---
kind: "section"
citation: "25 U.S.C. § 5366"
title: "25"
title_heading: "Indians"
number: "5366"
heading: "Provisions relating to the Secretary"
release: "119-102"
date: "2026-07-12"
url: "https://uscodex.org/usc/25/5366"
units:
  - "Chapter 46 — Indian Self-Determination and Education Assistance"
  - "Subchapter IV — Tribal Self-Governance—department of the Interior"
---

# §5366. Provisions relating to the Secretary

- (a) **Trust evaluations—** A [funding agreement](/usc/25/5361.md?p=4) shall include a provision to monitor the performance of trust functions by the [Indian Tribe](/usc/25/5381.md?p=b) through the annual trust evaluation.
- (b) **Reassumption—**
  - (1) **In general—** A [compact](/usc/25/5361.md?p=1) or [funding agreement](/usc/25/5361.md?p=4) shall include provisions for the [Secretary](/usc/25/5361.md?p=9) to reassume a [program](/usc/25/5361.md?p=8) and associated funding if there is a specific finding relating to that [program](/usc/25/5361.md?p=8) of—
    - (A) imminent jeopardy to a trust asset, a natural resource, or public health and safety that—
      - (i) is caused by an act or omission of the [Indian Tribe](/usc/25/5381.md?p=b); and
      - (ii) arises out of a failure to carry out the [compact](/usc/25/5361.md?p=1) or [funding agreement](/usc/25/5361.md?p=4); or
    - (B) [gross mismanagement](/usc/25/5361.md?p=5) with respect to funds transferred to an [Indian Tribe](/usc/25/5381.md?p=b) under a [compact](/usc/25/5361.md?p=1) or [funding agreement](/usc/25/5361.md?p=4), as determined by the [Secretary](/usc/25/5361.md?p=9) in consultation with the Inspector General, as appropriate.
  - (2) **Prohibition—** The [Secretary](/usc/25/5361.md?p=9) shall not reassume operation of a [program](/usc/25/5361.md?p=8), in whole or part, unless—
    - (A) the [Secretary](/usc/25/5361.md?p=9) first provides written notice and a hearing on the record to the [Indian Tribe](/usc/25/5381.md?p=b); and
    - (B) the [Indian Tribe](/usc/25/5381.md?p=b) does not take corrective action to remedy the mismanagement of the funds or [programs](/usc/25/5361.md?p=8), or the imminent jeopardy to a trust asset, natural resource, or public health and safety.
  - (3) **Exception—**
    - (A) **In general—** Notwithstanding [paragraph (2)](#b-2), the [Secretary](/usc/25/5361.md?p=9) may, on written notice to the [Indian Tribe](/usc/25/5381.md?p=b), immediately reassume operation of a [program](/usc/25/5361.md?p=8) if—
      - (i) the [Secretary](/usc/25/5361.md?p=9) makes a finding of imminent and substantial jeopardy and irreparable harm to a trust asset, a natural resource, or the public health and safety caused by an act or omission of the [Indian Tribe](/usc/25/5381.md?p=b); and
      - (ii) the imminent and substantial jeopardy and irreparable harm to the trust asset, natural resource, or public health and safety arises out of a failure by the [Indian Tribe](/usc/25/5381.md?p=b) to carry out the terms of an applicable [compact](/usc/25/5361.md?p=1) or [funding agreement](/usc/25/5361.md?p=4).
    - (B) **Reassumption—** If the [Secretary](/usc/25/5361.md?p=9) reassumes operation of a [program](/usc/25/5361.md?p=8) under [subparagraph (A)](#b-3-A), the [Secretary](/usc/25/5361.md?p=9) shall provide the [Indian Tribe](/usc/25/5381.md?p=b) with a hearing on the record not later than 10 days after the date of reassumption.
- (c) **Inability to agree on compact or funding agreement—**
  - (1) **Final offer—** If the [Secretary](/usc/25/5361.md?p=9) and a participating [Indian Tribe](/usc/25/5381.md?p=b) are unable to agree, in whole or in part, on the terms of a [compact](/usc/25/5361.md?p=1) or [funding agreement](/usc/25/5361.md?p=4) (including funding levels), the [Indian Tribe](/usc/25/5381.md?p=b) may submit a final offer to the [Secretary](/usc/25/5361.md?p=9).
  - (2) **Determination—** Not more than 60 days after the date of receipt of a final offer by one or more of the officials designated pursuant to [paragraph (4)](#c-4), the [Secretary](/usc/25/5361.md?p=9) shall review and make a determination with respect to the final offer, except that the 60-day period may be extended for up to 30 days for circumstances beyond the control of the [Secretary](/usc/25/5361.md?p=9), upon written request by the [Secretary](/usc/25/5361.md?p=9) to the [Indian tribe](/usc/25/5381.md?p=b).
  - (3) **Extensions—** The deadline described in [paragraph (2)](#c-2) may be extended for any length of time, as agreed upon by both the [Indian Tribe](/usc/25/5381.md?p=b) and the [Secretary](/usc/25/5361.md?p=9).
  - (4) **Designated officials—**
    - (A) **In general—** The [Secretary](/usc/25/5361.md?p=9) shall designate one or more appropriate officials in the [Department](/usc/25/5361.md?p=3) to receive a copy of the final offer described in [paragraph (1)](#c-1).
    - (B) **No designation—** If no official is designated, the Director of the Office of the Executive Secretariat and Regulatory Affairs shall be the designated official.
  - (5) **No timely determination—** If the [Secretary](/usc/25/5361.md?p=9) fails to make a determination with respect to a final offer within the period specified in [paragraph (2)](#c-2), including any extension agreed to under [paragraph (3)](#c-3), the [Secretary](/usc/25/5361.md?p=9) shall be deemed to have agreed to the offer, except that with respect to any [compact](/usc/25/5361.md?p=1) or [funding agreement](/usc/25/5361.md?p=4) provision concerning a [program](/usc/25/5361.md?p=8) described under [section 5363(c) of this title](/usc/25/5363.md?p=c), the [Secretary](/usc/25/5361.md?p=9) shall be deemed to have rejected the offer with respect to such provision and the terms of clauses (ii) through (iv) of paragraphs[^1] (6)(A) shall apply.
  - (6) **Rejection of final offer—**
    - (A) **In general—** If the [Secretary](/usc/25/5361.md?p=9) rejects a final offer (or one or more provisions or funding levels in a final offer), the [Secretary](/usc/25/5361.md?p=9) shall—
      - (i) provide timely written notification to the [Indian Tribe](/usc/25/5381.md?p=b) that contains a specific finding that clearly demonstrates, or that is supported by a controlling legal authority, that—
        - (I) the amount of funds proposed in the final offer exceeds the applicable funding level as determined under [section 5325(a)(1) of this title](/usc/25/5325.md?p=a-1);
        - (II) the [program](/usc/25/5361.md?p=8) that is the subject of the final offer is an [inherent Federal function](/usc/25/5361.md?p=6) or is subject to the discretion of the [Secretary](/usc/25/5361.md?p=9) under [section 5363(c) of this title](/usc/25/5363.md?p=c);
        - (III) the [Indian Tribe](/usc/25/5381.md?p=b) cannot carry out the [program](/usc/25/5361.md?p=8) in a manner that would not result in significant danger or risk to the public health or safety, to natural resources, or to trust resources;
        - (IV) the [Indian Tribe](/usc/25/5381.md?p=b) is not eligible to participate in [self-governance](/usc/25/5361.md?p=11) under [section 5362(c) of this title](/usc/25/5362.md?p=c);
        - (V) the [funding agreement](/usc/25/5361.md?p=4) would violate a Federal statute or regulation; or
        - (VI) with respect to a [program](/usc/25/5361.md?p=8) or portion of a [program](/usc/25/5361.md?p=8) included in a final offer pursuant to [section 5363(b)(2) of this title](/usc/25/5363.md?p=b-2), the [program](/usc/25/5361.md?p=8) or the portion of the [program](/usc/25/5361.md?p=8) is not otherwise available to [Indian Tribes](/usc/25/5381.md?p=b) or [Indians](/usc/25/5304.md?p=d) under [section 5321(a)(1)(E) of this title](/usc/25/5321.md?p=a-1-E);
      - (ii) provide technical assistance to overcome the objections stated in the notification required by [clause (i)](#c-6-A-i);
      - (iii) provide the [Indian Tribe](/usc/25/5381.md?p=b) 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, except that the [Indian Tribe](/usc/25/5381.md?p=b) may, in lieu of filing such appeal, directly proceed to initiate an action in a United States district court under [section 5331(a) of this title](/usc/25/5331.md?p=a); and
      - (iv) provide the [Indian Tribe](/usc/25/5381.md?p=b) the option of entering into the severable portions of a final proposed [compact](/usc/25/5361.md?p=1) or [funding agreement](/usc/25/5361.md?p=4) (including a lesser funding amount, if any), that the [Secretary](/usc/25/5361.md?p=9) did not reject, subject to any additional alterations necessary to conform the [compact](/usc/25/5361.md?p=1) or [funding agreement](/usc/25/5361.md?p=4) to the severed provisions.
    - (B) **Effect of exercising certain option—** If an [Indian Tribe](/usc/25/5381.md?p=b) exercises the option specified in [subparagraph (A)(iv)](#c-6-A-iv)—
      - (i) the [Indian Tribe](/usc/25/5381.md?p=b) shall retain the right to appeal the rejection by the [Secretary](/usc/25/5361.md?p=9) under this section; and
      - (ii) clauses [(i)](#c-6-A-i), [(ii)](#c-6-A-ii), and [(iii)](#c-6-A-iii) of subparagraph (A) shall apply only to the portion of the proposed final [compact](/usc/25/5361.md?p=1) or [funding agreement](/usc/25/5361.md?p=4) that was rejected by the [Secretary](/usc/25/5361.md?p=9).
- (d) **Burden of proof—** In any administrative action, hearing, appeal, or civil action brought under this section, the [Secretary](/usc/25/5361.md?p=9) shall have the burden of proof—
  - (1) of demonstrating, by a preponderance of the evidence, the validity of the grounds for a reassumption under [subsection (b)](#b); and
  - (2) of clearly demonstrating the validity of the grounds for rejecting a final offer made under [subsection (c)](#c).
- (e) **Good faith—**
  - (1) **In general—** In the negotiation of [compacts](/usc/25/5361.md?p=1) and [funding agreements](/usc/25/5361.md?p=4), the [Secretary](/usc/25/5361.md?p=9) shall at all times negotiate in good faith to maximize implementation of the [self-governance](/usc/25/5361.md?p=11) policy.
  - (2) **Policy—** The [Secretary](/usc/25/5361.md?p=9) shall carry out this subchapter in a manner that maximizes the policy of Tribal [self-governance](/usc/25/5361.md?p=11).
- (f) **Savings—**
  - (1) **In general—** To the extent that [programs](/usc/25/5361.md?p=8) carried out for the benefit of [Indian Tribes](/usc/25/5381.md?p=b) and Tribal organizations under this subchapter reduce the administrative or other responsibilities of the [Secretary](/usc/25/5361.md?p=9) with respect to the operation of [Indian](/usc/25/5304.md?p=d) [programs](/usc/25/5361.md?p=8) and result in savings that have not otherwise been included in the amount of [Tribal shares](/usc/25/5361.md?p=12) and other funds determined under [section 5368(c) of this title](/usc/25/5368.md?p=c), except for [funding agreements](/usc/25/5361.md?p=4) entered into for [programs](/usc/25/5361.md?p=8) under [section 5363(c) of this title](/usc/25/5363.md?p=c), the [Secretary](/usc/25/5361.md?p=9) shall make such savings available to the [Indian Tribes](/usc/25/5381.md?p=b) or Tribal organizations for the provision of additional services to [program](/usc/25/5361.md?p=8) beneficiaries in a manner equitable to directly served, contracted, and compacted [programs](/usc/25/5361.md?p=8).
  - (2) **Discretionary programs of special significance—** For any savings generated as a result of the assumption of a [program](/usc/25/5361.md?p=8) by an [Indian Tribe](/usc/25/5381.md?p=b) under [section 5363(c) of this title](/usc/25/5363.md?p=c), such savings shall be made available to that [Indian Tribe](/usc/25/5381.md?p=b).
- (g) **Trust responsibility—** The [Secretary](/usc/25/5361.md?p=9) may not waive, modify, or diminish in any way the trust responsibility of the United States with respect to [Indian Tribes](/usc/25/5381.md?p=b) and individual [Indians](/usc/25/5304.md?p=d) that exists under treaties, Executive orders, other laws, or court decisions.
- (h) **Decision maker—** A decision that constitutes final agency action and relates to an appeal within the [Department](/usc/25/5361.md?p=3) conducted under [subsection (c)(6)(A)(iii)](#c-6-A-iii) may be made by—
  - (1) an official of the [Department](/usc/25/5361.md?p=3) who holds a position at a higher organizational level within the [Department](/usc/25/5361.md?p=3) than the level of the departmental agency in which the decision that is the subject of the appeal was made; or
  - (2) an administrative law judge.
- (i) **Rules of construction—** Subject to [section 101(a)](/usc/25/101.md) of the PROGRESS for Indian Tribes Act, each provision of this subchapter and each provision of a [compact](/usc/25/5361.md?p=1) or [funding agreement](/usc/25/5361.md?p=4) shall be liberally construed for the benefit of the [Indian Tribe](/usc/25/5381.md?p=b) participating in [self-governance](/usc/25/5361.md?p=11), and any ambiguity shall be resolved in favor of the [Indian Tribe](/usc/25/5381.md?p=b).

## Footnotes

[^1]: So in original. Probably should be “paragraph”.

## Source credit

(Pub. L. 93–638, title IV, § 406, as added Pub. L. 116–180, title I, § 101(e), Oct. 21, 2020, 134 Stat. 866.)

## Notes

### References in Text

Section 101(a) of the PROGRESS for Indian Tribes Act, referred to in subsec. (i), is section 101(a) of Pub. L. 116–180, which is set out as a note under section 5361 of this title.

### Editorial Notes

### Prior Provisions

A prior section 5366, Pub. L. 93–638, title IV, § 406, as added Pub. L. 103–413, title II, § 204, Oct. 25, 1994, 108 Stat. 4277; amended Pub. L. 105–277, div. A, § 101(e) [title I, § 133], Oct. 21, 1998, 112 Stat. 2681–231, 2681–264, set out disclaimers regarding construction of provisions of this chapter and subchapter. Such ection was formerly classified to section 458ff of this title prior to editorial reclassification and renumbering as section 5366.