[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 1797 Introduced in Senate (IS)]







105th CONGRESS
  2d Session
                                S. 1797

  To reduce tobacco use by Native Americans and to make the proposed 
 tobacco settlement applicable to tobacco-related activities on Indian 
                                 lands.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 19, 1998

 Mr. Campbell introduced the following bill; which was read twice and 
              referred to the Committee on Indian Affairs

_______________________________________________________________________

                                 A BILL


 
  To reduce tobacco use by Native Americans and to make the proposed 
 tobacco settlement applicable to tobacco-related activities on Indian 
                                 lands.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Reduction in Tobacco Use and 
Regulation of Tobacco Products in Indian Country Act of 1998''.

SEC. 2. FINDINGS AND PURPOSES.

    (a) Findings.--Congress finds that--
            (1) Native Americans have used tobacco products for 
        recreational, ceremonial, and traditional purposes for 
        centuries;
            (2) the sale, distribution, marketing, advertising, and use 
        of tobacco products are activities substantially affecting 
        commerce among the States and the Indian tribes and, as such, 
        have a substantial effect on the economy of the United States;
            (3) the sale, distribution, marketing, advertising, and use 
        of tobacco products are activities substantially affecting 
        commerce by virtue of the health care-related and other costs 
        that Federal, State, and tribal governmental authorities have 
        incurred because of the usage of tobacco products;
            (4) the sale, distribution, marketing, advertising, and use 
        of tobacco products on Indian lands are activities which 
        materially and substantially affect the health and welfare of 
        members of Indian tribes and tribal organizations;
            (5) the use of tobacco products is a serious and growing 
        public health problem, with impacts on the health and well-
        being of Native Americans;
            (6) the use of tobacco products in Native communities is 
        particularly serious with staggering rates of smoking in Native 
        American communities;
            (7) enhancing existing legal mechanisms for the protection 
        of public health are inadequate to deal effectively with the 
        use of tobacco products; and
            (8) enhancing prevention, research, and treatment resources 
        with respect to tobacco will allow Indian tribes to address 
        more effectively the problems associated with the use of 
        tobacco products.
    (b) Purposes.--It is the purpose of this Act to--
            (1) provide for the implementation of any national tobacco 
        legislation with respect to the regulation of tobacco products 
        and other tobacco-related activities on Indian lands;
            (2) recognize the historic Native American traditional and 
        ceremonial use of tobacco products, and to preserve and protect 
        the cultural, religious, and ceremonial uses of tobacco by 
        members of Indian tribes;
            (3) recognize and respect Indian tribal sovereignty and 
        tribal authority to make and enforce laws regarding the 
        regulation of tobacco distributors and tobacco products on 
        Indian lands;
            (4) ensure that the necessary funding is made available to 
        tribal governments for licensing and enforcement of tobacco 
        distributors and tobacco products on Indian lands;
            (5) ensure that the necessary funding is made available to 
        tribal governments to treat tobacco-related illnesses and 
        alleviate the epidemic of tobacco abuse by Native Americans;
            (6) reduce the marketing of tobacco products to, and reduce 
        the rate of smoking by, young Native Americans; and
            (7) decrease tobacco use by Native Americans by encouraging 
        public education and smoking cessation programs.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Commerce.--The term ``commerce'' means--
                    (A) commerce between any State, Indian tribe, or 
                tribal organization, the District of Columbia, the 
                Commonwealth of Puerto Rico, the Virgin Islands, 
                American Samoa, the Mariana Islands, or any territory 
                or possession of the United States;
                    (B) commerce between points in any State, Indian 
                tribe, or tribal organization, the District of 
                Columbia, the Commonwealth of Puerto Rico, the Virgin 
                Islands, America Samoa, the Mariana Islands, or any 
territory or possession of the United States; and
                    (C) commerce wholly within the District of 
                Columbia, the Commonwealth of Puerto Rico, the Virgin 
                Islands, American Samoa, the Mariana Islands, or any 
                territory or possession of the United States.
            (2) Consent decree.--The term ``consent decree'' means a 
        consent decree executed by 1 or more participating 
        manufacturers and a State or an Indian tribe or tribal 
        organization pursuant to the provisions of any Act enacted in 
        order to give effect to the national tobacco settlement 
        agreement of June 20, 1997.
            (3) Court.--The term ``court'' means any judicial or agency 
        court, forum, or tribunal within the United States, including 
        any Federal, State, or tribal court.
            (4) Distributor.--The term ``distributor'' means any person 
        who furthers the distribution of tobacco or tobacco products, 
        whether domestic or imported, at any point from the original 
        place of manufacture to the person who sells or distributes the 
        product to individuals for second consumption. Such term shall 
        not include common carriers.
            (5) Indian lands.--The term ``Indian lands'' has the 
        meaning given the term ``Indian country'' by section 1151 of 
        title 18, United States Code, and includes lands under the 
        jurisdiction of an Indian tribe or tribal organization.
            (6) Indian tribe.--The term ``Indian tribe'' has the 
        meaning given such term in section 4(e) of the Indian Self 
        Determination and Education Assistance Act (25 U.S.C. 450b(e)).
            (7) Manufacturer.--
                    (A) In general.--The term ``manufacturer'' means--
                            (i) a person who directly (not through a 
                        subsidiary or affiliate) manufactures tobacco 
                        products for sale in the United States;
                            (ii) a successor or assign of a person 
                        described in subparagraph (A);
                            (iii) an entity established by a person 
                        described in subparagraph (A);
                            (iv) an entity to which a person described 
                        in subparagraph (A) directly or indirectly 
                        makes a fraudulent conveyance after the date of 
                        enactment of this Act, or any Act to amend the 
                        Federal Food, Drug, and Cosmetic Act (21 U.S.C. 
                        321 et seq.) in order to give effect to the 
                        national tobacco settlement agreement of June 
                        20, 1997, or a transfer that would otherwise be 
                        voidable under chapter 7 of title 11, United 
                        States Code, but only to the extent of the 
                        interest or obligation transferred.
                    (B) Limitation.--The term ``manufacturer'' shall 
                not include a parent or affiliate of a person who 
                manufactures tobacco products unless such parent or 
                affiliate itself is a person described in subparagraphs 
                (A).
            (8) Person.--The term ``person'' means an individual, 
        partnership, corporation, or any other business or legal 
        entity.
            (9) Point of sale.--The term ``point of sale'' means any 
        location at which an individual can purchase or otherwise 
        obtain tobacco products for personal, non-traditional 
        consumption.
            (10) Retailer.--The term ``retailer'' means any person who 
        sells tobacco products to individuals for personal consumption, 
        or who operates a facility where vending machines or self-
        service displays are permitted.
            (11) Sale.--The term ``sale'' includes the selling, 
        providing samples of, or otherwise making tobacco products 
        available for personal consumption in any place or location as 
        permitted under law.
            (12) Secretary.--Unless otherwise provided, the term 
        ``Secretary'' means the Secretary of Health and Human Services.
            (13) State.--The term ``State'' includes the several 
        States, the District of Columbia, the Commonwealth of Puerto 
        Rico, the Virgin Islands, America Samoa, the Mariana Islands, 
        or any territory or possession of the United States. Such term 
        also includes any political subdivision of any State.
            (14) Tobacco.--The term ``tobacco'' means tobacco in its 
        unmanufactured form.
            (15) Tobacco product.--The term ``tobacco product'' means 
        cigarettes, cigarette tobacco, and smokeless tobacco.
            (16) Tobacco trust fund.--The term ``tobacco trust fund'' 
        means any national tobacco settlement trust fund established 
        under any Act enacted in order to give effect to the national 
        tobacco settlement agreement of June 20, 1997.
            (17) Tribal organization.--The term ``tribal organization'' 
        has the meaning given such term in section 4(e) of the Indian 
Self Determination and Education Assistance Act (25 U.S.C. 45Ob(e)).
            (18) Voluntary cooperative agreement.--The term ``voluntary 
        cooperative agreement'' means any agreement, contract, compact, 
        memorandum of understanding, or similar agreement.

SEC. 4. APPLICATION OF TOBACCO-RELATED PROVISIONS TO NATIVE AMERICANS.

    (a) In General.--The provisions of any Act enacted in order to give 
effect to the national tobacco settlement agreement of June 20, 1997 
shall apply to the manufacture, distribution, or sale of tobacco or 
tobacco products within the exterior boundaries of Indian reservations 
or on lands within the jurisdiction of an Indian tribe or tribal 
organization.
    (b) Traditional Use Exception.--
            (1) In general.--In recognition of the religious, 
        ceremonial, and traditional uses of tobacco and tobacco 
        products by Indian tribes and the members of such tribes, 
        nothing in this Act (or any Act enacted to give effect to the 
        national tobacco settlement agreement of June 20, 1997) shall 
        be construed to infringe upon the right of such tribes or 
        members of such tribes to acquire, possess, use, or transfer 
        any tobacco or tobacco products for such purposes.
            (2) Application of provisions.--Paragraph (1) shall apply 
        only to those quantities of tobacco or tobacco products 
        necessary to fulfill the religious, ceremonial, or traditional 
        purposes of an Indian tribe or the members of such tribe, and 
        shall not be construed to permit the general marketing of 
        tobacco or tobacco products in a manner that is not in 
        compliance with chapter IX of the Federal Food, Drug, and 
        Cosmetic Act.
            (3) Limitation.--Nothing in this Act (or any Act enacted to 
        give effect to the national tobacco settlement agreement of 
        June 20, 1997) shall be construed to permit an Indian tribe or 
        member of such a tribe to acquire, possess, use, or transfer 
        any tobacco or tobacco product in violation of section 2341 of 
        title 18, United States Code, with respect to the 
        transportation of contraband cigarettes.
    (c) Payments to Tobacco Trust Fund.--Any Indian tribe or tribal 
organization that engages in the manufacture of tobacco products shall 
be subject to liability for any fee payments that are levied on other 
manufacturers for purposes of any tobacco trust fund. Any Indian tribe 
or tribal organization that does not pay such fees shall be considered 
a nonparticipating manufacturer and shall be subject to surcharges made 
applicable to such nonparticipating manufacturers under any Act enacted 
to give effect to the national tobacco settlement agreement of June 20, 
1997.
    (d) Application of Federal Food, Drug, and Cosmetic Act 
Requirements.--
            (1) In general.--The Secretary, in consultation with the 
        Secretary of Interior, shall promulgate regulations to provide 
        for the waiver of any requirement of the Food, Drug, and 
        Cosmetic Act (21 U.S.C. 321 et seq.) with respect to tobacco 
        products manufactured, distributed, or sold within the exterior 
        boundaries of Indian reservations or on lands within the 
        jurisdiction of an Indian tribe as appropriate to comply with 
        this section.
            (2) Jurisdiction.--With respect to tobacco-related 
        activities that take place within the exterior boundaries of 
        Indian reservations or on lands within the jurisdiction of an 
        Indian tribe, the responsibility for enforcing the regulations 
        promulgated pursuant to paragraph (1) shall be vested in--
                    (A) the Indian tribe or the tribal organization 
                involved;
                    (B) the State within which the lands of the Indian 
                tribe or tribal organization are located, pursuant to a 
                voluntary cooperative agreement entered into by the 
                State and the Indian tribe or tribal organization; or
                    (C) the Secretary.
            (3) Eligibility for assistance.--Under the regulations 
        promulgated under paragraph (1), the Secretary, in consultation 
        with the Secretary of the Interior, shall provide assistance to 
        an Indian tribe or tribal organization in meeting and enforcing 
        the requirements under such regulations if--
                    (A) the tribe or tribal organization has a 
                governing body that has powers and carries out duties 
                that are similar to the powers and duties of State or 
                local governments;
                    (B) the functions to be exercised through the use 
                of such assistance relate to activities conducted 
                within the exterior boundaries of Indian reservations 
                or on lands within the jurisdiction of the tribe or 
                tribal organization involved; and
                    (C) the tribe or tribal organization is reasonably 
                expected to be capable of carrying out the functions 
                required by the Secretary.
            (4) Determinations.--Not later than 60 days after the date 
        on which an Indian tribe or tribal organization submits an 
        application for assistance under paragraph (3), the Secretary 
        shall make a determination concerning the eligibility of such 
        tribe or organization for such assistance.
            (5) Implementation by the secretary.--If the Secretary 
        determines that the Indian tribe or tribal organization is not 
        willing or not qualified to administer the requirements of the 
        regulations promulgated under this subsection, the Secretary, 
        in consultation with the Secretary of the Interior, shall 
        implement and enforce such regulations on behalf of the tribe 
        or tribal organization.
            (6) Deficient applications; opportunity to cure.--If the 
        Secretary determines under paragraph (4) that a tribe is not 
        eligible for assistance under this subsection, the Secretary 
        shall--
                    (A) submit to such tribe or organization, in 
                writing, a statement of the reasons for such 
                determination; and
                    (B) shall assist such tribe in overcoming any 
                deficiencies that resulted in the determination of 
                ineligibility.
        After an opportunity to review and cure such deficiencies, the 
        tribe or organization may re-apply to the Secretary for 
        assistance under this subsection.
    (e) Retail Licensing Requirements.--
            (1) In general.--The requirements of the Federal Food, 
        Drug, and Cosmetic Act (21 U.S.C. 321 et seq.), or any Act 
        enacted in order to give effect to the national tobacco 
        settlement agreement of June 20, 1997, with respect to the 
        licensing of tobacco retailers shall apply to retailers that 
        sell tobacco or tobacco products within the exterior boundaries 
        of Indian reservations or on lands within the jurisdiction of 
        an Indian tribe or tribal organization.
            (2) Minimum federal standards.--
                    (A) In general.--Not later than 180 days after the 
                date of enactment of this Act, the Secretary shall 
                promulgate regulations to authorize an Indian tribe or 
                tribal organization to implement a tribal tobacco 
                product licensing program within Indian reservations or 
                on lands within the jurisdiction of an Indian tribe or 
                tribal organization.
                    (B) Model state law.--The terms, conditions, and 
                standards contained in the model State law contained in 
                any Act enacted to give effect to the national tobacco 
                settlement agreement of June 20, 1997 shall constitute 
                the minimum Federal regulations that an Indian tribe or 
                tribal organization must enact in order to assume 
                responsibility for the licensing and regulation or 
                tobacco-related activities conducted within the 
                exterior boundaries of Indian reservations or on lands 
                within the jurisdiction of an Indian tribe or tribal 
                organization.
                    (C) Waiver.--An Indian tribe or tribal organization 
                shall have the same right to apply for waiver and 
                modification of the law described in subparagraph (B) 
                as a State pursuant to the Act involved.
            (3) Implementation by the secretary.--If the Secretary, in 
        consultation with the Secretary of the Interior, determines 
        that the Indian tribe or tribal organization is not qualified 
        to administer the relevant requirements of the Federal Food, 
        Drug, and Cosmetic Act (21 U.S.C. 321 et seq.) or any Act 
        enacted in order to give effect to the national tobacco 
        settlement agreement of June 20, 1997, the Secretary, in 
        consultation with the Secretary of the Interior, shall 
        implement such requirements on behalf of the Indian tribe or 
        tribal organization.
    (f) Eligibility for Public Health Payments.--
            (1) Grant.--
                    (A) In general.--For each fiscal year the Secretary 
                shall award a grant to each Indian tribe or tribal 
                organization that has an approved anti-smoking plan for 
                the fiscal year involved under paragraph (2) in an 
                amount equal to the amount determined under paragraph 
                (3).
                    (B) Reduction in state amounts.--With respect to 
                any State in which the service area or areas of an 
                Indian tribe or tribal organization that receives a 
                grant under subparagraph (A) are located, the Secretary 
                shall reduce the amount otherwise payable to such 
                State, under any Act enacted in order to give effect to 
                the national tobacco settlement agreement of June 20, 
                1997, by the amount of such grant.
            (2) Tribal plans.--To be eligible to receive a grant under 
        paragraph (1), an Indian tribe or tribal organization shall 
        prepare and submit to the Secretary an anti-smoking plan and 
        shall otherwise meet the requirements of subsection (e). The 
        Secretary shall promulgate regulations providing for the form 
and content of anti-smoking plans to be submitted under this paragraph.
            (3) Amount determined.--Except as provided in this 
        subsection, the amount of any grant for which an Indian tribe 
        or tribal organization is eligible under paragraph (1) shall be 
        determined by the Secretary based on the product of--
                    (A) the ratio of the total number of individual 
                residing on or in such tribe's or tribal organization's 
                reservation, jurisdictional lands, or the active user 
                population, relative to the total population of the 
                State involved; and
                    (B) the amount allocated to the State for such 
                public health purposes.
            (4) Use.--Amounts provided to a tribe or tribal 
        organization under this subsection shall be used to reimburse 
        the tribe for smoking-related health expenditures, to further 
        the purposes of this Act or any Act enacted in order to give 
        effect to the national tobacco settlement agreement of June 20, 
        1997, and in accordance with a tribal anti-smoking plan 
        approved by the Secretary. Indian tribes and tribal 
        organizations shall have the flexibility to utilize such 
        amounts to meet the unique health care needs of persons within 
        their service populations within the context of tribal health 
        programs if such programs meet the fundamental Federal goals 
        and purposes of Federal Indian health care law and policy.
            (5) Reallotment.--Amounts set aside and not expended under 
        this subsection shall be reallotted among other eligible Indian 
        tribes and tribal organizations.
    (g) Obligations of Manufacturers.--Manufacturers participating in, 
or covered under this Act or any Act enacted in order to give effect to 
the national tobacco settlement agreement of June 20, 1997 shall not 
engage in any activity on lands within the jurisdiction of an Indian 
tribe or tribal organization that is prohibited by this Act or such 
other Act.
    (h) Use of Trust Fund Payments.--Amounts made available from the 
tobacco trust fund pursuant to any Indian health provisions of any Act 
enacted in order to give effect to the national tobacco settlement 
agreement of June 20, 1997 shall be provided to the Indian Health 
Service and, through the provisions of the Indian Self Determination 
and Education Assistance Act (25 U.S.C. 450b et seq.) to Indian tribes 
or tribal organizations to be used to reduce tobacco consumption, 
promote smoking cessation, and to fund related activities including--
            (1) clinic and facility design, construction, repair, 
        renovation, maintenance, and improvement;
            (2) health care provider services and equipment;
            (3) domestic and community sanitation associated with 
        clinic and facility construction and improvement;
            (4) inpatient and outpatient services; and
            (5) other programs and services which have as their goal 
        raising the health status of Indians.
    (i) Preemption.--
            (1) In general.--Except as otherwise provided in this 
        section, nothing in this Act of any Act enacted in order to 
        give effect to the national tobacco settlement agreement of 
        June 20, 1997, shall be construed to prohibit an Indian tribe 
        or tribal organization from imposing requirements, 
        prohibitions, penalties, or other measures to further the 
        purposes of this Act that are in addition to the requirements, 
        prohibitions, or penalties required by this Act or such other 
        Act.
            (2) Public exposure to smoke.--Nothing in this Act shall be 
        construed to preempt or otherwise affect any Indian tribe or 
        tribal organization rule or practice that provides greater 
        protections from the health hazards of environmental tobacco 
        smoke.
            (3) Native americans.--A State may not impose obligations 
        or requirements relating to the application of this Act or any 
        other Act enacted in order to give effect to the national 
        tobacco settlement agreement of June 20, 1997, to Indian tribes 
        and tribal organizations.
                                 <all>