[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 2909 Introduced in Senate (IS)]







106th CONGRESS
  2d Session
                                S. 2909

 To permit landowners to assert otherwise-available state law defenses 
               against property claims by Indian tribes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                July 24 (legislative day, July 21), 2000

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

_______________________________________________________________________

                                 A BILL


 
 To permit landowners to assert otherwise-available state law defenses 
               against property claims by Indian tribes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,
    Subchapter 1 of chapter 6 of title 25 is amended by inserting as 
Sec. 210 the following:

``SECTION 1. DEFENSES TO INDIAN CLAIMS.

    ``Except as provided in section 2, in any action or claim by or on 
behalf of an Indian tribe to enforce a real-property right, or 
otherwise asserting a claim of Indian title or right, the defendant may 
assert any affirmative defense that would be available under State law 
to a defendant opposing an analogous action or claim that does not 
involve an Indian tribe.

``SEC. 2. EXCEPTION FOR GOVERNMENTAL DEFENDANTS.

    ``Section 1 shall not apply to any action or claim against a 
governmental entity with respect to land that is located within 
sovereign Indian country.

``SEC. 3. RULE OF CONSTRUCTION.

    ``(a) Except as provided in subsection (b), this Act shall be 
construed and applied without regard to the interpretive judicial canon 
that remaining ambiguities should be resolved in favor of the Indians 
when standard tools of statutory construction leave no indication as to 
the meaning of an Indian treaty or statute.
    ``(b) Exception.--Subsection (a) shall not apply to judicial 
interpretation of an Indian treaty with respect to a determination of 
whether land was reserved or set aside by the Federal Government for 
the use of an Indian tribe as Indian land.

``SEC. 4. DEFINITIONS.

    ``(a) The term `Indian tribe', as used in this Act, means any 
tribe, band, nation, pueblo, village, or community that is recognized 
by the Secretary of the Interior pursuant to section 102 of the 
Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 
Sec. 479a).
    ``(b) The term `sovereign Indian country' means land--
            ``(1) that is rightfully owned by, or is held in trust by 
        the Federal Government for, an Indian tribe;
            ``(2) that was reserved or set aside for the use of the 
        Indian tribe as Indian land by the Federal Government, and is 
        either--
                    ``(A) outside the exterior geographical limits of 
                any State; or
                    ``(B) within the exterior geographical limits of a 
                State that subsequently either--
                            ``(i) acknowledged Indian title to the land 
                        involved when the land was made a part of the 
                        State, if that State be one of the original 13 
                        States to form the United States; or
                            ``(ii) provided, either in the Act 
                        providing for the State's admission to the 
                        United States or in the State's first 
                        constitution, that all lands held by Indians 
                        within the State shall remain under the 
                        jurisdiction and control of the United States, 
                        in accordance with article I, section 8, clause 
                        17 of the Constitution of the United States, if 
                        that State were admitted to the United States 
                        after 1790; and
            ``(3) for which the Indian title has not been extinguished 
        or the jurisdictional reservation revoked.

``SEC. 5. ATTORNEYS FEES.

    ``(a) Except as provided in subsection (b), in any action or 
proceeding that is subject to this Act, the court shall allow the 
prevailing party a reasonable attorney's fee with respect to a claim 
presented by the opposing party that was frivolous, unreasonable, or 
without foundation, or that the opposing party continued to litigate 
after it clearly became so.
            ``(1) A claim shall be deemed legally frivolous, 
        unreasonable, or without foundation only if it rests upon a 
        legal theory that was clearly unavailable under existing case 
        law.
            ``(2) A claim shall be deemed factually frivolous, 
        unreasonable, or without foundation only if its proponent knew 
        or should have known of those facts that would require judgment 
        for the opposing party as a matter of law.
    ``(b) Exception.--No attorney's fee shall be assessed under 
subsection (a) against an Indian tribe seeking to enforce a right to an 
interest in land if the court determines that the land involved is 
located within sovereign Indian country.

``SEC. 6. TIMING OF APPLICATION.

    ``This Act shall apply to any action, claim, or right described in 
section 1 that is pending, filed, or continuing on or after the date of 
enactment of this Act, other than a final money-damages judgment to 
which no one has a right to raise a challenge by any available 
procedure.
                                 <all>