[House Report 106-501]
[From the U.S. Government Publishing Office]
106th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 106-501
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INDIAN TRIBAL ECONOMIC DEVELOPMENT AND CONTRACT ENCOURAGEMENT ACT OF
1999
_______
February 29, 2000.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Young of Alaska, from the Committee on Resources, submitted the
following
R E P O R T
[To accompany S. 613]
[Including cost estimate of the Congressional Budget Office]
The Committee on Resources, to whom was referred the bill
(S. 613) to encourage Indian economic development, to provide
for the disclosure of Indian tribal sovereign immunity in
contracts involving Indian tribes, and for other purposes,
having considered the same, report favorably thereon without
amendment and recommend that the bill do pass.
Purpose of the Bill
The purpose of S. 613 is to encourage Indian economic
development, to provide for the disclosure of Indian tribal
sovereignty immunity in contracts involving Indian tribes, and
for other purposes.
Background and Need for Legislation
S. 613, the proposed Indian Tribal Economic Development and
Contract Encouragement Act of 1999, would amend existing law to
provide that no agreement or contract with an Indian tribe that
encumbers Indian lands for a period of seven or more years
shall be valid unless that agreement or contract is approved by
the Secretary of the Interior. The bill also provides that the
Secretary shall issue regulations for identifying the types of
agreements or contracts not covered by the aforementioned
requirement.
Section 81 of Title 25 of the United States Code, enacted
in 1872, is intended to protect Indians from improvident
contracts and is concerned primarily with federal control over
contracts between Indians tribes or individual Indians and non-
Indians. Over the decades many provisions of this law have come
to be antiquated and unnecessary. In 1958 Congress amended
Section 81 to remove the requirement that all such contracts be
executed in the presence of a judge. In 1982 Congress amended
Section 81 as it related to management agreements. In 1990
Congress amended Section 81 as it related to reservation-wide
plebiscites and exempted Self-Governance tribes from Section
81.
S. 613 eliminates a major portion of federal control
exercised pursuant to Section 81 by making federal approval
only applicable to certain contracts having a life of seven or
more years. In addition, S. 613 amends Section 16 of the Indian
Reorganization Act of 1934 (25 U.S.C. 476) by removing the
requirement that the choice of counsel and the fixing of fees
by a Tribe shall be subject to the approval of the Secretary of
the Interior.
Committee Action
S. 613 was introduced on March 15, 1999, by Senator Ben
Nighthorse Campbell (R-CO). The bill, as amended, was passed by
the Senate on September 15, 1999, by unanimous consent, and
referred to the Committee on Resources. On February 16, 2000,
the Resources Committee met to consider the bill. No amendments
were offered and the bill was ordered favorably reported to the
House of Representatives by voice vote.
Committee Oversight Findings and Recommendations
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Resources' oversight findings and recommendations
are reflected in the body of this report.
Constitutional Authority Statement
Article I, section 8 of the Constitution of the United
States grants Congress the authority to enact this bill.
Compliance With House Rule XIII
1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(3)(B)
of that Rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
2. Congressional Budget Act. As required by clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, this
bill does not contain any new budget authority, spending
authority, credit authority, or an increase or decrease in
revenues or tax expenditures.
3. Government Reform Oversight Findings. Under clause
3(c)(4) of rule XIII of the Rules of the House of
Representatives, the Committee has received no report of
oversight findings and recommendations from the Committee on
Government Reform on this bill.
4. Congressional Budget Office Cost Estimate. Under clause
3(c)(3) of rule XIII of the Rules of the House of
Representatives and section 403 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for this bill from the Director of the Congressional Budget
Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, February 29, 2000.
Hon. Don Young,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 613, the Indian
Tribal Economic Development and Contract Encouragement Act of
1999.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Lanette
Keith (for federal costs), and Marjorie Miller (for the state,
local, and tribal impact).
Sincerely,
Barry B. Anderson
(For Dan L. Crippen, Director).
Enclosure.
congressional budget office cost estimate
S. 613--Indian Tribal Economic Development and Contract Encouragement
Act of 1999
Summary: Based on information from the Department of the
Interior (DOI) and the Bureau of Indian Affairs (BIA), CBO
estimates that implementing S. 613 would reduce discretionary
costs for BIA by a total of about $2 million over the 2001-2005
period. The act would not affect direct spending or receipts;
therefore, pay-as-you-go procedures would apply. S. 613
contains an intergovernmental mandate as defined in the
Unfunded Mandates Reform Act (UMRA), but CBO estimates that
this mandate would not impose minimal costs that would be far
below the threshold established by that act ($55 million in
2000). Further, S. 613 would reduce the costs of an existing
mandate, more than offsetting any new mandate costs. This
legislation contains no new private-sector mandates as defined
in UMRA.
S. 613 would amend current law (25 U.S.C. 81) to remove
certain restrictions on contracts between Indian tribes and
other parties. This provision, known as section 81, requires
DOI's approval of all contracts involving payments between non-
Indians and Indians for services relative to Indian lands.
Under current law, any contract that is subject to this
provision and which is not approved by DOI can be declared null
and void. As amended by S. 613, section 81 would only require
approval of contracts that encumber Indian lands for a period
of at least seven years. S. 613 would prohibit DOI from
approving contracts that neither provide for remedies in the
case of a breach of contract nor explicitly disclose or waive
an Indian tribe's right to assert sovereign immunity as a
defense in an action brought against it. In addition, the act
would amend the Indian Reorganization Act to remove a
requirement that a tribe's choice of legal counsel and the fees
to be paid to such counsel be subject to DOI approval.
Estimated cost to the Federal Government: Based on
information from DOI and BIA, CBO expects that S. 613 would
reduce the number of contracts the department has to review
each year. CBO estimates that implementing this legislation
would reduce costs for BIA by between $300,000 and $400,000 in
each of fiscal years 2001 through 2005. Any reduction in total
BIA spending would be subject to appropriate action.
Pay-as-you-go considerations: None.
Estimated impact on state, local, and tribal governments:
Section 81 currently imposes a mandate on tribes to submit
certain contracts for approval by the Secretary of the
Interior. S. 613 would greatly reduce the number of contracts
requiring approval, thus reducing the cost to tribes of the
existing mandate. But under this legislation, a tribe entering
into a covered contract would have to include a specific
statement regarding its sovereign immunity. This is an
additional enforceable duty imposed on tribes, and so would
constitute an intergovernmental mandate under UMRA. The cost of
this mandate would be minimal, however. It would not affect the
rights of either party under such contracts, but would only
require that these rights be explicitly stated.
Estimated impact on the private sector: S. 613 contains no
new private-sector mandates as defined in UMRA.
Previous CBO estimate: On July 9, 1999, CBO prepared a cost
estimate for S. 613 as ordered reported by the Senate Committee
on Indian Affairs on June 16, 1999. Our cost estimates for
these two versions of the legislation are the same.
Estimate prepared by: Federal Costs: Lanette Keith; Impact
on State, Local, and Tribal Governments: Marjorie Miller.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
Compliance With Public Law 104-4
This bill contains no unfunded mandates.
Preemption of State, Local or Tribal Law
This bill is not intended to preempt any State, local or
tribal law.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
SECTION 2103 OF THE REVISED STATUTES
[Sec. 2103. No agreement shall be made by any person with any
tribe of Indians, or individual Indians not citizens of the
United States, for the payment or delivery of any money or
other thing of value, in present or in prospective, or for the
granting or procuring any privilege to him, or any other person
in consideration of services for said Indians relative to their
lands, or to any claims growing out of, or in reference to,
annuities, installments, or other moneys, claims, demands, or
thing, under laws or treaties with the United States, or
official acts of any officers thereof, or in any way connected
with or due from the United States, unless such contract or
agreement be executed and approved as follows:
[First. Such agreement shall be in writing, and a duplicate
of it delivered to each party.
[Second. It shall bear the approval of the Secretary of the
Interior and the Commissioner of Indian Affairs indorsed upon
it.
[Third. It shall contain the names of all parties in
interest, their residence and occupation; and if made with a
tribe, by their tribal authorities, the scope of authority and
the reason for exercising that authority, shall be given
specifically.
[Fourth. It shall state the time when and place where made,
the particular purpose for which made, the special thing or
things to be done under it, and, if for the collection of
money, the basis of the claim, the source from which it is to
be collected, the disposition to be made of it when collected,
the amount or rate per centum of the fee in all cases; and if
any contingent matter or condition constitutes a part of the
contract or agreement, it shall be specifically set forth.
[Fifth. It shall have a fixed limited time to run, which
shall be distinctly stated.
[All contracts or agreements made in violation of this
section shall be null and void, and all money or other thing of
value paid to any person by any Indian or tribe, or any one
else, for or on his or their behalf, on account of such
services, in excess of the amount approved by the Commissioner
and Secretary for such services, may be recovered by suit in
the name of the United States in any court of the United
States, regardless of the amount in controversy; and one-half
thereof shall be paid to the person suing for the same, and the
other half shall be paid into the Treasury for the use of the
Indian or tribe by or for whom it was so paid.]
Sec. 2103. (a) In this section:
(1) The term ``Indian lands'' means lands the title
to which is held by the United States in trust for an
Indian tribe or lands the title to which is held by an
Indian tribe subject to a restriction by the United
States against alienation.
(2) The term ``Indian tribe'' has the meaning given
that term in section 4(e) of the Indian Self-
Determination and Education Assistance Act (25 U.S.C.
450b(e)).
(3) The term ``Secretary'' means the Secretary of the
Interior.
(b) No agreement or contract with an Indian tribe that
encumbers Indian lands for a period of 7 or more years shall be
valid unless that agreement or contract bears the approval of
the Secretary of the Interior or a designee of the Secretary.
(c) Subsection (b) shall not apply to any agreement or
contract that the Secretary (or a designee of the Secretary)
determines is not covered under that subsection.
(d) The Secretary (or a designee of the Secretary) shall
refuse to approve an agreement or contract that is covered
under subsection (b) if the Secretary (or a designee of the
Secretary) determines that the agreement or contract--
(1) violates Federal law; or
(2) does not include a provision that--
(A) provides for remedies in the case of a
breach of the agreement or contract;
(B) references a tribal code, ordinance, or
ruling of a court of competent jurisdiction
that discloses the right of the Indian tribe to
assert sovereign immunity as a defense in an
action brought against the Indian tribe; or
(C) includes an express waiver of the right
of the Indian tribe to assert sovereign
immunity as a defense in an action brought
against the Indian tribe (including a waiver
that limits the nature of relief that may be
provided or the jurisdiction of a court with
respect to such an action).
(e) Not later than 180 days after the date of enactment of
the Indian Tribal Economic Development and Contract
Encouragement Act of 2000, the Secretary shall issue
regulations for identifying types of agreements or contracts
that are not covered under subsection (b).
(f) Nothing in this section shall be construed to--
(1) require the Secretary to approve a contract for
legal services by an attorney;
(2) amend or repeal the authority of the National
Indian Gaming Commission under the Indian Gaming
Regulatory Act (25 U.S.C. 2701 et seq.); or
(3) alter or amend any ordinance, resolution, or
charter of an Indian tribe that requires approval by
the Secretary of any action by that Indian tribe.
SECTION 16 OF THE ACT OF JUNE 19, 1934
Sec. 16. (a) * * *
* * * * * * *
(e) In addition to all powers vested in any Indian tribe or
tribal council by existing law, the constitution adopted by
said tribe shall also vest in such tribe or its tribal council
the following rights and powers: To employ legal counsel[, the
choice of counsel and fixing of fees to be subject to the
approval of the Secretary]; to prevent the sale, disposition,
lease, or encumbrance of tribal lands, interests in lands, or
other tribal assets without the consent of the tribe; and to
negotiate with the Federal, State, and local governments. The
Secretary shall advise such tribe or its tribal council of all
appropriation estimates or Federal projects for the benefit of
the tribe prior to the submission of such estimates to the
Office of Management and Budget and the Congress.
* * * * * * *