration of programs or services which are otherwise provided to Indian tribes and their members pursuant to Federal law: Provided, That except as provided1 the last pro

viso in section 450j(a)2 of this title, no contract (or grant or cooperative agreement utilized under section 450e-1 of this title) entered into under part A of this subchapter shall be construed to be a procurement contract;

(k) "State education agency" means the State board of education or other agency or officer primarily responsible for supervision by the State of public elementary and secondary schools, or, if there is no such officer or agency, an officer or agency designated by the Governor or by State law;

(1) "tribal organization" means the recognized governing body of any Indian tribe; any legally established organization of Indians which is controlled, sanctioned, or chartered by such governing body or which is 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: Provided, That in any case where a contract is let or grant made to an organization to perform services benefiting more than one Indian tribe, the approval of each such Indian tribe shall be a prerequisite to the letting or making of such contract or grant; and (m) "construction contract" means a fixedprice or cost-reimbursement self-determination contract for a construction project, except that such term does not include any contract

(1) that is limited to providing planning services and construction management services (or a combination of such services);

(2) for the Housing Improvement Program or roads maintenance program of the Bureau of Indian Affairs administered by the Secretary of the Interior; or

(3) for the health facility maintenance and improvement program administered by the Secretary of Health and Human Services.

(Pub. L. 93-638, § 4, Jan. 4, 1975, 88 Stat. 2204; Pub. L. 100-472, title I, § 103, Oct. 5, 1988, 102 Stat. 2286; Pub. L. 100-581, title II, § 208, Nov. 1, 1988, 102 Stat. 2940; Pub. L. 101-301, § 2(a)(1)-(3), May 24, 1990, 104 Stat. 206; Pub. L. 101-644, title II, § 202(1), (2), Nov. 29, 1990, 104 Stat. 4665; Pub. L. 103-413, title I, § 102(1), Oct. 25, 1994, 108 Stat. 4250.)

REFERENCES IN TEXT

This subchapter, referred to in text, was in the original "this Act", meaning Pub. L. 93-638, Jan. 4, 1975, 88 Stat. 2203, as amended, known as the Indian Self-Determination and Education Assistance Act, which is classified principally to this subchapter (§ 450 et seq.). For complete classification of this Act to the Code, see Short Title note set out under section 450 of this title and Tables.

The Alaska Native Claims Settlement Act, referred to in subsec. (e), is Pub. L. 92-203, Dec. 18, 1971, 85 Stat. 688, as amended, which is classified generally to chapter 33 (§ 1601 et seq.) of Title 43, Public Lands. For complete classification of this Act to the Code, see Short Title note set out under section 1601 of Title 43, and Tables.

'So in original. Probably should be “provided in”.

2 See References in Text note below.

Part A of this subchapter, referred to in subsec. (j), was in the original “title I of this act", meaning title I of Pub. L. 93-638, known as the Indian Self-Determination Act, which is classified principally to part A (§ 450f et seq.) of this subchapter. For complete classification of title I to the Code, see Short Title note set out under section 450 of this title and Tables.

Section 450j(a) of this title, referred to in subsec. (j), was repealed and a new subsec. (a) of section 450j was added by Pub. L. 103-413, title I, § 102(10), Oct. 25, 1994, 108 Stat. 4253, which does not contain provisos.

AMENDMENTS

1994-Subsec. (g). Pub. L. 103-413, § 102(1)(A), substituted "indirect cost rate" for "indirect costs rate”. Subsec. (m). Pub. L. 103-413, § 102(1)(B)-(D), added subsec. (m).

1990-Subsec. (e). Pub. L. 101-301, § 2(a)(1), inserted a comma before "which is recognized".

Subsec. (h). Pub. L. 101-644, § 202(1), struck out "in existence on October 5, 1988," before "which meets this definition".

Subsec. (j). Pub. L. 101-644, § 202(2), substituted "contract (or grant or cooperative agreement utilized under section 450e-1 of this title) entered" for "contract entered" in two places.

Pub. L. 101-301, § 2(a)(2), (3), substituted "under this subchapter" for "pursuant to this Act" in two places and struck out “the” before "Secretary".

1988-Pub. L. 100-472 amended section generally, substituting subsecs. (a) to (1) for former subsecs. (a) to (d) and (f) which defined "Indian", "Indian tribe", “Tribal organization”, “Secretary", and "State education agency".

Subsec. (h). Pub. L. 100-581, § 208(a)(1), substituted "by a tribal organization” for “by tribal organization". Pub. L. 100-581, § 208(a)(2), which directed the amendment of subsec. (h) by substituting “a tribal organization or the tribal organization's Indian tribe for purposes of section 450f(a) of this title" for "a tribal organization or a tribal governing body" was executed by substituting the new language for “a tribal organization or tribal governing body" to reflect the probable intent of Congress.

Subsec. (j). Pub. L. 100-581, § 208(b), substituted "the Secretary for the planning" for "Secretary the planning" and "except as provided the last proviso in section 450j(a) of this title, no contract" for "no contract".

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1665c, 2902, 3202, 3307, 3322, 3337, 3371, 3402, 3602, 3803 of this title; title 5 section 3371; title 7 sections 1471, 2007a, 2012; title 10 sections 2323a, 2411; title 15 section 632; title 16 section 1002; title 20 sections 80q-14, 1411, 1484, 6362; title 22 section 2124c; title 31 section 1352; title 38 section 3764; title 42 sections 290ff, 300n, 300w-1, 300x-33, 3057c, 9858n, 10402, 10407, 10408, 10410, 10414, 10601, 12340; title 49 section 5102.

§ 450c. Reporting and audit requirements for recipients of Federal financial assistance

(a) Maintenance of records

(1) Each recipient of Federal financial assistance under this subchapter shall keep such records as the appropriate Secretary shall prescribe by regulation promulgated under sections 552 and 553 of title 5, including records which fully disclose

(A) the amount and disposition by such recipient of the proceeds of such assistance,

(B) the cost of the project or undertaking in connection with which such assistance is given or used,

(D) such other information as will facilitate an effective audit.

(2) For the purposes of this subsection, such records for a mature contract shall consist of quarterly financial statements for the purpose of accounting for Federal funds, the annual single-agency audit required by chapter 75 of title 31 and a brief annual program report. (b) Access to books, documents, papers, and records for audit and examination by Comptroller General, etc.

The Comptroller General and the appropriate Secretary, or any of their duly authorized representatives, shall, until the expiration of three years after completion of the project or undertaking referred to in the preceding subsection of this section, have access (for the purpose of audit and examination) to any books, documents, papers, and records of such recipients which in the opinion of the Comptroller General or the appropriate Secretary may be related or pertinent to the grants, contracts, subcontracts, subgrants, or other arrangements referred to in the preceding subsection.

Each recipient of Federal financial assistance referred to in subsection (a) of this section shall make such reports and information available to the Indian people served or represented by such recipient as and in a manner determined to be adequate by the appropriate Secretary. (d) Repayment to Treasury by recipient of unexpended or unused funds

The Secretary shall report annually in writing to each tribe regarding projected and actual staffing levels, funding obligations, and expenditures for programs operated directly by the Secretary serving that tribe.

(f) Single-agency audit report; additional information; declination criteria and procedures

(1) For each fiscal year during which an Indian tribal organization receives or expends funds pursuant to a contract entered into, or grant made, under this subchapter, the tribal organization that requested such contract or grant shall submit to the appropriate Secretary a single-agency audit report required by chapter 75 of title 31.

(2) In addition to submitting a single-agency audit report pursuant to paragraph (1), a tribal organization referred to in such paragraph shall submit such additional information concerning the conduct of the program, function,

'So in original. Probably should be followed by a comma.

2 See References in Text note below.

service, or activity carried out pursuant to the contract or grant that is the subject of the report as the tribal organization may negotiate with the Secretary.

(3) Any disagreement over reporting requirements shall be subject to the declination criteria and procedures set forth in section 450f of this title.

(Pub. L. 93-638, § 5, formerly § 5 and title I, § 108, Jan. 4, 1975, 88 Stat. 2204, 2212; renumbered and amended Pub. L. 100-472, title I, § 104, title II, § 208, Oct. 5, 1988, 102 Stat. 2287, 2296; Pub. L. 100-581, title II, § 209, Nov. 1, 1988, 102 Stat. 2940; Pub. L. 101-301, § 2(a)(4), May 24, 1990, 104 Stat. 206; Pub. L. 101-644, title II, § 202(3), Nov. 29, 1990, 104 Stat. 4665; Pub. L. 103-413, title I, § 102(2), Oct. 25, 1994, 108 Stat. 4250.)

REFERENCES IN TEXT

Section 450j-1(a)(3) of this title, referred to in subsec. (d), was repealed and a new subsec. (a)(3) of section 450j-1 was added by Pub. L. 103-413, title I, § 102(14)(C), Oct. 25, 1994, 108 Stat. 4257. See section 450j-1(a)(4) of this title.

AMENDMENTS

1994-Subsec. (f). Pub. L. 103-413 added subsec. (f) and struck out former subsec. (f) which read as follows: "For each fiscal year during which an Indian tribal organization receives or expends funds pursuant to a contract or grant under this subchapter, the Indian tribe which requested such contract or grant shall submit to the appropriate Secretary a report including, but not limited to, an accounting of the amounts and purposes for which Federal funds were expended, information on the conduct of the program or service involved, and such other information as the appropriate Secretary may request through regulations promulgated under sections 552 and 553 of title 5."

1990-Subsec. (a)(2). Pub. L. 101-301 substituted "chapter 75 of title 31" for "the Single Audit Act of 1984 (98 Stat. 2327, 31 U.S.C. 7501 et seq.),".

Subsec. (d). Pub. L. 101-644 substituted "Except as provided in section 13a or 450j-1(a)(3) of this title," for "Any" and inserted "through the respective Secretary" before period at end.

1988-Subsec. (a). Pub. L. 100-472, § 104(a), amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: "Each recipient of Federal financial assistance from the Secretary of Interior or the Secretary of Health Education, and Welfare, under this Act, shall keep such records as the appropriate Secretary shall prescribe, including records which fully disclose the amount and disposition by such recipient of the proceeds of such assistance, the cost of the project or undertaking in connection with which such assistance is given or used, the amount of that portion of the cost of the project or undertaking supplied by other sources, and such other records as will facilitate an effective audit."

Subsec. (e). Pub. L. 100-581 substituted "to each tribe" for "to tribes".

Pub. L. 100-472, § 104(b), added subsec. (e). Subsec. (f). Pub. L. 100-472, § 208, redesignated section 4507 of this title as subsec. (f) of this section and inserted "through regulations promulgated under sections 552 and 553 of title 5".

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 2508, 3307 of this title; title 29 section 750.

§ 450d. Criminal activities involving grants, contracts, etc.; penalties

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 subchapter or the Act of April 16, 1934 (48 Stat. 596), as amended [25 U.S.C. 452 et seq.], 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.

(Pub. L. 93-638, § 6, Jan. 4, 1975, 88 Stat. 2205.)

REFERENCES IN TEXT

Act of April 16, 1934, referred to in text, is act Apr. 16, 1934, ch. 147, 48 Stat. 596, as amended, popularly known as the Johnson-O'Malley Act, which is classified generally to section 452 et seq. of this title. For complete classification of this Act to the Code, see Short Title note set out under section 452 of this title and Tables.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 458ff, 2508, 3307 of this title; title 29 section 750.

§ 450e. Wage and labor standards
(a) Similar construction in locality

All laborers and mechanics employed by contractors or subcontractors (excluding tribes and tribal organizations) in the construction, alteration, or repair, including painting or decorating of buildings or other facilities in connection with contracts or grants entered into pursuant to this subchapter, shall be paid wages at not less than those prevailing on similar construction in the locality, as determined by the Secretary of Labor in accordance with the DavisBacon Act of March 3, 1931 (46 Stat. 1494), as amended [40 U.S.C. 276a et seq.]. With respect to construction, alteration, or repair work to which the Act of March 3, 1921 is applicable under the terms of this section, the Secretary of Labor shall have the authority and functions set forth in Reorganization Plan Numbered 14, of 1950, and section 276c of title 40.

(b) Preference requirements for wages and grants

Any contract, subcontract, grant, or subgrant pursuant to this subchapter, the Act of April 16, 1934 (48 Stat. 596), as amended [25 U.S.C. 452 et seq.1, or any other Act authorizing Federal contracts with or grants to Indian organizations or for the benefit of Indians, shall require that to the greatest extent feasible

(1) preferences and opportunities for training and employment in connection with the administration of such contracts or grants shall be given to Indians; and

(2) preference in the award of subcontracts and subgrants in connection with the administration of such contracts or grants shall be given to Indian organizations and to Indian

owned economic enterprises as defined in section 1452 of this title.

Notwithstanding subsections (a) and (b) of this section, with respect to any self-determination contract, or portion of a self-determination contract, that is intended to benefit one tribe, the tribal employment or contract preference laws adopted by such tribe shall govern with respect to the administration of the contract or portion of the contract.

(Pub. L. 93-638, § 7, Jan. 4, 1975, 88 Stat. 2205; Pub. L. 103-413, title I, § 102(3), (4), Oct. 25, 1994, 108 Stat. 4251.)

REFERENCES IN TEXT

The Davis-Bacon Act, referred to in subsec. (a), is act Mar. 3, 1931, ch. 411, 46 Stat. 1494, as amended, which is classified generally to sections 276a to 276a-5 of Title 40, Public Buildings, Property, and Works. For complete classification of this Act to the Code, see Short Title note set out under section 276a of Title 40 and Tables.

Act of March 3, 1921, referred to in subsec. (a), probably means the act of March 3, 1931, ch. 411, 46 Stat. 1494, as amended, known as the Davis Bacon Act. See note above.

Reorganization Plan Numbered 14 of 1950, referred to in subsec. (a), is set out in the Appendix to Title 5, Government Organization and Employees.

Act of April 16, 1934, referred to in subsec. (b), is act Apr. 16, 1934, ch. 147, 48 Stat. 596, as amended, popularly known as the Johnson-O'Malley Act, which is classified generally to section 452 et seq. of this title. For complete classification of this Act to the Code, see Short Title note set out under section 452 of this title and Tables.

AMENDMENTS

1994-Subsec. (a). Pub. L. 103-413, § 102(3), substituted "or subcontractors (excluding tribes and tribal organizations)” for “of subcontractors".

Subsec. (c). Pub. L. 103-413, § 102(4), added subsec.

(c).

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 2012, 2508, 3307 of this title; title 23 section 204; title 29 section 750; title 42 section 5662.

§ 450e-1. Grant and cooperative agreements

The provisions of this subchapter shall not be subject to the requirements of chapter 63 of title 31: Provided, That a grant agreement or a cooperative agreement may be utilized in lieu of a contract under sections 450f and 450g1 of this title when mutually agreed to by the appropriate Secretary and the tribal organization involved.

(Pub. L. 93-638, § 9, as added Pub. L. 98-250, § 1, Apr. 3, 1984, 98 Stat. 118; amended Pub. L. 101-301, § 2(a)(5), May 24, 1990, 104 Stat. 206.)

REFERENCES IN TEXT

Section 450g of this title, referred to in text, was in the original "section 103 of this Act", meaning section 103 of Pub. L. 93-638, the Indian Self-Determination Act. Section 103(a) and (b) and the first sentence of section 103(c) of Pub. L. 93-638, were repealed, and the remainder of section 103(c) of Pub. L. 93-638, was redesignated as section 102(d) of Pub. L. 93-638 (section

'See References in Text note below.

450f(d) of this title), by Pub. L. 100-472, title II, § 201(b)(1), Oct. 5, 1988, 102 Stat. 2289. Section 104 of Pub. L. 93-638 was renumbered as section 103 of Pub. L. 93-638 by section 202(a) of Pub. L. 100-472, and is classified to section 450h of this title.

AMENDMENTS

1990-Pub. L. 101-301 substituted "chapter 63 of title 31" for "the Federal Grant and Cooperative Agreement Act of 1977 (Pub. L. 95-224; 92 Stat. 3)".

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 450b of this title.

PART A-INDIAN SELF-DETERMINATION

PART REFERRED TO IN OTHER SECTIONS This part is referred to in sections 450b, 1603, 1613a, 1616a, 1616a-1, 1616c, 1616d, 1616e, 1616j, 1621, 1621a, 1621c, 1621f, 1621g, 1621h, 16217, 1621m, 1621p, 1621r, 1631, 1632, 1634, 1636, 1637, 1641, 1644, 1645, 1660b, 1661, 1662, 1665f, 1680a, 1680b, 1680c, 1680j, 1680k, 2403, 2433, 2434, 2442, 2455, 2805, 3104, 3112, 3113, 3209, 3210, 3307 of this title; title 7 section 2020; title 20 sections 2313, 2471, 7813; title 42 sections 238m, 254c, 254e, 256d, 294p, 1395x, 1396d, 1396r-1, 2991b-3. § 450f. Self-determination contracts

(a) Request by tribe; authorized programs

(1) The Secretary is directed, upon the request of any Indian tribe by tribal resolution, to enter into a self-determination contract or contracts with a tribal organization to plan, conduct, and administer programs or portions thereof, including construction programs—

(A) provided for in the Act of April 16, 1934 (48 Stat. 596), as amended [25 U.S.C. 452 et seq.];

(B) 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. 131, and any Act subsequent thereto;

(C) 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.);

(D) 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

(E) 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 programs, functions, services, or activities that are contracted under this paragraph shall include administrative functions of the Department of the Interior and the Department of Health and Human Services (whichever is applicable) that support the delivery of services to Indians, including those administrative activities supportive of, but not included as part of, the service delivery programs described in this paragraph that are otherwise contractable. The administrative functions referred to in the preceding sentence shall be contractable without regard to the organizational level within the Department that carries out such functions.

(2) If so authorized by an Indian tribe under paragraph (1) of this subsection, a tribal organization may submit a proposal for a self-determination contract, or a proposal to amend or renew a self-determination contract, to the Secretary for review. Subject to the provisions of paragraph (4), the Secretary shall, within ninety days after receipt of the proposal, approve the proposal and award the contract unless the Secretary provides written notification to the applicant that contains a specific finding that clearly demonstrates that, or that is supported by a controlling legal authority that

(A) the service to be rendered to the Indian beneficiaries of the particular program or function to be contracted will not be satisfactory;

(B) adequate protection of trust resources is not assured;

(C) the proposed project or function to be contracted for cannot be properly completed or maintained by the proposed contract;

(D) the amount of funds proposed under the contract is in excess of the applicable funding level for the contract, as determined under section 450j-1(a) of this title; or

(E) 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.

Notwithstanding any other provision of law, the Secretary may extend or otherwise alter the 90-day period specified in the second sentence of this subsection,' if before the expiration of such period, the Secretary obtains the voluntary and express written consent of the tribe or tribal organization to extend or otherwise alter such period. The contractor shall include in the proposal of the contractor the standards under which the tribal organization will operate the contracted program, service, function, or activity, including in the area of construction, provisions regarding the use of licensed and qualified architects, applicable health and safety standards, adherence to applicable Federal, State, local, or tribal building codes and engineering standards. The standards referred to in the preceding sentence shall ensure structural integrity, accountability of funds, adequate competition for subcontracting under tribal or other applicable law, the commencement, performance, and completion of the contract, adherence to project plans and specifications (including any applicable Federal construction guidelines and manuals), the use · of proper materials and workmanship, necessary inspection and testing, and changes, modifications, stop work, and termination of the work when warranted.

(3) 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.

(4) The Secretary shall approve any severable portion of a contract proposal that does not

'So in original. Probably should be "paragraph,”.

support a declination finding described in paragraph (2). If the Secretary determines under such paragraph that a contract proposal

(A) 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

(B) proposes a level of funding that is in excess of the applicable level determined under section 450j-1(a) of this title,

subject to any alteration in the scope of the proposal that the Secretary and the tribal organization agree to, the Secretary shall, as appropriate, approve such portion of the program, function, service, or activity as is authorized under paragraph (1) or approve a level of funding authorized under section 450j-1(a) of this title. If a tribal organization elects to carry out a severable portion of a contract proposal pursuant to this paragraph, subsection (b) of this section shall only apply to the portion of the contract that is declined by the Secretary pursuant to this subsection.

(b) Procedure upon refusal of request to contract

Whenever the Secretary declines to enter into a self-determination contract or contracts pursuant to subsection (a) of this section, the Secretary shall

(1) state any objections in writing to the tribal organization,

(2) provide assistance to the tribal organization to overcome the stated objections, and

(3) 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 450m-1(a) of this title.

(1) 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 subchapter. 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.

(2) 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.

(3)(A) 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

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